Supreme Court sides with Native American hunter as Gorsuch joins liberals
S E E D E D C O N T E N T
The Supreme Court on Monday sided with a Wyoming hunter charged with off-season hunting, ruling 5-4 that a 150-year-old treaty between a Native American tribe and the United States was still active and protected the man's rights.
Clayvin Herrera was charged in 2014 with off-season hunting, but he argued that an 1868 treaty between the U.S. and the Crow Tribe — of which he is a member — protected his ability to hunt at that time.
Wyoming had argued that the treaty was invalidated when it achieved statehood and lower courts agreed, leading to Herrera's conviction on the hunting charge.
The court sided with Herrera and found that the treaty with the tribe did not expire when Wyoming became a state in 1890. They also ruled against Wyoming's argument that Bighorn National Forest, where Herrera was hunting, was not "unoccupied lands" as required under the treaty.
Wyoming had pointed to another Supreme Court ruling that found another Native American treaty ended when the state formally entered the union. However, Justice Sonia Sotomayor wrote the majority opinion that Herrera's case centered on another ruling that found "Congress 'must clearly express' any intent to abrogate Indian treaty rights."
"There is simply no evidence that Congress intended to abrogate the 1868 Treaty right through the Wyoming Statehood Act, much less the 'clear evidence' this Court's precedent requires," Sotomayor wrote. "Nor is there any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so."
Neil Gorsuch, one of two justices nominated to the court by President Trump, formed the majority by splitting with conservatives and joining the court's other four liberals — Sotomayor and Justices Ruth Bader Ginsburg, Stephen Breyer and Elana Kagan.
Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh opposed the ruling.
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Looks like Gorsuch may live up to his hype of actually knowing something 'bout Fed Indian Law.
Damn good decision.
Good to see that one of Trumps picks can think for themselves, and willing to do so when the case warrants it. As you said, good decision.
Gorsuch has done this a couple of times now. He is one that is well versed in Indian law, treaties (treaties being the highest law in the land) etc.
Decisions while he was on the fed bench in Colorado were a prelude to the type of decisions that you can expect from him on Indian matters.
That's great to know.
I didn't know that. Good to know and I feel the right decision.
It should have been a unanimous decision. Unlike a few misguided decisions, this decision does not create a new right. It simply means the US will live up to it's agreements made to native American tribes.
As for Justice Gorsuch, he continues to be fully consistent with his decisions from when he was a Federal Circuit Court Judge in Denver. Some may recall that he broke a tie in March in a case dealing with whether the Yakama Tribe had a right to use public roads and avoid taxes on goods brought to their reservation, based on the terms of a 164-year-old treaty.
Let's hope that he decides in the same direction when it's against a corporation rather than the state.
.
Those opposing - Roberts, Alito and Thomas - pretty much to be expected. Kavenaugh, unfortunately, I'm seeing as the waffle in upcoming cases.
What is interesting is that a couple of these cases have come up before and the state lost them on a SCOTUS decision and the other on the 4th Federal District Court decision.
The 1999 decision on the Mille Lac band of Chippewa Indian vs Minnesota...The Voight decision in Wisconsin in the mid 1970's and the following ''Walleye Wars'' in Wisconsin in the mid and late 1980's.
And of course the famous Boldt decision in the state of Washington...Ending the ''Fish Wars'' of the PNW.
The states keep trying to subvert legal treaties that the U.S. entered into with various native tribes.
The lack of knowledge of their own history is dumb founding. When the vast majority of states received their Statehood Acts, there was/is a clause that states treaty rights for the tribes/nations will be maintained - specifically including hunting, fishing, gathering.
The understatement of the year.
Gonna hafta read the opinions on this one really closely - something ain't right for those four to be in opposition. Have they even read the Constitution?
After reading the Petition for a writ of certiorari, it looks like the Wyoming judiciary is incompetent and/or they conveniently decided to ignore the laws about Federally owned land and the Federal Treaty with the Crow.
Read the decision of the Mille Lac Band of Chippewa Indians vs MN, 1999.
It is the exact same case as this one and the decision was 5-4....Guess who votes against Indian rights.
What I found was Gregory Ablavsky' "Opinion Analysis", which is very encouraging.
For Indian country more broadly, the court’s specific reasoning is less significant than its tone. The court’s repeated emphasis that treaty terms must be interpreted “in the sense in which they would naturally be understood by the Indians” reiterates a long-standing Indian law principle that recent Supreme Court decisions have sometimes honored in the breach. Perhaps most notably, Justice Neil Gorsuch’s willingness to break with the other conservative justices and join the court’s more liberal wing — hinted at in earlier Indian law decisions — may signal an emerging coalition in favor of the rights of Native nations.
Even Marshall, in his Trilogy, made the statement that the courts must review the cases as the tribes/nations would have understood the treaties to mean.
The part I don't understand is that Alito has ruled/voted for Native rights cases in the past, so what the hell happened in this one when it is almost so blatantly opposite the two cases he was trying to use as his justification.
I know you can't revisit SCOTUS decisions, but it appears Alito states that SCOTUS screwed up in their Race Horse decision. After all, he sez, both cases are identical. What he said is that SCOTUS ruled in the Race Horse case that when Wyoming became a state, all previous rights to the tribes were null and void. Wonder why the court didn't conduct a little bit more research and read the Statehood Act for Wyoming with all it's footnotes that state that the rights are still valid to the tribes.
Don't make sense.
The part I don't understand is that Alito has ruled/voted for Native rights cases in the
i would hope alito simply applies the law fairly, not decide cases based on how the parties are categorized.
This case hinges on the doctrine of preclusion, not “native rights”. The principles in a Supreme Court case have to apply to everyone.
"Native Rights" pertain to Treaty Rights and, as our Constitution states, rather emphatically by the way, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Those are our Native Rights and the courts have got to learn how to based their decisions involving Native American issues based on that fact.
Again, unfortunately under the Race Horse case, SCOTUS blew their decision and Alito is wanting to utilize Race Horse for preclusion???
I don't think so.
SCOTUS would best be served to read Felix Cohan book, ''Federal handbook for Indian law''...
Also note that Justice Scalia once said ''Indian Law, we make it up as we go along''....And Scalia voted against Indian cases over 70% of the time.
No it doesn't. ''Native Rights'' pertain to the treaty rights of treaties between the U.S. and various Indian nations. The U.S. Constitution is quite clear on treaty rights being the supreme law of the land.
You keep making that claim. How about supporting it.
Yes Sean, and what you seem desperate to ignore is that the whole fucking point of the SCOTUS it to review an issue that has already been litigated. Sheesh!
Hopefully, the worm has turned. After so many decades of fucked up decisions, perhaps the courts will demand that the Treaties be followed to the letter.
Jeezz Dulay, I certainly hope so.
I don't have a comment except to say, that is one awesome tat.
They're getting ready to add some color (red, yellow, white, black) next week.
Kinda like it.
I assume this is fake news since liberals assured us that Trump's picks could not be objective.
Or... did they lie?
Lie??? Never - just their compass.
I don't have a problem with my compass, do you?
Kavanaugh voted against Herrera so they didn't lie...
Do you have a comments on the merit of the case one way or the other?
And Kavanaugh voted against Apple. Do you have a point?
It certainly wasn't fake news so I guess that you don't have a point.
Do you have a comment on the merit of the case or is this just one of your drive by one liners...
I think it's pretty hilarious that you label those who voted for as objective. That infers those that voted against the hunter weren't and that includes the other 4 conservative judges.
This was not one to the issues that were in question. We'll see how Gorsuch votes on other issues.
I guess we'll see when a case comes up that Trump cares about. If Trump was Native American he would care but he's not so he doesn't.
Now, will the State of Wyoming pay Herrera's expense required to prove he was right and they were wrong?
Unfortunately, no.
That's unjust. He should have the right to sue them for his damages. America's bloody sick legal system will pay TENS of THOUSANDS of dollars to a Muslima because the NYPD took her hijab off and this righteous man gets fucked when he did nothing wrong.
He DOES have the right to sue for damages though IMHO he would loose. He was tried for a crime and found not guilty.
Would you like to compare America's legal system with China's?
Ya, America has this thing called the 1st Amendment which protects people's right to practice religion.
People spend millions every year defending themselves against criminal prosecution. I don't know of any country that pays a defendant's legal fees if they are found not guilty of a crime.
Actually, he's not totally off the hook:
"Monday’s ruling does not immediately void Herrera’s conviction because the state can still argue that the Bighorn National Forest location where he and others hunted bull elk in 2014 is not “unoccupied,” meaning he would not have been able to legally hunt there. "
Wyoming would have to prove that the area were he hunted is 'occupied', it isn't.
Secondly Wyoming would have to prove that there aren't enough elk to allow hunting in the Bighorn National Forest. Since Wyoming allows cows and calves to be hunted there, that would be a hard argument to make.
Um-hum you got that right.
it isn't.
Link please.
Secondly Wyoming would have to prove that there aren't enough elk to allow hunting in the Bighorn National Forest.
Are you sure they need both?
A quick review of a map of Bighorn National Forest will prove to you that there is no 'occupied' residences or settlements within MILES of the Montana/Wyoming border within Forest boundaries. The hunt took place about a mile inside of Wyoming.
I didn't say they did. I merely addressed the 2 issues remanded to the State court.
Anyone with eyes can assure themselves that Wyoming has no leg to stand on for 'occupation' so the only question is the viability of the Elk herd.
I posit that any herd that can withstand cows and calves being killed has no issues with viability. While they sell hundreds of hunting licenses for the area, Wyoming can't claim that the three Elk taken by the Crows had any effect on the conservation of the Elk herd in Wyoming.
I didn't expect you to find anything more than that, although I wanted to be certain that the area was unoccupied, it is after all government land.
With all of that I'm still wondering how this thing got so far? The state really had a very weak case, yet it got all the way to the SCOTUS.
This controversy was already litigated so the doctrine of preclusion should have ended the matter.
Good point.
The doctrine of preclusion is only for the parties in THAT particular litigation.
Perhaps next time you want to be certain about an issue, you could research it yourself.
Some western states, especially Wyoming are on a land grab power trip.
Wyoming Judges and the 10th circuit are all in on federal vs. state lands.
Perhaps, but then again, look at all the antagonistic camaraderie I would miss out on.
Some western states, especially Wyoming are on a land grab power trip.
Grabbing federal lands can't be easy
Keep up the good work.
Herrera's right to hunt is based upon his membership in the tribe. The tribe's right has already been litigated.
Though not to the level of the SCOTUS. There were 2 contradictory rulings and the SCOTUS decided to overturn the 10th ruling in the Wyoming case. That's how this shit works...
BTW, if the doctrine of preclusion was all that, Roe would be rock solid, wouldn't it?
I don't care enough about it enough to bother explaining, but those who are interested should just read Alito's dissent.
e doctrine of preclusion was all that, Roe would be rock solid, wouldn't it
No. precedent and preclusion are not the same thing.
I did, it's full of chuckles.
Whoosh, right over your head...