U.S. Supreme Court

Gorsuch joins with liberal justices in Supreme Court ruling for Indian tribe's hunting rights

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Neil Gorsuch

U.S. Supreme Court Justice Neil M. Gorsuch.

U.S. Supreme Court Justice Neil M. Gorsuch joined with four liberal justices on Monday in a ruling for a member of the Crow Tribe who was arrested for offseason hunting.

The Supreme Court ruled 5-4 that the Crow Tribe’s hunting rights, established in an 1868 treaty, did not expire when Wyoming became a state. Justice Sonia Sotomayor wrote the majority opinion.

This is the second time this term that Gorsuch has joined with liberals in a win for an Indian tribe, Bloomberg Law reports. In the first decision, issued March 19, Gorsuch joined a five-justice majority that found Washington state could not impose a fuel import tax on tribal-owned businesses, according to NPR and this Bloomberg Law story.

“On this conservative court, Gorsuch has been one of the most conservative voices,” NPR had reported in March. “But in cases involving Indian treaties and rights, he is most often counted among those sympathetic to Indian claims.”

The petitioner in the case decided Monday is Clayvin Herrera, a member of the Crow Tribe. He had invoked the 1868 treaty when he was arrested in 2014 for offseason hunting in the Bighorn National Forest in Wyoming. Herrera and other members of the tribe had crossed from the boundaries of the reservation into Bighorn while pursuing a group of elk.

In the 1868 treaty, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States for the right to hunt on unoccupied U.S. land.

The Supreme Court majority said the treaty survived Wyoming’s statehood. There is no evidence that Congress intended to revoke the 1868 treaty through the Wyoming Statehood Act, Sotomayor wrote. Nor is there evidence in the treaty itself that Congress intended the treaty right to expire at statehood.

The majority also found that the creation of the national forest didn’t categorically make it occupied land that was not subject to the treaty. On remand, Sotomayor said, Wyoming could still argue that the specific site on which Herrera was hunting elk was “occupied” within the meaning of the treaty.

Sotomayor also said the court was not addressing the viability of arguments that Wyoming could regulate the exercise of the treaty in the interest of conservation. On remand, the state could still make its conservation argument, Sotomayor said.

The dissent called the majority’s interpretation of the treaty “debatable” and questioned why the court ruled on the issue, given a 1995 decision that could still have binding effect. The majority “sidesteps” that issue and leaves it to lower courts to decide, according to the dissenting opinion by Justice Samuel A. Alito Jr.

The case is Herrera v. Wyoming.

Hat tip to SCOTUSblog.

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