The Supreme Court upheld the federal government's 19th-century treaty with the Montana-based Crow Tribe this week, in what community advocates and legal experts are heralding as a victory for Native American rights. The case reaffirms the Constitutional supremacy of treaty rights signed between the United States and Native nations, amid continued standoffs between tribal and state administrations over the historic agreements.
On Monday, the court ruled 5–4 to uphold an 1868 treaty between the United States and the Crow Tribe, now located in southern Montana, by which the tribe relinquished ancestral lands in what would become northern Wyoming but maintained rights to hunt and fish there. A lower court ruling had convicted Crow Tribe member Clayvin Herrera for off-season hunting on Wyoming public lands.
Wyoming had argued that the treaty that allowed Herrera access to the lands had specified that Crow Tribe members could hunt and fish in "unoccupied lands," and thus became invalidated when Wyoming achieved statehood in 1890. The state "argued that the treaty right was terminated when it entered the Union, claiming that all lands in Wyoming were legally 'occupied,'" explains director of the Michigan State University Indigenous Law & Policy Center Matthew Fletcher.
Trump administration appointee Neil Gorsuch joined liberal justices to rule in favor of upholding the treaty. In his short tenure in the Supreme Court, Gorsuch has repeatedly ruled in favor of Native American rights.
Monday's ruling reversed an 1896 Supreme Court decision, Ward v. Race Horse, "which states like Wyoming had claimed supported their efforts to fight treaty rights," Fletcher says. In the 1896 case, the Supreme Court ruled against the Bannock Tribe's treaty rights to hunt off their official reservation grounds, finding that statehood had exempted Wyoming from it. "Race Horse held that Wyoming's admission to the Union terminated treaty rights in that state. The Court never followed that case in any other state, and now it apparently never will."
In his dissenting opinion, Justice Samuel Alito writes that the majority ruling was "not a model of clarity" and that it "takes a puzzling course." Alito argues that, contrary to the majority's findings, another case involving hunting on Wyoming public lands, Crow Tribe of Indians v. Repsis, does preclude Herrera and the Crow Tribe from exercising their treaty rights.
"The decision today was a very good decision that recognizes that the Crow Tribe's treaty guaranteed hunting rights continue to exist today," says Joel West Williams, senior staff attorney at the Native American Rights Fund, which represented the Crow Tribe as an amicus curiae before the justices. The fact that the justices voted so narrowly to uphold the government's historic commitments "wasn't surprising to me," West Williams says. "Just because of the oral arguments and how I perceived some of the Justices' concerns that were being raised during oral arguments."
Support for Native American sovereignty and rights has been increasingly politicized under the administration of President Donald Trump, who has long clashed with Native American nations, most recently over comments that mocked the United States' historic genocide of their ancestors. While Gorsuch voted to uphold the Crow Tribe treaty on Monday, Trump's other Supreme Court appointee, Brett Kavanaugh, ruled with the conservative justices against honoring it.
Analysts of Native American legal affairs also applauded the decision. "This victory today was a great victory for Indian Country," says Robert J. Miller, an Arizona State University law professor specializing in federal law involving Native American Nations. Miller, a citizen of the Shawnee Tribe of Oklahoma, has studied treaty rights for several decades. He explained that there are 375 federally recognized tribes that entered into treaties with the U.S. government from 1778 to 1871—including his own nation, which entered into 11 such treaties. As in the case of the Crow Tribe, treaties sometimes maintain certain hunting, fishing, and gathering rights for Native American Nations on their ancestral lands. Other such treaties promise tribes that the federal government will offer them educational and health facilities.
Monday's ruling served as a major reaffirmation of the rights reserved by Native American nations in the treaties. "Indian treaty rights are the core of modern tribal sovereignty," Fletcher says. "This case supports the notion that Indian treaty rights survive into the 21st century, although tribal interests prevailed by one narrow vote."
Herrera engaged in one of the three ways Miller says Native Americans can assert their Constitutionally preserved treaty rights: The first is lobbying. "We call this 'name and shame,' calling [U.S. authorities] out for not upholding these promises," Miller says. The second are lawsuits, in which Native American nations or nation members "sue for breach of treaty promises." The last is what Herrera did—"exercise your treaty right and take the risk of being arrested."*
"That's a risky way to use your right, but it's one way to exercise it," Miller explains.
Treaty rights are preserved by the Constitution, experts observe. "Most people do not realize that treaties are contracts and are considered 'the supreme law of the land,'" says Walter Fleming, a Native American studies professor at Montana State University. "The purpose of a treaty is not to grant rights but to remove rights they already possess, as sovereign nations. Any right not expressly extinguished by a treaty or federal statue is reserved to the tribes."
As in the Wyoming case, it is frequently state and Native national governments who find themselves at odds over treaty provisions. "I would say it's common for there to be disputes between tribes and states regarding a tribe's treaty rights," West Williams says. "In this decision, one of the arguments that is brought up frequently is that through a state being admitted into the union, that that by itself displaces Indian treaty rights. The court today said very clearly that that's not the case."
*Update—May 22nd, 2019: This article has been updated to correct a quotation of Robert J. Miller.