Amicus Curiae Brief — Clayvin Herrera, Petitioner v. Wyoming

Supreme Court briefSep 11, 2018

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No. 17-532

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In The

Supreme Court of the United States

-----------------------------------------------------------------CLAYVIN B. HERRERA,

Petitioner,

STATE OF WYOMING,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

District Court Of Wyoming,

Sheridan County

-----------------------------------------------------------------BRIEF FOR THE NATIONAL CONGRESS

OF AMERICAN INDIANS, ET AL. AS AMICI

CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------JOHN DOSSETT

NATIONAL CONGRESS

OF AMERICAN INDIANS

1516 P Street NW

Washington, D.C. 20005

MARC D. SLONIM

Counsel of Record

BETH BALDWIN

ZIONTZ CHESTNUT

2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

mslonim@ziontzchestnut.com

Counsel for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

ADDITIONAL AMICI CURIAE

Bad River Band of the Lake Superior

Tribe of Chippewa (Wisconsin)

Bay Mills Indian Community (Michigan)

Fond du Lac Band of Lake Superior Chippewa (Minnesota)

Grand Traverse Band of Ottawa

and Chippewa Indians (Michigan)

Great Lakes Indian Fish and Wildlife

Commission (Michigan, Minnesota and Wisconsin)

Lac Courte Oreilles Band of Lake Superior

Chippewa Indians (Wisconsin)

Lac du Flambeau Band of Lake Superior

Chippewa Indians (Wisconsin)

Little River Band of Ottawa Indians (Michigan)

Keweenaw Bay Indian Community (Michigan)

Mille Lacs Band of Ojibwe (Minnesota)

Mole Lake Sokaogon Chippewa Community (Wisconsin)

Red Cliff Band of Lake Superior

Chippewa Indians (Wisconsin)

Sault Ste. Marie Tribe of Chippewa Indians (Michigan)

St. Croix Chippewa Indians of Wisconsin (Wisconsin)

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...........................

SUMMARY OF ARGUMENT ................................

ARGUMENT ...........................................................

I. IN ADOPTING ITS CLEARLY-CONTEMPLATED-EVENT STANDARD, THE WYOMING DISTRICT COURT MISREAD MILLE

LACS ............................................................

II. THE CROW TREATY EXPRESSLY IDENTIFIES THE CIRCUMSTANCES UNDER

WHICH THE HUNTING RIGHT TERMINATES AND STATEHOOD IS NOT AMONG

THEM ...........................................................

III.

THE STATE’S INTERESTS IN NATURAL

RESOURCES PROVIDE NO BASIS ON

WHICH TO IMPLY THAT THE CROW

HUNTING RIGHT TERMINATED AT

STATEHOOD ............................................... 13

IV.

THIS COURT’S CONSERVATION-NECESSITY

DOCTRINE RECONCILES OFF-RESERVATION HUNTING, FISHING AND GATHERING RIGHTS WITH STATE INTERESTS

AND CREATES INCENTIVES FOR TRIBES

TO CONSERVE NATURAL RESOURCES

IN COOPERATION WITH FEDERAL AND

STATE AGENCIES ..................................... 19

A. The Conservation-Necessity Standard ...

B. Tribal Regulation and Cooperative Management .................................................. 21

TABLE OF CONTENTS – Continued

Page

1. Great Lakes Fishing Rights in Michigan ................................................... 22

2. Hunting, Fishing and Gathering Rights

in Wisconsin ...................................... 24

3. Hunting, Fishing and Gathering Rights

in Minnesota ..................................... 29

4. Inland Hunting, Fishing and Gathering Rights in Michigan ..................... 30

5. Gathering Rights within the National Forests .................................... 32

CONCLUSION.............................................

iii

TABLE OF AUTHORITIES

Page

CASES

Antoine v. Washington, 420 U.S. 194 (1975) ...............20

Arizona v. California, 373 U.S. 546 (1963) .................17

Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 (1978) ........................................14

Choctaw Nation of Indians v. United States, 318

U.S. 423 (1943) ........................................................12

Crow Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995)..........................................................5

Dep’t of Game v. Puyallup Tribe, 414 U.S. 44

(1973) .......................................................................17

Dick v. United States, 208 U.S. 340 (1908) .................18

Geer v. Connecticut, 161 U.S. 519 (1896) ....................14

Hughes v. Oklahoma, 441 U.S. 322 (1979) ........... 13, 14

Hunt v. United States, 278 U.S. 96 (1928) ..................14

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .............11

Johnson v. Gearlds, 234 U.S. 422 (1914) ....................18

Kleppe v. New Mexico, 426 U.S. 529 (1976) .......... 13, 14

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 668 F. Supp. 1233 (W.D.

Wis. 1987) ................................................................21

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir.

1983), appeal dismissed and cert. denied sub

nom. Besadny v. Lac Courte Oreilles Band of

Lake Superior Chippewa Indians, 464 U.S.

805 (1983) ................................................................24

TABLE OF AUTHORITIES – Continued

Page

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 707 F. Supp. 1034

(W.D. Wis. 1989).......................................................26

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 775 F. Supp. 321

(W.D. Wis. 1991).......................................................25

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 769 F.3d 543 (7th

Cir. 2014) .................................................................29

Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, No. 74-cv-313-bbc,

2015 U.S. Dist. LEXIS 139294 (W.D. Wis. Oct.

13, 2015) ..................................................................29

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin,

843 F. Supp. 1284 (W.D. Wis. 1994) ........................25

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163

(1993) .......................................................................11

Light v. United States, 220 U.S. 523 (1911) .................9

Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024 (2014) ..............................................................12

Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784 (D. Minn. 1994), aff ’d,

124 F.3d 904 (8th Cir. 1997), aff ’d, 526 U.S.

172 (1999) .......................................................... 21, 29

Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362 (D. Minn. 1997) .................30

TABLE OF AUTHORITIES – Continued

Page

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) .................................. passim

Nebraska v. Parker, 136 S. Ct. 1072 (2016) ................12

O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994)........11

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392

(1968) ................................................................. 19, 20

Scott v. Lattig, 227 U.S. 229 (1913) ..............................9

Shively v. Bowlby, 152 U.S. 1 (1894)...........................15

Toomer v. Witsell, 334 U.S. 385 (1948)........................14

Tulee v. Washington, 315 U.S. 681 (1942) ............. 16, 19

United States v. Dion, 476 U.S. 734 (1986) ................12

United States v. Gratiot, 39 U.S. 526 (1840) ................9

United States v. Michigan, 653 F.2d 277 (6th Cir.

1981) .................................................................. 21, 23

United States v. Michigan, 424 F.3d 438 (6th Cir.

2005) ........................................................................23

United States v. Michigan, 471 F. Supp. 192 (W.D.

Mich. 1979), aff ’d in part and modified in

part, 653 F.2d 277 (6th Cir. 1981) ..................... 22, 23

United States v. Oregon, 295 U.S. 1 (1935) ..................9

United States v. Texas, 339 U.S. 707 (1950) .................9

United States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), substantially aff ’d, 520

F.2d 676 (9th Cir. 1975) ...........................................21

TABLE OF AUTHORITIES – Continued

Page

United States v. Winans, 198 U.S. 371

(1905) ..................................................... 14, 15, 16, 34

Ward v. Race Horse, 163 U.S. 504 (1896)............ passim

Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979) .........19

Winters v. United States, 207 U.S. 564 (1908) ............17

Wisconsin v. Hitchcock, 201 U.S. 202 (1906) ..............18

CONSTITUTIONAL PROVISIONS

U.S. Const. art. IV, § 3, cl. 2 ..........................................9

TREATIES

Treaty with the Crow Indians, 15 Stat. 649

(1868) .........................................................................5

STATUTES

Wis. Stat. § 175.41 ......................................................26

REGULATIONS

Chippewa Ottawa Resource Authority, Commercial, Subsistence and Recreational Fishing

Regulations for the 1836 Treaty Ceded Waters

of Lakes Superior, Huron, and Michigan (rev’d

April 3, 2017), available at http://www.1836

cora.org/wpcontent/uploads/2017/04/CORARegulations-Revised-April-3-2017.pdf ...................23

vii

TABLE OF AUTHORITIES – Continued

Page

Voigt Model Off-Reservation Conservation Code

(rev’d April 2018), available at http://www.

glifwc.org/Regulations/VoigtModelCode.2018.

internal.links.pdf ....................................................25

OTHER MATERIALS

2009 Wis. Senate J. Res. 40 (June 30, 2009) ..............27

Chippewa Intertribal Agreement Governing

Resource Management and Regulation of

Off-Reservation Treaty Rights in the Ceded

Territory (n.d.), available at https://www.

glifwc.org/Recognition_Affirmation/Intertribal_

CoManagement_Agreement.pdf .............................26

Elk (omashkooz in Ojibwe) Returning to Ceded

Territory, Mazina’igan (GLIFWC, Odanah, WI)

Fall 2017, available at http://www.glifwc.org/

Mazinaigan/Fall2017/index.html?page=12 ............28

GLIFWC, Admin Rep. 15-06, Manoomin (Wild

Rice) Abundance and Harvest in Northern

Wisconsin in 2013 (May 2015), available at

https://data.glifwc.org/archive.bio/Administrative

%20Report%2015-6.pdf ...........................................28

Mich. Dep’t of Natural Resources, 2007 Inland

Consent Decree FAQs, available at https://

www.michigan.gov/documents/dnr/2007_Inland_

Consent_Decree_FAQs_9.28.17_604502_7.pdf.... 30, 31

viii

TABLE OF AUTHORITIES – Continued

Page

MOU Regarding Tribal—USDA Forest Service

Relations on National Forest Lands within the

Ceded Territory in Treaties of 1836, 1837, and

1842 (March 2012), available at https://www.fs.

fed.us/spf/tribalrelations/documents/agreements/

mou_amd2012wAppendixes.pdf .............................32

Stipulation and Order (Consent Decree), United

States v. Michigan, No. 2:73-CV-26 (W.D. Mich.

Aug. 9, 2000), ECF No. 1458 ...................................23

Consent Decree, United States v. Michigan, No.

2:73-CV-26 (W.D. Mich. Nov. 5, 2007), ECF No.

1799 .........................................................................31

U.S. Dep’t of the Interior, Casting Light Upon

the Waters: A Joint Fishery Assessment of the

Wisconsin Ceded Territory (1991) ...........................26

U.S. Dep’t of the Interior, Fishery Status Update

in the Wisconsin Treaty Ceded Waters (6th

ed. 2013), available at https://www.glifwc.org/

publications/pdf/FisheryStatus2013.pdf ................27

INTEREST OF AMICI CURIAE1

The National Congress of American Indians (NCAI)

is the oldest and largest national organization addressing American Indian interests, representing more than

250 American Indian tribes and Alaskan Native villages. Since 1944, NCAI has advised tribal, state and

federal governments on a range of Indian issues, including the relevance and legal interpretation of treaties reserving off-reservation hunting, fishing and

gathering rights and the regulation of such reserved

rights under this Court’s conservation-necessity standard. The additional amici listed on the inside cover of

this brief comprise an intertribal organization and individual tribes, all of whom hold off-reservation hunting, fishing and gathering rights under pre-statehood

treaties. The additional amici recognize federal and

state authority to regulate the exercise of such rights

under the conservation-necessity standard, but, in

cooperation with the Federal Government and the

States, have elected to adopt and enforce their own

ordinances to conserve natural resources. Amici have

a direct and substantial interest in the preservation

of pre-statehood off-reservation hunting, fishing and

gathering rights and in the reconciliation of such

rights with federal and state interests in conservation.

-----------------------------------------------------------------1

No counsel for any party authored this brief in whole or in

part. No person or entity, other than amici, their members, and

their counsel provided any monetary contribution to fund the

preparation or submission of this brief. Petitioner and Respondent have consented to the filing of amicus briefs.

SUMMARY OF ARGUMENT

In the decision below, the District Court for Wyoming’s Fourth Judicial District interpreted this Court’s

decision in Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999). The Wyoming District

Court acknowledged that Mille Lacs had rejected the

holding in Ward v. Race Horse, 163 U.S. 504 (1896), that

hunting rights secured to an Indian tribe in a prestatehood treaty are terminated at statehood under

the equal footing doctrine. Pet. App. 23. However, the

Wyoming District Court read Mille Lacs to leave intact

an alternative holding from Race Horse under which

such rights are not intended to survive statehood if

they are subject to termination upon the happening of

a clearly contemplated event—even where, as here, the

clearly contemplated event itself is unrelated to statehood. See Pet. App. 23-24.

This brief addresses the Wyoming District Court’s

clearly-contemplated-event standard and shows that it

is based on a misreading of Mille Lacs and is inconsistent with more than a century of this Court’s decisions. First, it is contrary to the plain language of the

Crow Treaty at issue in this case. Like the Chippewa

Treaty at issue in Mille Lacs, the Crow Treaty “itself

defines the circumstances under which the rights

would terminate,” Mille Lacs, 526 U.S. at 207, and

statehood is not among them. The implication of additional, unrelated circumstances under which the

rights would terminate (such as statehood) rewrites

the treaty in defiance of rules of construction applicable to all treaties and statutes.

Second, as the Mille Lacs Court held, Race Horse’s

alternative holding that the Senate did not intend the

hunting right in the Bannock Treaty to survive statehood—even though the Treaty itself did not say so—

“was informed by that Court’s conclusion that the Indian treaty rights were inconsistent with state sovereignty over natural resources and thus that Congress

(the Senate) could not have intended the rights to survive statehood.” Id. at 207-08. However, as the Mille

Lacs Court explained, that was a “false premise,”

which had been rejected in more than a century of this

Court’s cases. Id. at 204. Those cases make clear that

the States share sovereign authority over natural resources with the Federal Government, and that, when

the Federal Government exercises one of its enumerated powers—including but not limited to its powers to

make treaties and regulate commerce with the Indian

tribes and to make laws regarding its property and territory—it does not infringe on the sovereign rights of

the States. Thus, there is no basis on which to infer

that the Senate intended the rights to terminate upon

statehood.

Third, as the Mille Lacs Court also explained,

id. at 204-05, this Court has reconciled Indian offreservation treaty rights with state interests in natural resources through the conservation-necessity doctrine. Under that doctrine, states may regulate the

exercise of off-reservation Indian hunting, fishing

and gathering rights when they can demonstrate

that such regulation, as applied to Indians, is reasonable and necessary to preserve natural resources. The

experience of the amici tribes in Michigan, Wisconsin

and Minnesota, described in detail below, demonstrates

that, although demanding, the conservation-necessity

standard has worked extremely well in practice: it has

led to effective tribal regulation of hunting, fishing and

gathering by tribal members and cooperative agreements among Tribes, States and the Federal Government that have improved the management of natural

resources for the benefit of Indians and non-Indians

alike. There is no reason to believe that recognition of

the Crow Tribe’s hunting rights will lead to any different result: either the Tribe will adopt and enforce its

own regulations to conserve natural resources (likely

in cooperation with the State) or the State will retain

the authority to regulate the exercise of the right upon

making a proper showing under the conservationnecessity doctrine (something it has not done in this

case).

Under these circumstances, it is not enough that

the hunting right in the Crow Treaty was tied to some

“clearly contemplated” event; unless that event was inextricably linked with statehood itself, there is no basis

on which to imply that either party to the Treaty intended the treaty right to terminate upon statehood—

as opposed to upon occurrence of a “clearly contemplated” event actually identified in the Treaty. As the

Mille Lacs Court held, “[t]reaty rights are not impliedly terminated upon statehood.” 526 U.S. at 207.

And, absent a clear link to statehood, the Wyoming

court’s clearly-contemplated-event standard is no different than the “temporary and precarious” standard

rejected in Mille Lacs because it is not “useful as a

guide to whether treaty rights were intended to survive statehood.” Id. at 207.

------------------------------------------------------------------

ARGUMENT

IN ADOPTING ITS CLEARLY-CONTEMPLATED-EVENT STANDARD, THE WYOMING

DISTRICT COURT MISREAD MILLE LACS.

Article 4 of the Treaty with the Crow Indians, 15

Stat. 649 (1868), provides that the Indians:

shall have the right to hunt on the unoccupied

lands of the United States so long as game

may be found thereon, and as long as peace

subsists among the whites and Indians on the

borders of the hunting districts.

In the decision below, Wyoming District Court held

that, in Crow Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995), the Tenth Circuit conclusively determined that this right was terminated when Wyoming

was admitted to the Union. Pet. App. 10-18.

The Wyoming District Court recognized that Repsis was largely based on Race Horse, which interpreted

identical language in a treaty with the Bannock Indians. Pet. App. 21. And, the Wyoming District Court

acknowledged that Race Horse’s holding that Wyoming’s admission to the Union “was inconsistent with

the rights granted in the treaty” under the equal

footing doctrine “has subsequently been rejected by

numerous cases.” Id.

However, the Wyoming District Court asserted

that Race Horse also found that the hunting right was

“ ‘temporary and precarious’ in nature” and “ ‘essentially perishable, and intended to be of a limited duration.’ ” Id. (quoting Race Horse, 163 U.S. at 510, 515).

According to the Wyoming District Court, despite the

rejection of Race Horse’s reliance on the equal footing

doctrine in many cases, “the ‘temporary and precarious’ doctrine remained alive and well.” Id.

In so holding, the Wyoming District Court relied

on this Court’s decision in Mille Lacs. According to the

Wyoming District Court, although Mille Lacs “again

rejected the equal footing doctrine of Race Horse,” it

“acknowledged that the Race Horse court had ‘also announced an alternative holding: The treaty rights at

issue were not intended to survive Wyoming’s statehood.’ ” Pet. App. 23 (quoting Mille Lacs, 526 U.S. at

206). The Wyoming District Court acknowledged Mille

Lacs’ holding that “ ‘[t]he ‘temporary and precarious’

language in Race Horse is too broad to be useful in distinguishing rights that survive statehood from those

that do not,’ ” but asserted that the Mille Lacs Court

“did not completely reject the temporary and precarious doctrine.” Id. (quoting Mille Lacs, 626 U.S. at 206).

According to the Wyoming District Court, the Mille

Lacs Court “affirmed the concept that certain treaties,

like the one in Race Horse, were intended to terminate

upon the happening of a ‘clearly contemplated’ event.”

Pet. App. 24 (quoting Mille Lacs, 526 U.S. at 207). According to the Wyoming District Court, because Mille

Lacs “affirmed the concept that a court interpreting a

treaty must determine if the rights reserved in the

treaty were intended to be perpetual or if they were

intended to expire upon the happening of a ‘clearly contemplated event,’ ” Repsis’s reliance on Race Horse to

hold that hunting rights such as those in the Crow

Treaty were intended to terminate at statehood remained conclusive in this case. Id.

In Mille Lacs, this Court concluded that the usufructuary rights secured in a pre-statehood Chippewa

treaty were not intended to terminate at statehood. In

addition to noting that the treaty did not tie the termination of those rights to a clearly contemplated event,

the Court explained that the treaty expressly identified the circumstance under which the rights would

terminate, and that circumstance was not linked to

statehood. 526 U.S. at 207. In addition, the Court explained that Race Horse’s alternate holding that the

pre-statehood Bannock hunting right was intended to

terminate on statehood was based on the premise that

Indian hunting rights are incompatible with state sovereignty. Id. at 207-08. However, as the Court also explained, that was a false premise, which had been

rejected in more than a century of this Court’s postRace Horse decisions. Id. at 204.

The Wyoming District Court did not mention either of these aspects of this Court’s decision in Mille

Lacs. As a result and as discussed in detail below, its

clearly-contemplated-event standard is based on a

misreading of Mille Lacs and is inconsistent with more

than a century of this Court’s decisions.

II.

THE CROW TREATY EXPRESSLY IDENTIFIES THE CIRCUMSTANCES UNDER WHICH

THE HUNTING RIGHT TERMINATES AND

STATEHOOD IS NOT AMONG THEM.

Under Article 4 of the Crow Treaty, the Indians:

have the right to hunt on the unoccupied

lands of the United States so long as game

may be found thereon, and as long as peace

subsists among the whites and Indians on the

borders of the hunting districts.

This Article expressly identifies the circumstances

under which the hunting right terminates, and statehood is not among them. The existence of express provisions for termination of the right that are not tied to

statehood demonstrates that the parties did not intend

the right to terminate upon statehood. See Mille Lacs,

526 U.S. at 207.

The first circumstance under which the Crow

hunting right terminates is when the lands are no

longer “unoccupied lands of the United States.” Because the United States was under no obligation to either relinquish or provide for the occupation of its

lands upon statehood, this circumstance was not tied

to statehood.

Although title to public lands was and is an important component of state sovereignty, the Federal

Government chose to exercise its constitutional authority to retain title to public lands in the western

Territories when they were admitted to the Union. See

U.S. Const. art. IV, § 3, cl. 2 (authorizing but not requiring Congress “to dispose of . . . the Territory or other

Property belonging to the United States,” and also authorizing Congress to “make all needful Rules and

Regulations respecting” such Territory and Property);

United States v. Texas, 339 U.S. 707, 716 (1950)

(“[s]ome States when they entered the Union had

within their boundaries tracts of land belonging to the

Federal Government; others were sovereigns of their

soil”).

This Court has never questioned the Federal Government’s authority to retain title to public lands upon

statehood and (unlike the beds and banks of navigable

waters) has not treated the retention of such lands as

implicating the equal footing doctrine. See Texas, 339

U.S. at 716. To the contrary, it has made clear that the

United States “can withhold or reserve the land . . . indefinitely.” Light v. United States, 220 U.S. 523, 536

(1911) (emphasis added); see also United States v. Oregon, 295 U.S. 1, 14, 27-28 (1935) (unlike the beds of

navigable waters, Court does not presume Congress

conveyed public lands to a State upon statehood); Scott

v. Lattig, 227 U.S. 229, 244 (1913) (same); United States

v. Gratiot, 39 U.S. 526, 537-38 (1840) (upholding continued application of law authorizing United States to

lease lead mines in Territory after it became part of the

State of Illinois).

Because the United States was not obligated to

(and in fact did not) relinquish its ownership of public

lands or provide for their immediate occupation upon

Wyoming’s statehood, the first circumstance identified

in the Crow Treaty in which the hunting right terminates—when the lands are no longer the “unoccupied

lands of the United States”—is not tied to statehood.

The second circumstance is when “game” is no

longer “found” on the unoccupied lands of the United

States. There is nothing in this language that is tied to

statehood, and it is difficult to imagine that either the

Crow Tribe or the United States assumed that the

presence of game on the unoccupied lands of the

United States would come to an end at statehood, if

ever. Notably, 128 years after Wyoming became a State,

game can still be found on the lands within the Bighorn National Forest, as the facts of this case attest.

The third and final circumstance expressed in the

Crow Treaty under which the hunting right terminates

is when “peace” no longer “subsists among the whites

and Indians on the borders of the hunting districts.”

Again, there is nothing in this language that is tied to

statehood. To the contrary, under this provision the

hunting right continues during peaceful relations

among whites and Indians on the borders of the hunting districts, relations that are in no way foreclosed by

Wyoming’s admission to the Union.

In sum, none of the circumstances expressly identified in the Crow Treaty under which the hunting

right would terminate is tied to statehood.2 Thus, just

as the presence of an express condition in the 1837

Chippewa Treaty that was unrelated to statehood led

the Mille Lacs Court to reject the proposition that the

Senate intended the Treaty’s usufructuary rights to

terminate on statehood, 526 U.S. at 207, so here the

presence of express conditions on the hunting right in

the Crow Treaty that are unrelated to statehood leads

to the conclusion that the Senate did not intend the

Crow Tribe’s hunting right to terminate on statehood.

Rules of construction applicable to all treaties and

statutes reinforce this conclusion. First, the inclusion

of express conditions in an instrument normally precludes the implication of additional, unrelated conditions. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830,

844 (2018) (“Negative-Implication Canon[:] The expression of one thing implies the exclusion of others

(expressio unius est exclusio alterius)”) (quoting A.

Scalia & B. Garner, Reading Law 107 (2012)); accord

O’Melveny & Myers v. FDIC, 512 U.S. 79, 86-87 (1994);

Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163, 168 (1993).

Second, it is a cardinal rule that courts cannot

“rewrite” or “remake” a treaty, nor ignore the plain

See Race Horse, 163 U.S. at 518 (Brown, J., dissenting) (“The

fact that the territory of Wyoming would ultimately be admitted

as a State must have been anticipated by Congress, yet the right

to hunt was assured to the Indians, not until this should take

place, but so long as game may be found upon the lands, and so

long as peace should subsist on the borders of the hunting districts.”).

meaning of a treaty’s text. E.g., Choctaw Nation of Indians v. United States, 318 U.S. 423, 432 (1943) (treaties “cannot be rewritten or expanded beyond their

clear terms”); accord Nebraska v. Parker, 136 S. Ct.

1072, 1082 (2016) (“[I]t is not our role to ‘rewrite’ the

1882 Act in light of this subsequent demographic history.”); Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024, 2034 (2014) (Court cannot “disregard clear language simply on the view that . . . Congress ‘must have

intended’ something broader.”).

Third, Indian treaty rights cannot be impaired absent “clear evidence that Congress actually considered

the conflict between its intended action on the one

hand and Indian treaty rights on the other, and chose

to resolve that conflict by abrogating the treaty.”

United States v. Dion, 476 U.S. 734, 740 (1986). The

Mille Lacs Court cited this rule and noted that the Act

admitting Minnesota to the Union “provides no clue

that Congress considered the reserved rights of the

Chippewa and decided to abrogate those rights when

it passed the Act.” 526 U.S. at 202-03. The same is true

here.

These basic rules of construction reinforce the

Mille Lacs Court’s holding that, where, as here, a

treaty expressly identifies the circumstances under

which usufructuary rights will terminate, the Senate

intended the rights to terminate upon the happening

of the stated conditions and did not intend them to terminate upon the happening of other unstated conditions such as statehood.

III. THE STATE’S INTERESTS IN NATURAL RESOURCES PROVIDE NO BASIS ON WHICH

TO IMPLY THAT THE CROW HUNTING

RIGHT TERMINATED AT STATEHOOD.

In the absence of an express provision for termination at statehood, the Race Horse Court held that the

Bannock hunting rights “were impliedly repealed by

Wyoming’s statehood Act.” Mille Lacs, 526 U.S. at 207

(emphasis added). As the Mille Lacs Court explained,

this decision “was informed by [the Race Horse] Court’s

conclusion that the Indian treaty rights were inconsistent with state sovereignty over natural resources

and thus that Congress (the Senate) could not have intended the rights to survive statehood.” Id. at 207-08.

“But,” as the Mille Lacs Court further explained, “Indian treaty-based usufructuary rights are not inconsistent with state sovereignty over natural resources.”

Id. at 208; see id. at 204-05. The Mille Lacs Court’s

holding, and the substantial post-Race Horse precedent on which it was based, foreclose any attempt to

find an implied repeal of the Crow Tribe’s hunting

right upon Wyoming’s admission to the Union.

There is no doubt about “the importance to its people that a State have power to preserve and regulate

the exploitation of an important resource,” such as the

State’s wildlife. Hughes v. Oklahoma, 441 U.S. 322, 335

(1979) (internal quotations omitted). “States have

broad trustee and police powers over wild animals

within their jurisdictions.” Kleppe v. New Mexico, 426

U.S. 529, 545 (1976). Those powers are, however, subject to an important limitation: they “exist only ‘in so

far as [their] exercise may be not incompatible with, or

restrained by, the rights conveyed to the Federal government by the Constitution.’ ” Id. (quoting Geer v.

Connecticut, 161 U.S. 519, 528 (1896)).

Accordingly, the States’ regulatory authority over

wildlife is limited by federal constitutional provisions,

such as the Commerce Clause (see Hughes, 441 U.S. at

329-36) and the Privileges and Immunities Clause (see

Toomer v. Witsell, 334 U.S. 385, 396-99 (1948); Baldwin

v. Fish and Game Commission of Montana, 436 U.S.

371, 385-86 (1978)). In addition, and most relevant

here, the Supremacy Clause limits state power to regulate wildlife when the Federal Government legitimately exercises one of its enumerated powers to enter

into treaties or make laws and regulations concerning wildlife. See Kleppe, 426 U.S. at 543 (Wild FreeRoaming Horses and Burros Act); Hunt v. United

States, 278 U.S. 96, 100 (1928) (Federal regulation authorizing thinning of deer population in violation of

State law).

This principle is fully applicable to limitations on

state authority to regulate wildlife arising from a

treaty with an Indian tribe. In United States v. Winans,

the Court held that an Indian treaty securing the

“right of taking fish at all usual and accustomed

places” and “of erecting temporary buildings for curing

them” gave the Indians “a right in the land,—the right

of crossing it to the river,—the right to occupy it to the

extent and for the purpose mentioned.” 198 U.S. 371,

381 (1905). The Court explained that the “right was intended to be continuing against the United States and

its grantees as well as against the state and its grantees.” Id. at 381-82.

In so holding, the Court rejected the contention

“that the rights conferred upon the Indians are subordinate to the powers acquired by the state upon its admission to the Union.” Id. at 382. Notwithstanding the

importance of the State’s interests, “the power of the

United States, while it held the country as a territory,

to create rights which would be binding on the states”

had been settled in Shively v. Bowlby, 152 U.S. 1 (1894).

Winans, 198 U.S. at 383. As the Winans Court explained:

The extinguishment of the Indian title, opening the land for settlement, and preparing the

way for future states, were appropriate to the

objects for which the United States held the

territory. And surely it was within the competency of the nation to secure to the Indians

such a remnant of the great rights they possessed as “taking fish at all usual and accustomed places.”

Id. at 384.3

The Winans Court adopted the views expressed by Justice

Brown in his Race Horse dissent:

Not doubting for a moment that the preservation of

game is a matter of great importance, I regard the

preservation of the public faith, even to the helpless Indian, as a matter of much greater importance. If the

position of the court be sound, this treaty might have

been abrogated the next day by the admission of Wyoming as a state, and what might have been done in this

case might be done in the case of every Indian tribe

Winans left open the permissible scope of state

regulation of the treaty right, noting only that the

right does not “restrain the state unreasonably, if at

all, in the regulation of the right.” Id. The Court returned to that question in Tulee v. Washington, 315

U.S. 681 (1942). “Relying on its broad powers to conserve fish and game within its borders,” the State

claimed the right to impose nondiscriminatory license

fees on Indian fishermen, while Tulee, a member of the

Yakama Tribe, asserted the State had no authority to

regulate his exercise of the treaty right at all. Id. at

683-84. The Court found that “the state’s construction

of the treaty [was] too narrow” and Tulee’s construction “too broad”; instead, it held that, “while the treaty

leaves the state with power to impose on Indians

equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the

conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.” Id.

at 684 (footnote omitted). Tulee thus reaffirmed that

restrictions on state authority to regulate wildlife that

result from a treaty with an Indian tribe, just as those

that result from another exercise of the Federal Government’s enumerated powers, do not impair the sovereign rights of the States.

within our boundaries. There is no limit to the right of

the state, which may in its discretion prohibit the killing of all game, and thus practically deprive the Indians of their principal means of subsistence.

Race Horse, 163 U.S. at 518 (Brown, J., dissenting).

This Court has enforced pre-statehood treaties reserving Indian hunting, fishing and gathering rights in

other cases, with no suggestion that the limitations

they imposed on state authority to regulate wildlife

impermissibly impaired the States’ sovereign authority. See, e.g., Dep’t of Game v. Puyallup Tribe, 414 U.S.

44, 48 (1973) (holding State prohibition on Indian net

fishing violated treaty fishing right and remanding for

apportionment of fishing opportunity between Indian

and non-Indian fishermen). This Court has also affirmed the Federal Government’s authority to reserve

water (a critically important natural resource) for Indian lands, explicitly rejecting arguments that such

reservations impair state sovereignty. See Arizona v.

California, 373 U.S. 546, 597-98 (1963) (Congress’

broad power to reserve water is not limited by the

equal footing doctrine); Winters v. United States, 207

U.S. 564, 577 (1908) (rejecting equal footing argument

and holding the “power of the [Federal] government to

reserve the waters [in an agreement with an Indian

tribe] and exempt them from appropriation under the

state laws is not denied, and could not be”).

This Court reached the same result in other contexts involving important state interests. As the Mille

Lacs Court held:

[T]here is nothing inherent in the nature of

reserved treaty rights to suggest that they can

be extinguished by implication at statehood.

Treaty rights are not impliedly terminated

upon statehood.

526 U.S. at 207 (emphasis in original) (citing Wisconsin

v. Hitchcock, 201 U.S. 202, 213-14 (1906); Johnson v.

Gearlds, 234 U.S. 422, 439-40 (1914)).

In Wisconsin v. Hitchcock, the State asserted that

tribal members’ treaty right to land “until they were

required to surrender it by the President of the United

States” was terminated by Wisconsin’s admission to

the Union. 201 U.S. at 213. In Dick v. United States,

208 U.S. 340, 352-53 (1908), the State contended that

a tribe’s right to the protection of federal liquor laws

for 25 years under a pre-statehood agreement with the

United States was terminated by Idaho’s admission to

the Union. And in Johnson v. Gearlds, the State maintained that a tribe’s treaty right to the protection of

federal liquor laws “until otherwise provided by Congress” was terminated by Minnesota’s admission to the

Union. 234 U.S. at 435. These cases certainly involved

traditional and important state interests—interests in

title to public lands and regulation of liquor—which

are analogous to state interests in regulating wildlife.

And Dick involved a right that, on its face, would terminate upon the happening of a “clearly contemplated”

event—the passage of 25 years. Cf. Pet. App. 24 (Wyoming District Court’s adoption of “clearly contemplated” event standard for implied termination at

statehood). However, in each case, the Court firmly rejected the argument that these pre-statehood rights

had been terminated by implication at statehood. Instead, applying ordinary principles of construction,

the rights were deemed to terminate if and when the

stated condition was met. The same result should obtain here.

IV. THIS COURT’S CONSERVATION-NECESSITY

DOCTRINE RECONCILES OFF-RESERVATION

HUNTING, FISHING AND GATHERING

RIGHTS WITH STATE INTERESTS AND

CREATES INCENTIVES FOR TRIBES TO

CONSERVE NATURAL RESOURCES IN COOPERATION WITH FEDERAL AND STATE

AGENCIES.

A. The Conservation-Necessity Standard.

As discussed above (at 16), in Tulee, this Court

held that a treaty securing the “right of taking fish”

left the State “with power to impose on Indians equally

with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside

the reservation as are necessary for the conservation

of fish.” 315 U.S. at 684. The Court further developed

this standard in later cases involving the same treaty

right. For example, in Puyallup Tribe v. Department of

Game, the Court held that “the manner of fishing, the

size of the take, the restriction of commercial fishing,

and the like may be regulated by the State in the interest of conservation, provided the regulation meets

appropriate standards and does not discriminate

against the Indians.” 391 U.S. 392, 398 (1968) (emphasis added). And in Washington v. Washington State

Commercial Passenger Fishing Vessel Association, the

Court held that “[a]lthough nontreaty fishermen might

be subjected to any reasonable state fishing regulation

serving any legitimate purpose, treaty fishermen are

immune from all regulation save that required for conservation.” 443 U.S. 658, 682 (1979) (emphasis added).

In Antoine v. Washington, the Court applied the

conservation-necessity standard to an agreement securing the “right to hunt and fish in common with all

other persons on lands not allotted to [the] Indians.”

420 U.S. 194, 196 (1975). The Court held that Puyallup’s

“appropriate standards” requirement “means that the

State must demonstrate that its regulation is a reasonable and necessary conservation measure and that its

application to the Indians is necessary in the interest

of conservation.” 420 U.S. at 207 (citations omitted)

(emphasis in original). The Court held that state regulation was inappropriate in that case because the State

of Washington (like the State of Wyoming here) had not

established “that applying the ban on out-of-season

hunting of deer by the Indians on the land in question

is in any way necessary or even useful for the conservation of deer.” Id. Thus, as the United States has recognized in this matter, the conservation-necessity

standard is a “demanding” one for the State to meet.

U.S. Cert. Amicus Br. 21.

Nevertheless, as this Court explained in Mille

Lacs:

[The] “conservation necessity” standard accommodates both the State’s interest in management of its natural resources and . . . federally

guaranteed treaty rights. Thus, because treaty

rights are reconcilable with state sovereignty

over natural resources, statehood by itself is

insufficient to extinguish Indian treaty rights

to hunt, fish, and gather on land within state

boundaries.

526 U.S. at 205 (footnote omitted). For this reason as

well, there is no basis on which to impute a countertextual intent to the parties to the Crow Treaty or to

the Senate in ratifying the Treaty, in which the treaty

hunting right would be extinguished at statehood even

though the Treaty itself did not say so.

B. Tribal Regulation and Cooperative Management.

Under the conservation-necessity doctrine, states

may not regulate the exercise of Indian usufructuary

rights if the tribes adopt and enforce their own regulations, which are adequate to provide for conservation

of the resources.4 As a result, the doctrine creates a

strong incentive for tribes to adopt and enforce their

own regulations, typically in close cooperation with

federal and state wildlife managers. The experience

of the amici tribes in Michigan, Wisconsin and Minnesota illustrates that this has led to effective tribal

E.g., United States v. Michigan, 653 F.2d 277, 279 (6th Cir.

1981); Mille Lacs Band of Chippewa Indians v. Minnesota, 861

F. Supp. 784, 839 (D. Minn. 1994), aff ’d, 124 F.3d 904 (8th Cir.

1997), aff ’d, 526 U.S. 172 (1999); Lac Courte Oreilles Band of Lake

Superior Chippewa Indians v. Voigt, 668 F. Supp. 1233, 1241-42

(W.D. Wis. 1987); United States v. Washington, 384 F. Supp. 312,

340-42 (W.D. Wash. 1974), substantially aff ’d, 520 F.2d 676 (9th

Cir. 1975).

self-regulation and improved natural resources management for all concerned.

In these three states, Tribes, States and the Federal Government have developed and implemented

model codes and entered into consent decrees and

other agreements that promote consistent natural resources management and regulation. Notably, many of

the agreements provide orderly dispute resolution processes that make judicial intervention in State-Tribal

disputes the exception rather than the rule.

The midwestern tribes’ treaty rights in Michigan,

Minnesota and Wisconsin were extensively litigated

during the 1970s, 1980s and 1990s. But out of the crucible of contentious litigation, the Tribes and States

forged working relationships based on mutual respect

for each other’s authority and shared concern for conserving natural resources. A similar result is likely

here.

1. Great Lakes Fishing Rights in Michigan.

In April 1973, the United States filed suit against

the State of Michigan to protect the right to fish in the

Great Lakes under an 1836 treaty with various Ottawa

and Chippewa tribes. United States v. Michigan, 471

F. Supp. 192, 203 (W.D. Mich. 1979), aff ’d in part and

modified in part, 653 F.2d 277 (6th Cir. 1981). In the

treaty, which paved the way for Michigan statehood in

1837, the Tribes ceded portions of the Great Lakes and

millions of acres of land in Michigan’s upper and lower

peninsulas, while stipulating for “the right of hunting

on the lands ceded, with the other usual privileges of

occupancy, until the land is required for settlement.”

Id. at 212-13. In 1979, the district court held that the

Tribes retained the right to fish in portions of the

Great Lakes ceded in the Treaty. Id. at 216. In 1985,

after extensive negotiations conducted under the

framework of the conservation-necessity doctrine, see

653 F.2d at 279, the parties reached an agreement regarding management and allocation of the Great

Lakes fishery, which was adopted by the district court

and remained in effect for 15 years. United States v.

Michigan, 424 F.3d 438, 441 (6th Cir. 2005). A second

Consent Decree negotiated by five tribes, the State of

Michigan and the United States, was entered on August 7, 2000, and is effective through 2020. Id.5

To ensure conservation of the Great Lakes fisheries, the Tribes formed an inter-tribal organization

(today known as the Chippewa Ottawa Resources Authority or CORA). Exercising authority delegated by

the Tribes, CORA promulgated Great Lakes fishing

regulations applicable to all of the Tribes, and assists

in their enforcement.6 Pursuant to the 2000 Decree, Federal, State and Tribal representatives meet regularly

Stipulation and Order (Consent Decree), United States v.

Michigan, No. 2:73-CV-26 (W.D. Mich. Aug. 9, 2000), ECF No. 1458.

Chippewa Ottawa Resource Authority, Commercial, Subsistence and Recreational Fishing Regulations for the 1836 Treaty

Ceded Waters of Lakes Superior, Huron, and Michigan (rev’d April

3, 2017), available at http://www.1836cora.org/wp-content/uploads/

2017/04/CORA-Regulations-Revised-April-3-2017.pdf.

to evaluate the condition of the resources and adjust

harvest limits as appropriate.

2. Hunting, Fishing and Gathering Rights

in Wisconsin.

In the late 1970s, the Lac Courte Oreilles Band of

Lake Superior Chippewa sued the State of Wisconsin

to confirm the continued existence of the Tribes’ offreservation hunting, fishing and gathering rights under 1837 and 1842 treaties with the United States. The

Seventh Circuit held that those reserved rights continue to exist. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 365 (7th

Cir. 1983), appeal dismissed and cert. denied sub nom.

Besadny v. Lac Courte Oreilles Band of Lake Superior

Chippewa Indians, 464 U.S. 805 (1983). Subsequent litigation regarding the scope and regulation of those

rights occurred in the Voigt case throughout the 1980s.

At the same time, the Wisconsin Tribes created a

Voigt Intertribal Task Force to negotiate with the State

to implement the Tribes’ reserved rights. Both the

Tribes and the State came under intense pressure

from non-Indian protesters who, fearing that tribal offreservation fishing would harm the resource, sought to

“portray[ ] the Indians as undeserving of the rights

that they had preserved by treaty” and to “perpetuat[e]

the idea that [the Indians] were lazy and wasteful and

lacking in respect for conserving nature” to “justify

the efforts to prevent tribal members from exercising

those rights.” Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Stop Treaty Abuse-Wisconsin, 843

F. Supp. 1284, 1294 (W.D. Wis.), aff ’d, 41 F.3d 1190 (7th

Cir. 1994). Unfortunately, Wyoming’s portrayal of Mr.

Herrera’s elk hunt in this case takes a similar approach. See Opp. Cert. at 7-8.

In Wisconsin, due to the efforts of the Voigt Intertribal Task Force, the Tribes and the State, the regulatory issues were largely resolved among the parties. In

1991, the district court entered a final judgment adopting a series of stipulations agreed to by the Tribes

and Wisconsin to regulate tribal treaty rights on offreservation ceded lands—a judgment that neither side

appealed. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 775 F. Supp. 321,

324 (W.D. Wis. 1991). Those stipulations included a

model conservation code conforming to the Voigt court

orders and providing for “an orderly system for tribal

control and regulation of hunting, fishing and gathering on the off-reservation lands ceded by the Tribe[s]

in the [1837 and 1842 Treaties].” Voigt Model OffReservation Conservation Code § 1.03(1) (rev’d April

2018).7

The Voigt model code sets minimum standards

for tribal regulation of off-reservation treaty rights

through a robust enforcement scheme. Id., ch.4 (enforcement). Each tribe that exercises 1837 and 1842

treaty rights in Wisconsin must enact a code no less

restrictive than the model code as its own tribal

Available at www.glifwc.org/Regulations/VoigtModelCode.

2018.internal.links.pdf.

conservation law. The codes are enforced by conservation officers employed by the Great Lakes Indian Fish

and Wildlife Commission (GLIFWC)8 and the State

of Wisconsin. The State recognizes the authority of

GLIFWC’s officers and has enacted laws to support

their efforts. See, e.g., Wis. Stat. § 175.41.

The model code is not static; the Voigt Intertribal

Task Force (now part of GLIFWC and consisting of

members from eleven Michigan, Minnesota and Wisconsin Chippewa tribes) continues to oversee and continually assess tribal natural resources policy and

biological information, set intertribal harvest quotas,

and recommend changes to the model code.9 Nor is the

State shut out from the process; the Voigt stipulations

remain in force and require the parties to make good

faith efforts to communicate regarding their respective

GLIFWC comprises eleven Chippewa tribes in Michigan,

Minnesota and Wisconsin and, among other things, coordinates

regulatory activities across the tribes’ shared 1837 and 1842

Treaty areas. See www.glifwc.org (last visited Aug. 29, 2018).

GLIFWC biologists and resource specialists perform resource assessments and monitor and evaluate harvests, while GLIFWC

conservation wardens help enforce tribal ceded territory conservation codes. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 707 F. Supp. 1034, 1050-51, 1054 (W.D.

Wis. 1989); U.S. Dep’t of the Interior, Casting Light Upon the Waters: A Joint Fishery Assessment of the Wisconsin Ceded Territory

at 21 (1991).

Chippewa Intertribal Agreement Governing Resource Management and Regulation of Off-Reservation Treaty Rights in the

Ceded Territory, Section 5: Task Force Responsibilities (n.d.), available at https://www.glifwc.org/Recognition_Affirmation/Intertribal_

CoManagement_Agreement.pdf.

regulations, and to review the stipulations and model

code regularly.

In part due to effective tribal regulation of off-reservation rights, fears of irreparable harm to the resources did not come true. In 2009, the Wisconsin

Legislature recognized the Tribes’ and GLIFWC’s “important role . . . in the preservation and protection of

the natural resources of the ceded territory.” 2009 Wis.

Senate J. Res. 40 (June 30, 2009).10 In 2013, a committee consisting of federal, state and tribal agencies concluded that the status of the off-reservation walleye

fishery in Wisconsin had not changed significantly

since 1991, when the committee concluded that the resource was healthy and tribal exercise of reserved fishing rights had not harmed the resource. U.S. Dep’t of

the Interior, Fishery Status Update in the Wisconsin

Treaty Ceded Waters at 1, 20 (6th ed. 2013).11

In many instances, tribal, state and federal cooperation has produced demonstrable benefits for all concerned. For example, tribal, state and federal partners

worked together for many years to restore wild rice in

the 1837 and 1842 ceded territories in northern Wisconsin. As evidence of their success, between 2006

and 2013, nearly a quarter of all wild rice harvested

off-reservation (by both Indian and non-Indian

Available at https://docs.legis.wisconsin.gov/2009/related/

enrolled/sjr40.

Available at https://www.glifwc.org/publications/pdf/Fishery

Status2013.pdf.

harvesters) has come from waters seeded through cooperative interagency restoration efforts.12

A similar effort has led to the restoration of elk in

northern Wisconsin. In 1995, 25 elk were released into

the Chequamegon National Forest near Clam Lake,

Wisconsin, following a welcoming song and pipe ceremony by a Chippewa spiritual leader. The Wisconsin

Department of Natural Resources, U.S. Forest Service,

Chippewa tribes, and GLIFWC collaborated over the

ensuing years to foster and enhance the elk population. Populations were monitored, augmented with elk

from Kentucky and moved around the elk range to increase the size and genetic diversity of the population.13 The herd has now grown to a level that will

allow a hunting season this fall. The Wisconsin Elk Advisory Committee—comprised of State, GLIFWC and

Tribal biologists—has agreed upon a quota to be divided among state and tribal hunters. Tribal regulations governing the hunt are being negotiated with

Wisconsin pursuant to a regular stipulation review

process that has been in place since 2011.

The Tribes and Wisconsin returned to court to adjudicate a Voigt dispute only once in the last 25 years.

After the Seventh Circuit held that a prohibition on

GLIFWC, Admin. Rep. 15-06, Manoomin (Wild Rice) Abundance and Harvest in Northern Wisconsin in 2013 (May 2015),

available at https://data.glifwc.org/archive.bio/Administrative%

20Report%2015-6.pdf.

Elk (omashkooz in Ojibwe) Returning to Ceded Territory,

Mazina’igan (GLIFWC, Odanah, WI), Fall 2017 at 12-13, available

at http://www.glifwc.org/Mazinaigan/Fall2017/index.html?page=12.

night hunting in the 1991 decree could be re-opened,

Lac Courte Oreilles Band of Lake Superior Chippewa

Indians v. Wisconsin, 769 F.3d 543 (7th Cir. 2014), the

parties focused on the “adequacy of [the tribes’] proposed regulatory scheme,” which was approved by the

district court with a minor modification. Lac Courte

Oreilles Band of Lake Superior Chippewa Indians v.

Wisconsin, No. 74-cv-313-bbc, 2015 U.S. Dist. LEXIS

139294, at *4, 18-19 (W.D. Wis. Oct. 13, 2015).

3. Hunting, Fishing and Gathering Rights

in Minnesota.

In 1990, the Mille Lacs Band sued Minnesota, alleging that the State had violated the Band’s hunting,

fishing and gathering rights under an 1837 Treaty (the

same Treaty that had been at issue in the Voigt litigation). Six Wisconsin Ojibwe bands who were also successors to the 1837 Treaty later intervened and the

case was consolidated with a parallel case brought by

the Fond du Lac Band.

In September 1994, the district court held that the

Bands’ 1837 treaty rights continued to exist. Mille

Lacs, 861 F. Supp. at 841. Thereafter, building on the

stipulations and model code developed in the Voigt

case, the Bands and Minnesota negotiated a series of

protocols to coordinate harvest management and resource assessment in the Minnesota ceded territory,

and the Bands developed a model Conservation Code,

Commissioner’s Orders and Management Plans to regulate their members’ harvests. Mille Lacs Band of

Chippewa Indians v. Minnesota, 952 F. Supp. 1362,

1366-67 (D. Minn. 1997). The Bands, the State and the

United States agreed that upon implementation of

these measures the application of various state laws to

the Bands would “not be necessary for conservation.”

Id. at 1367. In entering final judgment, district court

ordered the State and the Bands to “fairly, uniformly

and diligently enforce the conforming Band conservation codes,” and to “work cooperatively” and “make

good faith efforts” to coordinate enforcement activities.

Id. at 1397. The parties to the Mille Lacs litigation

have had no occasion to return to court since final judgment was entered (and ultimately affirmed by this

Court) some 20 years ago.

4. Inland Hunting, Fishing and Gathering

Rights in Michigan.

The resolution of tribal claims to inland hunting,

fishing and gathering rights in Michigan under the

1836 Treaty provides a telling bookend to Midwest

treaty rights litigation. When the State of Michigan initiated litigation asserting that those rights no longer

existed, the parties were able to build on the working

relationship they had developed through the 1985 and

2000 Great Lakes Consent Decrees, as well as the experiences of the Tribes and States in Wisconsin and

Minnesota, to resolve all issues regarding the existence, scope and regulation of inland rights under the

1836 Treaty by agreement. See Mich. Dep’t of Natural

Resources (DNR), 2007 Inland Consent Decree FAQs at

1.14 The 2007 Inland Consent Decree provides for tribal

regulation of Indian hunting, fishing and gathering

subject to specific limitations in the Decree. Id. at 2-3.

In negotiating the 2007 Decree, the State recognized

that because (as in this case) “tribal hunting and fishing is for personal subsistence use and not commercial

use[, it] has a limited effect on the resources in question.” Id. at 2. According to Michigan’s DNR:

In the 1836 treaty-ceded territory, the DNR

and the tribes coordinate research and assessment activities, restoration, reclamation, and

enhancement projects, and regularly consult

and exchange information with one another.

These cooperative efforts and sharing of information have led to a high degree of transparency among the State and tribes. The Inland

Consent Decree also defines harvest levels for

various species, which ensures the availability of sufficient resources for tribal and nontribal fishers and hunters in the future.

Id. By all measures, the 2007 Decree has worked well.

There has been no dispute under the Decree that has

led the parties to return to court since it was entered

in 2007.

Available at https://www.michigan.gov/documents/dnr/2007_

Inland_Consent_Decree_FAQs_9.28.17_604502_7.pdf (last visited

Sept. 4, 2018) (discussing Consent Decree, United States v. Michigan, No. 2:73-CV-26 (W.D. Mich. Nov. 5, 2007), ECF No. 1799).

5. Gathering Rights within National Forests.

Not all co-management agreements result from

litigation. In 1998, the GLIFWC member tribes and

the Eastern Region of the United States Forest Service

concluded a Memorandum of Understanding (MOU)

that governs the Tribes’ gathering rights on four National Forests within the 1836, 1837 and 1842 ceded

territories. See MOU Regarding Tribal—USDA Forest

Service Relations on National Forest Lands within

the Ceded Territory in Treaties of 1836, 1837, and

1842 (March 2012).15 The MOU implements treatyguaranteed wild plant gathering rights under a model

“off-reservation gathering code” and provides that

tribal regulations can be no less restrictive than the

model code without the Forest Service’s consent. Id. at

11-12. The MOU also provides for collaboration between the Forest Service and the Tribes through

knowledge exchanges and shared research, to promote

ecosystem management that sustains and restores native plant communities. Id. at 6-7.

In sum, in the experience of amici, the conservationnecessity doctrine has created powerful incentives for

Tribes to develop and enforce their own conservation

regulations in close cooperation with States and the

Federal Government. As Tribes have done so, States

have moved from hostility to tribal treaty rights to

Available at https://www.fs.fed.us/spf/tribalrelations/documents/

agreements/mou_amd2012wAppendixes.pdf. The National Forests

covered by the MOU include the Chequamegon-Nicolet in Wisconsin, and the Hiawatha, Huron-Manistee and Ottawa in Michigan.

acceptance and recognition of tribal natural resources

regulation—all to the benefit of the natural resources

themselves. There is no reason to expect any different

result here; either the Crow Tribe will adopt and enforce its own regulations to conserve natural resources

(likely in cooperation with the State of Wyoming), or

the State will retain the authority to regulate the exercise of the right upon making a proper showing under the conservation-necessity doctrine. Indeed, as

noted in the Crow Tribe’s amicus brief, the Tribe already enacted a Joint Resolution of the Tribe’s legislative and executive branches and stands ready to work

with Wyoming on this issue.

CONCLUSION

The Wyoming District Court misread the Mille

Lacs decision to stand for the proposition that, as long

as termination of a pre-statehood hunting right is tied

to some “clearly contemplated” event, the right terminates at statehood. Pet. App. 24. To the contrary, as the

Mille Lacs decision and the substantial body of precedent on which it relied makes clear, unless the “clearly

contemplated” event itself is tied to statehood, there is

no basis on which to imply that the Senate intended

the treaty right to terminate upon statehood—as opposed to upon occurrence of the “clearly contemplated”

event actually identified in the treaty. The implied addition of another unrelated condition violates all rules

of construction, including the cardinal rule that the

treaties cannot be re-written, expanded or contracted

beyond their plain meaning. See supra Part I.

The contrary holding in Race Horse was based on

a mistaken conception of state sovereignty over natural resources. As Winans and its progeny make clear,

States share authority over natural resources with the

Federal Government when the Federal Government

exercises one of its enumerated constitutional powers,

including the power to make treaties with Indian

tribes. See supra Part II. There is, therefore, no basis

on which to imply that the Senate did not intend an

Indian treaty right to survive statehood simply because the treaty provided the right would terminate

upon some other clearly contemplated event. As the

Mille Lacs Court squarely held, “[t]reaty rights are not

impliedly terminated upon statehood.” 526 U.S. at 207.

The Wyoming District Court’s clearly-contemplatedevent standard is also inconsistent with this Court’s

conservation-necessity doctrine. As the Mille Lacs

Court explained, that doctrine reconciled Indian treaty

rights to harvest natural resources with the States’ important interests in those resources. And, as the experience of the amici tribes makes clear, that doctrine

has worked well in practice and fostered improved protections for and the enhancement of natural resources

for the benefit Indians and non-Indians. See supra Part

III.

Finally, absent a clear link to statehood, the Wyoming District Court’s clearly-contemplated-event standard is no different than the “temporary and precarious”

standard rejected in Mille Lacs because it is not “useful

as a guide to whether treaty rights were intended to

survive statehood.” 526 U.S. at 207.

Accordingly, the judgment of the Wyoming District

Court should be reversed.

Respectfully submitted,

JOHN DOSSETT

NATIONAL CONGRESS

OF AMERICAN INDIANS

1516 P Street NW

Washington, D.C. 20005

MARC D. SLONIM

Counsel of Record

BETH BALDWIN

ZIONTZ CHESTNUT

2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

mslonim@ziontzchestnut.com

Counsel for Amici Curiae

September 11, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.