Amicus Curiae Brief — Herrera v. Wyoming, 138 S. Ct. 720 (2018) (No. 17-532)

No. 17-532

In the

Supreme Court of the United States

CLAYVIN B. HERRERA,

Petitioner,

Vv.

STATE OF WYOMING,

Respondent.

On Writ of Certiorari to the

District Court of Wyoming, Sheridan County

BRIEF OF AMICI CURIAE INDIAN LAW

PROFESSORS IN SUPPORT OF PETITIONER

MONTE MILLS

Counsel of Record

Associate Professor

ALEXANDER BLEWETT II!

SCHOOL OF LAW AT THE

UNIVERSITY OF MONTANA

Missoula, MT 59812

(406) 243-2544

monte.mills@umontana.edu

Counsel for Amici Curiae

Indian Law Professors

September 11, 2018

(A RN EE EAR Ae SY ET EE TE we NS

TABLE OF CONTENTS

I. As the Supreme Law of the Land, Indian

Treaties Establish the Central Tenets of

Ill. The Court’s Long-Standing Principles of

Indian Treaty Interpretation Demonstrate

Why the Decision Below Should Be Reversed ....

A. These Principles Apply to All Indian

B. The Court Has Applied These

Interpretive Principles to Permit Indians

to Exercise Reserved Treaty Rights to

Hunt and ~“Fish Off-Reservation

Notwithstanding State Regulation.............

C. The Court’s Interpretive Rules Require

Preservation of Tribal Treaty Rights to

Ensure That Constitutional Power Is

Based on the Consent of the Governed ......

IV. The Decision of the Wyoming District Court

in This Case is Inconsistent With This Court’s

Renter preteen THRERAGES ....ccccccccccccccscececccesceceececees

‘3

A. Race Horse and Repsis Depart From This

Court’s Indian Treaty Precedent................ 14

B. Mille Lacs, Not Race Horse or Repsis,

Guides Resolution of the Questions

III J on. inccntaseneinieniennatentninnnbuseni 17

C. Mille Lacs Repudiated Race Horse and

inthis insiincliciianeslnnnalaceabashpiccenbisbecasuaiieidasvepiindiinn 20

RS ATER Fo IESE ASS eC ToS a RO 21

APPENDIX

Appendix A

List of Amici Curiae Indian Law Professors... App-1

TABLE OF AUTHORITIES

Cases

Antoine v. Washington,

EER a ae ec 6, 7, 11

Bryan v. Itasca County,

as cahcmegminsaenaiiiade 2

Cherokee Nation v. Georgia,

census 5

County of Oneida v. Oneida Indian Nation,

NES SRS 2, 6,8

County of Yakima v. Confederated Tribes

of the Yakima Indian Nation,

EE, a 8, 22

Crow Tribe of Indians v. Repsis,

73 F.3d 982 (10th Cir. 1995) .................000000. passim

Crow Tribe of Indians v. United States,

, > oF Co K+ IEEE Ear 2

Department of Game of Washington v.

Puyallup Tribe,

TER SE a ae 11

Federal Power Commission v. Tuscarora

Indian Nation,

at sennmeneneniaian i)

Jones v. Meehan,

SEE Ceara 7

McClanahan v. Arizona Tax Commission,

i cisunienepesnese 7

Menominee Tribe of Indians v. United States,

I a 3, 8

iv

Minnesota v. Mille Lacs Band

of Chippewa Indians,

I a eeneeeesanincmendananens passim

Plains Commerce Bank v. Long Family Land

& Cattle Company,

a seinerlnnnlelanneneiie 5

Puyallup Tribe v. Department

of Game of Washington,

a. ccnsencnnbdtnscsibianeten 11

Puyallup Tribe v. Department

of Game of Washington,

a sabensonooneennennnuesin 11

Shoshone-Bannock Tribes v. Fish &

Game Commission,

42 F.3d 1278 (9th Cir. 1994) ............ccccccccecceeeeeeeees 16

State v. Arthur,

261 P.2d 135 (Idaho 19653) ....................ccsssccceseeeese 16

State v. Stasso,

563 P.2d GE2B (Mont. 1977) ............ccccccccecccccrcccccceee 16

State v. Tinno,

497 P.2d 1386 (Idaho 1972) ...................00ce0000 16, 21

Tulee v. Washington,

I I ic ccnccsnccccsecseszescossscessessseene 6, 7, 11

United States v.

Santa Fe Pacific Railroad,

a centaseeeunnnnstinonntainies 2,19

United States v. Dion,

La ce eensennenneeenen 4

United States v. Shoshone Tribe,

i ccsemnennimaebuetities 7

v

United States v. Washington,

384 F. Supp. 312 (W.D. Wash. 1974) , affd 520 U.S.

676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

I esiusibclaiiihi isis iatthldetescnbpeitensieniiennteepenstensuninisadundans 13

United States v. Winans,

I I i ceescenceeuetensenneeen passim

Ward v. Race Horse,

163 U.S. 504 (1896) ..............cccccccceessesseeeeeeeees passim

Washington v. Washington State Commercial

Passenger Fishing Vessel Association,

a 8, 11

Worcester v. Georgia,

en 3, 5, 6, 7

Constitutional Provisions

oh pS i SS See 2,4

Treaties

Treaty with the Chippewa, Feb. 22 1855, 10

SE RSE A Oe 19

Treaty with the Crows, May 7, 1868, 15 Stat.

i iiehdschidshnasnaiesaliishanbiataciemnesiendininabiiniaubebeeddiibanditnians 3, 3, 17

First Treaty of Fort Laramie, Sept. 17, 1851,

a enlal 1

Statutes at Large

An Act: Making appropriations for the

current and contingent expenses of the

Indian Department, Ch. 543, § 31,

26 Stat. 989, 1042 (1891) .............cccccccccccceeceeeeeeeeees 18

Act of June 4, 1897, Ch. 2, 30 Stat. 11..................... 16

An Act to ratify and amend an agreement

with the Indians of the Crow Reservation

vi

in Montana, Pub. L. No. 58-183, Art. VII,

33 Stat. 352, 355 (1904)..........ccccccccccceeeeeereeeeeeenes

Presidential Proclamations

Presidential Proclamation No. 393, 29 Stat.

I Silip. Se erwencccscosmnevesvscevsnenessevesnenttvconens

Other Authorities

2 Charles Kappler, Indian Affairs:

Laws and Treaties (1904) .................0..c0cceceeeeeeeees

Allison M. Dussias, Spirit Food and

Sovereignty: Pathways for Protecting

Indigenous Peoples’ Subsistence Rights, 58

Clev. St. L. Rev. 273 (2010) ..........ccccccceeeeeeeeeeeeeees

Cohen’s Handbook of Federal Indian Law

(Nell Jessup Newton, ed., 2012)................0.0000000e

Columbia River Intertribal Fish Commission,

We Are All Salmon People, http://www.critfc.

org/salmon-culture/we-are-all-salmon-people/

(ast visited Oct. 26, 3017) .........ccccccerrsessseseseresees

INTEREST OF AMICI CURIAE:

Amici are professors and scholars of Indian law

listed in the APPENDIX. Amici submit this brief to

assist the Court with the proper application of its

precedent relevant to the Supremacy Clause of the

United States Constitution, treaties between the

United States and Indian tribes, and the Court’s

standards for interpreting those treaties.

SUMMARY OF THE ARGUMENT

This Court consistently applies well-established

principles of interpretation to treaties between the

United States and Indian tribes. Those interpretive

standards protect important aspects of both the

United States’ constitutional structure and tribal

identity. The decision below by the Wyoming District

Court did not adhere to those time-honored rules of

interpretation and is inconsistent with this Court’s

precedent. Therefore, the Court must reverse that

decision.

Prior to 1868, Crow Tribal territory, at least as

recognized by the United States in the 1851 Fort

Laramie Treaty, encompassed nearly 40 million acres,

most of which was located in what became Montana

and Wyoming. First Treaty of Fort Laramie, Sept. 17,

1851, 11 Stat. 749 (reprinted in 2 Charles J. Kappler,

Indian Affairs: Laws and Treaties 594-595 (1904)). In

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

part. No person or entity otaer than amici and their counsel made

a monetary contribution intended to fund the preparation or

submission of this brief. Amici file this brief as individuals and

Both Petitioner and Respondent consent to the filing of amicus

briefs.

2

1868, the Crow Tribe (“Tribe”) ceded more than three-

quarters of that land, over 30 million acres, to the

United States via a subsequent treaty. Crow Tribe of

Indians v. United States, 284 F.2d 361, 362 (Ct. Cl.

1960). Importantly, however, in exchange for that

cession and in order to protect access to game they

needed to survive, the Tribe reserved the essential

right to utilize traditional hunting, fishing, and

gathering sites located outside their reservation.

Specifically, the 1868 Treaty reserved to the Tribe 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.” Treaty with

the Crows, art. 4, May 7, 1868, 15 Stat. 649, 650.

Treaties are the supreme law of the land, U.S.

Const. art. VI, § 1, cl. 2, and they remain valid unless

and until Congress clearly expresses its intent to

abrogate them. Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 202 (1999) (“Mille

Lacs”). (“Congress may abrogate Indian treaty rights,

but it must clearly express its intent to do so.”

(citations omitted)); see also United States v. Santa Fe

Pac. R.R. Co., 314 U.S. 339, 346, 353-54 (1941)

(Congress must be “plain and unambiguous” or “clear

and plain” when abrogating tribal property rights.).

Additional long-standing principles of treaty

interpretation developed and applied by the Court

require that treaties, along with any ambiguous

language therein, be construed as the Indians would

have understood them and be liberally interpreted in

favor of the Indians. See, e.g., Cty. of Oneida v. Oneida

Indian Nation, 470 U.S. 226, 247 (1985); Bryan v.

Itasca Cty., 426 U.S. 373, 392 (1976); Menominee Tribe

3

of Indians v. United States, 391 U.S. 404, 412-13

(1968) (declining “to construe the [Menominee]

Termination Act as a backhanded way” to destroy the

hunting and fishing rights, described by the Court as

“property rights,” reserved by the Tribe in an earlier

treaty).

The Court’s long tradition of applying these

interpretive standards ensures that government

power is based on the consent of the governed and

protects important structural aspects of federal Indian

law and jurisprudence. See, e.g., Worcester v. Georgia,

31 U.S. 515, 551-57 (1832) (interpreting the Treaty of

Hopewell in view of congressional policy to “treat

|tribes] as nations, respect their rights, and manifest

a firm purpose to afford that protection which treaties

stipulate”). Following that tradition, which

culminated most recently in the Court’s 1999 Mille

Lacs decision, provides clear and straightforward

answers to the questions presented in this case.

Like other Indian nations, the Crow Tribe

formally associated with the United States through

treaties that cemented a consensual,

intergovernmental relationship. The Treaty of 1868

memorialized certain terms of that agreement,

including the Tribe’s right to continue to “hunt on the

unoccupied lands of the United States.” Treaty with

the Crows, art. 4, May 7, 1868, 15 Stat. 649, 650. No

subsequent treaties or statutes, including the Act

admitting Wyoming to the Union, demonstrate any

clear or unambiguous statement that Congress

intended to terminate that right. Therefore, when

properly applied, this Court’s standards for Indian

treaty interpretation confirm the Crow Tribe's

4

ongoing right to hunt in the Bighorn National Forest

in Wyoming.

The decisions of the Wyoming courts below

ignored these judicially recognized legal principles

and, instead, relied exclusively on the flawed

reasoning of a 1995 United States Court of Appeals for

the Tenth Circuit case, Crow Tribe of Indians v.

Repsis, 73 F.3d 982, and a United States Supreme

Court case from 1896, Ward v. Race Horse, 163 U.S.

504. This approach incorrectly rendered the Crow

Treaty subject to different, uncertain, and less

stringent interpretive rules than those applied by this

Court to all other Indian treaties. Therefore, the Court

should reverse the judgment of the Wyoming District

Court.

ARGUMENT

I. As the Supreme Law of the Land, Indian

Treaties Establish the Central Tenets of

Federal Indian Law.

Treaties made by and between the United States

and Indian tribes form the foundation of the unique

federal-tribal relationship and have defined that

relationship since this Court’s earliest decisions.

These treaties are the supreme law of the land, U.S.

Const. art. VI, § 2, cl. 2, and remain enforceable unless

Congress has clearly abrogated them by subsequent

treaty or statute. See, e.g., Mille Lacs, 526 U.S. at 202;

United States v. Dion, 476 U.S. 734, 739-40 (1986).

Through their treaty relationships with the

United States, Indian tribes have been recognized as

distinct nations since the beginning of the Republic. In

one of its earliest Indian law decisions, for example,

this Court recognized that “t]he numerous treaties

5

made with [Indian tribes} by the United States

recognize them as a people ... responsible in their

political character for any violation of their

engagements.”. Cherokee Nation v. Georgia, 30 U-S. 1,

16 (1831). The Court continues to recognize Indian

tribes based on that conception of their separate

political character. See, e.g., Plains Commerce Bank v.

Long Family Land & Cattle Co., 554 U.S. 316, 327

(2008) (“For nearly two centuries now, we have

recognized Indian tribes as ‘distinct, independent

political communities.” (quoting Worcester, 31 U.S. at

559)).

Furthermore, although Indian nations are subject

to federal authority, their exclusive treaty

relationship with the United States generally

insulates them from state authority in the absence of

express federal legislation to the contrary. “The

treaties and laws of the United States contemplate the

Indian territory as completely separated from that of

the states; and provide that all intercourse with them

shall be carried on exclusively by the government of

the union.” Worcester, 31 U.S. at 557. Because the acts

of the State of Georgia in Worcester “interfere|d]

forcibly with the relations established between the

United States and the Cherokee nation” and were “in

direct hostility with [those] treaties,” the Court

determined the state laws could “have no force” within

Cherokee territory. Jd. at 561. It remains well

established that treaties are a central component of

the federal relationship with Indian tribes, and even

outside of their territory, Indian tribes and their

individual members exercising federally guaranteed

treaty rights are generally free from regulation by the

6

states. See, e.g., United States v. Winans, 198 U.S. 371

(1905); Tulee v. Washington, 315 U.S. 681 (1942).

Il. The Court Developed and Relies on Long-

Standing Principles of Interpretation for

Analyzing Indian Treaties.

In light of the importance of treaties to the

federal-tribal relationship, the Court fashioned

specific rules of construction for interpreting treaties

that give proper respect to the solemnity and purpose

of those contracts. These rules, sometimes referred to

as “canons of construction,” see, e.g., Cty. of Oneida,

470 U.S. at 247; Antoine v. Washington, 420 U.S. 194,

199 (1975), honor both the elevated status of treaties

under the Constitution and their meaning and intent.

See, e.g., Worcester, 31 U.S. at 551-57 (interpreting the

Treaty of Hopewell in view of congressional policy to

“treat [tribes] as nations, respect their rights, and

manifest a firm purpose to afford that protection

which treaties stipulate”). These fundamental maxims

of treaty interpretation are not simply an effort to

address a perceived inequality in bargaining power

between tribes and the United States. Instead, the

rules are “rooted in the unique trust relationship

between the United States and the Indians|,]” Cty. of

Oneida, 470 U.S. at 247, and “have quasi-

constitutional status . . . provid[ing] an interpretive

methodology for protecting fundamental constitutive,

structural values against all but explicit congressional

derogation.” Cohen’s Handbook of Federal Indian Law

§ 2.02[2], at 118-19 (Nell Jessup Newton, ed., 2012).

The Court employs three basic interpretive

principles when analyzing treaties between the

United States and Indian tribes. First, the Court

7

“interpret|s} Indian treaties to give effect to the terms

as the Indians themselves would have understood

them.” Mille Lacs, 526 U.S. at 196 (citations omitted)

(emphasizing the importance of the context of a

treaty). This rule requires looking at treaty language

“not according to the technical meaning of its words to

learned lawyers, but in the sense in which they would

naturally be understood by the Indians.” Jones v.

Meehan, 175 U.S. 1, 11 (1899); see also United States

v. Shoshone Tribe, 304 U.S. 111, 116 (1938) (Treaties

“are not to be interpreted narrowly, as sometimes may

be writings expressed in words of art employed by

conveyancers, but are to be construed in the sense in

which naturally the Indians would understand them.”

(citations omitted)).

Second, the Court liberally interprets the

language of Indian treaties in favor of the Indians. As

early as 1832, in Worcester, the Court instructed that,

if the context of a treaty suggests its language can be

extended beyond its “plain import,” then the language

must be interpreted with that broader understanding.

31 U.S. at 582. Ambiguities in the treaty language are

resolved in favor of the Indians. See, e.g., McClanahan

v. Arizona Tax Comm'n, 411 U.S. 164, 174 (1973). The

responsibility to interpret treaties in this manner

seeks to ensure that treaty terms “are carried out, so

far as possible .. . in a spirit which generously

recognizes the full obligation of this nation to protect

the interests of [Indian] people.” Tulee, 315 U.S. at

684-85; see also Antoine, 420 U.S. at 199 (“The canon

of construction applied over a century and a half by

this Court is that the wording of treaties and statutes

ratifying agreements with the Indians is not to be

construed to their prejudice.” (citing Worcester, 31

8

U.S. 515)); Washington v. Washington State

Commercial Passenger Fishing Vessel Ass'n, 443 U.S.

658, 690 (1979) (“Fishing Vessel’). Justice Scalia,

writing for the majority in County of Yakima uv.

Confederated Tribes and Bands of the Yakima Indian

Nation, recognized that this principle is “deeply rooted

in th{e] Court’s Indian jurisprudence” and “dictated”

the Court’s interpretive choices in that case. 502 U.S.

251, 269 (1992).

Finally, the rights reserved by treaties remain

intact unless Congress has expressed clear and

unambiguous contrary intent. Mille Lacs, 526 U.S. at

202 (“Congress may abrogate Indian treaty rights, but

it must clearly express its intent to do so.” (citations

omitted)); Cty. of Oneida, 470 U.S. at 257; Fishing

Vessel, 443 U.S. at 690. This rule avoids the

inadvertent taking of tribal property rights—and the

corresponding obligation to provide due

compensation—by ensuring that federal actions

should never be interpreted to abrogate reserved

treaty rights by implication. See, e.g., Menominee

Tribe of Indians, 391 U.S. at 412-13, 417.

The state court decisions in this case ignored this

Court’s interpretive rules and, instead, determined

that the mere admission of Wyoming as a state

impliedly abrogated hunting rights promised to the

Crow Tribe by the federal government in the 1868

Treaty. See Pet.App.32, 34.

9

Ill. The Court’s Long-Standing Principles of

Indian Treaty Interpretation Demonstrate

Why the Decision Below Should Be

Reversed.

A. These Principles Apply to All Indian

Treaties.

The Court developed specific standards for

interpreting Indian treaties in order to protect the

quasi-constitutional status of treaties and preserve

the benefit of the bargains that those documents

memorialize. Failing to apply those rules when

engaging in treaty interpretation endangers the very

foundations of this Court’s Indian law and

constitutional jurisprudence. The Court developed

those interpretive rules because of the importance of

Indian treaties to the creation of our nation and in

recognition that the United States’ promises should be

honored, whether pledged two centuries or two

minutes ago. Cf. Federal Power Comm'n v. Tuscarora

Indian Nation, 362 U.S. 99, 142 (1960) (Black, J.,

dissenting) (“Great nations, like great men, should

keep their word.”). Thus, failing to adhere to these

principles is an affront to the dignity of those solemn

guarantees.

Treaty promises continue to define the contours of

this Court’s more modern Indian law jurisprudence,

see, e.g., Mille Lacs, 526 U.S. at 196-203, and form the

basis of the ongoing government-to-government

relationship among tribes, states, and the United

States. Allowing alternative interpretive approaches

by state courts would render both the United States

and signatory tribes subject to inconsistent and

potentially arbitrary judicial review of their

10

agreements. While the different language, meaning,

and intent of each treaty demand specific attention,

the rules by which courts must attend to that analysis

are well-established. Allowing deviation from those

standards, given the long history of this Court’s

stalwart commitment to them, would not only demean

the hundreds of treaties between the United States

and Indian tribes, it would plunge into uncertainty the

meaning and scope of the relationships established by

those treaties.

B. The Court Has Applied These

Interpretive Principles to Permit

Indians to Exercise Reserved Treaty

Rights to Hunt and Fish Off-Reservation

Notwithstanding State Regulation.

The exercise by an individual Indian of a treaty-

reserved right to hunt or fish off-reservation can lead

to conflict with local and state laws. With the

exception of Race Horse, the Court has consistently

resolved these conflicts by applying the well-

established standards for interpreting Indian treaties

to insulate the exercise of tribal treaty rights from

state regulation except in narrow and _ specific

circumstances.

The Court’s approach to enforcing tribes’ off-

reservation treaty rights began with Winans in 1905.

198 U.S. 371. In that case, non-Indians had effectively

blocked tribal members from accessing their

traditional fishing grounds by constructing a fish

wheel on the non-Indians’ private property. Id. at 377.

The Court interpreted treaty language to require

tribes’ access to their traditional sites even though the

non-Indians had complied with state law. Jd. at 381-

11

82, 384. The Court recognized that the right to use

traditional fishing locations was “part of larger rights

possessed by the Indians,” and that the “form of the

[treaty] and its language was adapted” to preserve the

exercise of those rights. Jd. at 381. The Court

expressly rejected the argument that the Tribe’s

reserved rights were abrogated by admission of the

State of Washington to the Union. /d. at 382-84.

Similarly, in Tulee, the Court considered

Washington’s conviction of a member of the Yakima

Tribe for failure to obtain a state license to fish. 315

U.S. at 682. “Viewing the treaty in . . . light” of the

rule requiring liberal construction and an

understanding of the language as the Indians would

have understood it, the Court determined that the

“state is without power to charge the Yakimas a fee for

fishing” because the State’s licensing requirement

could not “be reconciled with a fair construction of the

treaty.” Id. at 685.2

2 In a series of cases following Winans and Tulee, the Court

defined the balance between off-reservation treaty rights and

state authority by allowing that states may regulate off-

reservation exercise of treaty rights only as necessary for the

conservation of a species, and only if the state’s regulation does

not discriminate against Indians. See Puyallup Tribe v. Dep't of

Game of Wash., 391 U.S. 392 (1968) (Puyallup D; Dep't of Game

of Wash. v. Puyallup Tribe, 414 U.S 44 (1973); Antoine, 420 U.S.

194; Puyallup Tribe, Inc. v. Dep't of Game of Waeh., 433 U.S. 165

(1977); Fishing Vessel, 443 U.S. at 675-76. In each of these cases,

the Court analyzed the relevant treaty or other agreement in

accordance with established interpretive principles. E.g.,

Puyallup I, 391 U.S. at 397-98 (“It is in th{e] spirit [of liberal

treaty construction] that we approach these cases.”); Antoine, 420

U.S. at 199-200; Fishing Vessel, 443 U.S. at 675-76. The decision

12

The Court most recently and _ extensively

pronounced its interpretive standards for Indian

treaties in 1999 in Mille Lacs. 526 U.S. at 196-203.

There, the majority interpreted treaty language to

recognize that the usufructuary rights reserved by the

treaty were more than mere “privileges” that would

‘justify [a] difference| | in [allowing] state regulatory

authority.” Jd. at 205-06. As described in greater detail

infra, Mille Lacs does not support the decision below.

These principles of construction are fundamental

to this Court’s Indian law jurisprudence and necessary

for ensuring that treaties and the rights preserved by

them are given due consideration and protection as

usufructuary rights reserved under federal law.

C. The Court’s Interpretive Rules Require

Preservation of Tribal Treaty Rights to

Ensure That Constitutional Power Is

Based on the Consent of the Governed.

Congress has broad authority to legislate in the

domain of Indian affairs; however, the exercise of

federal power over Indian nations is problematic

because Indian nations were not parties to the

Constitution. Indian nations like the Crow Tribe

negotiated agreements with the United States. Those

treaties have a quasi-constitutional status, both

because they are the supreme law of the land and

because they provide a source of federal power that is

potentially based on mutual consent.

Treaties provided a mechanism for Indian tribes

to retain the lands, waters, and hunting, fishing, and

below did not take up the “conservation necessity issue” and it is

not before the Court in this case. Pet.App.25 n.7; Pet.App.14 n.3;

13

gathering rights on which their ways of life would

continue to depend. At the time the treaties were

entered, these rights were “not much less necessary to

the existence of the Indians than the atmosphere they

breathed,” Winans, 198 U.S. at 381, and they have

remained so to the present day. As Judge Boldt noted

in his landmark 1974 decision regarding tribal fishing

rights in the State of Washington, treaty rights protect

“the means of economic livelihood and the foundation

of native culture,” and “[rjeservation of the right to

gather food in this fashion protected the Indians’ right

to maintain essential elements of their way of life, as

a complement to the life defined by the permanent

homes, allotted farm lands, compulsory education,

technical assistance and pecuniary rewards offered in

the treaties.” United States v. Washington, 384 F.

Supp. 312, 406-07 (W.D. Wash. 1974), affd 520 U.S.

676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).

Off-reservation usufructuary rights remain essential

to the very identity of the tribes and tribal people who

exercise them today. See, e.g., Columbia River

Intertribal Fish Comm’n, We Are All Salmon People,

http://www.critfc.org/salmon-culture/we-are-all-

salmon-people/ (last visited Oct. 25, 2017); Allison M.

Dussias, Spirit Food and Sovereignty: Pathways for

Protecting Indigenous Peoples' Subsistence Rights, 58

Clev. St. L. Rev. 273, 276 (2010) (Subsistence

resources “are not just food for the body, but also ‘spirit

food.”).

Thus, the Court’s approach to treaty

interpretation ensures the fulfillment of the historic

bargains through which the United States acquired

much of its territory. The treaties marked the terms of

that exchange. The United States obtained land and

14

an end to hostilities and pledged in return to respect

remaining tribal homelands, tribal political existence,

and the ability for tribes to sustain themselves. The

terms of those treaties “seemed to promise more, and

give the word of the nation for more” to Indian tribes

than that guaranteed to other citizens. Winans, 198

U.S. at 380. In order to ensure those promises are

kept, the Court’s interpretive standards recognize

that a “treaty was not a grant of rights to the Indians,

but a grant of right from them,—a reservation of those

not granted.” Jd. at 381.

IV. The Decision of the Wyoming District Court

Is Inconsistent With This Court's

Interpretive Tradition.

The Wyoming District Court failed to apply the

Court’s long-standing’ interpretive ules of

construction. Instead, it simply endorsed the trial

court’s “adoption of] the analysis and conclusions” of

Repsis, which largely tracked the Supreme Court’s

1896 decision in Race Horse. Pet.App.34. In addition,

the District Court, like the trial court before it,

misinterpreted Mille Lacs to support its decision. /d.

The decision below is contrary to this Court's

jurisprudence.

A. Race Horse and Repsis Depart From This

Court’s Indian Treaty Precedent.

Both Race Horse and Repsis interpreted Indian

treaties to resolve ambiguities against the tribes

involved. First, the Race Horse Court took pains ‘to

interpret the relationship between the phrases

“unoccupied lands of the United States” and “so long

as peace subsists among the whites and Indians on the

borders of the hunting districts” in the Eastern

15

Shoshone and Bannock Treaty. 163 U.S. at 507-14.

While initially conceding that the former phrase alone

would protect hunting rights across all federal lands,

the Court then determined that the meaning of that

phrase must be controlled by the subsequent phrase,

specifically the words “hunting districts.” Id. at 507-

08. Although the Court did not define the term

“hunting districts,” it interpreted that phrase to mean

that the treaty rights at issue were contingent upon

the continuing existence of the “hunting districts” and,

therefore, were of a “temporary and precarious

nature.” /Id. at 509-10 (The treaty no longer

“authorized the continued enjoyment of the right of

killing game . . . when the territory ceased to be a part

of the hunting districts, and came within the authority

and jurisdiction of a state.”).

While the parties to the treaty may have

understood that the treaty language conditioned the

tribal hunting rights on certain circumstances—

“unoccupied land,” the presence of game, peace—the

Race Horse Court combined those terms to concoct its

own understanding of the treaty, which denigrated

those rights without regard for the parties’ intent or

the tribal interests at stake. The Court then relied on

that construction to find that Wyoming’s subsequent

statehood, an event occurring much eiater,

unmentioned in the treaty, and not considered during

its negotiation, ended the tribal rights. By

interpreting the treaty to secure only “temporary and

precarious” rights, the Race Horse Court simply

“declined to follow” the applicable interpretive rules in

favor of its own approach. Race Horse, 163 U.S. at 516;

Repsis, 73 F.3d at 992.

16

Ignoring the absence of any express language in

Wyoming’s statehood act regarding treaty rights, the

Repsis court applied to the Crow Treaty Race Horse’s

“abrogation-by-implication” approach. Jd. (“The

Tribe's right to hunt reserved in the Treaty with the

Crows, 1868, was repealed by the act admitting

Wyoming into the Union.” (citing Race Horse, 163 U.S.

at 514)). Repsis further followed the lead of Race Horse

to fashion its own interpretive construction of the

Crow Treaty. After deferring entirely to Race Horse's

“temporary and precarious” construction, the Repsis

court then struck out on its own to find an “alternative

basis” for its holding. Jd. at 993. Interpreting the

treaty term “unoccupied,” the court determined that

creation of the “Big Horn National Forest” limited

certain activities on those lands, thereby rendering

them occupied and ending the Crow’s treaty rights. /d.

(“These lands were no longer available for settlement.

No longer could anyone timber, mine, log, graze cattle,

or homestead on these lands without federal

permission.” (citing Act of June 4, 1897, ch. 2, 30 Stat.

11, 35-36)).* The Repsis court neither considered what

the parties to the treaty intended by “unoccupied” nor

engaged in any treaty interpretation on that

question.‘

3 While now named the Bighorn National Forest, the area was

originally called the Big Horn Forest Reserve. See, e.g.,

Presidential Proclamation No. 393, 29 Stat. 909 (Feb. 22, 1897).

‘ Repsis also overlooked interpretations of that term and

similar treaty language by other courts, most of which reached

exactly the opposite conclusion about its meaning. See Shoshone-

Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278 (9th Cir.

1994); Stee v. Tinno, 497 P.2d 1386 (Idaho 1972); State v. Stasso,

17

B. Mille Lacs, Not Race Horse or Repsis,

Guides Resolution of the Questions

Presented Here.

Applying the interpretive guidance set forth in

Mille Lacs to the treaty language at issue in this case

demonstrates the inconsistency of Race Horse, Repsis,

and the decisions below with the great weight of this

Court’s jurisprudence interpreting Indian treaties.

Applying that guidance to the Crow Treaty confirms

the ongoing existence of the hunting rights reserved

therein.

First, Mille Lacs reiterated the need to

understand treaty language as the tribal party to that

treaty would have understood it. 526 U.S. at 196. No

court yet has analyzed what the members of the Crow

Tribe would have understood the treaty to mean with

regard to their “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.” Treaty with the Crows, art. 4, May 7, 1868,

15 Stat. 649, 650.

Second, Mille Lacs flatly rejected the notion that

the admission of a state to the United States would,

standing alone, mark an end to treaty-reserved rights

within that state. 526 U.S. at 205 (“[S]tatehood by

itself is insufficient to extinguish Indian treaty rights

to hunt, fish, and gather on land within state

boundaries.”). Congress apparently understood the

same, as legislation enacted subsequent to Wyoming's

563 P.2d 562, 565 (Mont. 1977); State v. Arthur, 261 P.2d 135,

143 (Idaho 1953).

18

statehood expressly recognized the continuing

existence of rights reserved in the Crow Treaty of

1868. See, e.g., An Act: Making appropriations for the

current and contingent expenses of the Indian

Department, ch. 543,§ 31, 26 Stat. 989, 1042, (1891)

(ratifying an agreement with the Crow Indians

regarding sale of lands and construction of school

houses and other facilities with the proviso that “all

existing provisions of the treaty of May seventh Anno

Domini eighteen hundred and sixty-eight . . . shall

continue in force”); An Act to ratify and amend an

agreement with the Indians of the Crow Reservation

in Montana, and niaking appropriations to carry the

same into effect, Pub. L. No. 58-183, Art. VII, 33 Stat.

352, 355 (1904) (“The existing provisions of all former

treaties with the Crow tribe of Indians not

inconsistent with the provisions of this agreement, are

hereby continued in force and effect, and all provisions

thereof inconsistent herewith [pertaining to sale of a

portion of the reservation] are hereby repealed.”).

Nonetheless, according to Race Horse and Repsis,

Wyoming’s admission to the Union created an

“irreconcilable conflict” with the treaty rights reserved

by the Crow. Race Horse, 163 U.S. at 514; Repsis, 73

F.3d at 990.

Third, according to Mille Lacs, “Congress may

abrogate Indian treaty rights, but it must clearly

express its intent to do so.” 526 U.S. at 202 (citations

omitted). Although construing the Eastern Shoshone

and Bannock Treaty, not the Crow Treaty, the Race

Horse majority found no express language in that

treaty or in Wyoming’s statehood act that signaled the

end of those treaty rights. See 163 U.S. at 511, 514

(Although “repeals by implication are not favored .. .

19

repeal |jof the treaty-reserved rights] result{ed] from

the conflict between the treaty and the act admitting

[Wyoming] into the Union,” despite the silence of that

act as to treaty rights.). Repsis then adopted this

misguided approach when interpreting the Crow

Treaty. Repsis, 73 F.3d at 990.

Finally, Mille Lacs reiterated the Court’s prior

instructions that “Indian treaties are to be interpreted

liberally in favor of the Indians .. . and that any

ambiguities are to be resolved in their favor.” 526 U.S.

at 200 (citations omitted). The Court followed that rule

when interpreting language in an 1855 treaty

pursuant to which the Mille Lacs Band of Chippewa

had agreed to “fully and entirely relinquish and

convey to the United States, any and all right, title

and interest . . . in, and to any other lands.” Jd. at 195

(quoting Treaty with the Chippewa, Feb. 22, 1855, 10

Stat. 1165). Noting that the language said nothing

about the Chippewa’s 1837 treaty; the hunting,

fishing, and gathering rights in territories across

Minnesota they reserved in that treaty; or the

abrogation of those rights, the Court concluded that

even if such silence amounted to a “plausible

ambiguity,” the Court’s interpretive standards

required ruling in favor of the Chippewa. /d. at 200.

Rather than follow Mille Lacs’ deliberate and

thorough approach to treaty interpretation, the

Wyoming circuit court instead relied solely and

erroneously on Repsis, concluding that the Crow

“hunting rights were temporary and ended upon the

occupation of the [Bighorn National Forest.”

Pet.App.41. Then, rather than correct that misguided

approach and adhere to Mille Lacs, the Wyoming

20

District Court instead determined that Mille Lacs only

“reaffirmed the principle that the court must look at

the language in the treaty to determine whether it was

intended to be perpetual or if it was intended to

terminate at the occurrence of a ‘clearly contemplated’

event.” Pet.App.34. Neither of these approaches is

viable in light of Mille Lacs and the Court’s long-

standing interpretive principles repeated in that

decision.

C. Mille Lacs Repudiated Race Horse and

Repsis.

By myopically relying on Race Horse and Repsis,

the decisions below ignored this Court’s evisceration

of the legal theories undergirding those decisions. The

majority opinion in Mille Lacs repeatedly criticized

the reasoning of Race Horse, saying that the decision

“has been qualified by later decisions of th{e] Court,”

526 U.S. at 203, that it “rested on a false premise,” id.

at 204, and that it “[wa]s simply too broad to be useful

as a guide to whether treaty rights were intended to

survive statehood.” Jd. at 206. Even the core of Race

Horse’s central inquiry, i.e., “whether Congress . . .

intended the rights secured by the [relevant treaty] to

survive statehood,” 526 U.S. at 207, was mistaken:

Race Horse rested on a false premise. As this

Court's subsequent cases have made clear, an

Indian tribe's treaty rights to hunt, fish, and

gather are not irreconcilable with a State's

sovereignty over natural resources in the State.

. . . [Race Horse] was informed by that Court's

conclusion that the Indian treaty rights were

inconsistent with state sovereignty over natural

resources... .But .. . Indian treaty-based

21

usufructuary rights are not inconsistent with

state sovereignty over natural resources.

Id. at 204, 207-08.

In light of the majority’s obvious disagreement

with Race Horse, Chief Justice Rehnquist, in dissent,

concluded that the Mille Lacs majority had “effectively

overrule[d]” Race Horse. Id. at 219. Thus, contrary to

the overly narrow and inapt reading of Race Horse by

the Wyoming District Court, see Pet.App.24, Mille

Lacs implicitly overruled Race Horse and, by

extension, Repsis. See also State v. Tinno, 497 P.2d

1386, 1392 n.6 (Idaho 1972) (In a decision pre-dating

Mille Lacs by a quarter century, the Idaho Supreme

Court read this Court’s precedent to see that “Race

Horse and the theory it posited ha[d] been entirely

discredited.”).

By relying on Repsis and Race Horse, the decision

below failed to follow this Court’s directions for

interpreting the Crow Treaty. This Court must correct

those errors by applying its well-established rules for

interpreting Indian treaties.

CONCLUSION

This Court has faithfully and repeatedly protected

the tribal rights reserved in treaties with the United

States from unjustified abrogation and improper

subjugation to state authority. Such protection is

mandated by the supremacy of federal treaties under

the Constitution and the need to ensure justice for the

tribal parties to those agreements. See, e.g., Winans,

198 U.S. at 380-81 (interpreting the treaty at issue so

as to “counterpoise the inequality” of treaty

negotiations and observing that the “negotiations and

a convention . .. seemed to promise more, and give the

22

word of the nation for more” than the mere “rights . . .

that any inhabitant of the territory or state would

have”).

The decisions of the Wyoming courts in this

matter diverged from that tradition in favor of

following the faded hoof prints of Race Horse and

Repsis. Those decisions below ignored the fact that

Mille Lacs fatally undercut both Race Horse and

Repsis. This case presents an opportunity for this

Court to reaffirm the well-founded interpretive

principles it developed for Indian treaties. Doing so is

necessary to honor the “deeply rooted” role of those

principles in the Court’s Indian law jurisprudence and

avoid the uncertainty and confusion that would result

from endorsing alternative approaches to treaty

interpretation by state and lower federal courts. Cty.

of Yakima, 502 U.S. at 269.

The Court should reverse the judgment of the

Wyoming District Court.

Respectfully submitted,

MONTE MILLS

Counsel of Record

Associate Professor

ALEXANDER BLEWETT LI!

SCHOOL OF LAW AT THE

UNIVERSITY OF MONTANA

Missoula, MT 59812

(406) 243-2544

monte.mills@umontana.edu

Counsel for Amici Curiae

Indian Law Professors

September 11, 2018

APPENDIX

TABLE OF APPENDICES

Appendix A

List of Amici Curiae Indian Law Professors... App-1

App-1

APPENDIX A

This Appendix provides titles and institutional

affiliations for identification purposes only.

Michael C. Blumm is the Jeffrey Bain Faculty

Scholar and Professor of Law at Lewis and Clark Law

School.

Robert N. Clinton is Professor Emeritus at the

Sandra Day O’Connor College of Law at Arizona State

University.

Patty Ferguson-Bohnee is Faculty Director of

the Indian Law Program, the Director of the Indian

Law Clinic, and Clinical Professor of Law at the

Sandra Day O’Connor College of Law at Arizona State

University.

Matthew L.M. Fletcher is Professor of Law and

Director of the Indigenous Law and Policy Center at

Michigan State University College of Law.

Cynthia Ford is Professor of Law at the

Alexander Blewett ITI School of Law at the University

of Montana.

Hillary M. Hoffmann is Professor of Law and

Faculty Fellow of the Center for Agriculture and Food

Systems at Vermont Law School.

Sarah A. Krakoff is the Raphael J. Moses

Professor of Law at the University of Colorado Law

School.

Monte Mills is Associate Professor of Law and

Co-Director, Margery Hunter Brown Indian Law

Clinic at the Alexander Blewett III School of Law at

the University of Montana.

App-2

Stephen L. Pevar is an Adjunct Professor of Law

at the New York School of Law.

Judith Royster is Professor of Law at the

University of Tulsa College of Law.

Wenona T. Singel is Associate Professor of Law

and Associate Director of the Indigenous Law and

Policy Center at the Michigan State University

College of Law.

Joseph William Singer is Bussey Professor of

Law at Harvard Law School

Maylinn Smith is Associate Professor of Law

and Co-Director, Margery Hunter Brown Indian Law

Clinic at the Alexander Blewett III School of Law at

the University of Montana.

Marcia Zug is Professor of Law at the University

of South Carolina School of Law.