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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A21. Public record. Not legal advice.