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

No. 17-532

Petitioner,

STATE OF WYOMING,

Respondent.

°

On Writ Of Certiorari To The

BRIEF FOR THE NATIONAL CONGRESS

CURIAE IN SUPPORT OF PETITIONER

>

JOHN DOSSETT Marc D. SLONIM

NATIONAL CONGRESS Counsel of Record

OF AMERICAN INDIANS BETH BALDWIN

1516 P Street NW ZIONTZ CHESTNUT

Washington, D.C. 20005 2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

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 .....0...........c0c000000- 1

SUMMARY OF ARGUMENT .....................:.00e000000 2

I iatencnntiatisdnpeicninrndnetapinninnminnmeenss 5

I. IN ADOPTING ITS CLEARLY-CONTEM-

I.

II.

IV.

PLATED-EVENT STANDARD, THE WYO-

MING DISTRICT COURT MISREAD MILLE

THE CROW TREATY EXPRESSLY IDEN-

TIFIES THE CIRCUMSTANCES UNDER

WHICH THE HUNTING RIGHT TERMI-

NATES AND STATEHOOD IS NOT AMONG

THE STATE’S INTERESTS IN NATURAL

RESOURCES PROVIDE NO BASIS ON

WHICH TO IMPLY THAT THE CROW

HUNTING RIGHT TERMINATED AT

PP inrecsnerececevensssstnvesvsenmncestnenavennes

TION HUNTING, FISHING AND GATHER-

ING RIGHTS WITH STATE INTERESTS

AND CREATES INCENTIVES FOR TRIBES

TO CONSERVE NATURAL RESOURCES

IN COOPERATION WITH FEDERAL AND

CRE GE OETED cnccecsscenccecscsnecnsnscensnctenses

A. The Conservation-Necessity Standard ...

B. Tribal Regulation and Cooperative Man-

19

19

ss

TABLE OF CONTENTS -— Continued

5.

Page

. Great Lakes Fishing Rights in Mich-

PEED cccccevcansaseevesseutdecssenenanscnepevessesnncsee 22

ELST A 29

ing Rights in Michigan ..................... 30

I lets 32

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 Mon-

ee 14

Choctaw Nation of Indians v. United States, 318

SEE ES aS aCe 12

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

I TI itil oncntthaitessindicintinscaninntbbeitimiinteeieet 5

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

ASNT ATES SEG Ee SE ne Oe TE 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, i4

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 Chip-

pewa Indians v. Voigt, 668 F. Supp. 1233 (W.D.

SIT ATE sesh shiaisindinieapieihtianinasipdamanatdeiiiainediadduatbdnasemeeces 21

Lac Courte Oreilles Band of Lake Superior Chip-

pewa 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 US.

iv

TABLE OF AUTHORITIES — Continued

Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Wisconsin, 707 F. Supp. 1034

CUSED SOD IU bnennccscscnetusonsscnessnesesnensesenssuensvesnee

Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Wisconsin, 775 F. Supp. 321

SONS PS eee ccccisienercsenseensccnscsncdsaieneingeesumaunenancens 25

Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Wisconsin, 769 F.3d 543 (7th

SE ED enniterenernntncudonetentstncctitsemntvinvensvesnietaseiersecenes 29

Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Wisconsin, No. 74-cv-313-bbc,

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

i isiccinncaieliiadisinatshanieiitaniitnbeniagteniipiansdipsdiecs

Lac du Flambeau Band of Lake Superior Chip-

pewa Indians v. Stop Treaty Abuse- Wisconsin,

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

Leatherman v. Tarrant County Narcotics Intel-

ligence and Coordination Unit, 507 U.S. 163

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

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

SEE UTE iccascsentibanshemesbeniniediansnntonniiietibianiiedesenons

Mille Lacs Band of Chippewa Indians v. Minne-

sota, 861 F. Supp. 784 (D. Minn. 1994), aff’d,

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

ee siiteniiaihineteptniinebiiiiichidatnaitaletenepeintedbemteinaes

Mille Lacs Band of Chippewa Indians v. Minne-

sota, 952 F. Supp. 1362 (D. Minn. 1997)...........

v

TABLE OF AUTHORITIES — Continued

Page

Minnesota v. Mille Lacs Band of Chippewa Indi-

eG eee 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

ee icenetabeitesatipcisaiahinsiisnhnnchinintahintaaieniabideidtsuinmomeassen 19, 20

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

Shively v. Bowlby, 152 U.S. 1 (1894).....000.0... ce ceeee 15

Toomer v. Witsell, 334 U.S. 385 (1948)................000000 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.

Sar Uieiditecstessiitcesiaiahitabsidinisniniiemubianinnneisaieiinabiadidieeaia 21, 23

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

Err ihtasdnseniasninsteniaiorimsanetitbasiiednineniiibepinauidicinbinteapbaniaeuensaee 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

ee RE AEE 21

vi

TABLE OF AUTHORITIES — Continued

Page

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

I hlilinian nccisnnclacintnttnisinaiinderteieetaliaiidiaeians 14, 15, 16, 34

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

Washington v. Wash. State Commercial Passen-

ger 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

ee i)

TREATIES

Treaty with the Crow Indians, 15 Stat. 649

Se SoD EEE AT SRO a ee OT 5

STATUTES

EE ee en 26

REGULATIONS

Chippewa Ottawa Resource Authority, Commer-

cial, 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/20 17/04/CORA-

Regulations-Revised-April-3-2017.pdf................... 23

vii

TABLE OF AUTHORITIES — Continued

Voigt Model Off-Reservation Conservation Code

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

glifwc.org/Regulations/VoigtModelCode.2018.

RES cceserescesasetacsnicsncctertnntaenseniiaterion

OTHER MATERIALS

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

Chippewa Intertribal Agreement Governing

Resource Management and Regulation of

Off-Reservation Treaty Rights in the Ceded

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

glifwe.org/Recognition_Affirmation/Intertribal_

CoManagement_Agreement.pdf........................

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.......

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

Rice) Abundance and Harvest in Northern

Wisconsin in 2013 (May 2015), available at

https//data.glifwe.orp/archive.bio/Administrative

F2WReport%2015-G.pAF............ccccccccceeeeeeeeeeeeeeees

Mich. Dep’t of Natural Resources, 2007 Inland

Consent Decree FAQs, available at https://

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

Page

swose 28

Consent_Decree_ FAQs 9.28.17 _604502_7.pdf....30, 31

TABLE OF AUTHORITIES ~— Continued

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/spftribalrelations/documents/agreements/

Stipulation and Order (Consent Decree), United

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

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

Consent Decree, United States v. Michigan, No.

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

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

the Waters: A Joint Fishery Assessment of the

Wisconsin Ceded Territory (1991) ............cc0c000

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............

seene 23

l

INTEREST OF AMICI CURIAE'

The National Congress of American Indians (NCAI)

is the oldest and largest national organization address-

ing American Indian interests, representing more than

250 American Indian tribes and Alaskan Native vil-

lages. Since 1944, NCAI has advised tribal, state and

federal governments on a range of Indian issues, in-

cluding the relevance and legal interpretation of trea-

ties reserving off-reservation hunting, fishing and

gathering rights and the regulation of such reserved

rights under this Court’s conservation-necessity stand-

ard. The additional amici listed on the inside cover of

this brief comprise an intertribal organization and in-

dividual tribes, all of whom hold off-reservation hunt-

ing, 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.

°

‘ 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 Respond-

ent have consented to the filing of amicus briefs.

2

SUMMARY OF ARGUMENT

In the decision below, the District Court for Wyo-

ming’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 pre-

statehood 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 state-

hood. 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 incon-

sistent with more than a century of this Court’s deci-

sions. 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 ad-

ditional, unrelated circumstances under which the

rights would terminate (such as statehood) rewrites

the treaty in defiance of rules of construction applica-

ble to all treaties and statutes.

3

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 state-

hood—even though the Treaty itself did not say so—

“was informed by that Court’s conclusion that the In-

dian treaty rights were inconsistent with state sover-

eignty over natural resources and thus that Congress

(the Senate) could not have intended the rights to sur-

vive statehood.” Jd. 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 re-

sources with the Federal Government, and that, when

the Federal Government exercises one of its enumer-

ated 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 ter-

ritory—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 off-

reservation treaty rights with state interests in natu-

ral resources through the conservation-necessity doc-

trine. 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 reasona-

ble and necessary to preserve natural resources. The

4

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 agree-

ments among Tribes, States and the Federal Govern-

ment 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 differ-

ent 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 conservation-

necessity 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 in-

extricably linked with statehood itself, there is no basis

on which to imply that either party to the Treaty in-

tended the treaty right to terminate upon statehood—

as opposed to upon occurrence of a “clearly contem-

plated” event actually identified in the Treaty. As the

Mille Lacs Court held, “[tjreaty rights are not im-

pliedly 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 dif-

ferent than the “temporary and precarious” standard

5

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

guide to whether treaty rights were intended to sur-

vive statehood.” Jd. at 207.

a

-

ARGUMENT

I. IN ADOPTING ITS CLEARLY-CONTEM-

PLATED-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 deter-

mined that this right was terminated when Wyoming

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

The Wyoming District Court recognized that Rep-

sis was largely based on Race Horse, which interpreted

identical language in a treaty with the Bannock Indi-

ans. Pet. App. 21. And, the Wyoming District Court

acknowledged that Race Horse’s holding that Wyo-

ming’s admission to the Union “was inconsistent with

the rights granted in the treaty” under the equal

6

footing doctrine “has subsequently been rejected by

numerous cases.” /d.

However, the Wyoming District Court asserted

that Race Horse also found that the hunting right was

“‘temporary and precarious’ in nature” and “‘essen-

tially perishable, and intended to be of a limited dura-

tion.’” 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 precari-

ous’ 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 an-

nounced an alternative holding: The treaty rights at

issue were not intended to survive Wyoming’s state-

hood.’” 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 dis-

tinguishing rights that survive statehood from those

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

“did not completely reject the temporary and precari-

ous doctrine.” Jd. (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.”

7

Pet. App. 24 (quoting Mille Lacs, 526 U.S. at 207). Ac-

cording 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 con-

templated 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 re-

mained conclusive in this case. Jd.

In Mille Lacs, this Court concluded that the usu-

fructuary 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 termi-

nation of those rights to a clearly contemplated event,

the Court explained that the treaty expressly identi-

fied 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 ex-

plained 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 sov-

ereignty. Id. at 207-08. However, as the Court also ex-

plained, that was a false premise, which had been

rejected in more than a century of this Court’s post-

Race Horse decisions. Id. at 204.

The Wyoming District Court did not mention ei-

ther 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

8

misreading of Mille Lacs and is inconsistent with more

than a century of this Court’s decisions.

ll. THE CROW TREATY EXPRESSLY IDENTI-

FIES 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 state-

hood is not among them. The existence of express pro-

visions 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 US. 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.” Be-

cause the United States was under no obligation to ei-

ther 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 im-

portant component of state sovereignty, the Federal

9

Government chose to exercise its constitutional au-

thority to retain title to public lands in the western

Territories w:'-n they were admitted to the Union. See

U.S. Const. art. IV, § 3, cl. 2 (authorizing but not requir-

ing Congress “to dispose of .. . the Territory or other

Property belonging to the United States,” and also au-

thorizing Congress to “make all needful Rules and

Regulations respecting” such Territory and Property);

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

(“[slome 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 Gov-

ernment’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 . . . in-

definitely.” Light v. United States, 220 U.S. 523, 536

(1911) (emphasis added); see also United States v. Ore-

gon, 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 con-

tinued application of law authorizing United States to

lease lead mines in Territory after it became part of the

State of Illinois).

10

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 termi-

nates—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 Big-

horn 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 hunt-

ing districts, relations that are in no way foreclosed by

Wyoming’s admission to the Union.

In sum, none of the circumstances expressly iden-

tified in the Crow Treaty under which the hunting

11

right would terminate is tied to statehood.” 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 pre-

cludes the implication of additional, unrelated condi-

tions. See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830,

844 (2018) (“Negative-Implication Canon|:| The ex-

pression 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

2 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 dis-

tricts.”).

12

meaning of a treaty’s text. E.g., Choctaw Nation of In-

dians v. United States, 318 U.S. 423, 432 (1943) (trea-

ties “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 his-

tory.”); Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

2024, 2034 (2014) (Court cannot “disregard clear lan-

guage simply on the view that . . . Congress ‘must have

intended’ something broader.”).

Third, Indian treaty rights cannot be impaired ab-

sent “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 ter-

minate upon the happening of other unstated condi-

tions such as statehood.

13

Ill. THE STATE’S INTERESTS IN NATURAL RE-

SOURCES PROVIDE NO BASIS ON WHICH

TO IMPLY THAT THE CROW HUNTING

RIGHT TERMINATED AT STATEHOOD.

In the absence of an express provision for termi-

nation 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 incon-

sistent with state sovereignty over natural resources

and thus that Congress (the Senate) could not have in-

tended ‘he rights to survive statehood.” Id. at 207-08.

“But,” as the Mille Lacs Court further explained, “In-

dian treaty-based usufructuary rights are not incon-

sistent 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 prece-

dent 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 peo-

ple 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, sub-

ject to an important limitation: they “exist only ‘in so

14

far as |their| exercise may be not incompatible with, or

restrained by, the rights conveyed to the Federal gov-

ernment by the Constitution.’” Jd. (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

vu. 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 reg-

ulate wildlife when the Federal Government legiti-

mately exercises one of its enumerated powers to enter

into treaties or make laws and regulations concern-

ing wildlife. See Kleppe, 426 U.S. at 543 (Wild Free-

Roaming Horses and Burros Act); Hunt v. United

States, 278 U.S. 96, 100 (1928) (Federal regulation au-

thorizing 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 purp se mentioned.” 198 U.S. 371,

381 (1905). The Court explained that the “right was in-

tended to be continuing against the United States and

15

its grantees as well as against the state and its grant-

ees.” Id. at 381-82.

In so holding, the Court rejected the contention

“that the rights conferred upon the Indians are subor-

dinate to the powers acquired by the state upon its ad-

mission to the Union.” /d. 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 ex-

plained:

The extinguishment of the Indian title, open-

ing 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 compe-

tency of the nation to secure to the Indians

such a remnant of the great rights they pos-

sessed as “taking fish at all usual and accus-

tomed places.”

Id. at 384.°

* 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, | regard the

preservation of the public faith, even to the helpless In-

dian, 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 Wyo

ming as a state, and what might have been done in this

case might be done in the case of every Indian tribe

16

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 re-

turned to that question in Tulee v. Washington, 315

U.S. 681 (1942). “Relying on its broad powers to con-

serve 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. Jd. at

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

of the treaty [was] too narrow” and Tulee’s construc-

tion “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 regu-

latory nature concerning the time and manner of fish-

ing outside the reservation as are necessary for the

conservation of fish, it forecloses the state from charg-

ing the Indians a fee of the kind in question here.” Jd.

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 Gov-

ernment’s enumerated powers, do not impair the sov-

ereign rights of the States.

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

the state, which may in its discretion prohibit the kill-

ing of all game, and thus practically deprive the Indi-

ans of their principal means of subsistence.

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

17

This Court has enforced pre-statehood treaties re-

serving 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 author-

ity. 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 af-

firmed the Federal Government’s authority to reserve

water (a critically important natural resource) for In-

dian 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 con-

texts 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.

18

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 main-

tained that a tribe’s treaty right to the protection of

federal liquor laws “until otherwise provided by Con-

gress” 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 ter-

minate upon the happening of a “clearly contemplated”

event—the passage of 25 years. Cf Pet. App. 24 (Wyo-

ming District Court’s adoption of “clearly contem-

plated” event standard for implied termination at

statehood). However, in each case, the Court firmly re-

jected the argument that these pre-statehood rights

had been terminated by implication at statehood. In-

stead, applying ordinary principles of construction,

the rights were deemed to terminate if and when the

19

stated condition was met. The same result should ob-

tain here.

IV. THIS COURT'S CONSERVATION-NECESSITY

DOCTRINE RECONCILES OF F-RESERVATION

HUNTING, FISHING AND GATHERING

RIGHTS WITH STATE INTERESTS AND

CREATES INCENTIVES FOR TRIBES TO

CONSERVE NATURAL RESOURCES IN CO-

OPERATION 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 na-

ture 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 in-

terest of conservation, provided the regulation meets

appropriate standards and does not discriminate

against the Indians.” 391 U.S. 392, 398 (1968) (empha-

sis 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

20

serving any legitimate purpose, treaty fishermen are

immune from all regulation save that required for con-

servation.” 443 U.S. 658, 682 (1979) (emphasis added).

In Antoine v. Washington, the Court applied the

conservation-necessity standard to an agreement se-

curing 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 reason-

able 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 regu-

lation 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 conser-

vation of deer.” Jd. Thus, as the United States has rec-

ognized 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 accom-

modates both the State’s interest in manage-

ment 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

21

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 counter-

textual 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 Man-

agement.

Under the conservation-necessity doctrine, states

may not regulate the exercise of Indian usufructuary

rights if the tribes adopt and enforce their own regula-

tions, which are adequate to provide for conservation

of the resources.* 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 Min-

nesota 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).

22

self-regulation and improved natural resources man-

agement for all concerned.

In these three states, Tribes, States and the Fed-

eral Government have developed and implemented

model codes and entered into consent decrees and

other agreements that promote consistent natural re-

sources management and regulation. Notably, many of

the agreements provide orderly dispute resolution pro-

cesses 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 cru-

cible of contentious litigation, the Tribes and States

forged working relationships based on mutual respect

for each other’s authority and shared concern for con-

serving 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

23

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. Jd. 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 re-

garding 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 Au-

gust 7, 2000, and is effective through 2020. Id.°

To ensure conservation of the Great Lakes fish-

eries, the Tribes formed an inter-tribal organization

(today known as the Chippewa Ottawa Resources Au-

thority 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.® Pursuant to the 2000 Decree, Fed-

eral, 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, Sub-

sistence and Recreational Fishing Regulations for the 1836 Treaty

Ceded Waters of Lakes Superior, Huron, and Michigan (rev'd Apri!

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

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

24

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’ off-

reservation hunting, fishing and gathering rights un-

der 1837 and 1842 treaties with the United States. The

Seventh Circuit held that those reserved rights con-

tinue to exist. Lac Courte Oreilles Band of Lake Supe-

rior 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 lit-

igation 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 off-

reservation 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

25

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 ap-

proach. See Opp. Cert. at 7-8.

In Wisconsin, due to the efforts of the Voigt Inter-

tribal Task Force, the Tribes and the State, the regula-

tory issues were largely resolved among the parties. In

1991, the district court entered a final judgment adopt-

ing a series of stipulations agreed to by the Tribes

and Wisconsin to regulate tribal treaty rights on off-

reservation ceded lands—a judgment that neither side

appealed. See Lac Courte Oreilles Band of Lake Supe-

rior 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 gather-

ing on the off-reservation lands ceded by the Tribels|

in the [1837 and 1842 Treaties].” Voigt Model Off-

Reservation Conservation Code § 1.03(1) (rev'd April

2018).’

The Voigt model code sets minimum standards

for tribal regulation of off-reservation treaty rights

through a robust enforcement scheme. /d., ch.4 (en-

forcement). 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.glifwe.org/Regulations/VoigtModel Code.

2018.internal links. pdf.

26

conservation law. The codes are enforced by conserva-

tion officers employed by the Great Lakes Indian Fish

and Wildlife Commission (GLIFWC)* 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 Wis-

consin Chippewa tribes) continues to oversee and con-

tinually assess tribal natural resources policy and

biological information, set intertribal harvest quotas,

and recommend changes to the model code.® 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 reso" 7e as-

sessments and monitor and evaluate harvests, while ( _iFWC

conservation wardens help enforce tribal ceded territory conser-

vation codes. See Lac Courte Oreilles Band of Lake Superior Chip-

pewa Indians v. Wisconsin, 707 F. Supp. 1034, 1060-51, 1054 (W.D.

Wis. 1989); U.S. Dep’t of the Interior, Casting Light Upon the Wa-

ters: A Joint Fishery Assessment of the Wisconsin Ceded Territory

at 21 (1991).

* Chippewa Intertribal Agreement Governing Resource Man.

agement and Regulation of Off-Reservation Treaty Rights in the

Ceded Territory, Section 5: Task Force Responsibilities (n.d.), availa-

ble at https//www.glifwc.org/Recognition_Affirmation/Intertribal _

CoManagement_ Agreement.pdf.

27

regulations, and to review the stipulations and model

code regularly.

In part due to effective tribal regulation of off-res-

ervation rights, fears of irreparable harm to the re-

sources did not come true. In 2009, the Wisconsin

Legislature recognized the Tribes’ and GLIFWC’s “im-

portant role ... in the preservation and protection of

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

Senate J. Res. 40 (June 30, 2009).'° In 2013, a commit-

tee consisting of federal, state and tribal agencies con-

cluded that the status of the off-reservation walleye

fishery in Wisconsin had not changed significantly

since 1991, when the committee concluded that the re-

source was healthy and tribal exercise of reserved fish-

ing 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)."'

In many instances, tribal, state and federal coop-

eration has produced demonstrable benefits for all con-

cerned. 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 Wis-

consin. 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/ajr40.

"' Available at https://www.glifwe.org/publicationa/pdf/Fishery

Status2013. pdf.

28

harvesters) has come from waters seeded through co-

operative interagency restoration efforts.'*

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 cere-

mony 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 popula-

tion. Populations were monitored, augmented with elk

from Kentucky and moved around the elk range to in-

crease the size and genetic diversity of the popula-

tion.” The herd has now grown to a level that will

allow a hunting season this fall. The Wisconsin Elk Ad-

visory Committee—comprised of State, GLIFWC and

Tribal biologists—has agreed upon a quota to be di-

vided among state and tribal hunters. Tribal regula-

tions 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 ad-

judicate 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) Abun

dance and Harvest in Northern Wisconsin in 2013 (May 2015),

available at https//data.glifwe.org/archive.bio/Administrative®

20Report%20 15-6. pdf.

" Elk (omashkooz in Ojibwe) Returning to Ceded Territory,

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

at http//www.glifwe.org/Mazinaigan/Fall20 17/index.htm!?page= 1 2.

29

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’) pro-

posed 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, al-

leging 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 litiga-

tion). Six Wisconsin Ojibwe bands who were also suc-

cessors 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 re-

source assessment in the Minnesota ceded territory,

and the Bands developed a model Conservation Code,

Commissioner’s Orders and Management Plans to reg-

ulate their members’ harvests. Mille Lacs Band of

30

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 conserva-

tion 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 judg-

ment 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 in-

itiated 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 ex-

periences of the Tribes and States in Wisconsin and

Minnesota, to resolve all issues regarding the exist-

ence, 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

31

1."* The 2007 Inland Consent Decree provides for tribal

regulation of Indian hunting, fishing and gathering

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

In negotiating the 2007 Decree, the State recognized

that because (as in this case) “tribal hunting and fish-

ing is for personal subsistence use and not commercial!

use|, it] has a limited effect on the resources in ques-

tion.” Jd. at 2. According to Michigan’s DNR:

In the 1836 treaty-ceded territory, the DNR

and the tribes coordinate research and assess-

ment activities, restoration, reclamation, and

enhancement projects, and regularly consult

and exchange information with one another.

These cooperative efforts and sharing of infor-

mation have led to a high degree of transpar-

ency among the State and tribes. The Inland

Consent Decree also defines harvest levels for

various species, which ensures the availabil-

ity of sufficient resources for tribal and non-

tribal 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/documenta/dnr/2007

Inland Consent_Decree FAQs 9.28.17_604502_7.pdf (last visited

Sept. 4, 2018) (discussing Consent Decree, United States v. Mich-

igan, No. 2:73-CV-26 (W.D. Mich. Nov. 5, 2007), ECF No. 1799).

32

5. Gathering Rights within National For-

ests.

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 Na-

tional 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). The MOU implements treaty-

guaranteed 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. Jd. at

11-12. The MOU also provides for collaboration be-

tween the Forest Service and the Tribes through

knowledge exchanges and shared research, to promote

ecosystem management that sustains and restores na-

tive plant communities. Jd. at 6-7.

In sum, in the experience of amici, the conservation-

necessity 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/spitribalrelations/documents/

agreementa/mou_amd2012wAppendixes.pdf. The National Forests

covered by the MOU include the Chequamegon-Nicolet in Wiscon-

sin, and the Hiawatha, Huron-Manistee and Ottawa in Michigan.

33

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 en-

force 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 ex-

ercise of the right upon making a proper showing un-

der the conservation-necessity doctrine. Indeed, as

noted in the Crow Tribe’s amicus brief, the Tribe al-

ready enacted a Joint Resolution of the Tribe’s legisla-

tive and executive branches and stands ready to work

with Wyoming on this issue.

Vv. 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 termi-

nates at statehood. Pet. App. 24. To the contrary, as the

Mille Lacs decision and the substantial body of prece-

dent 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 op-

posed to upon occurrence of the “clearly contemplated”

event actually identified in the treaty. The implied ad-

dition 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.

34

The contrary holding in Race Horse was based on

a mistaken conception of state sovereignty over natu-

ral 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 be-

cause 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-contemplated-

event 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’ im-

portant interests in those resources. And, as the expe-

rience of the amici tribes makes clear, that doctrine

has worked well in practice and fostered improved pro-

tections for and the enhancement of natural resources

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

Il.

Finally, absent a clear link to statehood, the Wyo-

ming District Court’s clearly-contemplated-event stand-

ard 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.

35

Accordingly, the judgment of the Wyoming District

Court should be reversed.

Respectfully submitted,

JOHN DosseTT MAakc D. SLONIM

NATIONAL CONGRESS Counsel of Record

OF AMERICAN INDIANS BrETH BALDWIN

1516 P Street NW ZIONTZ CHESTNUT

Washington, D.C. 20005 2101 Fourth Avenue

Suite 1230

Seattle, WA 98121

(206) 448-1230

malonim@ziontzchestnut.com

Counsel for Amici Curiae

September 11, 2018