Herrera v. Wyoming

Crow Tribe Attempts to Reopen Crow Treaty Rights Suit

Matthew L.M. Fletcher

Here is the motion in Crow Tribe v. Repsis (D. Wyo.):

70 Crow Tribe Motion

An excerpt:

But that was not the end of the story. In 2014, Clayvin B. Herrera, a Crow Tribe member, along with other Crow Tribe members in his hunting party, took three elk in the Bighorn National Forest. Mr. Herrera was cited for, and convicted of, violations of Wyoming hunting laws. Mr. Herrera’s case went all the way to the U.S. Supreme Court, which held that the Crow Tribe’s off-reservation treaty hunting right was not extinguished by Wyoming’s statehood. Herrera v. Wyoming, 139 S. Ct. 1686, 1700 (2019). In so doing, the Court also held “that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.” Id. at 1697. Today, this Court has the opportunity to relieve the Crow Tribe from the judgment, based on Race Horse, that it entered more than 25 years ago.
This is precisely the sort of circumstance that Federal Rule of Civil Procedure 60 was written to remedy. This Court’s Repsis judgment remains in force; but that judgment was based entirely on a case that has been expressly and entirely repudiated by the U.S. Supreme Court, which affirmed the vitality of the very same treaty right that that this Court and the Tenth Circuit found extinct. To allow this Court’s Repsis judgment—which might have been correct when it was made, but now has been unequivocally repudiated by the Supreme Court—to bar the Crow Tribe and its members from legally exercising their off-reservation treaty hunting rights would be a profound injustice. Equity requires that the Crow Tribe, and by extension its members, be relieved from this Court’s Repsis judgment, which this Court should now vacate.

Wyoming Court Confirms Clayvin Herrera’s Conviction for Hunting at Bighorn National Forest on Issue Preclusion Grounds

Matthew L.M. Fletcher

Here is the order in Wyoming v. Herrera:

Herrera Circuit Court Remand Order

The case is on remand from the Supreme Court (decision here).

Top 10 American Indian Law Cases of 2019

Matthew L.M. Fletcher

It was a busy 2018 Term at the Supreme Court. Here are the top cases (although the top case is not a Supreme Court case):

1. Brackeen v. Bernhardt — This has to be the top case, even beating out three Supreme Court cases. Foundational doctrines of Indian law are at stake, state governments are facing off against the United States, and virtually every Indian tribe has affirmed support for the Indian Child Welfare Act. After expedited briefing and argument, the Fifth Circuit reversed a decision striking down ICWA. Now the court will rehear Brackeen en banc.

2. Sharp v. Murphy (formerly Carpenter v. Murphy) — This case captured the attention of Indian country more for the procedural drama (never thought those two words would ever go together) than the merits. A death penalty appeal in which the parties (state, tribe, guy-on-death-row, and US) barely mention that fact, Murphy is a reservation boundaries case that makes for exciting, if not accurate, media (Oklahoma could return to Indian reservation status!). The parties sparred at oral argument, the Court asked for more briefing, the This Land podcast went national, the end of the Term approached, and then . . . nothing. The apparent 4-4 tie of the justices led the Court to push the case to the next Term, and then more nothing. Now the Court has granted cert in McGirt v. Oklahoma, likely to decide the same issues as Murphy but with a full complement of judges.

3. Herrera v. Wyoming — The Court ruled 5-4 that the 1868 treaty right to hunt on unoccupied lands applied to the lands of the Bighorn National Forest. The Court also conclusively overruled Ward v. Racehorse, an ancient decision holding that statehood could abrogate treaty rights.

4. Washington State Dept. of Licensing v. Cougar Den — The Court ruled 5-4, but with no majority opinion, that a treaty right to travel on highways preempted a state tax on fuels moving through grounds transportation (or alternatively, granted a right to move goods without state interference).

The rest of the cases are lower court matters ranked by number of views on Turtle Talk. Here they are:

5. Williams v. Big Picture Loans — The Fourth Circuit ruled that tribal sovereign immunity applies to tribally owned businesses that conduct internet lending operations.

6. Swinomish Tribe v. BNSF — This case is pending before the Ninth Circuit. It received outsized attention because of an order by the panel to BNSF requiring it to explain how its characterization of legal authorities, the record, and the arguments of the tribe met its duty of candor to the court.

7. Free v. Dellinger — This case in the Western District of Oklahoma sought an order enjoining tribal jurisdiction over a nonmember. The case likely received a bunch of hits because that nonmember was Kalyn Free.

8. Davilla v. Enable Midstream Partners — The Tenth Circuit last January ordered the defendant to remove a pipeline from Indian lands.

9. Spurr v. Pope — The Sixth Circuit affirmed tribal court jurisdiction to issue a civil PPO against a nonmember under the 2013 VAWA tribal jurisdictional provisions.

10. FMC Corp. v. Shoshone-Bannock Tribes — The Ninth Circuit affirmed tribal jurisdiction over a nonmember, confirming a tribal court judgment involving millions. FMC was represented by a noted SCT practitioner, so expect a serious Supreme Court challenge in 2020.