Off-reservation treaty rights to hunt, fish and gather remain an important and unresolved issue in the efforts to stop the Enbridge Line 3 tar sands crude oil pipeline.
The Minnesota Public Utilities Commission (PUC) voted last year to approve the pipeline, doing so over objections by Anishiaabe bands that argued the pipeline violated their treaties. Line 3 would cross a large area of land where the bands retained “usufractuary” rights, a.k.a. rights to hunt fish and gather. The PUC decided — incorrectly — that it could approve the pipeline without first having the appropriate judicial review of these treaty rights
So it should be encouraging to Native nations and Line 3 opponents that the U.S. Supreme Court today upheld the Crow Nation’s off-reservation hunting rights, granted under the 1868 treaty, in the case of Clayvin Herrera v. Wyoming.
Here’s a quick summary of the case, taken from the Supreme Court’s opinion:
The state of Wyoming charge Herrera with off-season hunting in Bighorn National Forest. Herrera, a member of the Crow Nation, argued he had a protected right to hunt pursuant to the 1868 Treaty. That treaty promised the Crow Nation that in exchange for most of its lands in modern-day Montana and Wyoming, its members would “have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . and peace subsists . . . on the borders of the hunting districts.”
Regardless, a jury found Herrera guilty.
Upon appeal, the Wyoming appellate court relied on the 1896 case Ward v. Race Horse that held the 1868 treaty rights expired when Wyoming became a state.
The U.S. Supreme Court rejected that argument. The Court cited the more recent case, Minnesota v. Mille Lacs Band of Chippewa Indians, (1999) as the correct precedent. That ruling found the Mille Lacs Band retained certain rights to hunt, fish and gather on lands it had ceded to the U.S. government.
As a side note, the vote in Herrera was 5-4, with conservative Justice Neil Gorsuch — the Supreme Court’s only Westerner — providing the swing vote, according to an NPR story. Gorsuch had a lot of experience with Indian law, having served for 11 years on the federal bench in Denver — “a court that covers six states and encompasses 76 recognized Indian tribes.” Gorsuch earlier provided the fifth and decisive vote in a case “involving the Yakama Tribe and its right under an 1855 treaty to travel the public roads without being taxed on the goods brought to the reservation,” NPR said.