IA Law Review: Constitutional Interpretation (Herrera v. Wyoming 2019)

By Vynateya Purimetla (’21)

Herrera et al. v. Wyoming et al., 587 U.S. 139 (2019)

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As of late, the Supreme Court has been increasingly embroiled in Native American disputes. In 2016, the case of Dollar General Corp v. Mississippi Band of Choctaw Indians was heard. This case was equally divided (4-4), with Justice Gorsuch not participating due to his previous involvement at the circuit level. Such indecision on Native American issues have long been commonplace in federal jurisprudence with numerous opinions having been levied by a split court. However, the court persists in hearing Native American issues, unabated in their conviction to set a precedent for lower courts in lieu of increased violence towards Native American women, growing tensions over pipelines and other environmental concerns, and the dwindling number of territories left aside solely for indigenous people. Just last year, in addition to their tendentious decision on Herrera v. Wyoming, the court also agreed to take up an appeal from Jimsy McGirt, a member of the Muscogee Nation. This case is staunchly similar to Dollar General Corp, which reinforces the notion that the Supreme Court seeks to set a precedent on this categorical issue due to an elevating number of Native American conflicts across the nation. Due to these extenuating circumstances, it could be opportune to review the most recent case regarding Native Americans taken up by the Supreme Court and its pertinence on states’ continuous tumultuous relations with their indigenous people: Herrera v. Wyoming.


The premise of this case is as follows: Clayvin Herrera and two other members of the Crow Tribe of Indians are Native American subsistence hunters. On one of their hunting expeditions on January 2014, Herrera followed a group of mountain elk from the Crow Reservation in Montana into the Bighorn National Forest in Wyoming. There, they hunted three elk. Shortly after, however, Wyoming officials cited Herrera for hunting out of season, which is a violation of state law. Although Herrera’s hunting mates plead guilty and paid the fine, Herrera refused, arguing that the Treaty of Fort Laramie permitted Native Americans to hunt on any “unoccupied lands”. At the state level, Wyoming claimed the rights laid by the treaty were invalidated in Ward v. Race Horse. Herrera was unsatisfied by this claim and filed for certiorari in 2018. The case was argued in January of 2019 and the Court ultimately came to the decision that: “Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the ‘unoccupied lands of the United States’ and the Bighorn National Forest did not become categorically ‘occupied’ when the forest was created”. This decision was levied by a 5-4 split, now customary for controversial Native American cases. The majority bloc was composed of Breyer, Ginsburg, Gorsuch, Kagan, and Sotomayor and the minority bloc was composed of Alito, Kavanaugh, Roberts, and Thomas. The court overturned the lower court’s decision as it was erroneously predicated their decision on Ward v. Race Horse (1896) which influenced Crow Tribe of Indians v. Repsis (1995) instead of the most recent Minnesota v. Mille Lacs Band of Chippewa Indians (1999) which set an unambiguous precedent on Native American treaty law.


However, the point of interest in this case does not lie in its premise, or even in its decision. What is most fascinating is why the Supreme Court opted to take this case and its broader implications on setting future precedents and establishing Native American rights at the federal level. As of late, there have been increasing discrepancies between Native American tribes and their states predicated on rights ensured to them in treaties. Just this November, the Makah tribe of Washington wanted to exercise their right to hunt whales that was granted to them in the Treaty of Olympia. However, state environmental activist groups raised concern over this and now tribal members and activists are at a bitter disagreement. One possible reason that the Supreme Court acceded to hear Herrera was to set a clear precedent on precisely these types of situations. However, problems arise in the delivery of their decision. Since the lower court sided against the tribe and 4 Justices of 9 dissented, state advocates have enough fodder to continue opposing Native American treaty rights. So, on the matter of the Supreme Court taking up more Native American disputes, although it is beneficial in setting a precedent and expanding on tribes’ rights, it also shows that there is still contention even within the courts and widespread disagreement regarding precedent. On the benefits of taking up these cases in the current tumultuous climate: I levy a close 5-4.

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