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Herrera v. Wyoming

ELR Citation: 49 ELR 20087
Nos. 17-532, (U.S., 05/20/2019)

The U.S. Supreme Court vacated a lower court ruling that a Native American tribal member did not have the right to hunt in Bighorn National Forest because an 1868 treaty granting the right expired when Wyoming became a state. The Court held that the treaty right survived Wyoming's statehood, finding no evidence that Congress intended to abrogate the right when it passed the Wyoming Statehood Act, nor any evidence that the parties to the treaty intended the hunting right to expire at statehood. The state asserted that statehood marked the arrival of civilization and rendered all the lands in the state occupied, and thus that the treaty expired of its own accord. But the Court found that this use of statehood as a proxy for occupation subverted the Court's clear instruction in a previous ruling that treaty-protected rights did not impliedly terminate upon statehood. The state further argued that the treaty did not permit hunting in the national forest because the lands were "occupied." But the court found that the forest did not become categorically occupied within the meaning of the treaty when the national forest was created and thus did not remove the forest lands in their entirety from the scope of the treaty. It therefore vacated the lower court ruling and remanded for further proceedings. Sotomayor, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C.J., and Thomas and Kavanaugh, JJ., joined.