Ryan McMaken – June 6, 2019
Last week, the Supreme Court ruled the legal rights of members of the Crow tribe are not void simply because a US state tries to legislate them away.
In the case of Herrera v. Wyoming, the US Supreme court overturned the lower courts’ findings that tribal rights (established in an 1868 treaty with the United States government) in Wyoming had ceased when Wyoming became a state in 1890.
According to the case summary:
In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera’s argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him.
The right to hunt was limited to “unoccupied” lands, and Herrera contended both that the National Forest lands in which he was hunting was unoccupied, and that he had a right to hunt there due to treaty stipulations.
The court did not rule on whether or not the specific place Herrera was hunting was “occupied,” but focused instead on whether or not tribal-members’ rights continued to exist in accordance with an extant treaty. The court found these rights do still exist, but Herrera may still be found guilty if it is established the land on which he was hunting is not unoccupied.
Whether or not Herrera is ultimately found guilty, the court’s findings are important because they potentially establish a higher standard of sovereignty for tribal governments than had been previously admitted by the courts.
After all, the basic premise of treaties between the tribes and US government — at least as communicated to the tribes themselves — was that the tribes were sovereign entities entering intro treaties with another sovereign entity (i.e., the US government.) Over time, the US government took advantage of the tribes’ lack of de facto independence to reinterpret treaties as documents subject to unilateral amendment and abrogation by the US Congress.
Even worse, state governments began to assert their own authority over tribes, even though the tribes were not parties to any sort of agreement with the state governments.
In recent decades, courts have slowly begun to limit state jurisdiction over tribes with the effect of providing more autonomy to tribes. Perhaps most famous among these decisions is the 1987case California v. Cabazon Band of Mission Indians in which the court determined state governments could not prevent tribes from offering legal gambling within their own borders (in most cases). The result was political decentralization and greater access to legal gambling for non-tribal members. The subsequent rise [of] the Indian gaming industry has greatly improved the standard of living for many Indians.
In Herrera vs. Wyoming, the court has now further established that state governments cannot simply override treaty-established tribal law whenever it suits state legislatures.
But this isn’t the only case this year which has strengthened tribal independence.
In March, the Supreme Court decided in favor of the Yakama tribe in Washington State Dept. of Licensing v. Cougar Den, Inc. The Court held that the Yakama Nation Treaty of 1855 preempts state attempts to tax fuel purchased by a tribal corporation for sale to tribal members. The State of Washington insisted it could tax tribal fuel transported on state highways. The Supreme Court disagreed and took a relatively broad interpretation of the treaty’s provisions guaranteeing free use of the state’s highways.
In both cases, the cases were decided by a 5-4 vote with Neil Gorsuch siding with the so-called liberal wing of the Court in upholding tribal rights.
In his concurring opinion on the Yakama case, Gorsuch wrote:
Really, this case just tells an old and familiar story. The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the court holds the parties to the terms of their deal. It is the least we can do.
Many left-wing publications have expressed surprise that Gorsuch sided with the “liberals” in these two cases, although more astute observers should not be confused. After all, Gorsuch, unlike the conservative wing of the court, has tended to side frequently with arguments in favor of decentralization and limitations on both state and federal power. His position in these two cases appears consistent with these general leanings.
Moreover, it is likely not a coincidence that Gorsuch is the only Supreme Court justice with extensive legal experience outside of the eastern United States. Gorsuch served as an appellate judge for the Tenth Circuit, which means he heard cases for states significantly impacted by conflicts between states and tribes, including New Mexico, Oklahoma, Wyoming, and Utah. Meanwhile, nearly all other members of the court spent their appellate careers along the East Coast of the United States. For these members, as for most Americans outside a few Western states, experience with the realities of tribes and tribal lands is extremely limited.
Decentralization and Local Sovereignty Matters
These two cases, of course, are just very small steps in the right direction. For the most part, Congress can still abrogate and amend treaties on its own with precious little input from the tribes themselves. These recent cases help to establish greater tribal sovereignty in the face of state law, but do little — on their own — to enhance tribal sovereignty when it comes to federal legislation.
Some conservatives, of course, might wrongly interpret these decisions as attacks on state-level sovereignty by lessening state control over its own territory. This, however, misses the point.
Correctly imagined, both state governments and tribal governments ought to have far greater independence both from federal control, and from each other. In practice, for example, the entire northeast corner of Arizona, which is mostly Navajo tribal land, ought to not be considered Arizona territory at all. Nor should it be considered US territory. As Kevin Bourgault, a member of the Skokomish tribe, has (correctly) noted:
Tribes are the sole entities in our society with established treaty rights… As sovereign nations, tribes are equivalent political entities to the states in which they are located.
This is not the de facto reality today, but it should be. And it ought to be recognized as the legal standard in conflicts between tribes and government bodies in the United States. Moreover, as I have noted here, tribal sovereignty is an important limiting factor on federal power. If we are to take decentralization seriously, the sovereignty of locally-controlled tribal lands should be a priority, and be seen as one key factor in developing meaningful checks on federal power through local sovereignty, nullification, and secession.
This article was originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
Image source: https://www.flickr.com/photos/26827402@N00/