Read: The Blackfeet brain drain
Race Horse, and its notion that statehood implies a silent repeal of treaties, staggered on until the Supreme Court decided Minnesota v. Mille Lacs Band of Chippewa Indians in 1999. The majority there held that the “equal footing” reasoning in Race Horse “rested on a false premise,” and that “treaty rights are not impliedly terminated at statehood.”
So bye-bye Race Horse, hello easy case, right? Not so fast. In 1995, the Tenth Circuit had decided Crow Tribe v. Repsis. That case relied on Race Horse for the proposition that “the Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” Four years later, Mille Lacs trashed every element of Race Horse. But it didn’t say magic words like, “Pay attention now gang, ’cause see before your astonished eyes we are overturning Race Horse ,ta-da, note overturningness of the overturn.”
And so the state argues that Race Horse remains a valid precedent. Whatever the law may be in Minnesota, it claims, in Wyoming tribes don’t have hunting rights. Second, the state points to Repsis, in which the Crow lost on the treaty-rights isue; Mille Lacs or no Mille Lacs, the state argues that no member of the tribe can ever relitigate the issue, under a doctrine called “issue preclusion.” The tribe, however, argues that since Mille Lac, Race Horse sleeps with the cutthroat trout (Wyoming’s state fish). And because Repsis is based on a repudiated precedent, it does not “preclude” Herrera from arguing for treaty rights.
The argument Tuesday did not draw a lot of attention in Washington; but it was one of the most dramatic I can recall, sparked by a remarkable performance from Justice Neil Gorsuch.
The Gorsuch nomination in 2017 was opposed by most civil-rights groups, but it was hailed by tribal advocates. A native of Colorado, Gorsuch heard a number of Indian cases as a judge of the Tenth Circuit. From his opinions, wrote John Dossett, then general counsel of the National Congress of American Indians, Gorsuch “appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility.”
The argument Tuesday left little doubt that Gorsuch was staking out Indian law as his turf. When George Hicks, representing Herrera, rose to argue, Justice Samuel Alito was waiting for him. Alito is no fan of any minority rights, and was particularly brusque about tribes in a 2013 case, Adoptive Couple v. Baby Girl. On Tuesday, he seemed to want to prevent Hicks from even reaching the treaty issue. He went into bully mode, asking nearly a dozen niggling technical questions on the preclusion issue.
Gorsuch seemed to lose his patience, noting that the state hadn’t brought up that issue in lower courts. Then he added, “If [it] wasn’t raised by the district, passed on by the district court, relied on by the district court, in this proceeding, why should we enmesh ourselves in the excellent Wyoming law of issue preclusion?” He gave Hicks permission to move ahead to the actual issue. Alito did not open his mouth again until Hicks’s argument was done.