Herrera v. Wyoming (17-532)

argument 17-532

Herrera v. Wyoming

Supreme Court of the United States 1h 1m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What treaty right did the Crow tribe reserve and how does statehood affect it?

John G. Roberts 0:00

We'll hear argument first this morning in case seventeen five thirty two, Herrera versus Wyoming. Mr Hicks.

Jon M. Sands 0:08

Thank you, Mr Chief Justice, and may it please the court. In eighteen sixty eight, the Crow tribe of Indians agreed to cede to the United States thirty million acres of its aboriginal land and move to a reservation. In exchange for ceding its land, the tribe expressly reserved the right to hunt on that ceded land. The text of the eighteen sixty eight treaty memorializing this agreement explicitly identifies the four events that would cause the hunting right to terminate. Wyoming's admission to the Union is not among them. Therefore, the only way that Wyoming statehood could have terminated the hunting right is by implication, but that is the very theory that this court repeatedly rejected in Minnesota v.

Jon M. Sands 0:52

Meal Lac band of Chippewa Indians. And while the treaty does provide that the right would terminate if the lands were no longer unoccupied, President Cleveland's eighteen ninety seven proclamation creating the Bighorn National Forest did not suddenly render all one point one million acres of the land comprising the forest occupied as the parties to the treaty understood that term. As a result, the treaty right has not terminated, and petitioners should have been permitted to invoke that right during his criminal prosecution for hunting in the Bighorn National Forest. Before this court Wyoming largely disregards MIALAX and urges this court to rely on its eighteen ninety-six decision in Ward v. Racehorse.

Jon M. Sands 1:36

But MIALAX repudiated the reasoning that led to the outcome in racehorse, from racehorse's reliance on the equal footing doctrine to its characterization of treaty rights as temporary and precarious, to its belief that

Samuel A. Alito 1:49

even if you were right about racehorse, why isn't your client bound by the judgment of the Tenth Circuit in Repsys and in particular its uh uh disposition of the question whether the land is occupied. Justice Alito, a few

Jon M. Sands 2:10

responses for that. First of all, uh the the issue of whether the Tenth Circuit's alternative determination has perclusive effect was not pressed or passed on below. There is nothing in the decisions of the state courts that addressed the perclusive effect of that alternative determination. And this court typically does not address questions from State Courts that have not been pressed or passed.

Samuel A. Alito 2:34

So that that would be available to the State to argue on remand if you were to prevail on the other issues?

Jon M. Sands 2:40

Well, I think that the State has likely forfeited that as a matter of state law, but I also think that there are other reasons why an exception to preclusion would not apply. I mean uh what's your best reason? Uh primarily it's that the tribe did not have a full and fair opportunity to litigate this issue in Repsis because it was not raised in the Repsis district court. It was raised for the first time in the Court of Appeals and the Court of Appeals determination in the first instance was not only one of several alternative determinations, it wasn't subject to plenary appellate review.

Samuel A. Alito 3:12

Well those are several reasons. The the uh uh there was not a fair opportunity to raise the issue in the tenth circuit.

Jon M. Sands 3:21

Well, I think that there was not the full and fair opportunity to litigate that question that this re court

Samuel A. Alito 3:26

requires before it gives you why not? Why not in the Tenth Circuit? Why didn't they have a fair and f a full and fair opportunity in the Tenth Circuit? Well,

Jon M. Sands 3:33

Samuel A. Alito 3:34

begin with, I don't know if they're not allowed briefs, they didn't allow arguments, they didn't want to listen to anything that that the tribe had to say?

Jon M. Sands 3:41

Well primarily because this particular argument that the creation of the National Forest in and of itself rendered the entire land occupied so that the treaty right was terminated was, I believe, uh one page of Wyoming's response brief. in on an issue that was never raised in the district court. And so the only thing that the tribe had to respond to that was limited space in a reply brief where it had to respond to all of the other arguments that Wyoming had made, principally on the issue that the district court had actually addressed.