Federal Indian Law: Judicial Developments in the October 2018 Supreme Court Term
Released: 2019-07-29T00:00:00

E ach term, the Supreme Court typically hears arguments in one or more cases concerning the rights and status of Indian tribes and their members. Prominent issues addressed by the Sup reme Court in recent terms have included (1) tribes' civil jurisdiction over nonmembers, (2) the scope of tribal sovereign immunity, and (3) termination of Indian parents' rights in adoption cases. The October 2018 term likewise featured several Indian law issues: the Court heard arguments in three significant cases, each of which implicated the complex relationships among tribal, state, and federal laws.

In Washington State Department of Licensing v. Cougar Den , the Court upheld a Washington Supreme Court decision permitting a tribe to import fuel without paying state fuel taxes. The right to travel on public highways guaranteed by an 1855 treaty, the Court ruled, included the right to transport goods for sale on the reservation without paying additional taxes to do so. In Herrera v. Wyoming , the Court determined that neither Wyoming's admission into the Union nor the designation of the Bighorn National Forest abrogated an earlier treaty preserving tribal hunting rights. Thus, a tribe member's conviction for exercising those hunting rights in violation of Wyoming state law could not stand. Finally, in Carpenter v. Murphy , the Court reviewed whether Congress disestablished the Muscogee (Creek) reservation more than a century ago, with potential consequences for Oklahoma's ability to prosecute major crimes in the eastern half of the state. However, the eight Justices considering this case have not yet reached a decision, and the case is scheduled to be reargued in the October 2019 Supreme Court term.

This report discusses each of these three cases in turn, focusing on analyses of the Supreme Court's interpretive rubric for treaties and relevant legislation, statements about the scope of legislative authority and discussions of legislative intent, and possibilities for future congressional action.

Washington State Department of Licensing v. CougarÂ Den

On March 19, 2019, the Supreme Court upheld a 2017 Washington Supreme Court decision defending a right-to-travel provision in an 1855 treaty (1855 Yakama Treaty) between the United States and the Yakama tribe against a state attempt to impose a motor fuels tax on a Yakama member. The treaty guaranteed the Yakamas the "right, in common with citizens of the United States, to travel upon all public highways." Cougar Den, Inc. (Cougar Den)âa business owned by a Yakama memberâpurchased and transported motor fuel into the state and resold it to on-reservation retailers. The Washington Supreme Court ruled that the treaty insulated Cougar Den from having to pay a Washington State motor fuels tax on that gasoline. The Supreme Court agreed, though in such a way that the limits of the right-to-travel provision in the 1855 Yakama Treaty may still not be perfectly clear. Nonetheless, this case could affect the interpretation of similar provisions in other treaties, and potentially impact state taxation of other activities both on- and off-reservation.

Legal Backdrop: State Taxing Authority over Tribal Activity

In general, states may tax off-reservation activities of Indian tribes unless an explicit federal law exempts those activities. In 1973, the Court decided Mescalero Apache Tribe v. Jones , holding that New Mexico could impose a gross receipts tax on a tribal ski resort operated on nonreservation land leased from the federal government. According to the Court in Mescalero , "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State."

Although Cougar Den involved a state tax imposed on off-reservation activity similar to the tax the Court upheld in Mescalero , the case arose against a backdrop of states having difficulty collecting taxes on tribal retailers selling goods to non-Indians on Indian reservations, even where courts had upheld the legality of those taxes. Collecting such taxes without tribal cooperation can be challenging because tribal sovereign immunity may defeat suits against a tribe absent tribal waiver or congressional consent. For example, in Moe v. Confederated Salish and Kootenai Tribes , the Supreme Court held that a state could impose record-keeping requirements on tribal retailers to facilitate collecting state taxes from on-reservation cigarette sales to non-Indians. However, in Washington v . Confederated Tribes of Colville Reservation , the Court later held that tribal sovereign immunity barred a state's enforcement action to compel a tribe to remit such taxes. And when Oklahoma later argued in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma that "decisions such as Moe and Colville give . . . [states] a right [to levy a tax] without a remedy [to collect the tax]," the Court responded by suggesting that states could tax wholesalers, enter into agreements with tribes for collecting the taxes, or secure congressional legislation to require tribes to remit the taxes.

Factual Background: Washington's Motor Fuels Tax and the 1855Â Yakama Treaty

A Washington statute imposes a motor fuels tax upon licensed importers who bring large quantities of fuel into the state by way of ground transportation. As of 2018, all 24 Indian tribes in Washington, other than the Yakamas, had negotiated fuel tax agreements under which they would pay the motor fuels tax to the state. The question before the Supreme Court in Cougar Den , then, was whether the 1855 Yakama Treaty forbade a similar tax from being imposed on fuel importation activities by Yakama members, on account of that treaty's protection of tribal members' right to travel off-reservation.

Article III of the 1855 Yakama Treaty contains two clauses. The first clause states that "if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them." The second clause states that the Tribe also has "the right, in common with citizens of the United States, to travel upon all public highways."

Some special canons of construction apply when courts interpret Indian treaties. According to the Supreme Court, courts must "give effect to the terms [of a treaty] as the Indians themselves would have understood them," considering "the larger context that frames the [t]reaty, including 'the history of the treaty, the negotiations, and the practical construction adopted by the parties.'" Partly because many such treaties (including the 1855 Yakama Treaty) were negotiated and drafted in a language other than the Indians' native language and often involved unequal bargaining power, the Supreme Court has stated that "any doubtful expressions in [treaties] should be resolved in the Indians' favor." However, courts must still take care not to extend treaty language beyond what it was intended to cover.

Case Background: The Washington Supreme Court's Decision

When considering whether the State of Washington could collect a motor fuels tax against Cougar Den, the Washington Supreme Court had to determine whether the right to travel conferred by the 1855 Yakama Treaty was implicated. Ultimately, a majority of that court held that it was: the State of Washington could not enforce its motor fuels tax against Yakama tribal members because that would infringe on the Tribe's treaty-protected right to travel. Specifically, the majority held that, "in this case, it was impossible for Cougar Den to import fuel without using the highway." Under the majority's view, the motor fuels tax constituted an impermissible burden or condition on tribal members' use of the highways to transport their goods, which violated the treaty. In reaching this decision, the majority relied heavily on a decision rendered by the U.S. Court of Appeals for the Ninth Circuit in United States v. Smiskin , which held that a Washington State law prohibiting the transportation and possession of unstamped cigarettes without prior notice to the state impermissibly restricted the right to travel protected by the 1855 Yakama Treaty. The Washington Supreme Court, reviewing the motor fuels tax, interpreted Ninth Circuit precedent to mean that the 1855 Yakama Treaty provision applied to "any trade, traveling, and importation that requires the use of public roads."

By contrast, two dissenting state court justices read Ninth Circuit precedent narrowly. Because the fuel tax was directed against trade in a product, not the travel itself, the dissenting justices would have upheld the tax.

The U.S. Supreme Court's Decision

Washington appealed the Washington Supreme Court's decision to the U.S. Supreme Court, and the High Court granted review on June 25, 2018.

In their arguments before the Court, the parties disagreed over the correct interpretation of the 1855 Yakama Treaty. Specifically, the parties disputed how the Yakama would have originally understood the right-to-travel provision. Citing another Ninth Circuit case, Cougar Den argued that the 1855 Yakama Treaty "guarantees the Yakama Nation and its members the ' right to transport goods to market without restriction .'" However, the Washington State taxing authority argued for a more literal and narrow interpretation of the treaty language, emphasizing that the right-to-travel provision contains no mention of taxes. In the state's view, because the fuel tax did not restrict tribe members' ability to travel on public highways, and because the 1855 Yakama Treaty "says nothing about a tax exemption at all," the Treaty did not preempt the tax's applicability to tribe members.

The Supreme Court handed down its decision on March 19, 2019. By a 5-to-4 vote, the Court affirmed the Washington Supreme Court's decision, thereby prohibiting Washington from assessing its motor fuels tax against Cougar Den. However, there was no majority opinion; though five Justices voted to affirm, Justices Sotomayor and Kagan joined an opinion by Justice Breyer, while Justice Ginsburg joined a separate opinion by Justice Gorsuch.

Justice Breyer's opinion noted that the treaty was not written in the tribe's native language, which Justice Breyer declared "put the Yakamas at a significant disadvantage." Justice Breyer contended that, based on precedent going back more than 100 years, courts interpreting an Indian treaty must "see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives" at the time. Citing the historical record, Justice Breyer explained that the Yakamas would have understood the right to travel as including "the right to travel with goods for purposes of trade." Accordingly, because "to impose a tax upon traveling with certain goods burdens that travel," the motor fuels tax directly burdened Cougar Den's ability to travel with goods for purposes of trade, and thus impermissibly violated the 1855 Yakama Treaty. Justice Breyer also concluded that the tax at issue specifically burdened the type of travel the Yakamas had negotiated to protect: travel by public highway. (Washington's motor fuels tax was not assessed on distributors who imported fuel by pipeline or boat.)

Justices Gorsuch, joined by Justice Ginsburg, took a somewhat shorter route to the same conclusion, noting "unchallenged factual findings" from an earlier federal district court case that the Yakamas "understood the right-to-travel provision to provide them 'with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.'" That factual finding, confirmed by a "wealth of historical evidence," in their view required a ruling for the Yakamas.

While five Justices agreed that applying the fuel tax to Cougar Den would violate the 1855 Yakama Treaty, the Court's failure to render an opinion agreed upon by a majority of the Justices leaves some question as to how federal and state courts will construe and apply Cougar Den . To the extent that Justice Gorsuch's opinion rests on somewhat narrower grounds than Justice Breyer's, that may be deemed to be the controlling opinion of the Court. Because it relied on unchallenged evidence of the tribe's understanding of the right-to-travel provision, Justice Gorsuch's opinion leaves open the possibility that other, identical terms in other treaties could be interpreted differently, if there is different evidence about the relevant tribes' understanding.

Chief Justice Roberts wrote an opinion on behalf of the four dissenting Justices, objecting that "the mere fact that a state law has an effect on the Yakamas while they are exercising a treaty right does not establish that the law impermissibly burdens the right itself." The Chief Justice's dissent went on to express concern that the plurality and concurring opinions could, for example, foreclose the applicability of "law[s] against possession of drugs or illegal firearms" by tribe members on public highways, because tribe members could invoke the treaty-protected right to travel when traveling with such items. The plurality responded to this concern by emphasizing that it did not "hold that the treaty deprives the State of the power to regulate to prevent danger to health or safety occasioned by a tribe member's exercise of treaty rights."

Implications and Considerations for Congress

The Court's decision in Cougar Den might prompt Congress to further consider the ability of states to enforce and collect valid state taxes from Indian tribes. Cougar Den involved a considerable amount of tax revenue; in December 2013, Washington assessed $3.6 million in taxes, penalties, and licensing fees against Cougar Den. And there are similar right-to-travel provisions in treaties with other tribes, including the Nez PercÃ© Indians of Idaho and the Flathead, Kootenay, and Upper Pend d'Oreilles Indians of Montana. These similarly worded treaties could give rise to future challenges to state taxing authority over tribe members. Moreover, Congress could choose to act in the event legislators believe that Chief Justice Roberts's fears about health and safety laws are well-founded. Because of Congress's plenary authority over Indian matters, only Congress, not a state, could act to limit or eliminate a right granted by treaty. However, if Congress chooses to do so, its intention must be "clear and plain."

Cougar Den also might prompt further reflection on the differences between state and federal tax exemptions for tribes. Relying on Supreme Court precedent upholding a tax exemption based on explicit language in the General Allotment Act, the Ninth Circuit, for example, has generally held that an exemption from a federal tax must be explicit. Accordingly, the Yakama tribe is currently not exempt from federal heavy vehicle and diesel fuel taxes or from the federal excise tax on manufactured tobacco products because the right-to-travel provision in the 1855 Yakama Treaty is not sufficiently explicit to exempt the tribe from federal taxes. Legislation could be drafted either to eliminate or to enshrine that different treatment.

Herrera v. Wyoming

In Herrera v. Wyoming , the Supreme Court resolved a disagreement about whether either Wyoming's admission into the Union or the later establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians' treaty rights to hunt on "unoccupied lands of the United States." The Court concluded that neither event categorically affected those treaty rights.

This decision was especially notable because the Supreme Court formally repudiated its 1896 ruling in Ward v. Race Horse , which had held that Wyoming's admission into the Union effectively abrogated a similar hunting-rights provision in a treaty between the United States and another Indian tribe. Race Horse had already appeared to be in considerable tension with the Court's decision over a century later in Minnesota v. Mille Lacs Band of Chippewa Indians , when the Court declared that "[t]reaty rights are not impliedly terminated upon statehood." However, it was not until Herrera that the tension was resolved; the Court stated that it was "formaliz[ing] what is evident in Mille Lacs itself. While Race Horse 'was not expressly overruled' in Mille Lacs , 'it must be regarded as retaining no vitality' after that decision." This rejection of Race Horse undermined other cases relying on it, causing a domino effect that ultimately led the Supreme Court to reverse the Wyoming state court decisions that had declined to recognize the Crow Tribe's treaty hunting rights.

Case Background: the Wyoming State Court Decisions

The Herrera case arose after the petitioner, a Crow Tribe member, tracked several elk beyond the Crow reservation's Montana borders into the Bighorn National Forest in Wyoming. Herrera and his hunting companions eventually killed three elk, and Herrera was criminally charged by Wyoming with violating its state hunting laws.

Herrera moved to dismiss the charges, arguing that he was exercising subsistence hunting rights long protected by the 1868 Treaty of Fort Laramie (1868 Treaty) between the Crow Tribe and the United States. In exchange for ceding much of the territory that would eventually become Wyoming to the United States, the Crow Tribe received a guarantee of "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon . . . ." According to Herrera, this treaty provision provided him with permission to hunt off-reservation in the Bighorn National Forest and prevented Wyoming from going forward with his prosecution under state law. Wyoming disagreed, contending that the hunting rights conferred to Crow Tribe members under the 1868 Treaty were abrogated following Wyoming's 1890 admittance into the Union or, alternatively, the 1897 establishment of the Bighorn National Forest.

Rejecting Herrera's claim of treaty protection, the trial court determined it was bound by a 1995 United States Court of Appeals for the Tenth Circuit (Tenth Circuit) decision in Crow Tribe of Indians v. Repsis . That decision held that the 1868 Treaty's hunting-rights provisions had been abrogated for the same reasons as the similarly worded treaty provisions in Race Horse . Alternatively, the Tenth Circuit concluded that the establishment of the Bighorn National Forest in 1897 rendered those lands "occupied" and therefore no longer subject to the access rights given to Crow tribal members by the 1868 Treaty.

According to the Wyoming court, principles of collateral estoppel prevented Herrera from "attempting to relitigate the validity of the off-reservation treaty hunting right that was previously held to be invalid" by the Tenth Circuit. After Herrera was convicted and denied appeal in a higher Wyoming state court, he sought review in the U.S. Supreme Court, which granted his request.

Legal Backdrop: Court Decisions Interpreting Statehood's Effects on Tribal Treaty Rights

A key issue in Herrera concerned the interplay of the Court's prior decisions considering statehood's effect on the continuing viability of treaties between the United States and Indian tribes located within a newly acceded state's territorial boundaries. In Race Horse , the Court had taken the view that Congress's legislative action in admitting a state to the Union abrogated earlier treaties conferring tribal rights to nonreservation lands within the new state's territory. This decision was partly premised on the equal footing doctrineâthe idea that newly admitted states must enjoy sovereignty equal to that of existing states.

In Race Horse itself, the Court held that a hunting right in a Shoshone-Bannock treatyâa provision with language identical to the 1868 Treatyâviolated the equal footing doctrine and had been abrogated by legislation admitting Wyoming to the Union. The Supreme Court reasoned that Wyoming's admission to the Union must have impliedly abrogated the treaty right, because "all the states" have the power "to regulate the killing of game within their borders," and the language of the Shoshone-Bannock treaty would impermissibly limit Wyoming's power to do so relative to other states. In other words, the "two facts" of the treaty's hunting rights and of Wyoming's statehood were "irreconcilable, in the sense that the two, under no reasonable hypothesis, [could] be construed as co-existing." The fact that Congress made no express statement abrogating the Shoshone-Bannock treaty rights did not change that reasoning. As a potentially alternative basis for its decision, the Court explained that because the treaty had been enacted while the land had territory status, it necessarily made only an "essentially perishable . . . temporary and precarious" promise, "intended to be of a limited duration."

The equal footing doctrine's primacy in federal Indian law was short-lived, however. In United States v. Winans , less than a decade after Race Horse , the Court upheld tribal fishing rights granted to the Yakama tribe under the 1855 Yakama Treaty. The Court specifically concluded that those treaty rights were not displaced by the State of Washington's admission into the Union. According to the Winans Court,

The extinguishment of the Indian title, opening the land for settlement, and preparing the way for future states, were appropriate to the objects for which the United States held the territory. And surely it was within the competency of the [nation] to secure to the Indians such a remnant of the great rights they possessed as "taking fish at all usual and accustomed places." Nor does it restrain the state unreasonably, if at all, in the regulation of the right.

In short, just as Congress had the power to extinguish tribal title to the land, it had the power to reserve fishing rights to the tribes on nonreservation landâand respecting that preservation of rights was a reasonable restraint on, rather a dramatic curtailment of, state sovereignty.

But Race Horse 's holding was not explicitly overruled by Winans , and roughly a century later, Wyoming charged another Crow Tribe member with illegally hunting elk in the Bighorn National Forest (in a case called Crow Tribe of Indians v. Repsis , which predated Herrera's case, but involved similar factual circumstances). The Crow Tribe sought a declaratory judgment in federal court, hoping to resecure the 1868 Treaty hunting and fishing rights. The Tenth Circuit ruled against the tribe, concluding that because the relevant provision of the 1868 Treaty was virtually identical to the one abrogated by the Supreme Court in Race Horse , the Race Horse decision mandated that the treaty rights be considered abrogated by statehood. In so doing, the Tenth Circuit also emphasized Race Horse 's conclusion that the 1868 Treaty granted only "temporary and precarious" rights, such that Congress could not have intended them to be binding on a later-created state.

A few years after Repsis , the Supreme Court decided Minnesota v. Mille Lacs Band of Chippewa Indians , which involved fishing rights under an 1837 tribal treaty in Minnesota. There, the Court declined to apply Race Horse and rejected its reasoning, at least in substantial part. The earlier decision's equal-footing holding rested on a "false premise," the Court said, and its language about "temporary and precarious" treaty rights was "too broad to be useful." Noting that courts "interpret Indian treaties to give effect to the terms as the Indians themselves would have understood them," the High Court explained that "Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so." Since there was no "clear evidence" of Congress's intent to abrogate the tribal fishing rights at issue, those rights simply were not abrogated. In the view of the Court, "[t]reaty rights are not impliedly terminated upon statehood."

Although highly critical of Race Horse , the Court majority in Mille Lacs did not expressly overrule the earlier decision (though Chief Justice Rehnquist, writing in dissent, accused the majority of overruling Race Horse " sub silentio ," via "a feat of jurisprudential legerdemain").

The Herrera Decision: the Impact of Statehood

Thus, when Herrera came before the Supreme Court, the question of whether Race Horse would affect the outcome was a point of disagreement between the parties. Herrera argued that " Mille Lacs forecloses any suggestion that Wyoming's admission terminated the Tribe's treaty hunting rights." Wyoming disagreed, arguing that at least one aspect of Race Horse remained good lawânamely, its recognition that rights conferred to tribal members by treaty may be only of a "temporary and precarious nature," so that the "the proper inquiry is whether Congress intended . . . [those] rights to be perpetual or to expire upon the happening of a clearly contemplated event, such as statehood." According to Wyoming, Mille Lacs did not disturbâand indeed, reaffirmedâthis aspect of Race Horse , which allowed for the conclusion that statehood terminates such temporary rights.

Ultimately, the Supreme Court rejected Wyoming's arguments by a 5-4 vote. Writing for the Court majority, Justice Sotomayorâjoined by Justices Ginsburg, Breyer, Kagan, and Gorsuchâacknowledged that Race Horse "relied on two lines of reasoning"ânamely the equal footing doctrine and the "temporary and precarious" nature of certain treaty rights. The Court determined that Mille Lacs had "undercut both pillars of Race Horse 's reasoning," and "methodically repudiated that decision's logic." "[T]he crucial inquiry for treaty termination analysis" established by Mille Lacs "is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied." Unless the legislation granting statehood "demonstrates Congress's clear intent to abrogate a treaty" or statehood is mentioned in the treaty itself as a termination point, "[s]tatehood is irrelevant" to treaty termination analysis.

Applying the Mille Lacs test to Herrera's case thus involved two questions: (1) Did the Wyoming Statehood Act "show that Congress intended to end the 1868 Treaty hunting right"? and (2) Was there any evidence "in the treaty itself that Congress intended the hunting right to expire at statehood"? The Supreme Court concluded that the answer to both questions was "No"âthere was "simply . . . no evidence" in either the Wyoming Statehood Act or in the treaty itself that Congress intended the Crow Tribe's hunting rights to end at statehood.

A Procedural Matter: Issue Preclusion

Herrera faced an additional procedural hurdle at the Supreme Court: the parties disagreed over whether he should even be legally allowed to raise his arguments in the first place. The Wyoming state courts had ruled that the Tenth Circuit's 1995 decision in Repsis barred Herrera from even being able to litigate the question of whether the Crow Tribe retained any off-reservation hunting rights under the 1868 Treaty. In short, they said that question had already been answered. Thus, much of the briefing at the Supreme Court focused on issue preclusion, a doctrine that prevents parties from resurrecting an issue already directly decided in a previous case. Both Herrera and the United States as amicus curiae argued that preclusion should not apply when there had been an intervening change in the law, like the Supreme Court's Mille Lacs decision. Wyoming, however, maintained that Mille Lacs had not overruled Race Horse in its entirety, and that at least one line of its reasoning survived: in Wyoming's view, issue preclusion should at least attach to the Tenth Circuit's finding in Repsis that the 1868 Treaty rights were only temporary . In other words, Wyoming argued that Herrera should not be permitted to relitigate the issue of whether Congress intended the 1868 Treaty's hunting rights to be "temporary" rights that expired after statehood because the Tenth Circuit had already definitively answered that question.

For the same reasons that the Supreme Court disagreed that statehood had necessarily abrogated Herrera's treaty rights, it likewise rejected Wyoming's claim of issue preclusion. Mille Lacs constituted a "change in law" that justified "an exception to preclusion in this case." "At a minimum," the Court said, "a repudiated decision does not retain preclusive force."

The Herrera Decision: the Meaning of "Unoccupied Land"117

Having decided that the 1868 Treaty's hunting rights provision remained in effect even after Wyoming statehood, the Court then needed to decide whether the Bighorn National Forest should be considered "unoccupied" land under the terms of the treaty. The Tenth Circuit in Repsis had concluded that the establishment of the national forest in 1897 rendered the land "occupied" by the federal government because it was "no longer available for settlement," and the resources from the land could not be used "without federal permission." Wyoming similarly argued that "[c]reation of the Bighorn National Forest was an act of occupation, placing that land outside of the ambit of the Crow Treaty right"; in the state's view, because the national forest "is federal property, and the United States decides who may enter and what they may do," the national forest should constitute occupied land on which the 1868 Treaty would grant no special privileges.

On the other hand, Herrera contended that the text and historical record of the 1868 Treaty demonstrate an understanding by the parties that "the term 'occupied' entailed actual, physical settlement of the land by non-Indian settlers." The United States, writing as amicus curiae, agreed. Herrera and the United States noted that, in other cases, the declaration of a national forest had led courts to declare the designated land "open and unclaimed."

The Supreme Court reiterated that provisions of treaties with tribes must be interpreted as they would naturally have been understood by the tribes at the time those treaties were executed. In this case, the Supreme Court concluded "it is clear that the Crow Tribe would have understood the word 'unoccupied' to denote an area free of residence or settlement by non-Indians." That conclusion was based on analysis of the treaty's text, which used variations of the words "occupy" and "settle" at various points, and supported by both contemporaneous dictionary definitions and historical evidence from the time of the treaty negotiation and signing. Accordingly, "President Cleveland's proclamation creating Bighorn National Forest did not 'occupy' that area within the treaty's meaning. To the contrary, the President 'reserved' the lands 'from entry or settlement.'"

The Herrera Decision: Dissent and Limitations

The majority opinion in Herrera noted that its scope was limited in two distinct ways. First, the majority held only "that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied." This leaves open the possibility that some parts of the Bighorn National Forest contain enough indicia of settlement to be considered "occupied," even though the rest of the forest is notâwhich would preclude exercise of Crow tribal hunting rights in those areas. Second, the Supreme Court declined to consider arguments that Wyoming could regulate the exercise of hunting rights to promote conservation purposes. Because those arguments were not considered by the state appellate court, the Supreme Court did "not pass on the viability of those arguments" in its opinion. That may leave open another avenue by which Wyoming could limit the exercise of tribal hunting rights within its borders.

A dissent written by Justice Alito was joined by the remaining three members of the Court. The four dissenting Justices would have determined that the Tenth Circuit's decision in Repsis ("holding that the hunting right conferred by [the 1868 Treaty] is no longer in force") was still binding, such that "no member of the Tribe will be able to assert the hunting right that the Court addresses." In other words, the dissent would have started with the parties' issue preclusion arguments, and would have determined that Herrera had no right to relitigate an issue that had already been settled by a court.

More specifically, although the dissent expressed some doubt that Mille Lacs represented a sufficient change in the law to foreclose Repsis 's conclusion that Wyoming statehood abrogated the 1868 Treaty rights, it would not have reached that question. Instead, the dissent would have given preclusive effect to Repsis 's alternate legal conclusion, which it says existed independently of Race Horse ânamely, that the Repsis court decided the Bighorn National Forest was not "unoccupied" within the treaty's meaning.

Implications and Considerations for Congress

Congress's plenary authority to govern interactions with Indian tribes remains clear. Congress may at any time expressly disavow any provision of the 1868 Treaty, or may plainly reaffirm its commitment to any Indian treaty that remains in effect. To the latter end, Congress could, if it wished, clarify that the Bighorn National Forest (or other national forests) should be treated as unoccupied lands for the purposes of construing Indian treaty rights. By contrast, Congress could also choose to broadly abrogate hunting and fishing rights in national forests or other areas, but Herrera reaffirms that if Congress does so, it must clearly state that intention.

Carpenter v. Murphy

In Carpenter v. Murphy , the Supreme Court is reviewing a decision by the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) concerning whether Oklahoma could legally charge and convict Patrick Murphy, a member of the Muscogee (Creek) Nation who was convicted of killing a fellow tribe member. The validity of Murphy's murder conviction may turn on whether his crime was committed within the boundaries of the Muscogee (Creek) reservationâa reservation that Oklahoma says ceased to exist in the early 1900s. Although the Oklahoma state courts rejected Murphy's efforts to overturn his conviction, the Tenth Circuit concluded that the crime did occur on reservation land, and that Oklahoma thus lacked authority to prosecute Murphy.

Although the Supreme Court heard oral arguments in Carpenter v. Murphy at the end of 2018, it ordered the case restored to the calendar and set for reargument in the October 2019 term. Whether the Court will ultimately agree with the Tenth Circuit's decision is uncertain, but if it does, the decision could have significant consequences beyond Murphy's case. The land where the crime occurred would then be "Indian country" under federal law, which Oklahoma says would significantly limit its criminal jurisdiction over offenses committed by Indians on such land. Such a decision could prompt additional litigation concerning the status of other tribal lands within Oklahoma.

The Major Crimes Act and "Indian Country"

The parties have asked the Supreme Court to decide whether the land that was historically designated as belonging to the Muscogee (Creek) Nation constitutes "Indian country," and if so, whether Oklahoma has any criminal jurisdiction over crimes like Murphy's. The federal government (and Congress in particular) has long been recognized as having plenary authority over Indian affairs, so states generally cannot exercise criminal jurisdiction over Indians in "Indian country" without federal permission. A federal statute defines "Indian country" to mean (1) all land within an Indian reservation, (2) all dependent Indian communities, and (3) all Indian allotments that still have Indian titles. An area qualifies as Indian country if it fits within any of these three categories, meaning a formal designation of Indian lands as a "reservation" is not required .

Federal law establishes parameters for when states may prosecute certain crimes committed within Indian country. Most relevant to this case, the Major Crimes Act reserves federal jurisdiction over certain serious crimes, like murder and kidnapping, when committed by an Indian within Indian country. Federal jurisdiction under the Major Crimes Act generally forecloses overlapping state (though not tribal) jurisdiction, though legislative exceptions permit some states to exercise jurisdiction over such crimes.

The Tenth Circuit Decision

The Supreme Court has explained that Congress alone has the power to change or erase reservation boundaries. Once land is designated as a reservation, it generally stays that way until Congress eliminates ("disestablishes") or reduces ("diminishes") it. Appealing his state murder conviction to the Tenth Circuit, Murphy contended that the Muscogee (Creek) reservation had never been disestablished and therefore constituted "Indian country," precluding state jurisdiction over his offense. The Tenth Circuit agreed.

In its decision, the Tenth Circuit briefly described the history of the Muscogee (Creek) reservation. In the 1820s, the federal government forcibly relocated the tribe's members (and members of several other tribes) to what is now present-day Oklahoma. As part of that relocation, the government signed a series of treaties with the Muscogee (Creek) Nation, ultimately giving the tribe a vast area of land roughly equivalent to present-day Oklahoma.

That tract of land was later reduced. The final reduction occurred after the Civil War, when the Treaty of 1866 required the Muscogee (Creek) Nation to transfer the western half of its new lands back to the United States.

Though the Muscogee (Creek) Nation later experienced many changes in its relationship with the federal governmentâmost notably related to tribal governance and a push for individual ownership of the landâthe boundaries of the Muscogee (Creek) land remained generally unchanged until at least the early 1900s. At that point, the "unique history" of Oklahoma began to transition toward statehood, effectively merging eastern Indian lands and western non-Indian lands into a single geographic entity.

To determine whether Congress intended to disestablish the Muscogee (Creek) reservation land, the Tenth Circuit applied a three-step analysis employed in the Supreme Court's 1984 decision, Solem v. Bartlett . Under this framework, courts examine (1) the language of the governing federal statute; (2) the historical circumstances of the statute's enactment; and (3) subsequent events such as Congress's later treatment of an affected area. Importantly, the Solem framework instructs courts to resolve any uncertainty in favor of the tribes: if the evidence is not clear, courts "are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived . . . ."

Using this framework, the Tenth Circuit agreed with Murphy that his criminal conduct occurred in Indian country, and Oklahoma therefore lacked jurisdiction over it. Although Oklahoma referenced eight separate federal acts that it viewed as collectively disestablishing the Muscogee (Creek) reservation, the Tenth Circuit ruled that none of those statutes clearly referred to disestablishment, and in some instances reflected Congress's continued recognition of the reservation's borders. Oklahoma's evidence that Congress intended to change its governance over the Muscogee (Creek) reservation failed to convince the Tenth Circuit that Congress also intended to erase the reservation boundaries. Similarly, the Tenth Circuit concluded that events subsequent to legislation cited by Oklahoma insufficiently supported the argument that Congress intended the Muscogee (Creek) reservation to be disestablished. In sum, the Tenth Circuit did not find that Congress clearly intended to disestablish the Muscogee (Creek) reservation, so it concluded that Oklahoma lacked jurisdiction to convict Murphy for a murder occurring on those lands.

Appeal to the Supreme Court

Oklahoma petitioned for certiorari review of the Tenth Circuit's decision, which the Supreme Court granted on May 21, 2018. In its brief to the Court, Oklahoma claimed that no one has treated the relevant land like a reservation since Oklahoma became a state in 1906. It also argued that because Congress broke certain promises in the treaties that had established the reservation, Congress must have intended to disestablish it. According to Oklahoma, it "is inconceivable that Congress created a new State by combining two territories while simultaneously dividing the jurisdiction of that new State straight down the middle by leaving the former Indian Territory as Indian country." In other words, in Oklahoma's characterization of the matter, Congress could not have intended the state to lack jurisdiction over major crimes in half its land mass. Finally, Oklahoma contended that the Solem framework should be inapplicable in the unique context of Oklahoma statehood.

The federal government made similar arguments in a brief it filed in support of Oklahoma. However, the federal government additionally claimed that Congress had elsewhere granted Oklahoma broad criminal jurisdiction over Indian country, which it said should enable prosecution of cases like Murphy'sâregardless of whether his crime was committed in Indian country. More specifically, the United States argued that Congress had eliminated tribal jurisdiction and evinced an intent to have all crimes prosecuted by the same entity (whether committed by or against a tribal member or not) throughout the territory that became Oklahoma; in the United States' view, that intent should not be "implicitly" repealed by later statutes like the Major Crimes Act.

Supplemental Briefing Ordered by the Supreme Court

Following oral argument, the Supreme Court ordered both Oklahoma and Murphy to address whether or not Oklahoma would have criminal jurisdiction over cases like Murphy's if the crimes were found to have been committed in Indian country. It also asked the parties to address whether a reservation could ever not qualify as Indian country. These questions might be relevant if, for example, the Court sought additional information to clarify whether it would need to find that the Muscogee (Creek) reservation had been disestablished in order to conclude that Oklahoma could exercise jurisdiction over Murphy.

In Murphy's supplemental brief, he began by stressing that Oklahoma had disavowed the argument that it could exercise criminal jurisdiction over him if the Muscogee (Creek) reservation endured. Murphy then argued that Congress has never given Oklahoma jurisdiction to prosecute crimes committed by Indians, andâanticipating the assertion that several statutes could be read together to implicitly accomplish that resultâdeclared that "when Congress transfers jurisdiction to States, its statutes are bell-clear." None of the statutes mentioned by the United States in its briefing, Murphy argued, do anything like clearly grant criminal jurisdiction over tribes and tribal members to the State of Oklahoma.

Oklahoma adopted the United States' view that it had jurisdiction to prosecute crimes regardless of the Muscogee (Creek) land's status, based on a series of laws passed by Congress between 1897 and 1907. However, the state asked the Court not to "leave open whether [Muscogee (Creek) and other historical territories] constitute Indian reservations today," arguing that such a decision "risks undermining the convictions of many federal prisoners" and "may also undermine federal and tribal authority currently exercised on restricted allotments and trust lands."

Both Murphy and Oklahoma answered the Court's second question in the negative: they agreed, under current law a federally established reservation always constitutes "Indian country" under the governing statute.

Anticipating the U.S. Supreme Court's Decision

The Supreme Court heard oral arguments in this case on November 27, 2018. Justice Gorsuch was not present at oral arguments and is not slated to participate in deciding the caseâpresumably because he participated in earlier discussions about this case while he was still a judge on the Tenth Circuit. A decision was expected by the end of the Supreme Court's 2018 term, but on June 27, 2019, the Court ordered this case restored to the calendar for reargument in the next term.

If the Supreme Court reverses the Tenth Circuit and finds that the Muscogee (Creek) reservation was disestablished, Murphy's conviction and death sentence would be reinstated, and Oklahoma would presumably continue to prosecute cases like Murphy's. But if the Supreme Court agrees with Murphy and the Tenth Circuit that the Muscogee (Creek) reservation has not been disestablished, the decision's ramifications for federal, state, and tribal jurisdiction in the eastern half of Oklahoma might be significant, and could extend well beyond the Muscogee (Creek) reservation. In addition to the Muscogee (Creek) Nation, several other tribes were forcibly relocated to Oklahoma under similar circumstances and under the same or similar treaties. The parties in Murphy filed a joint appendix containing several historical maps depicting reservation boundaries in Oklahoma in the early 1900s. Oklahoma has argued that, if those statutes did not disestablish the Muscogee (Creek) reservation, similar arguments could be maintained with respect to other lands comprising most of eastern Oklahoma. If the Supreme Court agrees with the Tenth Circuit that Congress never disestablished reservations like the one in this case, Oklahoma argues that its ability to prosecute many crimes in the eastern part of the state would be significantly narrowed. According to Oklahoma and some amici, the Tenth Circuit's decision "would create the largest Indian reservation in America today . . . . That revolutionary result would shock the 1.8 million residents of eastern Oklahoma who have universally understood that they reside on land regulated by state government, not by tribes." If a significant part of Oklahoma is Indian country, then the burden would shift to the federal and tribal governments to prosecute many offenses involving Indian offenders or victims âat least, absent other federal statutory authority allowing the state to prosecute.

However, other amici have joined Murphy in arguing that the Tenth Circuit's decision should be upheld. Some, including the Muscogee (Creek) Nation, contend that recognition of the Muscogee (Creek) reservation's continued existence would leave intact most state and local functions on those lands. For example, the Muscogee (Creek) Nation argues that even on reservation land, state and local governments retain most civil jurisdiction, including taxing and zoning authority.

The Supreme Court might also seek to avoid the question of whether the Muscogee (Creek) reservation still exists. For example, the Supreme Court could decide either to reassess the approach it endorsed in Solem , orâas suggested by Tenth Circuit Chief Judge Tim Tymkovichâconclude that the Solem framework is ill-suited to the unique circumstances surrounding Oklahoma's statehood. Alternatively, the Court could adopt the federal government's argument that Oklahoma had jurisdiction to prosecute Murphy because earlier statutes granted such jurisdiction, thereby rendering the Major Crimes Act inapplicable.

Implications and Considerations for Congress

Regardless of the Supreme Court's decision, the choice to disestablish a reservation still lies solely with Congress. If the Supreme Court agrees that the Muscogee (Creek) reservation still exists, a statute clearly disestablishing it would limit this case's applicability in the future. Congress could also pass a law expressly giving Oklahoma jurisdiction to prosecute major crimes in Indian country if the Supreme Court holds that no such law currently exists.

If the Supreme Court disagrees with the Tenth Circuit and holds that the Muscogee (Creek) reservation no longer exists, Congress couldâdepending on the exact grounds of the rulingâcountermand that decision by reestablishing or clarifying the continued existence of the Muscogee (Creek) reservation.