Native Treaties and Conditional Rights After Herrera.

AuthorCole, Katherine M.

Table of Contents Introduction I. Treaty Interpretation and Abrogation A. Background on the Indian Canons of Construction B. The Uneasy Fit of Treaty Termination Points II. Herrera v. Wyoming A. Case Background B. Abrogation by Clear Congressional Intent 1. "Equal footing" 2. "Temporary and precarious" III. Conditional Treaty Rights After Herrera A. Abrogation Principles and Termination Conditions B. Express Treaty Language 1. "Unoccupied lands" 2. "Game may be found thereon" 3. "Peace subsists" C. Changed Circumstances Conclusion Introduction

As long as water flows, or grass grows upon the earth, or the sun rises to show your pathway, or you kindle your camp fires, so long shall you be protected by this Government, and never again be removed from your present habitations.

--President James Monroe (1)

In an effort to give substance to government promises that treaties should last in perpetuity "as long as water flows," courts require that Congress "clearly express its intent" to unilaterally abrogate Native treaties by subsequent incompatible treaty or legislation. (2) Courts further guard against undue deprivation of Native treaty rights by applying "enlarged rules of construction" ensuring that "'[t]he language used in treaties with the Indians never be construed to their prejudice.'" (3)

But what if the water no longer ran and the grass no longer grew? Many treaties condition rights on certain termination points, ostensibly granting the rights only, for example, "so long as game may be found" or "as long as peace subsists among the whites and Indians." (4) While Congress may not have affirmatively acted to abrogate the right, do treaty rights nevertheless expire with the occurrence of these conditions? Those treaty rights may be effectively extinguished, even if not technically abrogated. And yet courts have not resolved the question whether the same "clearly expressed" standard should apply when they interpret such conditions. If core treaty rights could be gutted by an expansive, progovernment interpretation of treaty conditions and, in effect, abrogated, why should different legal standards apply?

Scholars have largely ignored this question. (5) The Supreme Court, for its part, most recently wrestled with how to interpret Native treaty conditions in Herrera v. Wyoming. (6) Though Herrera did not require clearly expressed intent when interpreting treaty conditions, the Court's robust application of the Indian canons of construction suggests something close. (7) Herrera examined an 1868 treaty with the Crow Tribe that guaranteed the right to hunt beyond the bounds of the Tribe's Montana reservation so long as those extraterritorial lands remained "unoccupied." (8) The Court rejected Wyoming's arguments that either the State's admission to the Union or the creation of the Bighorn National Forest constituted "occupation" that had extinguished the hunting right. (9)

Not just the Crow are affected: Many tribes signed similar treaties with similar language. (10) Herrera is a landmark case that will shape the fate of Native hunting rights and their attendant economic and cultural importance for years to come. Treaties still govern the messy boundaries between sovereigns, and so the continued validity and scope of these treaties are some of the most important questions for courts struggling to navigate this type of relationship. (11)

Conditional treaty language often reflects historical expectations that Native sovereignty would be temporary. Settlers would move west, the unoccupied lands would become occupied, and the treaty rights would disappear. Natives were forced westward as Congress repeatedly failed to keep its promises to them. (12) Since the First treaties with Native nations were consummated, it has become increasingly clear that federal policymakers intended for Indigenous peoples and cultures to fade away. The reservation system and later land allotment were intended to "make room for settlers" and "convert [Natives] into Christian, self-sufficient farmers, complete with a European American sense of individualism and private property ownership." (13) Though many hoped that "[c]ontact with whites and ownership of land [would] teach [Natives] to become educated, civilized, and self-supporting," land allotment under the Dawes Act of 1887 was an unmitigated failure for Native people. (14) These "Americanization" efforts pervaded education as well. (15) Compulsory boarding schools required Native children to speak English, convert to Christianity, and study Euro-American subjects. (16)

Native nations, Native peoples, and Native rights never disappeared, but neither has the assumption that they will The recent controversy in McGirt v. Oklahoma exemplifies this assumption. (17) After extended deadlock, the Supreme Court ultimately ruled that almost half of Oklahoma remains Indian Country. (18) The majority held Congress to a high standard of clear intent to disestablish a reservation. (19) Although Oklahoma statehood and subsequent demographic changes suggested that the Muscogee Nation reservation had been presumed to have been disestablished, that presumption was never embodied in legislative text. (20) But at oral argument in a related case addressing the same legal question, Justice Kavanaugh's questioning relied on familiar nineteenth-century expectations: "[W]hy shouldn't the historical practice, the contemporaneous understanding, the (100) years, all the practical implications say leave well enough alone here?" (21) Likewise, Chief Justice Roberts's dissent in McGirt seemed to excuse Congress from any requirement of clear intent because "the possibility that a reservation might persist in the absence of 'tribal ownership' of the underlying lands was 'unfamiliar,' and the prevailing 'assumption' was that 'Indian reservations were a thing of the past.'" (22) According to the Chief Justice, despite treaty promises to secure a "permanent home to the whole Creek nation of Indians," (23) more consequential was that "Congress believed 'to a man' that 'within a short time' the 'Indian tribes would enter traditional American society and the reservation system would cease to exist.'" (24)

Treaty termination points served to ground those beliefs in the text. In the late nineteenth century, the Supreme Court in Ward v. Race Horse answered a question similar to that in Herrera, coming to the opposite conclusion. (25) Race Horse interpreted treaty conditions to create rights so "temporary and precarious" that they were easily dissolvable. (26) Even where the text would not otherwise have supported abrogation, the Court read into unrelated treaty conditions the historical assumptions that Natives would disappear, that game would disappear, and that dual sovereignty would disappear. (27) The Court thus held that the Bannock Nation's hunting right did not survive Wyoming's statehood. (28)

But Herrera renounced that "erroneous" approach. (29) Treaty rights are not "temporary and precarious." (30) Assumptions that "[o]ff-reservation hunting rights were temporary measures" or that "[t]here will soon be no necessity for the Indians to leave their reservations in search of subsistence, for the game will be gone," do not in themselves terminate the hunting right. (31) Although the dissenters in McGirt--as characterized by Justice Gorsuch in the majority opinion--may have subscribed to the thinking that "[y]es, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye," the majority made clear that at the "end of the Trail of Tears was a promise," and "[w]e hold the government to its word." (32) Expectations frozen in the nineteenth century--particularly those assumptions neither expressed in the treaty text nor tracking the actual evolution of Indigenous history--should not control the scope and validity of Native treaties today. Instead, Congress should be required to clearly express its intent to terminate a treaty right.

In the wake of Herrera, this Note focuses on the viability of off-reservation hunting rights that Congress has not explicitly repudiated. The bounds of common treaty conditions--occupation, presence of game, peace--are yet to be determined. Parts I and II provide background. Part I outlines principles of Indian treaty interpretation and abrogation that should equally apply to treaty termination points. Part II discusses Herrera and the Court's repudiation of the notion that abrogation could be effected by anything less than clear congressional intent. Part III evaluates how treaty termination points should be understood. Both the Indian canons of construction and the congressional power to abrogate Native treaties strongly support interpreting such conditional terms narrowly. First, expectations about game disappearing or the scope of occupation were almost always the federal government's expectations, but it is well established that treaties should be interpreted as Natives understood them. Second, if Congress believes that changed conditions warrant eliminating a treaty right, it may do so--and indeed it has done so repeatedly. So courts should be very reluctant to Find that conditional language from the nineteenth century has extinguished a treaty right.

In practice, whether clearly expressed intent is required may not matter. After all, Congress provides strong evidence of its intent by including conditional language in a treaty. But the Indian canons of both interpretation and abrogation, rather than a myopic view of congressional intent, should apply. (33) The Supreme Court's modern jurisprudence reinforces this approach. Though the Indian canons are not always employed, (34) recent decisions such as Minnesota v. Mille Lacs Band of Chippewa Indians, Washington State Department of Licensing v. Cougar Den, Inc., and Herrera have applied a robust form of the canons, suggesting a resurgence of interpretive principles that favor...

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