Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty

by Michael C. Dorf

On Monday, in Herrera v. Wyoming, the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological.

Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.

Herrera, who lives on a Crow reservation in Montana, killed elk in Bighorn National Forest in violation of Wyoming law (because elk were out of season and he lacked a license). He defended against a criminal charge by invoking the treaty. Under the treaty, the Crow agreed to relocate to a reservation but retained "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts."

Wyoming argued that when it became a state, the treaty hunting rights of the Crow were extinguished. Other states did not have to provide such an accommodation and so, Wyoming argued, neither should it, because application of the treaty would violate the principle that states are admitted to the Union on an equal footing with existing states. Prior SCOTUS precedent provided support for this position, but Justice Sotomayor's opinion overrules that precedent. There was nothing in the treaty itself that made Wyoming statehood extinguish hunting rights, she said, nor does the enforcement of the treaty in fact violate the equal footing doctrine.

That much of the opinion seems sound. The equal footing doctrine, properly conceived, does not wipe away all commitments that have gone before. It would be particularly unfair to the Crow to rule otherwise.

The Court also dispatched another argument advanced by Wyoming -- the claim that Bighorn National Forest is not "unoccupied" land, because it is, well, occupied by a national forest. The majority replied that when the treaty was entered, "unoccupied" would have meant something like devoid of towns and farms owned and operated by white folks. A national forest is not a settlement in that sense, the Court reasoned, and therefore the right to hunt persists.

That strikes me as a harder question than the Court acknowledged. It's almost certainly true that when the treaty was entered, both the US and Crow representatives were thinking about villages and farms as key examples of occupied land. But that doesn't necessarily resolve the question of the meaning of the word "unoccupied." We could imagine that a national forest dedicated to such activities as outdoor recreation and wildlife observation is "occupied" in the relevant sense: the land is being used in a way that is incompatible with members of the Crow tribe coming on it to hunt.

Whether to classify a national forest that way is also an interesting question. The treaty was adopted more than two decades before the first national forest in the US but only a few years before the first national park. So it's conceivable that some of the parties to the negotiations were anticipating the possibility of a nature preserve and had some intentions regarding whether such a set-aside would count as occupied or unoccupied land for treaty purposes.

Meanwhile, we might think of the treaty as less like a statute and something more like a contract with terms largely dictated by the US as the stronger party. If so, then we would want to construe ambiguity against the party that played the larger role in drafting the treaty. Here that would mean an interpretation favoring the Crow, which is how the Court ruled. Considerable SCOTUS precedent favors this sort of approach in cases involving treaties with native tribes.

If that is in fact the best explanation for the result in Herrera -- something like a presumption in favor of greater rather than fewer treaty rights for tribes and their members -- then we are left with one final puzzle. The Court rules for Herrera but leaves open the possibility of a Pyrrhic victory. Citing a line of earlier cases, the majority allows that on remand Wyoming can prevail by renewing an argument that enforcement of its law without exceptions for people like Herrera is necessary to serve the state's interest in conservation.

Note what the Court does not say. It does not say that Wyoming can win simply by pointing out that its hunting law serves a general interest in conservation. It must show that it needs to enforce the law without exceptions for tribal members exercising their treaty rights. Now contrast that proposition with the operative constitutional rule for free exercise claims. Under the 1990 case of Employment Division v. Smith, so long as a state law does not single people out based on religion, there is not even a prima facie free exercise claim when legal and religious obligations conflict. In other words, the Court construes the First Amendment's Free Exercise Clause not to require religious exceptions, while it construes treaty rights to require exceptions (absent a showing of necessity).

The difference in approach cannot be attributed to any textual difference. Neither the First Amendment nor the 1868 treaty mentions exceptions. The Court simply reads an exceptions requirement into the treaty but not into the First Amendment.

Meanwhile, Smith wasn't about just any religion. Smith performed a sacrament (peyote use) as part of his participation in the rites of the Native American Church. Had he claimed a right to do so under a treaty rather than under the First Amendment, he might have succeeded.

Notably, the cases that Justice Sotomayor cites establishing the proposition that Herrera's treaty rights can be overridden but only if necessary to furthering the state's interest in conservation (and thus providing for treaty exceptions to general laws where the state cannot satisfy something like strict scrutiny) pre-date Smith. It is not clear that the Court that decided Smith would have decided the treaty cases the same way.

But neither is it clear that the current Court would decide Smith the same way the Court did in 1990. For some time now, the Court has been delaying deciding whether to grant review in an Oregon case involving owners of a bakery who refused to bake a custom cake to celebrate a same-sex wedding in violation of the state's public accommodations law. (Yes, another such case.) One of the questions presented is whether to overrule Smith, which, though authored by Justice Scalia, has become increasingly unpopular among conservatives as they have come to realize that Christian traditionalists can use religious exceptions to opt out of anti-discrimination law. Accordingly, it is possible that the Court will reconcile its treatment of religious exceptions and treaty-based exceptions for tribal members by abandoning Smith.