Legal Docket: Native American rights

MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 4th of February, 2019. Good morning to you!  I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. The Supreme Court’s holding off on oral arguments for a few weeks. So we’ll take advantage of the break to catch you up on all the oral arguments so far this term.

So if you’ve listened each Monday since October, you’ll have heard something about every single argued case this term to this point.

REICHARD: And if you have done that, you may nevertheless feel a sense of déjà vu.

That may be because this first case today deals with the rights of Native Americans— the fourth such case this term.

Here are the facts this time, from 2014. Hunters from the Crow tribe of Indians trailed an elk herd on their reservation in Montana. But when the herd crossed over into Wyoming, and in particular into the Bighorn National Forest, the Native hunters followed. In doing that, they’d crossed the state border in pursuit, and then shot three bull elk. They then took the meat back home to Montana.

You can probably see where this is going.

EICHER: Right, Wyoming conservation officials weren’t pleased. They went to the reservation and cited one of the hunters, Clayvin Herrera, for poaching.

He had no hunting license, and, worse, it wasn’t even hunting season in Wyoming.

But Herrera said not so fast. Native American hunting rights are preserved in a treaty, a federal treaty, from 1868.

It says Natives are permitted to hunt off the reservation.

REICHARD: Herrera was tried and convicted anyway, and he lost in the lower courts on appeal.

The reason is a hodge podge of conflicting court rulings stretching back 120 years. Herrera’s lawyer is George Hicks.

HICKS: In 1868, the Crow Tribe of Indians agreed to cede to the United States 30 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 1868 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’s statehood could have terminated the hunting right is by implication…

And there’s the rub. Hicks made the point that the Supreme Court threw out the idea that native rights could be done away with by implication—without explicit language, without action by Congress. And the Supreme Court decided that as recently as 1999. Bottom line for Hicks? That treaty is still valid. Period.

The other party to the case, Wyoming, demands a different punctuation. Not a period. But a comma. It had been a valid treaty, but not since Wyoming gained statehood. When it became the 44th state in 1890, everything changed.

Wyoming appeals to that same 1999 case to support his side. True, it said explicit action is needed to abrogate a treaty. Its argument is the treaty had expired!

Besides, modern-day realities must inform the outcome of this case. Listen to Wyoming’s lawyer John Knepper.

KNEPPER: The most important, Your Honor, is safety. Hunting seasons are specifically limited in time.  That not only protects the wildlife, but it has two effects beyond that. It ensures that when people are recreating in the national forest or anywhere else outside of that time period, there is no danger — you know, individuals who are using firearms at that point have very, very little justification for doing so. So there are people, and I’m one of them, that won’t take our children into the national forest during hunting season because there are risks there that are too much to overcome.

In response, lawyer Hicks for the Native Americans pointed out that Wyoming still has the power to regulate safety and natural resources via conservation efforts. No need to set aside the 19th century treaty for that.

Wyoming’s Knepper tried another line of argument.

He pointed to an 1896 Supreme Court ruling that said statehood does take away hunting rights for Native Americans. That case related to the meaning of “unoccupied lands”— language also found in the treaty at issue here—  and in the 19th century, “unoccupied lands” meant hunting districts.

Big Horn National Park is not that, he argued. Once that area was designated as a national forest, it became “occupied.”  So when Herrera and friends hunted in the national park, they violated the law.

Justice Sonia Sotomayor was skeptical throughout Knepper’s argument on behalf of Wyoming. When she mentions “Race Horse,” she refers to the case that invalidated the treaty.

SOTOMAYOR: So that’s wonderful. Tell me how a national park isn’t a traditional hunting district…the government says we’re not going to keep it unoccupied. They open it up to hunting. What was different back then? Unoccupied, and people went hunting.

KNEPPER: The Race Horse Court looked at Yellowstone National Park, and what the Race Horse Court said was Yellowstone National Park was created almost immediately after the treaty with the Crows was signed…Yellowstone National Park is actually within the Crow hunting district.  And the Crow hunting district is a very large area, but Yellowstone National Park, which is an area the size of Connecticut, it’s not just geysers, was carved out of the hunting district, and then the United States proceeded over the entire time, beginning in 1872 and then through the ’80s, 1880s, to say to tribes: You may not hunt here. This is off limits. We have occupied this land.

Knepper never really seemed to make much headway, with either the liberal or conservative wing of the court. Listen to this exchange with Chief Justice John Roberts.

ROBERTS: Occupied doesn’t really have anything to do with hunting. And yet you’re sort of saying, well, when they said “occupied,” they meant outside the hunting district.

KNEPPER: Your Honor, I think that the precise question is what did they mean by “occupied” and what was land, what did land have to look like in —

ROBERTS: Yeah, but your argument is, you know, what did they mean by “cow” and you’re saying they meant “horse.” They’re two totally different concepts.

Knepper did his best, but wound up with something like, “this issue isn’t going away. Let’s solve it.”

KNEPPER: I think the greatest reason for caution here is we have two eternal sovereigns.  The Crow Tribe will be here forever, as they have been since time immemorial, and the State of Wyoming has no intention of disappearing.

There’s a lot at stake here: Native rights, federal land management, state rights. For Crow member and elk hunter Clayvin Herrera, it’s literally life and death. He says his family lives a subsistence lifestyle that depends on hunting to survive.

Well, this final case comes 100 years to the day after Prohibition became the law of the land. That’s when the 18th Amendment to the Constitution passed.

Ironic perhaps, because this dispute has to do with the effects of the 21st Amendment, which repealed Prohibition.

Repeal allowed the states to regulate the sale of alcohol within their own borders.

And here’s the battle now. Like many states, Tennessee has rules for anyone who wants to open a liquor store there. One is that you have to live in Tennessee for two years before you can obtain a liquor license.

That’s good for one year.

And if you want to renew it, you have to live in Tennessee for 10 years. That applies not just to the store owners, but to each of the directors and officers of the company.

Defending those rules is lawyer Shay Dvoretzky. He’s backed up by the Tennessee Wine and Spirits Retailers Association, a trade group of 500 liquor store owners.

Dvoretzky argues through the lens of history.

DVORETZKY: In the wake of the nation’s failed experiment with Prohibition, the 21st amendment restored to the states the powers that they previously had…

And that included residency requirements.

DVORETZKY: Once you concede that residency requirements are okay, courts shouldn’t be second-guessing the extent to which those very same interests are served by durational residency requirements.  The whole point of the Twenty-First Amendment was to take that out of the hands of courts.

But Justice Stephen Breyer, in his inimitable way, wondered just how far should that go?

BREYER: Suppose you — law:  Any liquor store has to use paint made in Tennessee, asphalt made in Tennessee for the parking lot, neon — you know, I can go on. [Laughter]

FRANKLIN: I suppose at some point, if we’re talking about the use of paint, then we’re really getting pretty far afield from the state’s structuring the in-state distribution and sale.

BREYER: And so there’s just as good a reason for saying the out-of-state owner has to be — live here for 12 years, as there is to say paint. In fact, a better reason because Tennessee paint’s really good. [Laughter]

As so often happens, two things are in conflict. There’s the 21st Amendment that repealed Prohibition and returned power to the states to regulate alcohol.

Then there’s the Dormant Commerce Clause of the Constitution. That says states can’t block trade across state lines. It’s “dormant” because it is implicit in the overall Commerce Clause. That includes preventing states from creating protectionist policies to favor its own citizens at the expense of non-citizens trying to sell alcoholic beverages in the state.

For those people who haven’t lived in Tennessee for those 12 years, that’s exactly what the rules do, and it’s anti-competitive. They argue the onerous residency rules have nothing to do with public safety.

Listen to this exchange between Justice Elena Kagan and the lawyer defending the rules, David Franklin.

FRANKLIN: Now there may come a point where the residency requirement is so extreme or so excessive as to be truly arbitrary, and then it could fail the Fourteenth Amendment’s   background presumption all —

KAGAN: Well, it’s not arbitrary if you are intending to promote economic protectionism.  And as I understand your position, it’s that that’s part of the states’ prerogatives too. And then, you know, the sky is the limit.  Every — the more you do, the more protectionist it gets.

And that’s really what it came down to: how to write an opinion that lets these people earn a living in Tennessee with brick and mortar businesses,  and not get enmeshed in other legal questions. Specifically, questions about shipping red, red wine into Tennessee from out of state.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Nov. 30, 2018, file photo the justices of the U.S. Supreme Court gather for a formal group portrait to include a new Associate Justice, top row, far right, at the Supreme Court Building in Washington.

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