Conservative Supreme Court Justice Neil Gorsuch, nominated by President Donald Trump, sided against conservatives in a landmark ruling.
The case involved a treaty that was more than a century old that allowed Native Americans to hunt on “unoccupied lands,” Fox News reported.
The case, Herrera v. Wyoming, deals with a treaty from 1868 which allowed members of the tribe to hunt in “unoccupied lands” in the U.S. in exchange for their land, which went on to become part of Wyoming and Montana. At issue was whether the hunting rights in the treaty are still in effect or were nullified when Wyoming became a state in 1890.
The opinion by Justice Sonia Sotomayor – and joined by Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Gorsuch – ruled that the treaty indeed still applies, and that Crow member Clayvin Herrera was improperly convicted of off-season hunting in Bighorn National Forest in 2014.
The court’s 5-4 ruling, which vacated the decision from the state appellate court, is based on the 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians. In that case, the Supreme Court said that a territory gaining statehood is not enough “to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.” The court went further in that case, stating that Congress “must clearly express” an intention to end a treaty with a Native American tribe in order for the treaty’s rights to expire.
By siding with the traditionally liberal justices, Gorsuch gave them a 5-4 majority in the case.
The opinion came exactly one week after Trump’s other nominee, Justice Brett Kavanaugh, sided with liberals in a 5-4 decision that he wrote, ruling that Apple could be sued by iPhone owners over high prices in their App Store.
Sotomayor, in the latest opinion, also addressed the argument that the land on which Hererra was hunting became “occupied” under the treaty when it became a national forest in 1897. The court’s decision said that while it is possible that certain areas of the forest could be considered occupied, the forest as a whole is not occupied by default simply because it is a national forest.
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Hererra’s attorney, George W. Hicks, celebrated his client’s victory. “We are gratified that the Supreme Court held that the treaty hunting right guaranteed to the Crow Tribe and Mr. Herrera was not abrogated by Wyoming’s admission to the Union or the creation of the Bighorn National Forest,” he said in a statement to Fox News.
Gorsuch joins with liberal justices in Supreme Court ruling for Indian tribe’s hunting rights https://t.co/7hDL8UvK85
— Yashar Ali 🐘 (@yashar) May 20, 2019
The Supreme Court ruled 5-4 that hunting rights for the Crow tribe under a 19th-century treaty didn’t expire when Wyoming became a state. Justice Neil Gorsuch was the decisive vote. https://t.co/dMBIcjGVMn
— NPR (@NPR) May 21, 2019
JUST IN: The Supreme Court ruled in favor of Native American rights in a 5-4 decision in a case out of Wyoming.
Justice Neil Gorsuch provided the decisive vote in the case, siding with the court’s liberal justices.
— NPR Politics (@nprpolitics) May 20, 2019
Another 5–4 tribal rights decision with Gorsuch joining the liberals. This time, the court rules in favor of the Crow Tribe’s hunting rights under a 1868 treaty. https://t.co/jHeqjjFzZZ
— Mark Joseph Stern (@mjs_DC) May 20, 2019
#BREAKING: Gorsuch sides with liberal justices as Supreme Court rules to uphold 150-year-old Native American treaty https://t.co/aUZvH04RAt pic.twitter.com/4LhYcgjM6R
— The Hill (@thehill) May 20, 2019
The Supreme Court issued three decisions today covering three separate areas of law. President Trump’s two appointees — Gorsuch and Kavanaugh — disagreed in all three cases.
(We saw their differences last week too: https://t.co/2bZ2tYwHeG)— Jonathan H. Adler (@jadler1969) May 20, 2019
It’s increasingly clear that Gorsuch leans left on tribal issues. His conclusion in the Yakama Nation case sounded quite progressive and—dare I say it?—empathetic. https://t.co/w6oe7XnkCt pic.twitter.com/TxMX8cUoZJ
— Mark Joseph Stern (@mjs_DC) May 20, 2019
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