On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable. In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.

Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.

Join this teleforum to hear a reaction to the Herrera decision from A.J. Ferate with the Oklahoma City office of Spencer Fane. Mr. Ferate, a tribal law and appellate practitioner, represented Oklahoma oil and gas producers as amicus in the Carpenter v. Murphy case currently before the U.S. Supreme Court. He also serves as a member of the Executive Board of the Federalist Society’s Environmental Law and Property Rights Practice Group.

A.J. Ferate, Of Counsel, Spencer Fane LLP

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