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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, May 20, 2019

Tribal Case of Some Interest

ETA: The other two cases might also be of interest, especially if you care about the area in question. For instance, the SCOTUSBlog opinion summary suggests the bankruptcy decision will have important staying power. At the very least, it suggests the importance of the Supreme Court being there to settle federal questions of law. Also, it suggests Gorsuch's sole dissent concerned with how there really wasn't an active federal question is dubious -- that often turns out to be a debatable choice, the ultimate issue at that level being to settle law beyond a single case. 

I noted that it was not a big drama day at SCOTUS, but this doesn't mean it lacked some interest.

The tribal treaty ruling involving hunting rights off reservation (here involving hunting elk by residents of a tribe in Montana that followed them into Bighorn  National  Forest in Wyoming) upon closer reading has some. This includes, as noted before, Justice Gorsuch again joining the liberals (here united in one opinion) supporting tribal rights by applying the treaty as "would naturally be understood by the Indians."  Justice Gorsuch in his earlier opinion citing the majority opinion in an earlier opinion that was key to the opinion today turned out to be suggestive.

The earlier opinion (Justice O'Connor writing the opinion, the liberals joining her in a 5-4 split) distinguished but did not quite explicitly overrule a late 19th Century case.  The fact it basically did was an important matter today, since it was held to decide an "issue preclusion" argument that was the basis of today's dissent.  Basically, a lower court wrongly followed what it deemed existing precedent. "To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood."

This was a key matter involved in Wyoming's argument, but the Court held that there was no "clear statement" that the treaty was abrogated on that or some other ground.  Along with the "naturally be understood" rule, taking into consideration how the tribes understood things at the time, not some nuanced legal rule as might be applied by current understanding, this helps protect tribes who would often be in a weaker position.  Gorsuch joining the liberals twice suggests this very well might be a trend. 

The old precedent was concerned about state rights, specifically (sounds familiar) the fact that a state joins with "equal footing" of existing states.  This was a concern in Shelby County v. Holder, that the covered states were being singled out without up to date  justification. Here, we are told that "Although States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making."

Thus, the Federal Government has specific powers that might somehow limit state discretion. Again, sounds a bit familiar.  Anyways, both sovereigns have a role -- states have discretion over voting and here they have discretion to pass neutral "reasonable and necessary" conservation measures. In fact, the application of that rule to this very case was not decided. So, the person still can lose in the end. Nonetheless, for purposes of this case, a national forest isn't what "occupied" naturally would be understood.  That term meant lack of settlements, like farms.

Again, maybe the specific area in question was "occupied." This too was not decided.  The case therefore may be more important for broader principles and a signal to the future than the specific concerns of the members of the Crow Tribe (twelve thousand enrolled) here.  Included here is stare decisis concerns, including handling decisions that at least in some fashion are a shell of themselves.  A matter of some topical concern.

The importance of this case will be a test of time, but though the dissent in particular tried to rest things on limited grounds (an avoidance mechanism; feeling issue preclusion made the treaty interpretation moot), it appears to be of some interest.

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