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HERRERA, Petitioner, V

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HERRERA, Petitioner, V No. 17-532 In the Supreme Court of the United States ________________ CLAYVIN B. HERRERA, Petitioner, v. STATE OF WYOMING, Respondent. ________________ On Writ of Certiorari to the District Court of Wyoming, Sheridan County ________________ BRIEF FOR PETITIONER ________________ KYLE A. GRAY GEORGE W. HICKS, JR. STEVEN T. SMALL Counsel of Record HOLLAND & HART LLP ANDREW C. LAWRENCE 401 N. 31st Street, KIRKLAND & ELLIS LLP Suite 1500 655 Fifteenth Street, NW Billings, MT 59101 Washington, DC 20005 (406) 252-2166 (202) 879-5000 [email protected] HADASSAH REIMER HOLLAND & HART LLP 25 South Willow Street, Suite 200 P.O. Box 68 Jackson, WY 83001 (307) 739-9741 Counsel for Petitioner September 4, 2018 QUESTION PRESENTED Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. ii TABLE OF CONTENTS QUESTION PRESENTED .......................................... i TABLE OF AUTHORITIES ...................................... iv INTRODUCTION ....................................................... 1 OPINIONS BELOW ................................................... 4 JURISDICTION ......................................................... 4 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................... 4 STATEMENT OF THE CASE ................................... 4 A. Historical and Legal Background ................ 4 B. Petitioner’s Prosecution and Conviction ... 13 C. The Decision Below .................................... 15 SUMMARY OF ARGUMENT .................................. 18 ARGUMENT ............................................................. 22 I. The Crow Tribe’s Hunting Right Under The 1868 Treaty Has Not Been Abrogated. ............. 22 A. Wyoming’s Admission to the Union Did Not Abrogate the Crow Tribe’s Treaty Right ........................................................... 23 B. The Establishment of the Bighorn National Forest Did Not Abrogate the Crow Tribe’s Treaty Right ......................... 32 C. Affirming the Decision Below Would Have Far-Reaching Consequences ............ 41 II. Issue Preclusion Does Not Bar Petitioner From Addressing The Treaty Right’s Validity .............................................................. 46 iii A. The Repsis Courts’ Determination that Wyoming’s Statehood Abrogated the Treaty Right Is Not Entitled to Preclusive Effect. ........................................ 46 B. The Tenth Circuit’s Alternative Determination in Repsis that Creation of the Bighorn National Forest Rendered the Ceded Lands “Occupied” Is Not Entitled to Preclusive Effect ...................... 49 C. Applying Issue Preclusion Here Would Needlessly Implicate Unsettled Constitutional Questions ........................... 54 CONCLUSION ......................................................... 59 APPENDIX U.S. Const. art. VI, cl. 2 ........................................... 1a Treaty with the Crow Indians, 15 Stat. 649 (1868) ...................................................................... 2a Wyoming Statehood Act, 26 Stat. 222 (1890) ........ 14a Act to Repeal Timber-Culture Laws, 26 Stat. 1095 (1891) .................................................................... 25a Presidential Proclamation No. 30, 29 Stat. 909 (Feb. 22, 1897) ...................................................... 26a iv TABLE OF AUTHORITIES Cases Allen v. McCurry, 449 U.S. 90 (1980) .................................................. 52 Antoine v. Washington, 420 U.S. 194 (1975) .......................................... 29, 45 Arizona v. California, 530 U.S. 392 (2000) ................................................ 57 Bobby v. Bies, 556 U.S. 825 (2009) .......................................... 47, 50 Bravo-Fernandez v. United States, 137 S. Ct. 352 (2016) ............................ 16, 50, 51, 56 Choctaw Nation of Indians v. United States, 318 U.S. 423 (1943) ........................................ passim Comm’r v. Sunnen, 333 U.S. 591 (1948) .......................................... 47, 48 Confederated Tribes of the Umatilla Indian Reservation v. Maison, 262 F. Supp. 871 (D. Or. 1966) .............................. 44 Crow Tribe of Indians v. Repsis, 116 S. Ct. 1851 (1996) ............................................ 12 Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) .......................... passim Crow Tribe of Indians v. Repsis, 866 F. Supp. 520 (D. Wyo. 1994) ........... 2, 11, 12, 47 Currier v. Virginia, 138 S. Ct. 2144 (2018) ............................................ 56 Hansberry v. Lee, 311 U.S. 32 (1940) .................................................. 55 v Hurd v. District of Columbia, 864 F.3d 671 (D.C. Cir. 2017) ................................ 52 Jones v. Meehan, 175 U.S. 1 (1899) .................................................... 22 Kircher v. Putnam Funds Tr., 547 U.S. 633 (2006) ................................................ 51 Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984) ................................................ 47 Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014) ............................................ 55 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) ........................................ passim Montana v. United States, 440 U.S. 147 (1979) ................................................ 47 Montana v. United States, 450 U.S. 544 (1981) ...................................... 4, 5, 7, 8 N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ................................................ 54 New Hampshire v. Maine, 532 U.S. 742 (2001) ................................................ 46 Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979) ................................................ 52 Richards v. Jefferson Cty., 517 U.S. 793 (1996) ................................................ 55 Sekhar v. United States, 570 U.S. 729 (2013) ................................................ 33 Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001) ................................................ 50 vi Seufert Bros. Co. v. United States, 249 U.S. 194 (1919) .......................................... 23, 36 Simpson v. Florida, 403 U.S. 384 (1971) ................................................ 56 Smith v. Bayer Corp., 564 U.S. 299 (2011) ................................................ 55 South Dakota v. Bourland, 508 U.S. 679 (1993) .......................................... 23, 25 Standefer v. United States, 447 U.S. 10 (1980) .................................................. 57 State v. Arthur, 261 P.2d 135 (Idaho 1953) ..................................... 44 State v. Buchanan, 978 P.2d 1070 (Wash. 1999) .................................. 30 State v. Miller, 689 P.2d 81 (Wash. 1984) ...................................... 43 State v. Stasso, 563 P.2d 562 (Mont. 1977) ..................................... 43 State v. Tinno, 497 P.2d 1386 (Idaho 1972) ................................... 43 Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983) .................................. 39 Taylor v. Sturgell, 553 U.S. 880 (2008) ........................................ passim United States v. Gallardo-Mendez, 150 F.3d 1240 (10th Cir. 1998) .............................. 57 United States v. Harnage, 976 F.2d 633 (11th Cir. 1992) ................................ 57 United States v. Hicks, 587 F. Supp. 1162 (W.D. Wash. 1984) .................. 14 vii United States v. Mendoza, 464 U.S. 154 (1984) ................................................ 55 United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994) ..................................... 57 United States v. Stauffer Chem. Co., 464 U.S. 165 (1984) ................................................ 50 Ward v. Race Horse, 163 U.S. 504 (1896) .............................. 11, 12, 27, 29 Wash. Game Dep’t v. Puyallup Tribe, 414 U.S. 44 (1973) .................................................. 45 Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) ............................ 22, 34, 44 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ..................................... 22 Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992) ................................................ 22 Constitutional Provision Wyo. Const. art. XXI ................................................... 9 Statutes and Proclamations 16 U.S.C. §256b ........................................................ 14 43 U.S.C. §1732(b) .................................................... 14 Act of April 11, 1882, 22 Stat. 42 ............................... 8 Act of April 27, 1904, 33 Stat. 352 ............................. 8 Act of August 31, 1937, 50 Stat. 884 .......................... 8 Act of June 4, 1897, 30 Stat. 11 ............................... 38 Act of March 3, 1891, 26 Stat. 989 ............................. 8 Act of March 4, 1907, 34 Stat. 1256 ......................... 10 viii Act to Repeal Timber-Culture Laws, 26 Stat. 1095 (1891) ..................................... 9, 10, 39 Act to Provide a Temporary Government for the Territory of Wyoming, July 25, 1868, 15 Stat. 178 ...................................... 9 Crow Boundary Settlement Act of 1994, Pub. L. 103-444, 108 Stat. 4632 .............................. 8 Proclamation No. 30, 29 Stat.
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