(Bloomberg Opinion) -- Something unusual happened Monday at the U.S. Supreme Court: A Native American tribe won a case. The 5-4 decision preserved the rights of the Crow Tribe to hunt according to the promise of an 1868 treaty. It was written by Justice Sonia Sotomayor and joined by the court’s three other liberals — and somewhat surprisingly, by conservative Justice Neil Gorsuch. The other conservatives dissented.
The case is important primarily for its moral meaning. In essence, the 1868 treaty, like many others, was written to mislead or even deceive the Indians who signed it. The court’s decision Monday didn’t repudiate the deceptive language. It’s hard for courts to do anything other than read legal documents the way they’re written.
But the justices did use a legal tool to achieve something like a modicum of justice. Following the reasoning of a 1999 case that dealt with similar circumstances and the Mille Lacs Tribe of Minnesota, the court said that the U.S. government can end treaty rights in Indian country only if it does so explicitly. And it concluded, as it did in 1999, that Congress had never expressly repudiated the Indians’ right to hunt.
Essentially, the majority of the Supreme Court today, as in 1999, refused to put into effect a treaty provision that was designed precisely to make future courts rule against the tribe.
Looking closely at the language of the 1868 treaty, you can see its underhandedness. The treaty gave the Crow “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.”
Sounds pretty good, right? From the standpoint of the tribe, the treaty almost certainly was intended to convey a message of perpetuity: “so long as game may be found.” The only condition obvious on the surface of the treaty is that there be peace between the tribe and whatever settlers might be found nearby.
But look again, and you’ll see the catch. It’s the word “unoccupied.” According to the U.S. government’s reading of the treaty, the tribe’s hunting rights expire when the hunting grounds become “occupied” — that is, when settlers of European origin move there.
In other words, the treaty’s language, read the way the government always intended, enables the U.S. government to end the guarantee of hunting rights unilaterally whenever it wants to allow settlers to occupy the land.
From the standpoint of the Crow, that’s not a very good deal. And it seems possible that the Crow did not realize what they were signing. In the 1999 case, there was contemporaneous evidence that the Mille Lacs tribe didn’t understand that the rights they were given in the treaty could be revoked “at the president’s pleasure.”
In Monday’s case, Herrera v. Wyoming, the state of Wyoming took the position that the Crow’s hunting rights were abrogated when Wyoming was incorporated into the union in 1890. Their reasoning, taken from an 1896 precedent, was that states enter the union on equal footing of sovereignty with each other, and that the state’s right to regulate hunting superseded the treaty.
But the Supreme Court rejected that conclusion, in effect repudiating the 1896 case at the same time. Instead it relied on the 1999 Mille Lacs decision.
That decision created, more or less out of whole cloth, the doctrine that treaty rights aren’t abrogated unless Congress clearly says they are.
The court went on in Monday’s Crow case to say that Congress had never expressly taken away the tribe’s rights — even when it created the Bighorn National Forest on the territory covered by the treaty.
Again following the Mille Lacs precedent, the court said that the treaty needed to be interpreted in the way the Indians would have understood it. According to that understanding, the court concluded, the national forest isn’t “occupied.” No occupation, no end to the treaty rights.
The true basis for the Mille Lacs decision was to get around the court’s moral outrage at having to enforce a treaty designed to deceive. The case is an outlier in Indian law — a rare exemplar of judicial conscience in the generally horrific record of deciding against tribes.
To continue hunting, the Crow will still have to get around a 1996 appellate court decision that held against them. In a stunningly dismissive dissent Monday, Justice Samuel Alito said the tribe couldn’t do it, and that the court’s opinion was wasted ink.
It would be good if that weren’t true, and the Crow get to hunt. Regardless, Alito missed the point — of the decision and of the Mille Lacs case. The court can’t fix history. But it can refuse to be the tool of exploitation and theft. The good news for Indian country is that Gorsuch — a crucial fifth vote, from the West himself — seems to agree.
To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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