Confusing rulings

Miller said the 1999 Mille Lacs ruling in part overruled Ward v. Race Horse without explicitly saying so, although Wyoming attorneys successfully argued in Herrera’s case that wasn’t so. In essence, Miller said, the high court said over 100 years the law had changed significantly and, while states can regulate wildlife for conservation purposes, that doesn’t restrict tribal treaty rights.

With so much turnover in the Supreme Court since that 1999 ruling, Miller said the justices may want to review Herrera’s case. The issues raised go to the heart of many states’ arguments about state’s right versus tribal rights, Miller said. But even if the Supreme Court were to hear the case, he said it only reverses about 40 percent of the cases it takes.

Herrera’s attorneys argued that, “If the Tribe’s federal treaty rights are to be the ‘supreme Law of the Land’ no more, and a state can criminally prosecute and convict a Tribe member for engaging in what the plain language of the treaty expressly protects, all based on reasoning that other courts have repudiated, then at least this Court should be the one to make that determination. In all events, the need for this Court’s review is plain.”