Does the original meaning of an 1868 treaty with the Crow Tribe of Indians still apply today, or do evolving standards and a living Constitution similarly change the meaning of treaties?
As we celebrate the friendship and goodwill between the early Pilgrims and American Indians at this time of year, the Supreme Court will consider the staying power of a treaty between Native Americans and the United States government in Herrera v. Wyoming. And what might protect the rights of Native Americans is the much maligned and much misunderstood concept of originalism, which has received renewed focus due to a Supreme Court nomination this year.
The facts of the case are this: A member of the Crow Tribe killed an elk in the Bighorn National Forest and then brought the elk home. The state of Wyoming said he violated the law by hunting in the Bighorn National Forest. But, the 1868 treaty said the right to hunt on unoccupied lands would always be protected.
Asked to submit an amicus brief, the United States government supported the rights of the tribe. In their brief, the feds used originalist arguments.
The solicitor general notes that the treaty lays out the circumstances under which it applies, but never says that Wyoming’s eventual statehood would revoke that right. Later, the solicitor general goes to the plain meaning of the conditions laid out in the treaty; “(1) when the land is no longer ‘unoccupied’; (2) when the land is no longer owned by the United States; (3) when ‘game’ may no longer be ‘found thereon’; and (4) when ‘peace’ no longer ‘subsists among the whites and Indians on the borders of the hunting districts.’”
Nowhere in those conditions is statehood listed as a reason the treaty would be revoked. An originalist approach is being used: what would the language have meant to the signatories at the time of ratification.
Likewise, the solicitor general notes, the incorporation of some tribal lands into the Bighorn National Forest does not turn the land into occupied land, as is being argued by Wyoming. In fact, as the solicitor general points out, the language turning the land into a national forest was added precisely to stop settlement on the lands, which it has done to this day.
Why is this important? The two Supreme Court nominations of Justice Neil Gorsuch and Justice Brett Kavanaugh, coming after the death of originalist Justice Antonin Scalia and living constitutionalist Justice Anthony Kennedy, have intensified the debate over originalism. Additionally, the record number of judicial appointments by President Trump of originalist judges, many of them Federalist Society members, has made the debate about judicial philosophy more relevant than normal.
A living Constitution approach would not necessarily protect Native American rights. The world has changed since 1868 and now we know more about elk populations, so even if a valid treaty says that the tribe has a right to hunt on the lands, that right could vanish with new information. Or maybe because veganism is more in vogue today, the meaning of hunt should really mean, “to gather vegetables.”
Does that sound like hyperbole? Living constitutionalists managed to read the Confrontation Clause right out of the Constitution. They read into the Constitution a right-to-privacy carrying a specific right to abortion. They’ve tried to read out the death penalty, which is clearly in the Constitution, out of the Constitution. (And for the record, I oppose the death penalty, but I don’t believe the Constitution forbids it.)
We know there is a less than honorable history with treaties between the United States and Native Americans. The many wrongs can probably never be fully righted. But the least we can do is fulfill the promises made in writing. To honor the meaning of words and the understanding of what agreements and laws say is the bedrock of originalism and good jurisprudence. These concepts will surely get top billing in this case, and in what could soon be the next Supreme Court vacancy.
Matt Lamb is director of communications for Students for Life of America.
