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Gorsuch Joins Sotomayor’s Majority Opinion in Native American Hunting Case

Supreme Court Associate Justice Neil M. Gorsuch (Jabin Botsford/Reuters)

The Supreme Court on Monday decided to uphold the hunting rights of the Wyoming-based Crow tribe, ruling that a Crow man charged with illegal off-season hunting in the state’s Bighorn National Forest was protected by a 150-year-old treaty between the federal government and the tribe.

Justice Neil Gorsuch broke the tie in the five to four decision, joining Justice Sonia Sotomayor’s majority opinion stating that an 1868 treaty between the Crow and the U.S. still holds, as the Crow man, Clayvin Herrera, had claimed.

Lower courts had argued that the treaty expired when Wyoming achieved statehood in 1890.

There is not “any evidence in the treaty itself that Congress intended the hunting right to expire at statehood, or that the Crow Tribe would have understood it to do so,” Sotomayor wrote in her opinion.

Gorsuch, a Colorado native who served for over a decade on a federal circuit court of appeals in Denver that covered 76 tribes, has joined the liberal-leaning contingent of Supreme Court justices to vote in favor of Native American rights before. In March, he broke a tie on the Court in a case dealing with whether the Yakama Tribe has the right to use public roads and avoid taxes on goods brought to their reservation, based on the terms of a 164-year-old treaty.

President Trump nominated Gorsuch to replace the late justice Antonin Scalia on the Court in 2017, after several Native American tribes penned letters of support for him.

Gorsuch “appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility,” read a letter from the National Congress of American Indians and the Native American Rights Fund written at the time.

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