data/Version_XML/Herrera.xml

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<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument first this morning in Case 17-532, Herrera versus Wyoming. Mr. Hicks.</u>
<p id="ORAL ARGUMENT OF GEORGE W. HICKS, JR. ON BEHALF OF THE PETITIONER">
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Thank you, Mr. Chief Justice, and may it please the Court: In 1868, the Crow Tribe of Indians agreed to cede to the United States 30 million acres of its aboriginal land and move to a reservation. In exchange for ceding its land, the tribe expressly reserved the right to hunt on that ceded land. The text of the 1868 treaty memorializing this agreement explicitly identifies the four events that would cause the hunting right to terminate. Wyoming's admission to the Union is not among them. Therefore, the only way that Wyoming's statehood could have terminated the hunting right is by implication, but that is the very theory that this Court repeatedly rejected in Minnesota v. Mille Lacs Band of Chippewa Indians. And while the treaty does provide that the right would terminate if the lands were no longer unoccupied, President Cleveland's 1897 proclamation creating the Bighorn National Forest did not suddenly render all 1.1 million acres of the land comprising the forest occupied as the parties to the treaty understood that term. As a result, the treaty right has not terminated, and Petitioner should have been permitted to invoke that right during his criminal prosecution for hunting in the Bighorn National Forest. Before this Court, Wyoming largely disregards Mille Lacs and urges this Court to rely on its 1896 decision in Ward v. Race Horse. But Mille Lacs repudiated the reasoning that led to the outcome in Race Horse. From Race Horse's reliance on the equal footing doctrine to its characterization of treaty rights as temporary and precarious...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> But...</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> ... to its belief that states...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Even if you were right about Race Horse, why <w>is</w><w>n't</w> your client bound by the judgment of the Tenth Circuit in Repsis and, in particular, its disposition of the question whether the land is occupied?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Justice Alito, a few responses for that. First of all, the... the issue of whether the Tenth Circu<w>it</w><w>'s</w> alternative determination has preclusive effect was not pressed or passed on below. There's nothing in the decisions of the state courts that address the preclusive effect of that alternative determination. And this Court typically does not address questions from state courts that have not been pressed or passed on.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> So that... that would be available to the state to argue on remand if you were to prevail on the other issues?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I think that the... the state has likely forfeited that as a matter of state law, but I also think that there are other reasons why an exception to preclusion would not apply. I mean...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> What's your best reason?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Primarily, <w>it</w><w>'s</w> that the tribe did not have a full and fair opportunity to litigate this issue in Repsis because it was not raised in the Repsis district court. It was raised for the first time in the court of appeals, and the court of appeals' determination in the first instance was not only one of several alternative determinations; it <w>was</w><w>n't</w> subject to plenary appellate review.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, those are several reasons. The... there was not a fair opportunity to raise the issue in the Tenth Circuit?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I think that there was not the full and fair opportunity to litigate that question that this Court requires before it gives preclusive effect.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Why... why not? Why not in the Tenth Circuit? Why <w>did</w><w>n't</w> they have a fair and... a full and fair opportunity in the Tenth Circuit?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, to begin with, I <w>do</w><w>n't</w> know if the full...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> They <w>did</w><w>n't</w> allow briefs? They <w>did</w><w>n't</w> allow arguments? They <w>did</w><w>n't</w> want to listen to anything that... that the tribe had to say?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, primarily because this particular argument, that the creation of the national forest in and of itself rendered the entire land occupied so that the treaty right was terminated, was, I believe, one page of Wyoming's response brief in... on an issue that was never raised in the district court. And so the only thing that the tribe had to respond to that was limited space in a reply brief where it had to respond to all of the other arguments that Wyoming had made, principally on the issue that the district court had actually addressed.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Could you...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Hicks, are... are you asking us to decide that issue, or are you asking us to remand on that issue?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> I think there are several reasons why you can decide that there was no preclusive effect to the Tenth Circu<w>it</w><w>'s</w> determination, among them, that it was forfeited; among them, that it was not a full and fair opportunity so that it qualifies for that exception, but also that that particular determination in the first instance was not subject to the plenary appellate review this Court requires.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> If... if... if your primary argument is that it was forfeited, and I think you... you have some good grounds for thinking that, but given that that is a state law matter, why <w>would</w><w>n't</w> we remand to the Wyoming courts to decide that forfeiture question?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, because I think typically what this Court does when a... an issue has not been raised or pressed on below is it... is it <w>does</w><w>n't</w> allow the consideration of it here. So I <w>do</w><w>n't</w> think <w>there</w><w>'s</w> any reason to remand for consideration of that in the first instance. But I think you can go on to address that, you know, as a matter of an exception to preclusion law. I mean, I think that there are several reasons why that <w>would</w><w>n't</w> be given preclusive effect.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm a little confused. What was forfeited when? You <w>did</w><w>n't</w>... you... <w>you</w><w>'re</w> arguing you <w>did</w><w>n't</w> get a fair and full opportunity to litigate this in Repsis? In Repsis, there <w>was</w><w>n't</w> a fair opportunity?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> That... it is that the tribe did not have the required full and fair opportunity, among the reasons, in the Tenth Circuit.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. Was that because when the Tenth... I thought the Tenth Circuit there asked for further briefing, correct?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> No, they did not, Your Honor.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Oh.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> There was no further briefing in...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> In the...</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> You're thinking of the decision below...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Right.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> ... and the Wyoming state courts asked for supplemental briefing on whether there was issue preclusion.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Oh, okay.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> And in response, the State of Wyoming in this case did not ever raise this as a ground for why there should be preclusive effect given to anything in the Repsis litigation.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, I'll tell you what troubles me about your position here and your argument that we should decide these issue preclusion questions. This is like a little... you know, a couple of classes in law school on issue preclusion, and you and the... and the... the government have raised significant issue preclusion arguments that we're going to have to decide in this case involving a misdemeanor criminal conviction.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, Justice Alito, I think those are actually good reasons to find that there are... you can apply the well-established exceptions. I mean, the full and fair opportunity...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, I <w>do</w><w>n't</w> know that they are well... I <w>do</w><w>n't</w> know that they are well established. The exception that when a judgment is raised it is based on two alternative grounds, <w>it</w><w>'s</w> not... <w>there</w><w>'s</w> no issue preclusion on either ground, <w>that</w><w>'s</w> well established? Hasn't that been rejected by six circuits?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> No, Your... Your Honor, that is incorrect. Actually, if you look at the footnote in our reply brief, seven circuits have actually accepted the Restatement's rule. I know that the State's brief says...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, we <w>have</w><w>n't</w> accepted it, have we?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> No, this Court has not addressed it, but it actually goes part and parcel with what this Court has said about the... the critical importance of giving plenary... plenary appellate review to determinations. That is the premise...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I mean, it seems to me like a significant question, and I was underwhelmed by the reasons given in the comment to the provision of the Restatement on this question.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I think that... first of all, I <w>do</w><w>n't</w>...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> The first reason they give is that when... when a court says our judgment, right, is based on two alternative grounds, and either one is independently sufficient, that <w>should</w><w>n't</w> have... that <w>should</w><w>n't</w> have res judicata... that <w>should</w><w>n't</w> have issue preclusion effect because, really, the... the court may not have seriously... the court may not have been accurate in saying each one is independently sufficient. Do you find that to... do you find that to be a particularly strong argument?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I think that <w>it</w><w>'s</w> a... <w>it</w><w>'s</w> an exception that applies in narrow circumstances. You have to have an alternative determination decided in the first instance. And I think that, frankly, the Tenth Circu<w>it</w><w>'s</w> decision here proves the policy underlying it. I mean, I <w>do</w><w>n't</w>... <w>there</w><w>'s</w> not a great defense of the Tenth Circu<w>it</w><w>'s</w> determination on the merits. And I think <w>that</w><w>'s</w> demonstrated by the fact that there was such limited briefing. It was only raised in the Tenth Circuit in one page of briefing. The tribe, you know, only had a very limited amount of its reply brief. So I think when you combine, you know, the policies underlying the full and fair opportunity, in addition to the fact that <w>it</w><w>'s</w> an alternative determination in the first instance, I think the Tenth Circu<w>it</w><w>'s</w> determination is, you know, demonstrating why the Restatement exception exists. And, again, <w>it</w><w>'s</w> a very...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel... counsel, I'll spot you that. I mean, <w>it</w><w>'s</w> a little curious that... now I <w>do</w><w>n't</w> wish to fault my old court, but the Tenth Circuit decided that the land was occupied by the federal government as an alternative holding without hearing from the federal government, who now disclaims the idea that they occupied the territory. So I... I... I take your point. But do we have to get into any of this issue preclusion stuff at all? If this issue <w>was</w><w>n't</w> raised by the district, passed on by the district court, relied on by the district court, in this proceeding, why should we enmesh ourselves in the excellent Wyoming law of issue preclusion?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, Justice Gorsuch, I... I <w>do</w><w>n't</w> think you need to get into that. I think you can advance to the merits and decide the merits questions before you.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Let's do that then. Tell us about that.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> I... I... I would be happy to do that, because, you know, if you go back to this Court's decision in Mille Lacs and you look at the reasoning that this Court put forward for the... for what constitutes termination of Indian treaty rights...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But in that... in that decision, we did not overrule Race Horse. We said that Race Horse meant that statehood did not automatically terminate the prior treaty right, automatically, but that certain language in the Race Horse treaty was still sufficient to terminate the treaty right. And the language in the Race Horse treaty is the exact same language at issue in this treaty. What's... so why <w>should</w><w>n't</w> we have the same result here that we had in Race Horse, and <w>that</w><w>'s</w> the part of Race Horse that is preserved on page 207 by Mille Lacs?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Justice Kavanaugh, I... I <w>do</w><w>n't</w> think you expressly overruled the outcome in Race Horse, but I think that you did reject all the legal reasoning that led to the Race Horse results. I mean, you rejected the equal footing doctrine holding. You rejected the temporary and precarious approach to characterizing treaty rights, which was a premise of that second...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But... but we... sorry to interrupt. We concluded that it was a question of congressional intent, whether the treaty right was terminated by statehood, and we concluded that the language, the right to hunt on unoccupied lands of the United States, was the relevant treaty language, was terminated by Wyoming's statehood, correct?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> I think you concluded that in Race Horse, but...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And <w>that</w><w>'s</w> preserved, explicitly preserved, on page 207 of the Mille Lacs opinion. That part is not overruled. And my question is, if that part of Race Horse was not overruled but was explicitly preserved and, in fact, distinguished from the Chippewa treaty, how can we in this case not apply the same result that was applied in Race Horse, with the exact same treaty language? Which part of the reasoning is wrong there?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> A couple of responses. First of all, I <w>do</w><w>n't</w> know that you would be applying the results of a prior case. I think you apply your reasoning. And I think that the reasoning that you adopted in the Race Horse... I'm sorry, in Mille Lacs was that you did not accept this idea that... that simply characterizing a treaty right as temporary and precarious, such that it could be impliedly terminated by statehood... and I recognize that you distinguished...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But... but we said that there were... we said unlike the treaty at issue in Race Horse, right, and then we said there was a clearly contemplated event in Race Horse, unlike in... in the Mille Lacs treaty...</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> That...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... and the clearly contemplated event was the language said hunting on the unoccupied lands of the United States, that that was terminated by statehood, right?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> No, I <w>do</w><w>n't</w> actually think that you actually went on and said that that particular language was terminated by statehood. You recognized the holding that Congress did not intend for that particular treaty right to... to survive statehood. But then you went on. When you... when you distinguished that particular treaty, the Race Horse treaty, you actually distinguished it by recognizing the express conditions of termination in that treaty, which is unoccupied land...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Do you think...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So, Mister...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... Race Horse is overruled or not, the result in Race Horse?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> I think that you did not expressly in haec verba overrule the decision... the outcome.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> You think <w>it</w><w>'s</w> still good law as to the tribe at issue in Race Horse?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> I think that if... if the tribe in Race Horse were here, I think that it would have to be arguing that you explicitly overruled it. But I <w>do</w><w>n't</w> think you need to do that here. I think what you...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Why not? Go back to Judge Kavanaugh's question. The language is nearly identical. Wouldn't we have to say that Race Horse is overruled to come to a different conclusion? How would we distinguish the two?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I think... I think that you simply need to apply the reasoning that you set forth, the new reasoning in Mille Lacs, to this Crow Tribe treaty, which has never been before the Court. And now, if that creates, you know, a bit of a situation where <w>you</w><w>'ve</w> got, you know, the... the Shoshone-Bannock treaty that was interpreted using old reasoning having the right terminated and, you know, having a...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> You know, Justice... Chief Justice Rehnquist... I <w>do</w><w>n't</w> know if he was Chief back then... said that we had... that the majority had effectively overruled Race Horse, and so have commentators. So should we just say it? And you still <w>have</w><w>n't</w> told me what factually is different between the two treaty provisions...</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I can...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that would distinguish them sufficient for us to say we're applying the new logic and this treaty provision fits that new logic, plus <w>it</w><w>'s</w> different from Race Horse, why? You <w>have</w><w>n't</w> filled in that blank.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Sure. And... and I would say that, you know, first of all, I think it would be far more unusual not to apply your controlling precedent on Indian treaty termination, termination of Indian treaty rights, to a treaty that has never been before this Court simply because <w>there</w><w>'s</w> old reasoning to a treaty that has not been before the Court. But if <w>you</w><w>'re</w> looking for distinctions between the treaties, of course, this Court has said, including in Mille Lacs itself, that you <w>do</w><w>n't</w> just look to the identical text of two treaties. You look at the negotiations. You look at the history. You look at the post-ratification history. And as we've put forward in our brief, there is nothing in either the text or the negotiations or the post-ratification history that gives any indication that statehood would have been a terminating event.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> What's different about the Crow treaty, which is 1868, and the Shoshone treaty, 1868, in terms of the negotiations or the intent? The language is exactly the same. So what's different about the intent?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, we <w>do</w><w>n't</w> know much about the negotiations or the history of the Shoshone-Bannock treaty because that really <w>was</w><w>n't</w> addressed much in the Race Horse decision, but there are... there are material distinctions between the history in the way that these treaties came about. For example...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> These two treaties?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> For the... the... the Race Horse treaty, the Shoshone-Bannock treaty, and the Crow Tribe treaty. The Shoshone-Bannock were on the complete other side of Wyoming. The treaty came about because of different conflicts with settlers. The... the Crow Tribe is on the complete other side of Wyoming. It's nowhere near Yellowstone National Park, which was something that the... the Race Horse Court was looking at as well. I mean, there are material distinctions between the way that these two treaties came to be because of the different histories between the two tribes.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But you <w>have</w><w>n't</w> pointed to anything really specific. My concern just is... is just that if we end up with agreeing with you on the merits, we'll have a result that the same treaty language creates two different results, one for the Shoshone ends at statehood, the treaty right, and the other does not for this, the Crow, even though <w>it</w><w>'s</w> the exact same treaty language. And I'd like, if we're going to reach that result, to be able to point to something. And what is that something?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Justice Kavanaugh, I think that if... if there are different results there, I think <w>that</w><w>'s</w> a consequence of the new reasoning that you set out in Mille Lacs. And I think it would be far more unusual not to apply...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But that would have been... sorry to interrupt. That would have been a reason on page 207 to say the Race Horse decision is gone. And <w>that</w><w>'s</w> not what we said. We distinguished the treaty language. And maybe we should have said <w>it</w><w>'s</w> gone, but we <w>did</w><w>n't</w>.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Well, I certainly think that if it gives you heartburn to have two different results because <w>you</w><w>'re</w> applying your latest legal reasoning, I think you can take the extra step. You did so in the Limbach case that we... that we cited, in the Sunnen case. I mean, these are examples where, you know, Limbach actually says so there... so that there may be no misunderstanding, we hereby expressly overrule this decision <w>that</w><w>'s</w>... you know, that we probably should have just expressly overruled before. So...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, how much are you going to have to unwind if you apply... you no longer believe that statehood eliminated the treaty provisions in Race Horse?</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Nothing, Your Honor, because <w>there</w><w>'s</w>... <w>there</w><w>'s</w> no other state that has to... that is operating under this. There's no other state aside from Wyoming that has been free of recognizing Indian treaty rights. So <w>that</w><w>'s</w> not a consideration. And <w>there</w><w>'s</w> been no suggestion or evidence that Wyoming has ever relied on this particular Race Horse treaty in the way that it has formulated its... its natural resource management or in the way that it...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, you'd still have the result that concerns Justice Kavanaugh, that under the exact same language, the two different tribes are going to be treated differently.</u>
<u loc="MR. HICKS"><w>[MR. HICKS]</w> But I think <w>that</w><w>'s</w> a consequence of the Mille Lacs reasoning, which is your most recent controlling precedent on interpreting the termination of Indian treaty rights. 2 counsel. 5 If I can reserve my time, please.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, Mr. Liu.</u>
</p>
<p id="ORAL ARGUMENT OF FREDERICK LIU FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER">
<u loc="MR. LIU"><w>[MR. LIU]</w> Mr. Chief Justice, and may it please the Court: If the principles of Mille Lacs apply here, I <w>do</w><w>n't</w> think there can be much doubt about the outcome. The decision below should be reversed.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> What do you say to the suggestion that we just be done with Race Horse and overrule it?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> The government would be fine with that. We would invite the Court to overrule Race Horse. I do want to make clear that, in our view, <w>it</w><w>'s</w> not necessary to take that extra step. Even though these two treaties have the same language, this is a different treaty than the treaty that was before this Court in Race Horse. It governs a different tribe on different lands. And so I think this Court is still faced with the question, even though the language is the same, about whether to extend the erroneous reasoning of Race Horse to a new context.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Would you please stop talking in generalities?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Oh, sure.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Give me a specific in which way are the two tribes or their history different?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Well, Your Honor, to be frank, I... I <w>do</w><w>n't</w> think there... the government <w>is</w><w>n't</w> going to be able to point to a difference in the history. We just think Race Horse itself was wrong. But I think the question is still, should you extend that reasoning to a new context? You know, one of the... one of the reasons you might want to extend it is this... this interest in uniformity, but I think <w>it</w><w>'s</w> important to remember that that... that uniformity rationale just <w>is</w><w>n't</w> going to work here. The Shoshone-Bannock Tribe, which was the tribe involved in the Race Horse decision, has its reservation in Idaho. And the Idaho Supreme Court and the Ninth Circuit for decades have said Race Horse is already a dead letter.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Why do you think Race Horse <w>was</w><w>n't</w> over... overruled?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I think for the simple reason, Justice Kagan, that the Race Horse treaty just <w>was</w><w>n't</w> before the Court in Mille Lacs and...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, but it does try to distinguish it. Now I have to say I've read that paragraph three times, and I still really have no idea what <w>it</w><w>'s</w> talking about.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But it does try to distinguish it. It has this view that there are two kinds of rights and... and some are... two kinds of termination points for a treaty, and some are clearly contemplated and some <w>are</w><w>n't</w>. What it never tells you is how that distinction relates at all to the statehood question <w>that</w><w>'s</w> before us and that was before Mille Lacs. But... but it does... <w>there</w><w>'s</w> something in its head about how these treaties are different and why that matters. And I guess I'm looking to you to tell me what I <w>do</w><w>n't</w> understand about it.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I think <w>you</w><w>'re</w> right, Justice Kagan. That middle sentence and, I think, the paragraph that... that troubles all of us is a distinction between the 1868 treaty that was at issue in Race Horse and the... and the 1837 treaty that was at issue in Mille Lacs. But, number one, I... I think <w>it</w><w>'s</w> important to read that sentence within the context of everything around it, and I... and I think everything around it makes clear that the reasoning in Race Horse is no longer good. Even that sentence itself <w>does</w><w>n't</w> provide any affirmative reason why Race Horse was correct. As you noted, <w>it</w><w>'s</w> just a... a grounds for distinguishing Race Horse. So you <w>could</w><w>n't</w> look at that sentence and say Race Horse actually reached the right result. In fact, if you look at the terminating events that those two sentences themselves identify as terminating events under the treaty in Race Horse, statehood <w>is</w><w>n't</w> one of those either. It focuses on the text. It focuses on... on whether the land is unoccupied and still owned by the United States. That actually flows nicely from the beginning of that paragraph, which says that the inquiry should be on the circumstances that the treaty itself identifies. So I think, read as a whole, this paragraph is about what the proper focus of the inquiry should be.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Counsel, you are... for the government, you are walking a really thin tightrope here. You're saying that in terms of whether the land is occupied, it depends on the real question whether there are settlers there, whether there are people there. And yet you say when it comes to the Bighorn National Forest or park, you say, well, maybe <w>it</w><w>'s</w> occupied if we, the government, say we <w>do</w><w>n't</w> want people coming on here. It seems to me that the test has to be the same for the United States' property at Bighorn and for the other property in Wyoming.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I... I think <w>that</w><w>'s</w> right, Mr. Chief Justice. We're not asking that a different test be applied to the federal government. Our test for whether land is occupied is whether that land has been settled. Now it can be settled...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Has been settled?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> It can be settled...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> The whole point of Bighorn is that you <w>do</w><w>n't</w> want that land settled.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> And... and... and that... <w>that</w><w>'s</w> true. The... the... by designating the land as a national forest, the federal government has prevented private settlement. What we're saying is that there are things the federal government can do, just like private settlers can do, that can result in the land being occupied. We too can build buildings, roads, campsites, recreation areas.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, how much is enough? I mean, if you have the little... you know, a little shed for the ranger, does that allow you to say, well, these, you know, <w>100,000</w> acres are occupied?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> No, we <w>would</w><w>n't</w>... we <w>would</w><w>n't</w> say that... that putting a shed in one place occupies that much land. I think a... a good piece of guidance is our regulation, which we cite in our brief, which prohibits discharge of a firearm within 150 yards of a building or a home. And so we... we would consider the area...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> So you occupy the land if nobody can fire a gun in it?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> No, <w>it</w><w>'s</w>... <w>it</w><w>'s</w> 150 yards around a... a campsite, a building, a residence, or other occupied area. So we would... we would take the... the development of the land as sort of the anchor point and then look around 150 yards, and that would be the land...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Just so I understand, so at 151 yards, Mr. Herrera could take an elk?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> At a hundred and... correct. I mean, there has to be some line that we draw between land <w>that</w><w>'s</w> occupied and unoccupied. I... I think there is some burden on the hunter to know where he or she can hunt. And I think seeing a building 150 yards away is not too much to ask.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel, along those lines, you asked for remand for an evidentiary exploration of whether the land here was occupied. At the same time, though, you... you point out that the district court <w>did</w><w>n't</w> rely on the occupation as a basis for its relying on the Tenth Circuit opinion.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Seems <w>there</w><w>'s</w> some tension there to me. Maybe not. Maybe you can help me out why there <w>is</w><w>n't</w>. Why should we allow a remand for that? You know, <w>it</w><w>'s</w> a new argument raised in this Court for the first time. Why should we address it at all?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I... I... I think... I think the district court... I think the state trial court in this case, to be more precise, did... was open to having an evidentiary hearing from the get-go, and it was only after the state trial court determined that the issue could be resolved as a matter of law that that evidentiary hearing was canceled.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So, fine, we... we could remand it back, but do we need to say anything about this at all?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Oh, not at all. I... I think the government was... was... was trying to be helpful in trying to formulate some sort of test and flesh that out.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> All right. I've got one more question for you then. That helps.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Sure.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> The government says that the state retains some conservation easement here.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> That... I <w>do</w><w>n't</w> know where it comes from, but you... you tell us that such a thing exists. At the same time, though, the treaty says that... that the tribe is allowed to hunt on the land until the game are gone...</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Right.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... which seems to suggest that the white man can eliminate all the game. But now you say the Indian cannot. How can that be?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I... I think it goes back to the basis of the conservation necessity doctrine. It is a gloss on treaty language that does not confer the exclusive right to hunt on the Indians.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I <w>do</w><w>n't</w> understand that, if the treaty were silent about the game.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Yeah.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> But the treaty is express, and it contemplates no conservation. It contemplates the complete elimination of the game by the white man.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Yeah.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So, if the white man gets to eliminate the game, again, counsel for the government, how come the Indian may not?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> I... I think it just goes back to the fact that these treaties are... are more or less written against the backdrop of states being able to exercise some conservation authority because the right is not exclusive.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I'm sorry. For...</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> But that issue <w>has</w><w>n't</w> been raised, and it could be addressed on remand.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> We <w>do</w><w>n't</w> need to address that.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> You <w>do</w><w>n't</w> need to address it.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> This killing was on...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> When you say that...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... this killing was on federal land, correct?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> Correct.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> In all state... in all federal parks, state regulations apply?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> It depends on the type of federal land. So, here, we're talking about a national forest land. And, by statute, the state returns... retains jurisdiction over persons in this particular national forest.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Okay. I just <w>was</w><w>n't</w> aware of that.</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> It's a forest-by-forest and land-by-land determination.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> When you say we <w>do</w><w>n't</w> have to deal with the issue of whether <w>it</w><w>'s</w> occupied, are you talking about the issue preclusion issue?</u>
<u loc="MR. LIU"><w>[MR. LIU]</w> No. I... I think the way to deal with the issue preclusion issue, Your Honor, is... is to conclude that that issue has been not raised or passed upon below, that either <w>it</w><w>'s</w> been forfeited or that it can be pursued on remand. The federal government would... would not invite this Court to address the actual merits of these various issue preclusion doctrines. We agree that these issues are difficult and the circumstances of this case are particularly unusual because the alternative judgment that was inserted into the case by the Tenth Circuit in Repsis was done so at the appellate level and not in the court of first instance. And not even Restatement Section 27 addresses this precise instance. So we... we would caution the Court against delving into these tricky preclusion issues. We do think the issue was not raised or... or addressed below. I think the clearest place to look for this is... is page 11 of the state's supplemental brief addressing the issue preclusion in... in the courts below.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. 2 Mr. Knepper.</u>
</p>
<p id="ORAL ARGUMENT OF JOHN G. KNEPPER ON BEHALF OF THE RESPONDENT">
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Mr. Chief Justice, and may it please the Court: Mr. Herrera's claims are identical to those presented 25 years ago by his sovereign on his behalf in the case Crow Tribe v. Repsis. Nothing since Repsis, including the decision by this Court in Mille Lacs, merits a... an exception to this Court's repeated command that, once the appeals are over, a final judgment binds the parties and they may not renew the same dispute in another forum. Repsis ruled that this particular treaty right had expired, and this Court should not on collateral review allow it to spring back, especially as, when you look at the decision in Mille Lacs, Mille Lacs went out of its way not to overrule the result in Race Horse. Much of... much of the... the argument over preclusion, Your Honor, has to do with whether there has been a change in intervening law, and this case is particularly ill-suited to find such a change. The treaty text has not changed. There are no essential facts that have changed, because, when one looks at the underlying case brought by the Crow Tribe, in the complaints and the Joint Appendix, it was brought at the broadest possible level of abstraction.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Maybe I'm not understanding this correctly because <w>it</w><w>'s</w> complicated, but I thought there are two separate issues in respect to issue preclusion. One has to do with Repsis. And Repsis was a case that held on your side. And there <w>have</w><w>n't</w> been much changes since then. But your argument, their argument about that one is you never raised the issue. The district court never decided it. The Tenth Circuit just on its own wrote the thing in there. And so you forfeited that one. Now, in respect to the second and different question, <w>it</w><w>'s</w> whether Race Horse bars their claim. A totally different question. And there, not with Repsis, the basic argument is the law changed in Mille Lacs. It <w>does</w><w>n't</w> in the Restatement or where we've quoted the Restatement, which we have in a number of cases, Bobby v. Bies, Limbach v. Hooven, et cetera, we <w>have</w><w>n't</w> said that you are free to bring a new issue only where the court has overruled the case that came against you. We said <w>you</w><w>'re</w> free to bring a new one when <w>there</w><w>'s</w> a change in the applicable legal context. Okay? So their argument there is there is a change in the applicable legal context. One, no more equal footing doctrine and you win. Two, no more just become a state and you win. Okay? That's a change in the applicable legal context since Race Horse relied on those two things. Now <w>that</w><w>'s</w> my understanding of the argument. So either tell me I'm wrong and explain what the standing... what the correct argument is, or answer those points.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Okay. Your Honor, the... <w>there</w><w>'s</w> not complete clarity within this Court's jurisprudence as to what kind of a change in the legal context is sufficient. Some say, you know, Stauffer Chemical talks about a significant change or a major doctrinal shift. The... you know, the language in Bobby v. Bies says just a change in the applicable law. You know, from... from the state's perspective, if... if any change to a precedent relied upon by a prior court, either <w>it</w><w>'s</w> called into question by this Court or <w>it</w><w>'s</w> called into question by a court of appeals in some subsequent cases is sufficient to undo the preclusive effect of the first opinion, then I think there are very few cases that will have preclusive effect because, you know, one need only go through the opinion and say: Well, this... this case was cited by the court somewhere, and... and by citing that case, they must have relied upon it and... and, boy, look over here, there... <w>there</w><w>'s</w> another case that has... that has questioned it, not being necessarily overruled.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But, Mr. Knepper, I... I think this <w>is</w><w>n't</w> just any change. I... I think a fair reading would suggest that what Mille Lacs did was to repudiate the reasoning that Race Horse had in it with respect to exactly the question before us. And <w>it</w><w>'s</w> true that it did not go all the way to overruling the case, but it... it came up like half a step short of that. It basically said the case was wrong, and then it found some distinction that <w>was</w><w>n't</w> even relevant to the question and said we <w>do</w><w>n't</w> have to overrule it because there is this distinction. But all the reasoning is repudiated. Wouldn't you think... <w>would</w><w>n't</w> you say that <w>that</w><w>'s</w> right?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, the court did not overrule the approach to treaty interpretation. It said the key is looking at what the intent of the parties is. It reached a conclusion that... that a court today might not reach. It might reach a different conclusion. But that argument that the court should have said something different is... is at root the argument that the court... that the... that the... that the decision was wrong.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, just to make this more concrete, I mean, as I understand it, Race Horse essentially said that these treaty rights expired upon statehood. And Mille Lacs comes in and says <w>that</w><w>'s</w> a wrong thing to say. Treaty rights <w>do</w><w>n't</w> expire upon statehood. So that seems like a pretty relevant change in the law.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Well, Your Honor, <w>there</w><w>'s</w>... <w>there</w><w>'s</w>... <w>there</w><w>'s</w> one subtlety, I think, from the 19th Century law to the 20th Century law <w>that</w><w>'s</w> being overlooked here, and that is this Court's decision in Lone Wolf v. Hitchcock. It was not until 1903 that any party believed that Congress could unilaterally overrule or repeal a treaty. That... the assumption in the 19th Century was there had to be bargained-for consideration. And so the Race Horse court, when <w>it</w><w>'s</w> looking at this treaty question, is saying: What was the intent of the parties? And it reaches the conclusion that the intent of the parties was... and this is restated from Mille Lacs... that this was a... it was clearly contemplated that this would be a temporary hunting right so long as the hunting grounds remained unoccupied and owned by the United States and that that terminated at statehood. Now it was... it was not terminated by... it was not so much that the statehood as a legal act made it terminate. It was that the treaty itself envisioned termination at statehood. And because the parties agreed that it would terminate at statehood, the treaty did so.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> The oddity is that, as Justice Kagan says, in Mille Lacs, we say that the holding of Race Horse or the reasoning that statehood automatically terminates treaty rights for off-reservation activity, <w>that</w><w>'s</w> no longer good, and then, on the alternative holding, as we characterized it from Rate... Race Horse, we say that language, the precar... temporary and precarious, that language is also no good. Right? Even on the alternative holding, <w>it</w><w>'s</w> not as if the Court in Mille Lacs said: Oh, everything from Race Horse is good on the alternative holding. It either ditched it or recharacterized it or something. How would you make sense of what the rule is <w>that</w><w>'s</w> preserved by Mille Lacs?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> I think, Your Honor, the rule preserved by Mille Lacs is that the treaty language that was present in Race Horse, which is identical to the treaty language in the Crow... the treaty with the Crows, expresses an intent by the parties that the off-reservation hunting right would terminate at statehood.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Well, you have this language right here in Mille Lacs: Treaty rights are not impliedly terminated upon statehood. The Race Horse decision, to the contrary, was informed by that court's conclusion that the Indian treaty rights were inconsistent with state sovereignty. And then it goes on to say <w>that</w><w>'s</w> not so. I mean, I can read it to you, but <w>is</w><w>n't</w> that what it says? And so treaty rights are not implied. Now that would seem like a change in the law because they said in Race Horse treaty rights were impliedly... the Indian treaty rights were impliedly repealed by statehood of Wyoming. I mean...</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... I <w>do</w><w>n't</w> see how you can get more opposite. You tell me.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> ... Your Honor, I think there are... there... the critical question... and this sort of goes to what the text of Article IV speaks of, which was, you know... and... and I may refer to Race Horse several times, not just because <w>it</w><w>'s</w> binding precedent but also because <w>it</w><w>'s</w> the clearest evidence that we have before us of what 19th Century thinkers thought the language meant. In other words, it... it has a... it has a historical value as well, all of these decisions were made during the 19th Century. And... and the Court in that case looked at the treaty text and said: "Unoccupied lands," that could be construed broadly, it could be construed narrowly, but when construed in pari materia with the language of borders of the hunting districts, it applies only to lands of such a character as would be embodied in hunting districts. And the Court read that as a term of art.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. So <w>that</w><w>'s</w> wonderful. Tell me how a national park <w>is</w><w>n't</w> a traditional hunting district. I mean, the government says we're not going to keep it unoccupied. They open it up to hunting. What was different back then?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, I... <w>that</w><w>'s</w>...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Unoccupied and people went hunting.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Well, Your Honor, <w>that</w><w>'s</w> where the Race Horse Court's evaluation of the history at that time is so important because the Race Horse Court looked at Yellowstone National Park, and what the Race Horse Court said was Yellowstone National Park was created almost immediately after the treaty with the Crows was signed. The... Yellowstone National Park is actually within the Crow hunting district. And the Crow hunting district is a very large area, but Yellowstone National Park, which is an area the size of Connecticut, <w>it</w><w>'s</w> not just geysers, was carved out of the hunting district, and then the United States proceeded over the entire time, beginning in 1872 and then through the '80s, 1880s, to say to tribes: You may not hunt here. This is off limits. We have occupied this land. Now that <w>does</w><w>n't</w> mean that there are structures there, but that the... that the... the federal government's arrival and the federal government's setting this land aside has the effect of occupying the land, and that the... the tribe does not require... or the treaty does not require only... that the tribe refrain from hunting only on land where it can identify a structure.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Can I... can we just...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, I know...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Oh, I'm sorry.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> I know that when we're interpreting a treaty, we look at the background and circumstances in interpreting the language, and... but your argument's a pretty stark distinction, occupied <w>does</w><w>n't</w> really have anything to do with hunting. And yet <w>you</w><w>'re</w>... <w>you</w><w>'re</w> sort of saying, well, when they said "occupied," they meant outside the hunting district. And <w>that</w><w>'s</w> a bit of a stretch. I know we try to look at the background to illuminate the language, but, here, it seems to me <w>you</w><w>'re</w> just substituting an entirely different concept.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, I... I think that the precise question is what did they mean by "occupied" and what... what... what was land... what did land have to look like in...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Yeah, but your argument is, you know, what did they mean by "cow" and <w>you</w><w>'re</w> saying they meant "horse." They're two totally different concepts.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> I... I'm not... I'm not sure <w>that</w><w>'s</w> what the State's argument is, but...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> I'm sure <w>it</w><w>'s</w> not.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> But... but I... I think... I think there are... there are... you know, you can envision, for example, a piece of private land where there is no... there are no structures, and in that piece of private land, I think <w>there</w><w>'s</w> no question Mille Lacs affirms this, that there would be no right to hunt on that piece of private land, even though it looks like nothing, it looks like a vast expanse of nothing. And so then the question is, when the government has a specific purpose for which it reserves land, and the government has done so and did so throughout the 19th Century in terms of military reservations for forts, which is a larger portion of land than just the fort itself, as well as public reservations, which would be either the national forest or the national parks, the government has said not... not that this land is unoccupied but, rather, we occupy this land. This is our land. We dictate who comes in, who comes out, what <w>they</w><w>'re</w> allowed to do while <w>they</w><w>'re</w> there. This... we have... we have taken this land over and managed it in a completely different way. From... from the... from the State's perspective, <w>it</w><w>'s</w> one of the reasons why we're not concerned about some of the... the questions of whether Mr. Herrera... whether the United States could solve this another way. In other words, this is a federal... a national forest. The current regulations for the national forest say you can only hunt in the national forest if you have either permission from the... the forest superintendent or <w>you</w><w>'re</w> hunting in conjunction with a state memorandum of understanding. The state memorandum of understanding for the Bighorn National Forest makes no reference whatsoever to hunting outside of Wyoming's permitting regime. Now, if the United States wants a different regime on its property, the United States is free to provide that different regime and free to make distinctions. And...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Counsel, can we return to...</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Sure.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... an area where we might at least be able to nail down some agreement between the parties? And that is your argument rests largely on issue preclusion. And you made an impassioned defense of Race Horse and an excellent one, but what... what kind of change in law is sufficient to render issue preclusion inapplicable? Is it a substantial change in the law? Is that the test you'd have this Court use? Is it a change in the law? Would you require a formal overruling in so many words? What is... what is the State's understanding of the appropriate test?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your... Your Honor, from the State's perspective, that entire concept gives us a great deal of pause.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, you are the one <w>who</w><w>'s</w> invoked it, though. I mean, you invoked issue preclusion, all right, as the primary argument in your... in your briefs. So I think you owe us an explanation...</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Sure.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... what standard you'd have us apply.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your... Your Honor, I think the... from the State's perspective, it needs to be a... both a major doctrinal shift...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Okay. That's the test, major doctrinal shift? Thank you.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Right. If... if I... if I could...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Is that it?</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> You were... you sound like you were mid-sentence to me, but...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Well, Your Honor, I wanted to explain one of the reasons why the State is so concerned about this concept of change in law, especially in the context of Indian treaties and jurisdictional questions, because I think the greatest reason for caution here is we have two eternal sovereigns. The Crow Tribe will be here forever, as they have been since time immemorial, and the State of Wyoming has no intention of disappearing. And our concern with... with sort of a... with sort of a... a notion that the change in law is all <w>that</w><w>'s</w> necessary to remove preclusion is that it creates the possibility that people... that parties just lurk, that they wait and wait. And, you know, the doctrine in a specific area of law may not change over 10 or 20 or even 100 years, but when you have two parties that will continue to exist for more than a...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> But what you have is, look, Race Horse, it says, your side, for two or three reasons, reason 1, the equal footing doctrine. Reason 2, they became a state. And if there is a reason 3, <w>it</w><w>'s</w> related to the second. Along comes Mille Lacs and it says reason 1 is no good. We think the opposite. Reason 2 is no good. We think the opposite. Reason 3 we think <w>is</w><w>n't</w> any good either. We think the opposite. And, therefore, Race Horse <w>does</w><w>n't</w> bind us. Now <w>there</w><w>'s</w>... possibly they should have added a fourth thing, and, therefore, the words Race Horse is overruled, but the Court <w>did</w><w>n't</w>. I can understand that. I can perhaps understand that better than you. There are a lot of things to do every day, and you have to write your opinions and you start putting in a word like "overruled" and some of your colleagues might think: Don't do it, you <w>do</w><w>n't</w> know what <w>you</w><w>'re</w> getting, et cetera. All we have to decide for this case is that Race Horse <w>does</w><w>n't</w> bind us, okay? So maybe we should say Race Horse is overruled. But the three big reasons, now, are they little reasons or big reasons? I would say the equal footing doctrine is a major change to deny that. I would say to deny that they lose their territory when they come into the state is a major change, to say, no, that <w>is</w><w>n't</w> so. And, therefore, I thought maybe it fits within what <w>you</w><w>'re</w> talking about. It has to be a fairly big deal in change. It sounds like a big deal. And then you have another argument, which is, of course, that we will get to perhaps, <w>it</w><w>'s</w> not unoccupied. And, there, <w>it</w><w>'s</w> more open, but you have the problem that the treaty is filled with that word "unoccupied" seeming to mean not occupied by white settlers. And <w>that</w><w>'s</w> what the government thinks. Well, the language in the treaty's supporting that. And are there any white settlers in that park? No, not one to my knowledge. Maybe <w>there</w><w>'s</w> a games keeper. But see? Okay. So that... <w>that</w><w>'s</w> how I'm understanding your case. I thought I'd spell it out. And now you say what you would like.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Thanks. Thank you, Your Honor.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> I... there... there are... the question for... for this Court, of course, is not just Race Horse but what Repsis says, Your Honor. And Repsis does not rely at all on the equal footing doctrine. Repsis mentions that there is an equal footing doctrine and drives right past it. It does not say that as a... on... on the basis of the equal footing doctrine, that... that the treaty with the Crows' hunting right has expired. Instead, it looks to what did... what does the treaty mean, and the treaty was intended to expire upon statehood. The language that... that Repsis specifically... the Court concluded that the right conserved by the treaty with the Crows was a temporary and precarious. It was not a continuing right. That's... <w>that</w><w>'s</w>... that is treaty interpretation. And when one looks at Mille Lacs, Mille Lacs does not question or even overrule that approach to treaty interpretation. It says statehood does not, independent of whatever the treaty text says and whatever the treaty means, automatically terminate an off...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So tell me what in the treaty says it automatically terminates. I saw a lot of conditions. I saw the game disappearing, the land becoming occupied, but I <w>do</w><w>n't</w> see on statehood or even anything approaching it.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The... the...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Where... where in... just point me to something in the treaty language...</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Sure.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that... that gives you...</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, the... the decision rests on the conclusion that unoccupied lands must be of the character of the lands denominated as hunting districts, and that hunting districts were a specific kind of land understood, and that upon settlement, and, you know, <w>there</w><w>'s</w> a... <w>there</w><w>'s</w> a process, but culminating in statehood.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Who gave... whose settlement? Who... tell me the settlement history.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Non... non-Indian settlement.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. And non-Indians settled how? By grants by the federal government, correct?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> It <w>was</w><w>n't</w> so much grants. Non-Indians came into an area and then used it. And then, under the Homestead Act, they would file for patents with the General Land Office allowing them to turn certain amounts of...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Who ran the General Land Office?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The United States.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Okay. So, if the United States had changed the General Land Office to some other method, which they have, that terminated the treaty?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> I think that if what <w>you</w><w>'re</w> asking is are there unoccupied lands within the meaning of the treaty anymore within the State of Wyoming, <w>that</w><w>'s</w>... <w>that</w><w>'s</w> what the decision both in Race Horse and in... and in Repsis concluded, that those... those lands... those lands have disappeared. They no longer exist within the State of Wyoming.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Can I ask about the practical consequences of the decision? Because, as Justice Gorsuch said to the opposing counsel, there is still preserved in the cases a right in the state to regulate in the interest of conservation. Doesn't that mitigate and maybe solve the concern that you talked about with the state existing forever and the tribe existing forever? The way they can coexist, our case law says, is the state still retains a right to regulate in the interest of conservation. Why <w>is</w><w>n't</w> that good... good enough?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, conservation necessity is not a middle ground from the state's perspective, and the chief reason is because the law enforcement officers who act <w>do</w><w>n't</w> know whether they have jurisdiction until after they have done so. So... so... so, in other words, we have... we have an officer out enforcing law in either an area or in a certain... in a certain circumstance, and the question is he... he or she acts and then only after a period of litigation does he actually find out that he had the authority to do so.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I <w>do</w><w>n't</w>... I <w>do</w><w>n't</w> follow that, because if... if we were to adopt that... approve of the conservation principle that the government urges and the American Congress does too, you would have your game wardens out and about ensuring that people are not hunting during off-season, for example. And if <w>they</w><w>'re</w> allowed to go on the forest land by agreement with the United States, why then how would there be any ambiguity about their capacity to issue citations? I'm just not clear about how litigation would be required to resolve that.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, leaving aside the question of whether <w>there</w><w>'s</w> agreement with the United States, right, that obviously solves all problems. But assuming that <w>there</w><w>'s</w> not agreement with the United States, we're solely acting as a... as a matter of state power, not really...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, <w>that</w><w>'s</w> a problem you have without respect to this case, right? I mean, either the government allows you to do that or it <w>does</w><w>n't</w> allow you to do that. And that has nothing to do with anything before us, right?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Well, the Congress in this case has given the state the authority to act.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Right. So, okay, so we can put that one aside. So, again, what ambiguity remains in... in response to Justice Kavanaugh's question?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The current... the current vision of conservation necessity, which has not admittedly been decided by this Court in any time... any time recently, is sort of... is a reverse preemption doctrine. It's essentially that the state is pushed out of an area of traditional state concern and then <w>it</w><w>'s</w> on... the burden is upon the state to show that it has the need to come in and manage and... and... and only after sort of demonstrating at the end of it that this particular activity, be it a... a...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But is it just a timing issue then, because... or is there some gap between what you want to regulate and what you can regulate under the conservation interest?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, there are significant gaps. The two...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Okay. What... what... give me some examples so we can understand the practical consequences.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The most important, Your Honor, is safety. Hunting seasons are specifically limited in time. That not only protects the wildlife, but it has two effects beyond that. It ensures that when people are recreating in the national forest or anywhere else outside of that time period, there is no danger... you know, individuals who are using firearms at that point have very, very little justification for doing so. And so there are people, and... and I'm one of them, that <w>won</w><w>'t</w> take our children into the national forest during hunting season because there just... there are risks there that... that are... that are... that are... that are too much to overcome. There are limits in terms of when you can fire your firearms. It has to be at certain hours of the day. There are requirements that if you are hunting you are wearing vests so <w>you</w><w>'re</w> clearly visible to one another, as well as to... as well as to third-parties. Beyond... beyond sort of the immediate safety concerns, which are not embodied in conservation necessity, there are disease management concerns. When... when an individual takes an... an elk or a deer in conjunction with... with a state license, the Fish and Game Department will... will take a sample of that animal and use it to determine whether diseases like Brucellosis, which can be captured... caught both by wild game animals, as well as by human beings, are... are... are present. There are also...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> But <w>is</w><w>n't</w> that covered by conservation?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, I <w>do</w><w>n't</w>... I mean, conservation necessity to my sense has always been about ensuring that the game exists and... and preventing its extermination, not the sort of...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Doesn't... <w>does</w><w>n't</w> disease interfere with that?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> In some cases, it can, Your Honor. In others, you know, the... the bison who have Brucellosis seem to be able to function just fine within their reproductive capacities. It's domestic cattle that cannot.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Well, in... in many other Indian cases, the language has been used that ordinary regulation is not foreclosed, which sometimes is elaborated health, safety, environment, for example. And is there any reason that that would be different here?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, I... I... if... if that... if that were the theory, and that the theory were that...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> It's the theory in all the Yakama cases. I mean, <w>that</w><w>'s</w> what I've been looking at.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> You know, from... from the State's perspective, what we're... what we're looking at is the sort of extensive litigation that we have not yet engaged in, but also what the United States suggests in its brief as sort of the approach that it would take to conservation necessity, which suggests, for example, that... that different levels of mule deer population or elk population on a year-by-year basis would affect the interests of the state in conservation.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But, if safety were added, as Justice Breyer said, that solves the primary problem you identified, right?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> It... it certainly solves... solves at least one of them. There are... you know, there are other questions.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> We're forgetting the other side in this discussion, because the tribe has a subsistence right. I know under the facts of this case <w>you</w><w>'re</w> claiming the killings were not for subsistence, an open question, I'm not taking a side on that. But assuming that the treaty right was given to... to protect the Indian subsistence rights and that their claim, taking it at face value, is accurate, that they were on hard times and needed food to feed their families, that balance is not yours alone to make. It belongs to the government and it belongs to the Indian tribes as well.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, <w>that</w><w>'s</w> why the State has been so accepting. I mean, the State does not resist the notion that, as proprietor, the United States could come in and give all of the benefits that Mr. Herrera seeks, including subsistence hunting. What... what... what the advantage of that approach would be is that all of the questions that... that... that sort of tail out of that, when, how, but also subsistence, subsistence for whom, you know, the question of hunting licenses being given to the tribe rather than under the current situation where, you know, the United States' position as to the Crow treaty was not made clear to the State of Wyoming until the filing in this Court in... in support of a grant of certiorari. The United States had... had no role whatsoever in the Repsis litigation that we can find. In fact, I believe the United States declined to participate at all. And so, from... from the State's perspective, the absence of the federal government is... is one, you know, we would welcome the federal government's involvement.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> It <w>won</w><w>'t</w>...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> On the land in question here, what is the extent of the federal government's regulatory authority and where does it come from?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The... the federal government's regulatory authority comes from the Organic Act that created the national forests. There's a... <w>there</w><w>'s</w> a gap. There was... there was a statute allowing creation of the national forests. And then, when they were reaffirmed in 1897, the so-called Organic Act allows the federal government to just... do just about anything. And in the Coastal California Commission, this Court said <w>it</w><w>'s</w> plenary.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Does the government think that that abrogated the or that limited the treaty right?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The government's perspective is that it did not. The State's perspective is that it occupied it by... by taking control.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Well, then... then how can the government... I mean, the government is just as bound by the... by the... is bound by the treaty. The government entered into the treaty, right?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> The government entered into the treaty, yes.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> So <w>does</w><w>n't</w> there have to be a statute that would limit the hunting right that was conferred by the treaty?</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> Your Honor, may I respond?</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Sure.</u>
<u loc="MR. KNEPPER"><w>[MR. KNEPPER]</w> All of these actions took place, Your Honor, before statutes could repeal Indian treaty language, all... including the enactment of the organic statute. So, from the State's perspective, all of them represent not repeal of the hunting right but, rather, the federal government's occupation within the meaning of the hunting right.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. 2 Mr. Hicks, two minutes.</u>
</p>
<p id="REBUTTAL ARGUMENT OF GEORGE W. HICKS, JR. ON BEHALF OF THE PETITIONER">
<u loc="MR. HICKS"><w>[MR. HICKS]</w> Thank you, Mr. Chief Justice. Just a few points. First, in response to the idea that Mille Lacs simply <w>did</w><w>n't</w> change the approach, I... I think <w>that</w><w>'s</w> wrong for all the reasons that Justice Breyer and Justice Kagan identified. But I want to go a little bit further than the sentence that you read, Justice Breyer. And <w>it</w><w>'s</w> the sentence on page 207/208. Now earlier in the opinion the Court had said: We concluded that the particular rights in the Race Horse treaty at issue there were not intended to survive statehood. Then on 207/208: The Race Horse Court's decision that Indian treaty rights were impliedly repealed by Wyoming statehood was informed by that court's conclusion that the Indian treaty rights were inconsistent with state sovereignty over natural resources and, thus, that Congress could not have intended the rights to survive statehood. And <w>that</w><w>'s</w> an important last phrase of that sentence because <w>it</w><w>'s</w> tying the entire Race Horse holding to this mistaken premise that Indian treaty rights are irreconcilable with state sovereignty over natural resources. I think <w>that</w><w>'s</w> a key sentence. And I think, frankly, that kind of undercuts a lot of the idea that even the holding... this second holding of Race Horse is still viable. Again, we <w>do</w><w>n't</w> think you need to take the next step to expressly overrule the outcome in Race Horse. But, if you, you know, want to do that, you can follow the roadmap that you have in Limbach and Sunnen, where you had almost exactly this situation. The second point is simply to this idea of the occupation and what "occupied" means. Everything in the evidence, in the historical evidence, is that both parties to the treaty understood "occupation" to mean some sort of actual physical presence and nothing about simply a legal declaration that the federal government was going to do something. And certainly, under the Indian canons of construction, <w>that</w><w>'s</w> a reasonable reading that is entitled to be given to the Indians. And the last point on conservation necessity, you know, this discussion I think just demonstrates that if the Court finds that the... the treaty right is valid and has not been terminated, Wyoming still has the ability to regulate its... its wildlife, its natural resources, simply according to the conservation necessity standard like every other state already has to do.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u>
</p>
</text>