Can Congress Void a Tribal Treaty Without Telling Anyone?
Herrera v. Wyoming, an Indian treaty-rights case argued in the Supreme Court last Tuesday, revolves around a basic of federal Indian law: No promise to Indian people actually binds the United States. Congress can unilaterally void any treaty or agreement. The only limit on this power so far has been a requirement that Congress say it is doing so. It is not supposed to act by “implication.” Whether that rule holds true will likely depend on the attitudes of the Court’s two newest justices.
The formal issue in Herrera is the conviction of a Crow tribal member for hunting elk out of season. The underlying issue is whether a treaty with the Crow tribe of Montana remains in force, or whether Congress junked it without telling anyone.
Clayvin Herrera was part of a group of Crow people who in January 2014 trailed a small herd of elk from the Crow reservation in southern Montana across the Wyoming state
