Due to the complex and often troubled history of relations between the United States and Native nations, special rules apply when courts interpret Native treaties. For example, when interpreting the scope of treaty rights, courts apply a unique set of canons of construction generally favoring the Native nations. Further, before courts will allow Congress to abrogate a treaty right, they require Congress to clearly express its intent to do so. But treaty rights conditioned on some “termination point” in the treaty text remain a gray area: What happens when the conditioned circumstances come to pass? Congress may not have affirmatively acted to abrogate the right—but does the treaty right nevertheless expire with the occurrence of those conditions? And what legal standard applies? The Supreme Court’s recent decision in Herrera v. Wyoming highlights the importance of these questions and provides a partial model to better understand conditional treaty rights.
This Note analyzes the conditions placed on the off-reservation hunting right in Herrera and argues that courts should narrowly construe such termination points. First, courts should follow the Herrera model and apply the Indian canons of construction in considering whether a conditional treaty right has terminated. Second, courts should require clearly expressed intent in the text of a treaty to abrogate a right through the fulfillment of a treaty condition, just as clearly expressed congressional intent is required to abrogate the treaty as a whole. Instead of assuming congressional intent to terminate a privilege, courts should apply the lessons taught by centuries of precedent and carefully construe treaty conditions before effectively abrogating such rights.
* J.D. Candidate, Stanford Law School, 2021. My deepest thanks to Greg Ablavsky, Steve Small, and Kyle Gray for their invaluable guidance and support, as well as to my family for the same. I am also grateful to the editors of the Stanford Law Review—Rachel Bowanko, Trip Henningson, Axel Hufford, Dan Kim, Taylor Nicolas, Allie O’Keefe, Tiarra Rogers, Danielle Roybal, Thomas Schubert, Sarah Smith, and Jerry Yan, among others—for their insightful edits and hard work in preparing this Note for publication.