Benjamin Cantor

Document Type

Supreme Court Commentaries

Publication Date



Indian law, precedent, hunting rights, treaties

Subject Category

Constitutional Law | Supreme Court of the United States


In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of undermining its underlying rationale. In this Commentary, I argue that the lower courts erred in applying issue preclusion and in relying on the outdated Race Horse doctrine.