In Herrera v. Wyoming, the Supreme Court today overruled the Wyoming courts and held that the Apsáalooke Nation, also known as the Crow Tribe, retains its treaty-guaranteed right to hunt on unoccupied lands outside its reservation. Although the case turned on complicated questions of precedent and preclusion, the decision is perhaps most significant for what it augurs for future struggles for tribal rights before this court.

Wyoming convicted Clayvin Herrera, a Crow tribal member, for violating state hunting laws, notwithstanding the promise in an 1868 federal treaty that the tribe and its members preserved the right to hunt on “unoccupied” lands. The lower courts had reasoned that an earlier decision of the U.S. Court of Appeals for the 10th Circuit, Crow Tribe of Indians v. Repsis, which held that the tribe’s treaty right was abrogated when Wyoming became a state, precluded Herrera from arguing that the treaty right was still valid. In an opinion by Justice Sonia Sotomayor, the Supreme Court disagreed.

Justice Sotomayor with opinion in Herrera v. Wyoming (Art Lien)

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In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly covers the latest Supreme Court news before speaking with Tom Goldstein of SCOTUSblog and David Savage of the Los Angeles Times about abortion and recent legislation aimed at overturning Roe v. Wade.

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices added one new case to their merits docket for next term: Ritzen Group v. Jackson Masonry, a bankruptcy case. The filing of a petition for bankruptcy creates an “automatic stay” – a freeze on most efforts by creditors to collect debts from the debtor. However, creditors can ask the bankruptcy court to lift the automatic stay. The question that the Supreme Court agreed to hear today in Ritzen Group is whether an order denying a creditor’s motion to lift the automatic stay is a final order that the creditor can appeal.

The justices did not act on a pair of petitions asking them to weigh in on the constitutionality of Indiana abortion laws: One petition, which the justices have considered at 14 consecutive conferences, asks the Supreme Court to review a ruling by the U.S. Court of Appeals for the 7th Circuit striking down a law that bans abortions based on the race, sex or disability of the fetus and requires fetal remains to be buried or cremated, while the other petition involves a challenge to the requirement that a pregnant woman obtain an ultrasound at least 18 hours before an abortion. The justices also did not act on the petition for review filed by an Oregon couple who declined on religious grounds to make a custom cake for a same-sex wedding.

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We live-blogged as the Supreme Court released orders from the May 16 conference, granting Ritzen Group Inc. v. Jackson Masonry, LLC, and its opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht. The transcript of the live blog is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

For The Wall Street Journal, Brent Kendall and Jess Bravin report that several “petitions seeking Supreme Court review of abortion restrictions are currently pending, and the justices could act on some of them in coming weeks.” At Jost on Justice, Kenneth Jost discusses what the court’s ruling last week overruling a 40-year-old precedent in Franchise Tax Board of California v. Hyatt may mean for the justices’ approach toward abortion cases.

Briefly:

• At E&E News, Pamela King reports on Lynda Like v. Transcontinental Gas Pipe Line Company, a cert petition that challenges a natural-gas pipeline in Pennsylvania, in which the petitioners claim that “many appellate courts are improperly allowing Transco and other pipeline developers to engage in a ‘take-first-pay-later’ form of eminent domain sometimes known as ‘quick take’ or immediate possession.”
• Kimberly Robinson reports for Bloomberg Law that “[c]hallenges over cross-border shootings of Mexican teens by U.S. border patrol agents are again before the Supreme Court, which confronts the issue amid tension over Trump administration immigration policies.”

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The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.

On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.

On Thursday, the justices meet for their May 23 conference.

Those of you paying close attention to oral argument in the Supreme Court this term may have noticed something unusual. In three cases (Sturgeon v. Frost, Gamble v. United States and Tennessee Wine & Spirits Retailers Association v. Blair), one of the advocates was a state government attorney arguing on behalf of a state or group of states as amicus curiae. As discussed in my recent article for Green Bag 2D, “The Modern History of State Attorneys Arguing as Amici Curiae in the U.S. Supreme Court,” the court appears once again willing to hear from the states even when no state is a party.

Alaska Assistant Attorney General Ruth Botstein arguing in Sturegon v. Frost (Art Lien)

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Briefly:

• At The Daily Caller, Kevin Daley covers “two abortion controversies from Indiana and Louisiana on which the justices may act in the coming months.”
• At The National Law Journal (subscription or registration required), Tony Mauro passes on former solicitor general Paul Clement’s “tips on how to get the Supreme Court to overturn a precedent.”
• In the latest episode of Rewire.News’ Boom! Lawyered podcast, Imani Gandi and Jessica Mason Pieklo argue that “the fallout from the Court’s decision to overturn decades of precedent” in Franchise Tax Board of California v. Hyatt “could have major ramifications for … abortion rights, marriage equality, and more.”
• In an op-ed at Law.com, Gabe Roth laments the lack of agreement among the justices on “how they comport themselves as purportedly unprejudiced public officials, a place where consensus should rule the day,” on topics ranging from ownership of individual stocks to speaking engagements to subsidized travel.

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John Elwood reviews Monday’s relists.

The world’s a mess: Tension in the Persian Gulf; turmoil in global trade; persistent conflict. The way things are going, many people can’t even seek comfort in simple escapism. But amid all the conflict and strife, you can at least take comfort in the familiar ritual of opening a new week’s installment of Relist Watch and saying those familiar words uttered by legions of readers since our second installment: “It’s not funny anymore.”

Last week’s relists yielded one dissent from denial of certiorari, as well as an order granting a petition, vacating the judgment below and remanding for further consideration in light of the solicitor general’s position that the analysis employed by the U.S. Court of Appeals for the 8th Circuit was faulty. Chief Justice John Roberts, joined by all the conservative justices except Neil Gorsuch, dissented, saying that vacatur was not warranted simply because “the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result.” As anticipated last time, the conservatives objected to the Supreme Court’s “no-fault [vacate and remand] practice.” Still no word, however, on a second relisted case in which the government confessed error, Santos v. United States, 18-7096. We should have an answer on Monday.

Five new relists this week. Several of them are quite high-profile. And this may just be my sleep-deprivation talking, but every one of them seems interesting.

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Adam Liptak reports for The New York Times that although “[a]bortion rights are at risk at the Supreme Court, … the short-term threat may not come from extreme laws like the one passed by Alabama lawmakers” this week: “The court led by Chief Justice John G. Roberts Jr. is more likely to chip away at the constitutional right to abortion established in 1973 in Roe v. Wade than to overturn it outright,” and “[i]t will have plenty of opportunities to do so.” Joan Biskupic writes at CNN that “in his new position as the deciding vote on abortion, Roberts today is moving cautiously on any narrowing — or outright elimination — of a woman’s constitutional right to end a pregnancy.” For The Washington Post, Robert Barnes explains that June Medical Services v. Gee, a pending cert petition challenging a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals, “provides a test of whether the court will uphold a very recent precedent.” For USA Today, Richard Wolf describes the other abortion restrictions “pending before or approaching the justices,” noting that “[i]t seems unlikely that the Supreme Court justices will be able to avoid all abortion cases for long – or even until the 2020 presidential election,” but  “[t]hat won’t stop them from trying.”

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