Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/12

Rh Assn., 443 U. S. 658, 682 (1979); Antoine v. Washington, 420 U. S. 194, 207–208 (1975); Puyallup Tribe v. Department of Game of Wash., 391 U. S. 392, 398 (1968)). “[B]ecause treaty rights are reconcilable with state sovereignty over natural resources,” the Mille Lacs Court concluded, there is no reason to find statehood itself sufficient “to extinguish Indian treaty rights to hunt, fish, and gather on land within state boundaries.” 526 U. S., at 205.

In lieu of adopting the equal-footing analysis, the Court instead drew on numerous decisions issued since Race Horse to explain that Congress “must clearly express” any intent to abrogate Indian treaty rights. 526 U. S., at 202 (citing United States v. Dion, 476 U. S. 734, 738–740 (1986); Fishing Vessel Assn., 443 U. S., at 690; Menominee Tribe v. United States, 391 U. S. 404, 413 (1968)). The Court found no such “ ‘clear evidence’ ” in the Act admitting Minnesota to the Union, which was “silent” with regard to Indian treaty rights. 526 U. S., at 203.

The Mille Lacs Court then turned to what it referred to as Race Horse’s “alternative holding” that the rights in the Shoshone-Bannock Treaty “were not intended to survive Wyoming’s statehood.” 526 U. S., at 206. The Court observed that Race Horse could be read to suggest that treaty rights only survive statehood if the rights are “ ‘ “of such a nature as to imply their perpetuity,” ’ ” rather than “ ‘temporary and precarious.’ ” 526 U. S., at 206. The Court rejected such an approach. The Court found the “ ‘temporary and precarious’ ” language “too broad to be useful,” given that almost any treaty rights—which Congress may unilaterally repudiate, see Dion, 476 U. S., at 738—could be described in those terms. 526 U. S., at 206– 207. Instead, Mille Lacs framed Race Horse as inquiring into whether the Senate “intended the rights secured by the. . . Treaty to survive statehood.” 526 U. S., at 207. Applying this test, Mille Lacs concluded that statehood did not extinguish the Chippewa bands’ treaty rights. The