Oral Arguments: Native American Tribal Rights and Copyright Requirements

The Supreme Court delved into the complicated history of the relationships between the federal government and Native American tribes on Tuesday, January 8, in Herrera v. Wyoming. In January 2014, Clayvin Herrera, a member of the Crow Tribe in Montana and a tribe game warden, went hunting to find food to feed his family. He, along with other fellow tribe members, shot and killed three elk on land in the Big Horn National Forest outside of their reservation. In 2015, Herrera was cited by Wyoming authorities for hunting during closed season and without a state license — laws that do not apply on the reservation itself — and was convicted.

Although this incident occurred recently, the validity of Herrera’s conviction depends on whether and how the Supreme Court will choose to enforce an 1868 treaty between the Crow Tribe and the United States, which gave the tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.” Because the treaty was created in 1868 and Wyoming did not gain statehood until 1890, the first question the Court must answer is whether the treaty survives Wyoming’s statehood. There is case law indicating that the treaty did not survive, but there is subsequent case law calling those holdings into question. If the Court decides that the treaty remains in operation, the next issue is whether the land in the Bighorn National Forest constitutes “the unoccupied lands of the United States.” Check out SCOTUSblog, Time Magazine, Indian Country Today, and  Great Falls Tribune for more information on this case and the arguments presented by both sides.

Also on January 8 the Court considered what someone has to do before filing a copyright infringement lawsuit in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Although copyright owners do not have to register with the Copyright Office to have rights, registration is a prerequisite to filing an infringement suit. When the plaintiff in this case filed its lawsuit for copyright infringement, it had only filed an application to register its potentially infringed copyrights but the copyright office had not yet registered the claims. Therefore, the issue is whether the registration of a copyright claim is complete when the copyright holder “delivers the required application, fees, and materials to the copyright office” or if it is complete only when the copyright office has approved the application. Check out the Trademark and Copyright Law Blog and World Intellectual Property Review for commentary on how the Court’s decision could impact copyright owners.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

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