Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/3

Rh dence to establish that all land in Wyoming was functionally “occupied” by 1890, its arguments fall outside the question presented and are unpersuasive in any event. Pp. 13–17.

2. Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created. Construing the treaty’s terms as “ ‘they would naturally be understood by the Indians,’ ” Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 676, it is clear that the Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians. That interpretation follows from several cues in the treaty’s text. For example, the treaty made the hunting right contingent on peace “among the whites and Indians on the borders of the hunting districts,” 15 Stat. 650, thus contrasting the unoccupied hunting districts with areas of white settlement. Historical evidence confirms this reading of “unoccupied.” Wyoming’s counterarguments are unavailing. The Federal Government’s exercise of control and withdrawing of the forest lands from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would mining and logging of the forest lands prior to 1897 have caused the Tribe to view the Bighorn Mountains as occupied. Pp. 17–21.

3. This decision is limited in two ways. First, the Court holds that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation,” an issue not reached by the appellate court. The Court also does not address the viability of the State’s arguments on this issue. Pp. 21–22.

Vacated and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which GINSBURG, BREYER, KAGAN, and GORSUCH, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.