Wednesday, December 02, 2020


Article Index


[15] [16] [17]We turn next to the question whether the 1868 Treaty right, even if still valid after Wyoming’s statehood, does not protect hunting in Bighorn National Forest because the forest lands are “occupied.” We agree with Herrera and the United States that Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created. 5

*11 [18]Treaty analysis begins with the text, and treaty terms are construed as “ ‘they would naturally be understood by the Indians.’ ” Fishing Vessel Assn., 443 U. S., at 676. Here it is clear that the Crow Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians.

That interpretation follows first and foremost from several cues in the treaty’s text. For example, Article IV of the 1868 Treaty made the hunting right contingent on peace “among the whites and Indians on the borders of the hunting districts,” thus contrasting the unoccupied hunting districts with areas of white settlement. 15 Stat. 650. The treaty elsewhere used the word “occupation” to refer to the Tribe’s residence inside the reservation boundaries, and referred to the Tribe members as “settlers” on the new reservation. Arts. II, VI, id., at 650–651. The treaty also juxtaposed occupation and settlement by stating that the Tribe was to make “no permanent settlement” other than on the new reservation, but could hunt on the “unoccupied lands” of the United States. Art. IV, id., at 650. Contemporaneous definitions further support a link between occupation and settlement. See W. Anderson, A Dictionary of Law 725 (1889) (defining “occupy” as “[t]o hold in possession; to hold or keep for use” and noting that the word “[i]mplies actual use, possession or cultivation by a particular person”); id., at 944 (defining “settle” as “[t]o establish one’s self upon; to occupy, reside upon”).

Historical evidence confirms this reading of the word “unoccupied.” At the treaty negotiations, Commissioner Taylor commented that “settlements ha[d] been made upon [Crow Tribe] lands” and that “white people [were] rapidly increasing and ... occupying all the valuable lands.” Proceedings 86. It was against this backdrop of white settlement that the United States proposed to buy “the right to use and settle” the ceded lands, retaining for the Tribe the right to hunt. Ibid. A few years after the 1868 Treaty signing, a leader of the Board of Indian Commissioners confirmed the connection between occupation and settlement, explaining that the 1868 Treaty permitted the Crow Tribe to hunt in an area “as long as there are any buffalo, and as long as the white men are not [in that area] with farms.” Dept. of Interior, Ann. Rep. of the Comm’r of Indian Affairs 500.

Given the tie between the term “unoccupied” and a lack of non-Indian settlement, it is clear that President Cleveland’s proclamation creating Bighorn National Forest did not “occupy” that area within the treaty’s meaning. To the contrary, the President “reserved” the lands “from entry or settlement.” Presidential Proclamation No. 30, 29 Stat. 909. The proclamation gave “[w]arning ... to all persons not to enter or make settlement upon the tract of land reserved by th[e] proclamation.” Id., at 910. If anything, this reservation made Bighorn National Forest more hospitable, not less, to the Crow Tribe’s exercise of the 1868 Treaty right.

Wyoming’s counterarguments are unavailing. The State first asserts that the forest became occupied through the Federal Government’s “exercise of dominion and control” over the forest territory, including federal regulation of those lands. Brief for Respondent 56–60. But as explained, the treaty’s text and the historical record suggest that the phrase “unoccupied lands” had a specific meaning to the Crow Tribe: lack of settlement. The proclamation of a forest reserve withdrawing land from settlement would not categorically transform the territory into an area resided on or settled by non-Indians; quite the opposite. Nor would the restrictions on hunting in national forests that Wyoming cites. See Appropriations Act of 1899, ch. 424, 30 Stat. 1095; 36 CFR §§ 241.2, 241.3 (Supp. 1941); § 261.10(d)(1) (2018).

*12 [19]Wyoming also claims that exploitative mining and logging of the forest lands prior to 1897 would have caused the Crow Tribe to view the Bighorn Mountains as occupied. But the presence of mining and logging operations did not amount to settlement of the sort that the Tribe would have understood as rendering the forest occupied. In fact, the historical source on which Wyoming primarily relies indicates that there was “very little” settlement of Bighorn National Forest around the time the forest was created. Dept. of Interior, Nineteenth Ann. Rep. of the U. S. Geological Survey 167 (1898).

Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty.


Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law