we'll hear argument first this morning in case seventeen five thirty two herrera versus wyoming mr hicks thank you mr chief justice and may please the court in eight hundred sixty eight the crow tribe of indians agreed to cede to the united states thirty million acres of its aboriginal land and move to a reservation in exchange for seeding its land the tribe expressly reserve the right to hunt on that ceded land the text of the hundred sixty eight treaty memorializing this agreement explicitly identifies the four events that would cause the hunting right to terminate wyoming's admission to the union is not among them therefore the only way that wyoming statehood could have terminated the hunting right is by implication but that is the very theory that this court repeatedly rejected in minnesota v neal lack band of chippewa indians and while the treaty does provide that the right would terminate if the lands were no longer an occupied president cleveland's eight hundred ninety seven proclamation creating the big horn national forest did not suddenly render all one point one million acres of the land comprising the forest occupied as the parties to the treaty understood that term as a result the treaty right has not terminated and petitioner should have been permitted to invoke that right during his criminal prosecution for hunting in the big or national forest before this court footing doctrine to its characters ation of treaty rights as temporary and precarious to its belief that even if you are right about race horse why isn't your client bound by the judgment of the tenth circuit in reps  and in particular its disposition of the question whether the land is occupied justice alito a few responses for that first of all the the  of whether the tenth circuit alternative determination has precludes of effect was not pressed or passed on below there is nothing in the decisions of the state courts that address that precludes of effect of that alternative determination and this court typically does not address questions from state courts that have not been pressed or passed so that that would be available to the state to argue on remand if you were to prevail on the other issues well i think that the the state has likely forfeited that as a matter of state law but i also think that there are other reasons why an exception to preclusion would not apply i mean for what's your best reason primarily it's that the tribe did not have a full and fair opportunity to litigate this issue wraps this because it was not raised in the rep's us district court it was raised for the first time in the court of appeals and the court of appeals determination in the first instance was not only one of several alternative determinations it wasn't subject to plain area appellate review of those are several reasons the there was not a fair opportunity to raise the issue in the tenth circuit well i think that there was not the full and fair opportunity to litigate that question that that this court requires before it is why not why not in the tenth circuit why did they have a fair and a full and fair opportunity in the tenth circuit well to begin with i don't know if they didn't allow briefs they didn't allow arguments and want to listen to anything that that the tribe had to say well primarily because this particular argument that the creation of the national forest in and of itself render the entire land occupied so that the treaty right was terminated was i believe one page of wyoming's response brief in on an issue that was never raised in the district court and so the only thing that the tribe had to respond to that was a limited space in a reply brief where it had to respond to all of the other arguments that wyoming had made principally on the issue that determination among them that it was forfeited among them that it was not a full and fair opportunity so that it qualifies for that exception but also that that particular determination in the first instance was not subject to the plain area public review that if if your primary argument is that it was forfeited and i think you have some good grounds for thinking that but given that that is a state law matter why wouldn't we be manned to the wyoming courts to decide that forfeiture question well because i think typically what th does when the an issue has not been raised or pressed on below is it is it doesn't allow the consideration of it here so i don't think there's any reason to remain for consideration of that in the first instance but i think you can go on to address not ever raise this as a ground for why there should be precludes of the fact given to anything in the reps this litigation both tell you what troubles me about your position here and your argument that we should decide these issue preclu involving a misdemeanor criminal conviction well just leo i think those are actually good reasons to find that there are you can apply the well established exceptions i mean i don't know how that's based on well i don't know that they are well established  exception that when a judgment is raise is based on two alternative grounds it's not there's no issue preclusion on either grounds that's well established has not been rejected by six circuits now you're on or that is incorrect actually if you look at the footnote in our reply brief seven circuits have actually accepted the restatements rule i know that the state's brief well what we haven't accepted it have we know this court has not addressed it but it actually goes part and parcel with what this court has said about the the critical importance of giving  review to determine eight minutes as seems to me like a significant question and i was underwhelmed by the reasons given in the comment to the provision of the restatement on this question well i think that at first i didn't first reason they really the court may not have seriously you know the court may not have been accurate in saying each one is independently sufficient if you find that you find that to be a particularly strong argument well i think that it's a it's an exception that applies in narrow circumstances you have to have an alternative determination decided in the first instance and i think that frankly the potential decision here proves the policy underlying it i mean i don't there's not a great defense of the ten circuits germination on the merits and i think that's demonstrated by the fact that there was such limited briefing that the only raised in the tenth circuit in one page of briefing the tribe only had a very limited amount of its reply brief so i think when you combine  policies underlying the full and fair opportunity in addition to the fact that it's an alternative determination in the first instance i think the tenth circuit is determination is demonstrating why the restatement exception exists and again that i mean it's a little curious that no i don't wish to fault my own course but the tenth circuit decided that the land was occupied by the federal government as an alternative holding without hearing from the federal government who now disclaims the idea that they occupy the territory so i take your point but do we have to get into any of this issue preclusion and stuff it all it's this issue wasn't raised by the district passed on by the district court relied on by the district court in this proceeding why should we in mesh ourselves and the excellent wyoming wall of issue preclusion well just courses i don't think you need to get into that i think you can advance to the merits and decide the merits questions before you let's do that i would be happy to do that because you know if you go back to this court's decision in neil x and you look at the reasoning that this court put forward for the for what constitutes terminations of indian treaty right in that in that decision we did not overrule race horse we said that race wars meant that statehood did not automatically terminate the prior treaty right automatically put that certain language in the race horse treaty was still sufficient to terminate the treaty right and the language in the race horse treaty is the exact same language at issue in but i think that you didn't reject all of the legal reasoning that led to the liberation horse results i mean you rejected the equal footing doctrine holding you rejected the temporary precarious approach to characterizing treaty rights which was a premise of the second starting around we concluded that it was a question of congressional intent whether the treaty right was terminated by statehood and we concluded that the language the right to hunt on unoccupied lands of the united states was the relevant treaty language was terminated by wyoming statehood correct i think you concluded that in re source and it has preserved explicitly preserves on page two zero seven of the mill lax opinion that part is not over rules and my question is if that part of racehorse was not overruled but was explicitly preserved and in fact distinguished from the chippewa treaty how can we in this case not apply the same result that was applied in racehorse with the exact same treaty language which part of the reasoning is wrong there are a couple of responses first of all i don't know that you would be applying at the results of a prior case i think you apply your reasoning and i think that the reasoning that you adopted in the race horse in mill x was that you did not except this idea that that simply characterizing a treaty right as temporary precarious such that it could be impliedly terminated by statehood and i recognize that to decide english we said that there were we said unlike the treaty at issue in resource right and then we said there was a clearly contemplated event in racehorse on like even in the mill x treaty and they clearly contemplated of that was the language said hunting on the unoccupied lands the united states that that was terminated by statehood i don't know i don't actually think that you actually went on and said that that particular language was terminated by stated you recognize the holding that congress did not intend for that particular treaty rights to survive statehood but then you went on when you when you distinguished that particular treaty the racehorse treaty you actually distinguished it by laws to the tribe it is shewn resource i think that if if the tribe in racehorse were here i think that it would have to be arguing that you express explicitly overrule it but i don't think you need to do that here i think we'll go back to judge  question the language is nearly identical wouldn't we have to say that resources over who to come to a different conclusion how would we distinguish the two well i think i think that you simply need to apply the reasoning that you set forth the new reasoning in meal x to this crow tribe treaty which has never been before at the court and now if that creates you know a bit of a situation where you've got the shoni bannock treaty that was interpreted using resource and so have commentators so should we just say it and you still haven't told me what factually is different between the two treaty provisions why cannot with distinguish them sufficient for us to say we're applying the new logic and this treaty provision fits that new logic plus it's different from race horse why you haven't filled in that blank shirt and i would say that you know first of all i think you'd be far more unusual not to apply your controlling precedent on indian treaty terminations terminations indian treaty rights to a treaty that has never been before this court simply because there is old reasoning to a treaty that has not been before the court but if you're looking for distinctions between the treaties of course this court has said including in the lax itself that you don't just look to the identical text of two treaties you look at the negotiations you look at the history you look at the post ratification history and as we've put forward in our brief there is nothing in either the text or the language is exactly the same so what's different about the intent well we don't know much about the negotiations or the history of the show any bennett treaty because that really wasn't addressed much in the racehorse decision but there are there are material distinctions between the history and the way that these treaties came about for example these two treaties that the racehorse treated the shoni bannock treaty and the crow tribe trade in the shoni bannock or on the complete other side of wyoming the treaty came about because of different conflicts with settlers the crow tribe is on the complete other side of wyoming it's nowhere near yellowstone national park which was something that racehorse court was looking at as well i mean there are material distinctions between the way that these two treaties came to be because of the different histories between the two but you haven't pointed anything really specific my concern just is just that if we end up with agreeing with you on the merits we'll have a result that the same treaty language creates two different results one for the shoni and statehood the treaty right and the other does not for this the cryo even though it's the exact same treaty language and i would like if we're going to reach that result to be able to  point to something and what is that something but just as common i think that if if there are different results there i think that's a consequence of the new reasoning that you set out in mill x and i think it would be far more unusual and i would lend my sword in iraq that would have been a reason on page two zero seven to say the racehorse decision is gone and that's not what we said we distinguished the treaty language and maybe we should have said it's gone but we did well i certainly think that if he gives you heartburn to have two different results because you're applying your latest legal reasoning i think you can take the extra step you did so in the limb back case that we that we cited in the son in case i mean these are examples where you know and in limbo actually says so that so that there may be no misunderstanding we here by and nothing your honor because there's there's no other state that has to that is operating under this is no other state aside from wyoming that has been free of recognizing indian treaty rights so that's not a consideration and there's been no suggestion or evidence that wyoming has ever relied on this particular resource treaty in the way that it has formulated its natural resource management or in the way they would still have the result that concerned justice kavanagh that under the exact same language the two different tribes are going to be treated differently but i think that's a consequence of the mill lax reasoning which is your most recent controlling precedent on interpret in the terminations of indian treaty rights if i can reserve my time please thank you counsel rule the government would be fine with that we would invite the court to overrule race wars i do want to make clear that in our view it's not necessary to take that extra step even though these two treaties have the same language this is a different treaty than the treaty that was before this court in resorts it governs a different tribe and different lands and so i think this court is still faced with the question even though the language is the same about whether to extend  there the government isn't going to be able to point to a difference in the history we just think race horse itself was wrong but i think the question is still should you extend that reasoning to a new context you know one of the one of the reasons you might want to extend it is this this interest in uniformity but i think it's important to ram remember that bet that uniform irrational just isn't going to work here to show any banach tribe which was the tribe involved in the racehorse decision has its reservation in idaho and the idaho supreme court and the ninth circuit for decades have said resource is already a dead letter why do you think resource wasn't overruled i think for the simple reason justice kagan that the resource treaty just wasn't before the court in milwaukee well it does try to distinguish it now i have to say i read that paragraph three times and i still really have no idea what it's talking about but it does try to distinguish it has the view that there are two kinds of rights and and some are two kinds of terminations points for a treaty and some are clearly contemplated and some aren't but it never tells you is how that distinction relates to the statehood question that's before us and that was before the mill lax but but it does there's something in its head about how these treaties are different and why that matters and i guess i'm looking to you to tell me what i don't understand about i think you're right just middle sentence and i think the paragraph but that's troubles all of us is a distinction between the eight hundred sixty eight treaty that was it issue in resource and the eight hundred thirty seven treaty that was the issue in milwaukee but number one i think it's important to read that sentence within the context of everything around it and i think everything around it makes clear that the rich reasoning and resource is no longer good even that sentence itself doesn't provide any affirmative reason why race horse was correct as you noted it's just a grounds for distinguishing race or so you couldn't look at that sentence and say race horse actually reached the right result in fact if you look at the terminating events that those two sentences themselves identify as terminating event under the treaty and resource statehood it isn't one of those either it focuses the text it focuses on whether the land is an occupied and still owned by united states that actually flows nicely from the beginning of that paragraph which says inquiry should be on the circumstances that the treaty itself identity i think read as a whole this paragraph is about what the proper focus of the inquiry should be for you are for the government you  walking a really thin tightrope here you're saying that in terms of whether the land is occupied it depends on the real question whether there are settlers there whether there are people there and yet you say when it comes to the big horn national forest park you say well maybe it's occupied if we the government say we don't want people coming on here it seems to me that the past has to be the same for the united states property at bighorn and for the other property in  wyoming i think that's right mr chief justice we're not asking that a different test be applied to the federal government are a test for whether land is occupied is whether that land has been settled now it can be settled and settled it can be simple point is big horn that you don't want that land settled and that's true by designating the land as a national forest the federal government has prevented private settlement what we're saying is that there are things the federal government can do just like private settlers can do that can result in the land being occupied we too can build buildings roads campsites recreate how much is enough i mean if you have a little you know a little shed for the ranger does that allow you to say well these you know hundred thousand acres are occupied no we wouldn't we wouldn't say that putting a shed in one place occupies that much land i think a good piece of guidance is our regulation which we said in our brief  which prohibits discharge of a firearm within one hundred fifty yards of a building or a home and so we would consider the if you occupy the land nobody can fire a gun you know it's one hundred fifty yards around  a campsite a building a residence or other occupied areas so we would we would take the development of the land as sort of the incurred point and then look around one hundred fifty yards and that would be the last just so i understand so one hundred fifty one yards mr herrera could take you know and one hundred correct i mean there has to be some line that we draw between land that's occupied and an occupied i think there is exploration of whether the land here was occupied at the same time though you or you point out that the district court didn't rely on the occupation as a basis for relying on the tenth circuit  i think i think the district court i think the state trial court in this case to be more precise did was open to having an evidentiary hearing from the get go and it was only after the state trial court determined the issue could be resolved as a matter of law but that of a denture hearing was cancelled so fun we could remain back but do we need to say anything about this at all oh no not at all i think the government was was was trying to be helpful and trying to formulate some sort of test and flesh that out i've got one more question for you that helps the government says that the state retains some conservation easement here that i don't know where it comes from but you tell us that such a thing exists  at the same time though the treaty says that the tribe is allowed to hunt on the land until the game or go on which seems to suggest that the white men can eliminate all the game but now you say indian cannot how can that be i think it goes back to the basis of the conservation and i says to the doctor and it is a gloss on treaty language that does not confer the exclusive right to hunt i don't or stand there in the tree were silent about the game but the treaty is express and it contemplates no conservation it contemplates the complete elimination of the game by the white man so if the white man gets to eliminate the game again counsel for the government how come the indian may not i think it just goes back to the fact that these treaties there are more or less written against the backdrop of states being able to exercise some conservation authority because the right is not exclusive i'm sorry regulations apply it depends on the type of federal land so here we're talking about a national forest land and by statute the state return retains jurisdiction over persons in this particular national focusing i just into bits of forest by forest and land by land to try it when you say we don't have to deal with the issue of whether it's occupied are you talking about the issue preclusion issue no i think that the way to deal with the issue preclu on issue your honor is is to conclude that that issue has been now raised their past that either it's been forfeited or that it can be pursued on remand the federal government would would not invite this court to address the actual pollution doctrines we agree that these issues are difficult and the circumstances of this case are particularly unusual because the alternative judgment that was inserted into the case by the tenth circuit and wraps as was done so  appellate level and not in the court of first instance and not even restatement section twenty seven addresses this precise instance so we we would caution the court against delving into these tricky preclusion issues we do think the issue is not  raised or dressed below i think the clearest place to look for this is page eleven of the state's supplemental brief addressing the issue preclusion in the courts below thank you coun this including the decision by this court in the locks merits and exception to this court's repeated command that once the appeals are over a final judgment binds the parties and they may not renew the same dispute in another forum rep ruled that this particular treaty right had expired and this court should not on collateral review allow it to spring back especially as when you look at the decision in the locks the locks went out of its way not to law and this case is particularly ill suited to find such a change the tree text has not changed there are no essential facts that have changed because when one looks at the underlying case the district court never decided the can sort it just when its own wrote the thing in there and so you forfeited that way now in respect to the second and different question it's whether race horse bars we haven't said that you are free to bring a new issue only where the court has overruled the case that came against you we said you prefer bring in new and when there's a change in the applicable legal context ok so their argument there is there is a change in the applicable legal context no more an equal footing doctrine and you want to know more just become a state and you win ok that's a change in the applicable legal context since race whores relied on those two things now that's my understanding of the argument so either tell me i'm wrong and explain what the standings what the correct argument is or answer those points your honor at the there's not complete clarity within this court's jurisprudence as to what kind of a change in the legal context is sufficient some say you know stuff or chemical talks about a significant change or a major doctrinal shift the you know the language in bobby says just a change in the applicable law from from the states perspective if if any change to a precedent relied upon by a prior court either it's called into question by this quarter it's called into question by a court of appeals in some subsequent cases i sufficient to undo the precludes effect of the first opinion then i think there are very few cases that will have reclusive effect because in a one need only go through the opinion and say well this this case was cited by the court somewhere and by citing that case they must have relied upon it and boy look over here there there is there is another case that has that has questioned it not just any of it i think this isn't just any change i think a fair reading would suggest lacks did was to repudiate the reasoning that race horse had in it with respect to exactly the question before us and it's true that it did not go all the way to over ruling the case but it came up like half a step short of that it basically said the case was wrong and then it found some distinction that wasn't even relevant to the question and said we don't have to overrule it because there is this distinction but all of the reasoning is repudiated wouldn't you think wouldn't you say that that's right your honor the court did not overrule the approach to treaty interpretation it said the key is looking at what the intent of the parties is it reached a conclusion that that a court today might not reach it might reach a different conclusion but that argument that that the court should have said something different is is at root the argument that the court that that the that the decision was wrong which is to make this more concrete i mean as i understand it racehorse essentially said that these treaty rights expired upon statehood and mil lacks comes in and says that's a wrong thing to say treaty rights don't expire at pons statehood so that seems like a pretty relevant change in the law your honor there's there's there's one subtlety i think from the nineteenth century a lot of the twentieth century law that's being overlooked here and that bargain for consideration and so the racehorse court when it's looking at this treaty question is saying what was the intent of the parties and it reaches the conclusion that the intent of the parties was and this is restated from the locks that this was a  was clearly contemplated that this would be a temporary hunting right so long as the hunting grounds remained on occupied and owned by the united states and that that terminated at statehood now it was not terminated by it was not so much that the say that the holding of race horse or the reasoning that statehood automatically terminates treaty rights for awful preservation activities that's no longer good and then on the alternative holding as we characterized it from rachel ray source we say language that was present in racehorse which is identical to the treaty language in the quote the treaty with the crowes expresses an intent by the parties that the off reservation hunting right would terminate state you have this honor i don't see how you can get more opposite your honor on being up there are the critical question in this sort of goes to what the text of article four speaks of which was you and i may refer to race or several times not just because it's by a new president but also because it's the clearest evidence that we have before us of what nineteenth century thinkers thought the language met in other words it has a it has a historical value as well all of these decisions were made during the nineteenth century and the court in that case looked at the treaty text and said on occupied lands that could be construed broadly it could be construed narrowly but when construed in pari materia with the language of borders of the hunting districts it applies only to lands of such a character as would be embodied in hunting districts and the court read that as a term of art to it so that's wonderful tell me how  national park isn't a traditional hunting district i mean the government says we're not going to keep it an occupied they open it up to  the racehorse court looked at yellowstone national park and what the racehorse court said was right yellowstone national park was created almost immediately after the treaty with the crows was signed that the yellowstone national park is actually within the crow hunting district and the cross hunting district is a very large area but yellowstone national park which is an area the size of connecticut it's not just geysers was carved out of the hunting district and then the united states proceeded over the entire time beginning  through the eighty's in one thousand nine hundred to say to tribes you may not hunt this is off limits we have occupied this land now that doesn't mean that there are structures there but that the court that the  federal government's arrival and the federal government setting this land aside has the effect of occupying the land and that the tree the tribe does not require the treaty does not require only that the tribe refrain from hunting only on land where it can identify a structure can it can well i know i'm sorry but i know that women are interpret in the treaty we look at the background and circumstances in interpret in the language and but your arguments are pretty stark distinction occupied doesn't really have anything to do with hunting and yet you're sort of saying well when they said occupied they meant outside the hunting district and that's a bit of a stretch i know we try to look at the background to eliminate the language but here it seems to me you're just substituting an entirely different concept your honor i i think that the precise question is what did they mean by occupied and what put what what what was land what did land have to look like what your argument is you know what did they mean by cow and you're saying they meant horse two totally different concepts and i'm not i'm not sure that's what the state's argument is be but i think i think there are there are you know you can envision for example a piece of private land where there is no there are no structures and in that piece of private land there i think there's no question  affirms this that there would be no right to hunt on that piece of private land even though it looks like nothing it looks like a vast expanse of nothing and so then the question is when the government has a specific purpose for which it reserves land and the government has done so and did so throughout the nineteenth century in terms of military reservations for forts which is a larger portion of land than just the fort itself as well as public reservations which would be either the national forest or the national parks the government has said not not that this land is an occupied but rather we occupy this land this is our land we dictate who comes in who comes out what they're allowed to do while they're there this we have we have taken this land over in managing in a completely different way from from the from the state's perspective it's one of the reasons why we're not concerned about some of the questions of whether mr herrera it whether the united states could solve this another way in other words this is a fat a national forest the current regulations for the national forests say you can only hunt in the national forest if you have either permission from the force superintendent or you're hunting in conjunction with the state memorandum of understanding the state memorandum of understanding for the big or national forest makes no reference whatsoever to hunting outside of wyoming's permitting regime now if the united states wants a different regime  its property the united states is free to provide that different regime and free to make distinctions and that's a can we return to an area where we might at least people and nail down some agreement  the law is sufficient to render issue preclusion in a political is a substantial change in the law it is is that the test you have this court use is that a change in the law would you require a formal overruling in so many words what is what is the state's understanding the appropriate test your honor from the state's perspective if that entire concept gives us a great deal of pause well from the state's perspective it needs to be a both a major doctrinal shift ok that's the test major doctrinal shift  if if i if i could that it you were you sound like your good sense to me when well your honor i wanted to explain one of the reasons why the state is so concerned about this concept of change in law especially in the context of true indian treaties and jurisdictional questions because i think the greatest reason for caution here is we have to eternal sovereigns the crow tribe will be here for ever as they have is that it creates the possibility that people that parties just lurk that they wait and wait and you know the doctor in that specific area of law may not change over ten or twenty or even one hundred years but when you have two parties that will continue to a state and if there is a reason three it's related the second along comes miller and it says reason one is no good we think the opposite reason to is no good we think the opposite reason three we think isn't any good either we think the opposite and therefore racehorse doesn't bind us oh there's possibly they should have added a fourth thing and therefore the words resource is overruled but the court if i can understand that i can wrap understand that better than you there are a lot of things to do every day and you have to write your opinions and you start putting in a word like overruled and some of your colleagues might think don't do it you don't know where you're getting said all we have to decide for this case is that race horse doesn't bind us ok so maybe we should resources of a route but the three big reasons now are the little reasons or big reasons i would say the equal footing doctrine is a major change to deny that i would say to deny that they lose it their territory when they come the state is a major change to say no that isn't so and therefore i thought maybe it fits within what you're talking about it has to be a fairly big deal in change sounds like a big deal and then you have another argument which is of course we'll get to rob it's not an occupied in there it's all more open but you have the  problem that the treaty is filled with out word on occupied seeming to mean not occupied by white settlers and not to the government thanks well the language in the treaty supporting that and are there any white settlers in that park no not one to my knowledge maybe there's a games keeper but say ok so that's how i'm understanding your case i thought i'd throw it out and now you say would you would  and there the the question for for this court of course not just race horse but what reps assess your honor and reps is does not rely at all on the equal footing doctrine rep's as mentions that there is an equal footing doctrine and drives right past it it does not say that as a on the basis of the equal footing doctrine that that the treaty with the crows hunting right has expired instead it looks to what did what does the treaty mean and the treaty was when one looks at me a locks does not question or even overrule that approach to treaty interpretation it says statehood does not independent of whatever the treaty text says in whatever the treaty means automatically the decision is it rests on the conclusion that an occupied lands must be of the character of the lands denominated as hunting districts and that hunting districts were a specific kind of land understood the federal government correct it wasn't so much grants and not indians came into an area and then used it and then under the homestead act they would file for patents with the general land office allowing them to turn certain amounts of who  ran the general land on the united states so if the united states had changed the general land office to some other method which they have that terminated the treaty i  think that if what you're asking is are there on occupied lands within the meaning of the treaty anymore within the state of wyoming that the that that's that's what the decision about the race horse and in reps is concluded that those those how have disappeared there they no longer exist within the state of wyoming can i ask about the practical consequences of the decision because it's just as course it said to the opposing counsel you there is still preserved in the case is a right in th state to regulate in the interest of conservation and what doesn't that mitigate and maybe solve the concern that you talk about with the state existing forever in the tribe existing forever where they can co exist our case law says is the state still retains a right to regulate in the interests of conservation why isn't that good good enough your honor conservation is knesset its destiny is not a middle ground from the state's perspective in the chief reason it's because the law enforcement officers who act don't know whether they have jurisdiction until after they have done so so so so in other words we have an officer out enforcing  either an area or in a certain in a certain circumstance and the question is he or she acts and then only after a period of litigation does does he actually find out that he had the authority i don't use i don't follow that  because if if we were to adopt approve of the conservation principle that the government urges and the american congress has to you would have your game wardens out and about  ensuring that people are not hunting during off season for example and if they're allowed to go on the forest land by agreement with the united states why then how would there be any ambiguity about their capacity to issue citations i'm just not clear about how litigation would be required to resolve that your honor leaving aside the question of whether there's agreement with the united states right that dogs they solves all problems but it's human that there is not agreement with united states we're solely acting as a as a matter of state all that all that's about rob you have without respect to this case right i mean either the government allows you to do that or it doesn't allow you to do that and this that has nothing to do with anything before us right the congress in this case has given the state the authority  ok so we put that one aside so again what ambiguity remains and in response to justice kevin the current the current vision of conservation a sesame which is not admittedly been decided by this court in any time any time recently of is a reverse preemption doctrine it's essentially that the state is pushed out of an area of traditional state concern and then it's on that the burden is upon the state to show that it has the need to come in and manage and and you and and only after sort of demonstrating at the end of it that this this particular activity be it out but it's not just a timing issue then because or is there some gap between what you want to regulate and what you can regulate under the conservation interest your honor there are significant gaps that can do what it would give me some examples so we can understand the practical consequences the most important your honor is safety hunting seasons are specifically limited in time that not only protects the wildlife but it has two effects beyond that it ensures that when people are recreating in the national forest or anywhere else outside of that time period there is no danger of individuals who are using firearms at that point have very very little justification for doing so since and so there are people and i'm one of them that won't take our children into the national forest during hunting season because they're just there are risks  there that that are that are that there are too much to overcome there are limits in terms of when you can fire your firearms it has to be at certain hours of the day there are requirements that if you are hunting you are wearing best so you're clearly visible to one another as well as to as well as to third parties beyond beyond sort of the immediate safety concerns which are not embodying conservationists s t d there are disease management concerns when when an individual takes an elk or a deer incarnate injunction with it with a state license the fish and game department will take a sample of that animal and use it to determine whether diseases like brucellosis which can be cops are caught both by wild game animals as well as by human beings are  e present there also isn't that covered by conservation your honor i don't i mean conservation assessed to be to my senses all i always been about ensuring that the game exists and preventing its extermination not the sort of his he doesn't disease interfere with that in some cases it can your honor and others you know the bison who have brucellosis they seem to be able to function just fine within their reproductive capacities it's domestic cattle that can in many other in the cases the language has been used the ordinary regulation is not for clothes which sometimes is the elaborated help safety environment for example and is there any reason looking at is the sort of extensive litigation that we have not yet engaged in but also what the united states suggests in its brief as sort of the approach that it would take to conservation assess a tea which suggests for example that different levels of of them there are you know there are you getting the other side in this discussion because the tribe has a subsistence right i know under the facts of this case you're claiming the killings were not for subsistence the open question and i'm not taking a side on that but assuming that the treaty right was given to to protect the indian subsistence rights and that their claim taking it at face value is accurate that they were on hard times and needed food to feed their families that balance is not yours alone to make it belongs to the government and it belongs to the indian tribes as well you're out of that's why the state has been so except accepting i mean it's true state does not resist the notion that as proprietor of the united states could come in and give all of the benefits that mr herrera seeks including subsistence hunting what what that what the advantage of that approach would be is that all of the questions that that sort of tale out of that when how but also subsistence subsistence for whom you know the question of hunting licenses being given to the tribe rather than under the current situation where you know the united states position as to the crow treaty was not made clear to the state of wyoming until the filing in this court in in support of a grant of the united states had had no role whatsoever in the reps litigation that we can find in fact i believe the united states declined to participate  all and so from from the state's perspective the absence of the federal government is is one of you know we would welcome the federal reserve all the ruling on the landing question here what is the extent of the federal government's regulatory authority and where does it come from  the federal government's regulatory authority come from the organic act that created the national forests there's a there's a gap there was there was a statute allowing creation of the national forest and then when they were reaffirmed in eight hundred ninety seven the so called our gammick act allows the federal  just do just about anything and the coastal california commission this court said it's plenary this and as does the government think that that abrogated the or that limited the treaty right and that the government's perspective is that it did not the states perspective is that it occupied by by taking will then will then how can the government i mean the government is just down by that by that bound by the treaty the government entered into the treaty right the government entered into the treaty yes two thousand there have to be a statute that indian treaty language all including the queen of the organic statutes so from the states perspective all of them represent not repeal of the hunting right but rather the federal government's occupation within the meaning of the hunting right thank you coun l mr hicks two minutes thank you mr chief justice just a few points first in response to the idea that we lack simply didn't change the approach i think that's wrong for all the reasons that justice brier and justice  identified but i want to go a little bit further than the sentence that you read just prior and it's the sentence on page two a seven to eight now earlier in the opinion the court had said we concluded that the particular rights in the racehorse treaty at issue there were not intended to survive statehood then on to a seven to eight the racehorse court's decision that indian treaty rights were imply they repealed by wyoming statehood was informed by that court's conclusion that the indian treaty rights were inconsistent with state sovereignty over natural resources and thus that congress could not have intended the rights to survive statehood and that's an important last phrase of that sentence because it's tying the entire race horse holding to this mistaken premise that indian treaty rights are irreconcilable with state sovereignty over natural resources i think that's a key sentence and i think frankly that kind of undercuts a lot of the idea that even the holding this second holding of racehorse is still viable again we don't think you need to take the next step to express resource but if you want to do that you can follow the roadmap that you have in lim back and sun and where you had almost exactly this situation second point is simply to this idea of the occupation and what occupied means everything  evidence and the historical evidence is that both parties to the treaty understood occupation to mean some sort of actual physical presence and nothing about simply a legal declaration that the federal government was going to do something and certainly under the indian canons of construction that's a reasonable reading that it is entitled to be given to the indians and the last point on conservation the sesame you know this discussion i think just demonstrates that if the court finds that the treaty right has is valid and has not been terminated wyoming still has the ability to regulate its its wildlife its natural resources simply according to the conservation assessor the standard like every other state already has to do thank you council the case is submitted