ON DENIAL OF PETITION FOR REHEARING
BAKES, Justice.Appellants, enrolled members of the Shoshone-Bannock Indian Tribe residing on the Fort Hall Reservation, appeal from a district court decision affirming a judgment of conviction entered by the magistrate court for misdemeanor game violations. Appellants assign as error the magistrate court’s denial of a motion to dismiss charges against them for violations of I.C. § 36-502(b), the possession of unlawfully taken or killed wildlife. The defendants admit the facts alleged by the state but urge as their sole defense the off-reservation hunting rights reserved by the Indians in the 1868 treaty at Fort Bridger between the Shoshone-Bannock Tribes and the United States Government. The magistrate court held that the hunting rights do not extend to the state-owned property on which the wildlife was killed, a wildlife management area known as the Sand Creek Ranch, and subsequently found the defendants guilty. The district court affirmed on appeal. We also affirm.
On November 10, 1978, officers of the Idaho Fish & Game Department patrolling on Sand Creek Ranch came upon four of the defendants with a pickup truck about 75 yards off the road. There were two elk in the back of the pickup and one elk on the ground. The defendants admitted killing the elk and were cited for being in possession of unlawfully taken wildlife. The defendants presented their Shoshone-Bannock Tribe enrollment cards, claiming treaty rights to hunt on the property. The officers located the kill sites which were on the Sand Creek Ranch property.
The other two defendants were given citations for possessing unlawfully killed wildlife on December 2, 1978. The officer observed a pickup and horse trailer on the Sand Creek Ranch property, and later two other defendants, who were approaching on horseback in the snow, were stopped and questioned. The defendants admitted to killing an elk and deer within the Sand Creek Ranch. The snow trails left by dragging the dead animals were followed back to the kill sites which were on property owned by the State of Idaho within the Sand Creek Ranch.
The misdemeanor charges were brought in the magistrate court of Fremont County. The defendants filed a motion to dismiss based on the Fort Bridger Treaty of 1868. That treaty which established the Fort Hall Indian Reservation states:
“Article 4. The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said *450reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.”
Numerous affidavits and documentary exhibits were submitted in support of the motion to dismiss. After considering all of the affidavits, exhibits and legal memoranda submitted by both parties, the magistrate thoroughly considered the treaty claim in a written memorandum which concluded that the place where the game animals were killed was not “unoccupied lands of the United States” within the meaning of the treaty, and the motion to dismiss was denied.
At the time of trial which was set for December 16, 1980, the defendants, after waiving a jury, filed a stipulation of facts signed by each of the defendants. The two-sentence stipulation first admitted that the defendants “did hunt upon state owned lands within the Sand Creek ranch portion of the Sand Creek Wild Life Management Area at the dates and times charged, and that they did possess elk and deer, as charged, upon such state owned lands during the state’s closed season.” In the second sentence the defendants “further renew their motion to dismiss the charges filed herein based upon the 1868 Treaty of Fort Bridger, as well as the affidavits, exhibits and legal memoranda previously submitted herein, and defendants continue to maintain that their hunting activities are immunized as a matter of law from any state prosecution by virtue of the 1868 treaty.” The state agreed to the stipulation, according to the recitals in the judgment of conviction, although there is nothing filed in the record on appeal to confirm this. Based upon the defendants' stipulation, the magistrate found the facts alleged in the criminal complaints to be true, judged each defendant guilty and, relying upon his previous order dated November 7, 1980, denied the motion to dismiss.1
The consolidated cases were appealed to the district court which denied a trial de novo and affirmed the judgments of conviction. In the present appeal the appellants have assigned no procedural error and assert only their treaty rights, claiming immunity from prosecution through the supremacy clause, U.S. Const. art. VI, cl. 2. The issue presented is whether the hunting rights reserved in the treaty extend to the property on which the animals were shot, *451which is operated by the Idaho Fish & Game Department as a wintering range for elk and deer.
We have found no cases which have considered the question of whether state lands constitute “unoccupied lands of the United States” in relation to the off-reservation Indian hunting rights. In State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972), it was uncontested, and the Court agreed with all parties, that the Challis National Forest owned by the federal government was “unoccupied lands of the United States.” A similar phrase of “open and unclaimed land” under the Nez Perce Treaty of 1855 was held to include the national forest lands. State v. Arthur, 74 Idaho 251, 261 P.2d 135, cert. den. 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087 (1953). Other cases have come to the same conclusion. See Confederated Tribes of the Umatilla Indian Reservation v. Maison, 262 F.Supp 871 (D.Or.1966), aff'd sub nom Holcomb v. Confederated Tribes, 382 F.2d 1013 (9th Cir.1967); State v. Stasso, 172 Mont. 242, 563 P.2d 562 (1977). The question of whether privately owned lands would be subject to the off-reservation Indian hunting rights retained in the 1868 Fort Bridger Treaty has never been litigated to our knowledge. However, in State v. Coffee, 97 Idaho 905, 556 P.2d 1185 (1976), we held that privately owned land outside an Indian reservation is not “open and unclaimed land” within the meaning of the hunting rights clause in the 1855 treaty of Hellgate. The Washington Supreme Court has also reached a similar result in construing the “open and unclaimed land” language of the 1855 Yakima Treaty. State v. Chambers, 81 Wash.2d 929, 506 P.2d 311 (1973). Other cases have considered treaty hunting rights relating to privately owned lands in different contexts. See United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905) (Indians allowed right of access over private lands in order to exercise fishing rights); Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975) (northern half of Colville Indian Reservation ceded to United States with Indians reserving absolute hunting rights); Kimball v. Callahan, 590 F.2d 768 (9th Cir.1979), cert. den. 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979)(Kalmath Indian hunting rights retained when reservation terminated extends to both public and private lands on former reservation). While it may be more likely that state or federally owned land is unsettled, unclaimed or unoccupied, the state or federal government is not necessarily foreclosed from using specific tracts of lands in such a manner that the signatory Indians to treaties would have understood the lands to be claimed, settled or occupied to the exclusion of their off-reservation hunting rights reserved under particular treaties. This rationale is consistent with a recent United States District Court for the Western District of Washington opinion in which it held that the treaty of Olympia with the Quinault Indians which reserved hunting rights on “open and unclaimed lands” did not extend to the Olympic National Park owned by the federal government. United States v. Hicks, 587 F.Supp. 1162 (W.D.Wash.1984). That court concluded that hunting was not a use compatible with the national park since the federal government prohibited all hunting within the park. However, none of the foregoing precedents are dispositive of the present case.
In resolving this issue we acknowledge that the interpretation of the Fort Bridger Treaty is a federal question and that the final arbiter of its meaning is the United States Supreme Court. In a prior opinion addressing the extent of the Shoshone-Bannock tribe’s timber and mineral rights to their reservation lands reserved under the Fort Bridger Treaty, the United States Supreme Court stated:
“The phrase ‘absolute and undisturbed use and occupation’ is to be read, with other parts of the document, having regard to the purpose of the arrangement made, the relation between the parties, and the settled policy of the United States fairly to deal with Indian tribes. In treaties made with them the United States seeks no advantage for itself; friendly and dependent Indians are likely *452to accept without discriminating scrutiny the terms proposed. They are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, but are to be construed in the sense in which naturally the Indians would understand them.” United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116, 58 S.Ct. 794, 797, 82 L.Ed. 1213 (1938).
We acknowledged this standard of construction in State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972), which held that the “right to hunt on unoccupied lands of the United States,” which was reserved in Article 4 of the Fort Bridger Treaty, included the “right to fish” on the national forest lands. In Tinno we stated, “Courts must interpret these treaties, differently than ordinary conveyances (citations omitted), keeping in mind the probable understanding of the Indians (citation omitted).” 94 Idaho at 763, 497 P.2d at 1390.
The present dispute centers on the meaning of the words “unoccupied lands of the United States” as used in Article 4 of the treaty. The phrase at issue must be read consistently “with other parts of the document having regard to the purpose of the arrangement made,” United States v. Shoshone Tribe of Indians, 304 U.S. at 116, 58 S.Ct. at 797. Article 2 of the treaty describes a tract of land in the millions of acres to be set aside for the “occupation of the Shoshonee Indians” (emphasis added), estimated from the evidence to be merely 1,500 individuals in 1867. Under the treaty a relatively few Indians were to “occupy” millions of acres of land within the meaning of the treaty, which suggests that the signatory Indians’ understanding would not necessarily require actual physical presence or use to change land from an “unoccupied” to an occupied status. The extrinsic evidence reveals that the tribal leaders had visited federal military outposts and settlements in the northwest, including Fort Bridger, Fort Laramie, and Salt Lake City, and from those settlements undoubtedly understood that a governmental unit could “occupy” lands within the meaning of the treaty. Therefore, the mere fact that the State of Idaho owns the ranch and no one physically resides on the property year round does not necessarily mean that Sand Creek Ranch is “unoccupied lands.”
In reference to the phrase “lands of the United States,” the magistrate court held this issue need not be decided, but the district court on appeal seemed to imply that unless the lands were owned by the federal government the lands could not be subject to the treaty hunting rights. There is nothing in the treaty or extrinsic evidence which would indicate that the signatory Indians had an understanding of the difference between the state and federal governments. It was their probable understanding that the “white man’s” government was all one unit since there were no state governments within the area in 1868. Therefore, the mere fact that the state owns and controls the Sand Creek Ranch, as opposed to the federal government, does not necessarily mean that the ranch falls outside the meaning of the phrase “lands of the United States.”
Since the foregoing conclusions do not dispose of this casé, we must now look to the specific facts of the case to determine whether the Sand Creek Ranch is subject to the off-reservation treaty hunting rights. On July 3, 1868, the Indian leaders and the United States government officials met at Fort Bridger to negotiate the treaty. At this meeting General Auger of the United States government explained the treaty to the Indian chiefs. His explanation included the following statements:
“There are a great many white men in your country now, and as soon as the railroad is completed there will be many more. They will wish to remain and make their homes here, and your great father desires that they should do so, and he will make the same arrangements for acquiring such title as you have to this country as the commission has heretofore made with other Indian tribes. He wishes, however, to set apart a portion of it for your permanent homes, and into *453which no white man will be permitted to come or settle. Upon this reservation he wishes you to go with all your people as soon as possible, and to make it your permanent home, but with permission to hunt wherever you can find game. In a few years the game will become scarce, and you will not find sufficient to support your people. You will then have to live in some other way than by hunting and fishing. He wishes you therefore to go to this reservation now, and commence to grow wheat and com, and raise cattle and horses, so that when the game is gone you will be prepared to live independently of it.”
Chief Washakie of the Shoshones gave a response which demonstrated his approval of the treaty. He indicated that he understood the railroad and many more white men were coming. His only comment relevant to the reserved hunting rights term was “[I] want the privilege of going over the mountains to hunt where I please.” The historian Grace Raymond Hebard has stated the following conclusion about the understanding of Chief Washakie concerning hunting:
“Though born and reared a nomad and doubtless a passionate lover of the free life of the wild, he had the wisdom to see that the old days were doomed; that with the oncoming of the whites, game would disappear and that his people would be compelled to make their living by more settled modes of labor than the chase. He was doubtless the first among them to favor schools and other facilities for learning the white man’s ways of life. Peacefully and without noted incident he brought his reluctant people into the new era.” Washakie, Hebard, p. 23 (1930).
Chief Taghee of the Bannocks did not respond substantively to General Auger’s explanation on July 3, 1868. However, during negotiations on a previous unratified treaty in Soda Springs, Idaho, in 1867, Chief Taghee stated:
“I am willing to go upon a reservation, but I want the privilege of hunting the buffalo for few years. When they are. all gone far away we hunt no more; perhaps one year, perhaps two or three years; then we stay on the reservation all the time.”2 The Bannock of Idaho, Madsen, p. 160 (1958).
It is apparent from the record that the signatory Indians understood that their off-reservation hunting rights reserved in the treaty were not absolute and would diminish with the increased occupation of the lands and the decrease in available game.
Now we focus on the specific facts surrounding the Sand Creek Ranch. The bulk of the land comprising the Sand Creek Ranch was conveyed to many private individuals through separate United States patents from 1904 to 1934. The record does not disclose what use each of these individuals made of the property. By 1944, all the land was consolidated into ownership of Edgar Chapman who raised grain and hay for the benefit of his cattle operation on the property. Chapman maintained fences, outbuildings and a residence on the ranch. Herds of elk which migrated to the area for the winters conflicted with Chapman’s cattle operation. Since Chapman could not keep the elk from eating the cattle’s winter feed and overgrazing the pastures, he applied for, but was refused, special permits to shoot elk in order to drive them from the area. He also demanded payment for his losses to the wintering elk. It became apparent to the Fish & Game Department that the only way to preserve the elk herds was to purchase the property. The purchase was completed with partial federal funding and the property has since been maintained by the Fish & Game Department for the benefit of the wintering elk, deer and moose.3
*454Sand Creek Ranch is completely enclosed with fences, some of which are a “letdown” type which are lowered prior to winter and raised in the spring in order not to obstruct the natural routes of elk migrating to and from their summer grounds. The department has continued to raise grain on the ranch and has increased the number of buildings, although none is used as a year round residence. Water projects have been constructed on the ranch for the benefit of the wildlife. The grasses on the grazing areas are monitored, encouraged and protected from noxious weeds, all for the benefit of the wildlife, primarily elk, feeding through the winter. All entrances to the ranch are posted with signs designating the ranch as an “Idaho Fish & Game Wildlife Management Area.”
There seems to be no question that prior to the state’s purchase in 1947, when the Sand Creek Ranch was owned either by the Chapmans or their numerous predecessors, these lands were not “unoccupied lands of the United States” within the meaning of the treaty. Cf. State v. Coffee, 97 Idaho 905, 914, 556 P.2d 1185, 1194 (1976) (“land which is privately owned is not open and unclaimed”). Through the indicia of occupancy, i.e., cattle, fences, cultivated fields, and buildings, the signatory Indians would have understood these lands to be occupied by the private settlers to the exclusion of their hunting rights. The mere fact that this ranch was transferred to state ownership should not change its classification under the treaty. The state continued to operate the ranch in a manner paralleling the operation of a cattle ranch. While one indicium of occupancy, the cattle, was removed after title was transferred, other indicia of occupancy were added, such as continuous fences, signs, buildings, machinery, water projects, cattle guards, roads and campgrounds. While we do not base our opinion solely on the presence of indicia of occupancy, nevertheless the indicia of occupancy are strong in this case. Each ease must be evaluated on its peculiar facts to determine whether the off-reservation hunting rights reserved in the 1868 Fort Bridger Treaty extend to the specific lands.
From the above analysis we affirm the trial court’s conclusion that the game violations in this case did not occur on “unoccupied lands of the United States” within the meaning of the 1868 Fort Bridger Treaty. This holding is based on a combination of the following factors: (1) the Indians understood that lands could be occupied without actual physical presence or use, and that such occupancy could be by a governmental entity; (2) they also understood their off-reservation hunting rights would diminish with time; (3) the Sand Creek Ranch was acquired from a private party who operated it as a cattle ranch which clearly was not subject to the hunting rights; (4) the state continued to operate the ranch without a significant change, but merely changed the benefitting livestock from cattle to elk.
The appellants argue that the state itself allows hunting within the Sand Creek Ranch, implying that the Indians’ hunting rights are not incompatible with whatever use the state is making of the ranch. The evidence shows that a controlled elk hunt from September 27 to October 8, 1978, issued 75 permits for all of Unit 60 which includes the Sand Creek Ranch. The department also allowed a five day general hunt in Unit 60 for deer and antlered elk from October 11 to October 15, 1978. This argument becomes less compelling, however, when one realizes that during the days of the regular hunting seasons there were very few, if any, elk and deer on the Sand Creek Ranch. The “project statement” and “policy plan” of the Idaho Department of Fish & Game indicated that grain fields are located so as not to attract the herds “onto the winter range too early” in order to preserve the wintering range feed. The herds do not migrate to or gather in the Sand Creek area until “late fall” *455or “early winter.” The herds spend their summers and early falls in other areas of Unit 60 which includes thousands of acres of unoccupied national forest lands. The state’s limited consent to allow hunting on the Sand Creek Ranch during limited times parallels the right of a private owner to grant or withhold consent for any hunting on privately owned land. Once a party has “occupied” the lands, it would seem that the owner, whether it is the government or a private party, could grant a limited right to hunt on the lands without waiving its right to withhold consent at times when hunting is inconsistent with its use of the lands. The act of killing elk during the winter would seem to be the ultimate inconsistent act with the state’s use of the Sand Creek Ranch in preserving and protecting the wintering elk herds. Cf. United States v. Hicks, 587 F.Supp. 1162 (W.D.Wash.1984).
The defendants argue that because the Sand Creek Ranch purchase and maintenance has been partially funded by the federal government, and because the federal government must approve any disposition of the lands, the Sand Creek Ranch is under the ultimate supervision and control of the federal government and is indistinguishable from the national forest lands. Our determination is based on whether this land is occupied, not on a distinction between federal and state owned land. However, we can find no authority and the record contains no evidence for the proposition that the federal government could not “occupy” lands to the exclusion of the off-reservation hunting rights retained in the 1868 Fort Bridger Treaty. The Hicks case previously cited suggests otherwise.
The state has cross appealed from the magistrate court’s refusal to strike portions of a certain affidavit. The affidavit, submitted by defendants, was the expert testimony of an anthropologist familiar with the history of the Shoshone and Bannock Tribes. The state claimed he was unqualified to render an opinion concerning the Fort Bridger Treaty. Our disposition of this case makes it unnecessary to rule on the state’s cross appeal.
Affirmed.
DONALDSON, C.J., and SHEPARD, J., concur.. Although the only written stipulation of facts in the record is the two-sentence stipulation signed by each of the defendants in this matter, it is apparent from a review of the entire record that the trial court considered all of the affidavits, exhibits and memoranda submitted by the parties as being part of the stipulated record upon which the trial court based its decision. In its lengthy opinion denying the motion to dismiss, dated November 7, 1980, a month before trial, which the trial court incorporated into the judgment of conviction entered December 17,' 1980, the court recites facts and argument from all of the documentary material furnished by both sides. In its brief in support of an earlier motion to dismiss, the appellants had argued that “in making these legal determinations, the court is empowered to examine relevant historical and contemporary facts as well as the opinions of qualified experts” via affidavits and exhibits. Although the various affidavits, exhibits, and memoranda have filing stamps on them indicating that they were filed at various times throughout these proceedings, none of the documentary evidence has any markings indicating that they were marked for identification, offered or admitted into evidence. The trial minutes also do not reflect any offers or admittances into evidence of any documents.
At the end of the clerk's transcript filed in the Supreme Court is a certificate dated October 28, 1982, made nearly two years after trial, in which a deputy clerk certifies "that the foregoing exhibits were marked for identification and offered in evidence, admitted and used and considered by the court in its determination at a hearing on December 16, 1980.” (Emphasis added.) However, in the subsequent list of exhibits, some are listed as "admitted," some as "marked for identification," and some as “offered.” While one might view the clerk's certificate of exhibits on appeal as internally inconsistent, it is apparent that the magistrate’s November 7, 1980, opinion denying the motion to dismiss, and the December 17, 1980, judgment of conviction incorporating the November 7, 1980, opinion were based upon all of the documentary evidence submitted by both parties.
. Defendants argue that this quote is irrelevant to construing the Fort Bridger Treaty. We disagree. It is relevant in that it is historical circumstantial evidence of Chief Taghee's understanding of reserved hunting rights under a proposed treaty closely related both in time and purpose to the Fort Bridger Treaty.
. In 1951, 1000 acres of federal land which was interspersed throughout the ranch were removed from the federal public land laws, and *454the Idaho Fish & Game Department was granted exclusive use of the 1000 acres as an "elk refuge." Public Order 742, U.S. Dept, of Interior (1951). The game violations in the present case occurred on state-owned, not federally-owned ground.