Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/16

12 (internal quotation marks omitted).

The Court added, in light of the Yakamas’ understanding in respect to the reservation of fishing rights, the treaty words “in common with” do not limit the reservation’s scope to a right against discrimination. Winans, 198 U. S., at 380–381. Instead, as we explained in Tulee, Winans held that “Article III [of the treaty] conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places’ in the ceded area.” Tulee, 315 U. S., at 684 (citing Winans, 198 U. S. 371; emphasis added). Also compare, e. g., Fishing Vessel, 443 U. S., at 677, n. 22 (“Whatever opportunities the treaties assure Indians with respect to fish are admittedly not ‘equal’ to, but are to some extent greater than, those afforded other citizens” (emphasis added)), with post, at 4 (, dissenting) (citing this same footnote in Fishing Vessel as support for the argument that the treaty guarantees the Yakamas only a right against discrimination). Construing the treaty as giving the Yakamas only antidiscrimination rights, rights that any inhabitant of the territory would have, would amount to “an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” Winans, 198 U. S., at 380.

Second, the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution. See App. to Pet. for Cert. 33a; App. 56a–74a. When the United States and the Yakamas negotiated the treaty, both sides emphasized that the Yakamas needed to protect their freedom to travel so that they could continue to fish, to hunt, to gather food, and to trade. App. 65a–66a. The Yakamas maintained fisheries on the Columbia River, following the salmon runs as the fish moved through Yakama territory. Id., at 62a–63a. The Yakamas traveled to the nearby plains region to hunt buffalo. Id., at 61a.