Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/28

6 and the Yakama Nation of Indians, Art. III, June 9, 1855, 12 Stat. 953 (emphasis added). Initially, some suggested this guaranteed tribal members only the right to fish according to the same regulations and subject to the same fees as non-Indians. But long ago this Court refused to impose such an “impotent” construction on the treaty. United States v. Winans, 198 U. S. 371, 380 (1905). Instead, the Court held that the treaty language prohibited state officials from imposing many nondiscriminatory fees and regulations on tribal members. While such laws “may be both convenient and, in [their] general impact, fair,” this Court observed, they act “upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Tulee v. Washington, 315 U. S. 681, 685 (1942). Interpreting the same treaty right in Winans, we held that, despite arguments otherwise, “the phrase ‘in common with citizens of the Territory’ ” confers “upon the Yak[a]mas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places.’ ” Tulee, 315 U. S., at 684 (citing Winans, 198 U. S., at 371; emphasis added). Today, we simply recognize that the same language should yield the same result.

With its primary argument now having failed, the State encourages us to labor through a series of backups. It begins by pointing out that the treaty speaks of allowing the Tribe “free access” from local roads to the public highways, but indicates that tribal members are to use those highways “in common with” non-Indians. On the State’s account, these different linguistic formulations must be given different meanings. And the difference the State proposes? No surprise: It encourages us to read the former language as allowing goods to be moved tax-free along local roads to the highways but the latter language as authorizing taxes on the Yakamas’ goods once they arrive there. See also post, at 3 (, dissenting).