Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/45

2  highway regulation. For that reason as well, the fuel tax does not infringe the Tribe’s treaty right to travel on the public highways on equal terms with other U. S. citizens.

The plurality, as well as the concurrence in the judgment, suggests that the treaty, if construed that way, would not have been important to the Yakamas. For that reason, the plurality and the concurrence would not adhere to that textual meaning and would interpret “in common with” other U. S. citizens to mean, in essence, “exempt from regulations that apply to” other U. S. citizens.

I respectfully disagree with that analysis. The treaty right to travel on the public highways “in common with”–that is, on equal terms with–other U. S. citizens was important to the Yakama tribal members at the time the treaty was signed. That is because, as of 1855, States and the Federal Government sometimes required tribal members to seek permission before leaving their reservations or even prohibited tribal members from leaving their reservations altogether. See, e. g., Treaty Between the United States of America and the Utah Indians, Art. VII, Dec. 30, 1849, 9 Stat 985; Mo. Rev. Stat., ch. 80, §10 (1845). The Yakamas needed to travel to sell their goods and trade for other goods. As a result, those kinds of laws would have devastated the Yakamas’ way of life. Importantly, the terms of the 1855 treaty made crystal clear that those kinds of travel restrictions could not be imposed on the Yakamas.

In particular, the treaty afforded Yakama tribal members two relevant rights. First was “free access” on roads from the reservation to “the nearest public highway.” Art. III, 12 Stat. 953. Second was a right to travel “in common with” other U. S. citizens on “all public highways.” Ibid. The right to free access from the reservation to public highways, combined with the right to travel off