Gorsuch, J., concurring in judgement
not imply that the Indian use [would] be in any way restricted.” Yakama Indian Nation, 955 F. Supp., at 1265. In fact, “[i]n the Yakama language, the term ‘in common with’… suggest[ed] public use or general use without restriction.” Ibid. So “[t]he most the Indians would have understood… of the term[s] ‘in common with’ and ‘public’ was that they would share the use of the road with whites.” Ibid. Significantly, there is “no evidence [to] sugges[t] that the term ‘in common with’ placed Indians in the same category as non-Indians with respect to any tax or fee the latter must bear with respect to public roads.” Id., at 1247. Instead, the evidence suggests that the Yakamas understood the right-to-travel provision to provide them “with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.” Id., at 1262.
Applying these factual findings to our case requires a ruling for the Yakamas. As the Washington Supreme Court recognized, the treaty’s terms permit regulations that allow the Yakamas and non-Indians to share the road in common and travel along it safely together. But they do not permit encumbrances on the ability of tribal members to bring their goods to and from market. And by everyone’s admission, the state tax at issue here isn’t about facilitating peaceful coexistence of tribal members and non-Indians on the public highways. It is about taxing a good as it passes to and from market–exactly what the treaty forbids.
A wealth of historical evidence confirms this understanding. The Yakama Indian Nation decision supplies an admirably rich account of the history, but it is enough to recount just some of the most salient details. “Prior to and at the time the treaty was negotiated,” the Yakamas “engaged in a system of trade and exchange with other plateau tribes” and tribes “of the Northwest coast and
