Gorsuch, J., concurring in judgement
tribal treaty, too, we must “give effect to the terms as the Indians themselves would have understood them.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 196 (1999). After all, the United States drew up this contract, and we normally construe any ambiguities against the drafter who enjoys the power of the pen. Nor is there any question that the government employed that power to its advantage in this case. During the negotiations “English words were translated into Chinook jargon… although that was not the primary language” of the Tribe. Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1243 (ED Wash. 1997). After the parties reached agreement, the U. S. negotiators wrote the treaty in English–a language that the Yakamas couldn’t read or write. And like many such treaties, this one was by all accounts more nearly imposed on the Tribe than a product of its free choice.
When it comes to the Yakamas’ understanding of the treaty’s terms in 1855, we have the benefit of a set of unchallenged factual findings. The findings come from a separate case involving the Yakamas’ challenge to certain restrictions on their logging operations. Id., at 1231. The state Superior Court relied on these factual findings in this case and held Washington collaterally estopped from challenging them. Because the State did not challenge the Superior Court’s estoppel ruling either in the Washington Supreme Court or here, these findings are binding on us as well.
They also tell us all we need to know to resolve this case. To some modern ears, the right to travel in common with others might seem merely a right to use the roads subject to the same taxes and regulations as everyone else. Post, at 1–2 (Kavanaugh, J., dissenting). But that is not how the Yakamas understood the treaty’s terms. To the Yakamas, the phrase “ ‘in common with’… implie[d] that the Indian and non-Indian use [would] be joint but [did]
