Full opinion text
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT McDONALD, District Judge. The court heard oral argument on November 10, 1994, on Plaintiffs’ Motion for Partial Summary Judgment Re Meaning of “In Common With” (Ct.Rec. 144) and Defendants’ Motion for Summary Judgment Dismissing Treaty Claims (Ct.Rec. 100). Fronda Woods argued on behalf of defendants. Jack Fiander argued on behalf of Wheeler Logging plaintiffs as well as the intervenor plaintiff, Yakama Indian Nation. Tim Weaver argued on behalf of the Cree plaintiffs. In addition, three other motions are before the court for resolution without oral argument: Defendants’ Third Motion for Summary Judgment Dismissing Claims of Douglas Beebe (Ct.Rec. 61); Defendants’ Motion for Summary Judgment Re Collateral Estoppel (Ct.Rec. 138); Defendants’ Motion for Summary Judgment Dismissing Tribal Sovereignty Claims (Wheeler Ct.Rec. 60). For the reasons discussed more fully below, the court is denying the defendants’ motion for summary judgment based on collateral estoppel and defendants’ motion for summary judgment regarding treaty claims. The court is granting defendants’ summary judgment motion to dismiss the claims of individual plaintiff, Douglas Beebe, and the court is also dismissing any of plaintiffs’ claims which are based on tribal sovereignty. Finally, the court is granting plaintiffs summary judgment motion for a declaration regarding the Treaty right to travel under Article III of the Treaty with the Yakamas. SUMMARY: Although it repeats the efforts of its prior orders, the court once again reviews the facts of these consolidated cases for the record. The plaintiffs in Cree operate logging trucks that haul logs from tribal timber sales on reservation lands to off-reservation markets. Plaintiff Richard Ramsey is the owner of Tiin-Ma Logging Company. The other named plaintiffs are employed as drivers for Tiin-Ma. Aside from Douglas Beebe, all of the plaintiffs are enrolled Yakama Indians. Plaintiff Douglas Beebe, who also drives for Tiin-Ma, is an enrolled member of the Makah Tribe. Defendants are officers authorized to issue traffic citations for violations of truck licensing and permitting statutes. The defendant officers have issued traffic citations to TiinMa’s drivers because Tiin-Ma has not paid certain licensing fees and has not obtained certain permits for its trucks. Plaintiffs claim that the Treaty with the Yakamas protects their right to haul tribal timber to market over state highways without having to pay the contested licensing and permit fees. They allege that the officers, acting under color of state law, have deprived plaintiffs of their rights under federal law, the Constitution, and the Treaty with the Yakamas. They also claim that their transportation of logs was subject to federal preemption pursuant to the Indian Commerce Clause. Plaintiffs seek damages and attorney’s fees under 42 U.S.C. § 1983 and § 1988. They further seek injunctive relief preventing defendants or other similarly situated officers from interfering with plaintiffs’ treaty secured rights to use the public highways of the State of Washington for their logging enterprise without complying with Washington State use and excise tax laws and regulations. Finally, they seek a declaration of plaintiffs’ right under the Treaty with the Yakamas to use the state’s highways without having to pay the contested fees or taxes. On June 1, 1991, the court granted plaintiffs’ motion for a prehminary injunction. Findings of Fact, Conclusions of Law, and Order (Ct.Rec. 48). The court enjoined defendants from issuing citations to Tiin-Ma Logging Company or its drivers for violations of the laws of Washington that are based on the failure to obtain tonnage licenses under RCW 46.16.070 or the failure to obtain log tolerance permits under RCW 46.44.047. The court further enjoined defendants from impounding or threatening to impound Tiin-Ma’s trucks for similar violations. On June 17, 1991, the court issued an order granting in part and denying in part defendants’ first motion for partial summary judgment. Order re: Summary Judgment (Ct.Rec. 49). The court granted the motion to dismiss all claims against the State of Washington; granted the motion to dismiss all claims for damages against the defendant officers in their official capacities; and granted the motion to dismiss the claims for injunctive relief against defendant Waterbury as he was no longer employed by the State Patrol. The court denied defendants’ motion, based on qualified immunity, to dismiss the damages claims against the officers in their individual capacities. Finally, the court granted plaintiffs’ motion to amend the complaint by adding the name of the head of the Washington State Patrol or the State Patrol officer with supervisory authority over the Washington State Patrol’s commercial vehicle enforcement officers. On appeal, the Ninth Circuit Court of Appeals reversed this court’s ruling on qualified immunity. (Ct.Rec. 80). The Circuit held that the officers were entitled to qualified immunity since the treaty right claimed was not clearly established at the time they issued the citations. After this court’s ruling on summary judgment and the Ninth Circuit’s ruling on appeal, the following claims remain in the Cree action: plaintiffs’ claim for declaratory relief regarding their treaty right to use the state’s highways without having to pay the contested fees; plaintiffs’ claim for permanent injunctive relief against the individual officers and the head of the Washington State Patrol regarding failure to comply with the licensing and fee provisions at issue; and plaintiffs’ claim for attorney’s fees under 42 U.S.C. § 1988. Plaintiffs in Wheeler Logging are similarly situated to plaintiffs in Cree. They are a Yakama Indian owned logging company and its owner, Delbert Wheeler. Defendants are Roger Bruett, Chief of the Washington State Patrol, and Clyde Lucas, a commercial vehicle enforcement officer with the Washington State Patrol. Plaintiffs in Wheeler Logging, like plaintiffs in Cree, claim that the enforcement of Washington traffic laws relating to vehicle weight licenses and log tolerance permits violates their rights under the Treaty with the Yakamas. Complaint in a Civil Action (Wheeler Ct.Rec. 1). Plaintiffs allege that the defendants, acting under color of state law, have deprived plaintiffs of their rights under the Treaty and under the Constitution. They additionally claim that defendants’ conduct infringes upon their right of self-government as members of the Yakama Indian Nation. (Wheeler Ct.Rec. 1 at 5). They pray for declaratory judgment regarding their right to carry tribal timber to market over state highways free from the obligation to pay the licensing and permitting fees at issue. They further pray for permanent injunctive relief restraining defendants from issuing citations to plaintiffs or impounding plaintiffs’ trucks for traffic violations based on the failure to obtain tonnage licenses under RCW 46.16.070 or 46.16.135, or the failure to obtain log tolerance permits under RCW 46.44.047. Finally, plaintiffs pray for an award of costs and fees pursuant to 42 U.S.C. § 1988. None of the claims in Wheeler Logging have been dismissed at this time. On September 18, 1992, the court granted the Wheeler Logging plaintiffs’ motion for a preliminary injunction. The terms and conditions of the injunction are essentially identical to those of the injunction issued in Cree. Because the legal issues in the two cases are nearly identical, the court consolidated the cases on March 6, 1993. On May 11, 1994, the court ordered the plaintiffs to show cause why their claims should not be dismissed pursuant to the Tax Injunction Act. (Ct.Rec. 112). The court suggested in that order that the parties address the issue of whether the Yakama Indian Nation should be allowed to intervene in the action. On August 29, 1994, the court entered an order dismissing, for lack of subject matter jurisdiction due to the Tax Injunction Act, any individual plaintiffs claim which challenges the financial obligations under the truck licensing and permitting laws at issue. (Ct.Rec. 133). However, the court noted that it retained subject matter jurisdiction over any individual plaintiff’s claim that challenges the licensing and permitting requirements per se, that is, as distinct from the financial obligations imposed by those requirements.. (Ct.Rec. 133 at 27). The court also granted the Yakama Indian Nation’s motion to intervene as a party-plaintiff in both the Cree and Wheeler actions. The Yakama Indian Nation’s proposed complaint was filed pursuant to that order. See (Ct.Rec. 134). Currently before the court are five motions for summary judgment regarding these two consolidated cases. Defendants have filed a motion for summary judgment dismissing the claims of Cree plaintiff, Douglas Beebe, who is not a member of the Yakama Indian Nation. (Ct.Rec. 61). This motion was initially stayed by the court’s order. (Ct.Rec. 70). The second of five is defendants’ motion for summary judgment dismissing tribal sovereignty claims (Wheeler Ct.Rec. 60). That motion is based in part on the argument that individual tribal members may not sue to enforce rights held in common by the Tribe. Defendants have also filed a motion for summary judgment based on collateral estoppel. (Ct.Rec. 138). These three motions came up for hearing without oral argument on November 7, 1994. Finally, defendants have filed a motion for summary judgment dismissing the treaty rights claimed by plaintiffs. (Ct.Rec. 100). Plaintiff Wheeler Logging in turn filed a motion for summary judgment regarding the meaning of “in common with.” (Ct.Rec. 144). Cree plaintiffs filed a notice joining with Wheeler Logging in this motion. Defendants’ and plaintiffs’ motions are essentially cross-motions regarding the interpretation of Article III of the Treaty with the Yakamas. DISCUSSION: A. Summary Judgment Standard The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.1975), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727 (9th Cir.1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. At the summary judgment stage, the court’s function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. In resolving these issues, “the court’s ultimate inquiry is to determine whether the ‘specific facts’ set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987); see also Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. B. Defendants’ Motion for Summary Judgment Regarding Collateral Estoppel In their motion for summary judgment dismissing all claims of the Yakama Indian Nation on the basis of collateral estoppel (Ct.Rec. 138), defendants argue that the issue of whether Article III of the Treaty precludes the state from collecting its road taxes from the Yakama Indians was necessarily determined adversely to the Tribe in the Supreme Court decision, County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992). The Yakama Indian Nation and the Cree plaintiffs have both responded to this motion. (Ct. Rees. 156,158). In response, plaintiffs argue that the issue decided in County of Yakima was distinct from the issue regarding Article III in this case, and that this issue was not “actually litigated”; therefore, collateral estoppel should not bar litigation of this issue. 1. Facts Material to the Collateral Estoppel Motion The following facts are taken primarily from the defendants’ LR 56 statement of material facts (Ct.Rec. 141). Pursuant to LR 56(c), any material fact stated by a moving party and not rebutted by a non-moving party is deemed admitted. There are no disputes of material fact pertaining to this motion. Yakima County has had authority to levy property taxes to pay for county roads and has been creating such roads since prior to 1900. The County currently levies ad valorem property taxes, a portion of which goes into a road fund which is used to maintain and construct such roads. In Confederated Tribes and Bands of the Yakima Nation v. County of Yakima, No. C-87-0654-AAM, the Yakama Indian Nation challenged Yakima County’s collection of ad valorem property taxes from the Yakamas. On cross-motions for summary judgment, the Yakamas stipulated that the Yakima County Public Works Department made various expenditures on the maintenance and construction of county roads, some portion of which applied to roads inside the Yakima Indian Reservation. (Ct.Rec. 141 at 2). 2. Collateral Estoppel Standard Under the doctrine of collateral estoppel, or claim preclusion, “[a] party that has once litigated a factual or legal issue and lost may be precluded from relitigating the same issue in a subsequent proceeding.” See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1978); Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980); Connors v. Tanoma Min. Co., 953 F.2d 682, 684 (D.C.Cir.1992). In order for a claim to be precluded, the following must be shown: First, the same issue must have been actually litigated, that is, contested by the parties and submitted for determination by the court. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in the first trial. Third, preclusion in the second trial must not work an unfairness (emphasis added). Id.; Yamaha Corp. of America v. United States, 961 F.2d 245 (D.C.Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1993), reh’g denied, — U.S. -, 113 S.Ct. 1436, 122 L.Ed.2d 802 (1993); see also Clark v. Bear Steams & Co., 966 F.2d 1318, 1320 (9th Cir.1992): To foreclose relitigation of an issue, “(1) the issue must be identical to the one alleged in the prior litigation; (2) the issue must have been actually litigated ...; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in the earlier action (emphasis added). The Ninth Circuit has been cautious in its application of the doctrine. See Fund for Animals, Inc. v. Lujan, 962 F.2d 1391 (9th Cir.1992) (“The doctrine of collateral estoppel applies only when the issues presented in each matter are identical. The doctrine is inapplicable if the issues are merely similar”). “If a decision could have been rationally grounded upon an issue other than that which the defendant seeks to foreclose from consideration, issue preclusion does not prohibit relitigation of the asserted issue.” Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1339 (9th Cir.1988); Clark, 966 F.2d at 1321. The burden of showing “with clarity and certainty what was determined by the prior judgment” rests with the party asserting preclusion. Id. (citing United States v. Lasky, 600 F.2d 765, 769 (9th Cir.1972), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). 3. County of Yakima v. Yakima Indian Nation Pursuant to their action in County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992), the Yakamas contended that through the Indian Reorganization Act of 1934, Congress impliedly repealed Section 6 of the General Allotment Act and the 1906 amendment to that section, known as the Burke Act. The Tribe argued that by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act, Congress retracted the states’ jurisdiction to tax this fee-patented land. Id. 502 U.S. at 259-61, 112 S.Ct. at 689. The Supreme Court rejected the Tribe’s argument, holding that the Indian Reorganization Act of 1934 did not repeal the states’ jurisdiction to impose taxes upon this land. Id. 502 U.S. at 261-65, 112 S.Ct. at 690-91. Thus, since the General Allotment Act and the Burke proviso manifested a clear intention to permit the state to tax such Indian lands, see id. 502 U.S. at 257-59, 112 S.Ct. at 688, Yakima County could impose an ad valorem tax on reservation land patented in fee pursuant to the General Allotment Act and owned by reservation Indians or the Yakama Indian Nation itself. Id. 502 U.S. at 269-71, 112 S.Ct. at 694. However, the Court ruled that the Alotment language could not be extended to permit an excise tax on sales of fee land. Id. 502 U.S. at 267-69, 112 S.Ct. at 693. The Court stated: The short of the matter is that the General Alotment Act explicitly authorizes only ‘taxation of ... land,’ not ‘taxation of transactions involving land,’ or ‘taxation based on the value of land.’ ... Accordingly, Washington’s excise tax on sales of land cannot be sustained. Id. 502 U.S. at 269-70, 112 S.Ct. at 694. In ruling that the language in the Alotment Act permitted the ad valorem taxation on real property, the Court noted that “[l]iability for the ad valorem tax flows exclusively from the ownership of realty on the date of assessment. The tax, moreover, creates a burden on the property alone (emphasis added).” Id. 502 U.S. at 266, 112 S.Ct. at 692. Thus, the Court confined its holding to allow only Washington taxes based upon the ownership of this fee land. 4. Analysis of Parties’ Aguments Defendants’ motion depends largely upon the fact that a portion of the ad valorem taxes imposed upon the fee lands held by the Yakamas actually goes into a “county road fund” which is used to construct and maintain county roads. See (Ct.Rec. 140 at 7). From this premise, defendants argue that since the Supreme Court, in County of Yakima v. Yakima Indian Nation, 502 U.S. 251, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992) held that these ad valorem taxes were authorized by the General Allotment Act, the Court “necessarily”, or implicitly, determined that Aticle III of the Treaty does not contain a “road tax exemption.” (Ct.Rec. 140 at 7). However, upon examination, the court finds that the record fails to establish any of the required elements of collateral estoppel. a. The Issues Ae Not Identical Under the prevailing law, defendants bear the burden of demonstrating precisely what the issue determined in County of Yakima was and how it is identical to the issue in this case. The defendants assert that the issues are identical because the ad valorem property taxes challenged in County of Yakima were partially used to construct and maintain roads, thus making both County of Yakima and this case challenges to “road taxes.” See Defendants’ Memorandum in Support of Summary Judgment Re Collateral Estoppel (Ct.Rec. 140 at 7-8). Plaintiffs’ response is that this is an improper characterization, based upon the Supreme Court’s opinion. A the discussion of County of Yakima indicates, the Supreme Court defined the tax permitted by the General Alotment Act narrowly, by referring to the subject of that tax: ownership of the fee-patented realty. See Cree Plaintiffs’ Memorandum In Opposition to Defendants’ Motion for Summary Judgment Re: Collateral Estoppel (Ct.Rec. 158 at 2). The Court found that the Act did describe the range of the states’ jurisdiction to tax: a jurisdiction which was limited to taxes based solely on ownership of land, and consequently, the Court refused to permit any other types of tax. County of Yakima, 502 U.S. at 267-69, 112 S.Ct. at 693. In defining permissible taxes, the Court looked to the taxable subject or event (e.g. ownership of property, sale of property, value of property), not the use to which the proceeds of these taxes were put. Defendants’ assertion that the fact that a small percentage of the revenue from the ad valorem property tax is diverted to the road fund makes it a “road tax” ignores the Supreme Court’s own analysis in determining the nature of the tax challenged. In the current litigation, the subjects of the challenged taxes are not real property but trucks: “[Tjhere shall be paid and collected annually for each motor truck, truck tractor, road tractor ... the following licensing fees by such gross vehicle weight (emphasis added).” RCW 46.16.070. Thus, County of Yakima and the present case involved two different types of taxes. Defendants suggest in their reply that while the two taxes may have different subject-matter, they are alike because in both cases people pay them. Reply Memorandum in Support of Defendants’ Motion for Summary Judgment Re: Collateral Estoppel (Ct. Rec. 165 at 2). The court finds this argument unconvincing, since under that analysis all taxes can be considered identical. The Supreme Court explicitly refused to adopt such an absurd analysis: “[A] tax upon the sale of property is not a tax upon the subject matter of that sale.” County of Yakima, 502 U.S. at 267-69, 112 S.Ct. at 693 quoting, Mahler v. Tremper, 40 Wash.2d 405, 409, 243 P.2d 627 (1952). Defendants further argue that if the subjects of the tax are determinative of their nature, then the present case cannot implicate Article III of the Yakama Treaty. (Ct. Rec. 165 at 3). They claim that such a tax would, under this analysis, be a tax upon the operation of heavy vehicles on public highways not a “tax on Yakama Indians” and therefore not subject to an exemption under Article III. (Ct.Rec. 165 at 3). However, defendants fail to explain why it would not be possible to construe the Treaty language as carving out an exemption for the Yakama Indian Nation regarding this particular type of tax. In sum, while these taxes may be similar in that they share some of the same applications, similarity of issues is not a sufficient ground for collateral estoppel. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391 (9th Cir.1992). b. The Article III Issue Was Not Actually Litigated or Determined by the Supreme Court In order for collateral estoppel to apply, it must be demonstrated that the issue sought to be precluded was actually contested by the parties and determined by a court of competent jurisdiction. Connors v. Tanoma Min. Co., 953 F.2d 682, 684 (D.C.Cir. 1992); Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719-20, 92 L.Ed. 898 (1947) (“Matters which were actually litigated and determined in the first proceeding cannot later be relitigated”). To meet this requirement, defendants refer to the stipulation made by the Yakamas in the County of Yakima case that Yakima County spends money on the construction and maintenance of roads. See Reply Memorandum in Support of Defendants’ Motion for Summary Judgment Re Collateral Estoppel (Ct.Rec. 165 at 4). Defendants assert that this stipulation “shows that the issue of whether taxes levied for roads could be validly be collected was raised and actually litigated.” (Ct.Rec. 165 at 5). However, this stipulation mentions nothing about Article III of the Treaty with the Yakamas and its effect upon the State-imposed fees at issue; in fact, the stipulation does not address the imposition of any type of taxes upon the Yakamas. Defendants even agree with Cree plaintiffs’ response that “the intention of the stipulation was simply to reflect what each party was contributing in tax dollars and service on the Reservation.” (Ct. Rec. 158 at 5). Both plaintiff Yakama Indian Nation and the Cree plaintiffs make compelling arguments that this stipulation in no way subjected the Article III issue to an adversarial presentation. See (Ct.Rec. 156 at 4). They cite Sekaquaptewa v. MacDonald, 575 F.2d 239, 247 (9th Cir.1978) for the rule that for collateral estoppel, an issue will not be deemed to have been “actually litigated” if it is the subject of a stipulation between the parties. The court finds that this rather insignificant stipulation was undertaken simply to provide some detail regarding Yakima County’s distribution of tax revenues. Sekaquaptewa reinforces the fact that this stipulation did not litigate anything. Defendants additionally claim that even though “nobody mentioned the Treaty road clause,” collateral estoppel is not barred because the Article III subject is just a new “argument” not a new “issue.” (Ct.Rec. 165 at 6). Defendants cite as authority for this assertion, Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C.Cm.1992), cert. denied, — U.S. -, 113 S.Ct. 1044, 122 L.Ed.2d 353 (1993), reh’g denied, — U.S. -, 113 S.Ct. 1436, 122 L.Ed.2d 802 (1993), which provides: Furthermore, once an issue is raised and determined, it is the entire issue that is precluded, not just the particular arguments made in support of it in the first case (emphasis in original). Defendants apparently claim that Article III is just a new “argument” against the imposition of those “road taxes” authorized by the Supreme Court in County of Yakima. However, as discussed more fully in the above section, Article III is distinct from the “issue” actually litigated in County of Yakima: whether the General Allotment Act authorized imposition of property taxes. Thus, whether Article III exempts the Yakamas from road taxes is a new issue not a new argument, and defendants’ concession that Article III was not ever mentioned shows clearly that this issue was not “actually litigated.” c. The Article III Issue Was Not Essential To the Supreme Court’s Opinion Another element that defendants must establish to successfully preclude the issue at stake in this case is that it was “essential” to the Supreme Court’s decision in County of Yakima. Their argument is again premised on the assertion that since a portion of the ad valorem tax revenues go to the road fund, they must be “road taxes.” See Memorandum in Support of Defendants’ Motion for Summary Judgment Re Collateral Estoppel (Ct.Rec. 140 at 7). They claim that the Supreme Court could not have held as it did in County of Yakima unless it implicitly determined that the Yakamas are not exempt from such road taxes. (Ct.Rec. 165 at 5). The defendants argue that the Article III issue had to have been addressed by the Court because otherwise there is no way they could have reached their ultimate conclusion regarding the General Allotment Act. (Ct.Rec. 165 at 5). Defendants’ unsupported assertion fails, because as long as the Supreme Court’s decision could have been rationally grounded upon an issue other than the one defendants seek to foreclose, then the issue was not critical and necessary. Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1339 (9th Cir.1988). Not only “could” the Supreme Court have based its decision upon an issue other than Article III, this court finds that the sole basis for the Supreme Court’s decision was its finding that the General Allotment Act authorizes only these specific ad valorem property taxes. This is not just a “rational” construction, but in fact the only actual ground for the Supreme Court’s decision. Defendants’ interpretation is novel: that the Supreme Court necessarily addressed this Article III issue tacitly, notwithstanding that this issue was fundamental to its decision. The court finds defendants’ interpretation to reflect an uncommon shyness from a body that ordinarily provides explicit reasons for its rulings. Rather than presume this aberrational explanation, the court is inclined to believe that the decision dealt only with the issue before it. The interpretation of the Article III travel provision in the Treaty with the Yakamas was not such an issue. d. Conclusion In order to successfully prevail on their collateral estoppel claim, defendants must show: (1) that the issue in the prior case was identical to the current issue; (2) that the issue was actually litigated and determined by a court; (3) that the issue was essential to the prior decision. Having failed to demonstrate any of the required elements, defendants’ motion for summary judgment based on collateral estoppel must be denied. C. Defendants’ Motion for Summary Judgment Dismissing Tribal Sovereignty Claims Plaintiff Delbert Wheeler alleges that defendants’ conduct infringes his right of self-government as a voting age member of the Yakama Indian Nation. (Wheeler Ct. Rec. 1 at 5). The Yakama Indian Nation adopted this claim in its complaint in intervention. (Ct.Rec. 134). Pursuant to this, defendants have filed a motion for summary judgment dismissing any claims based upon tribal sovereignty. (Wheeler Ct.Rec. 60). Defendants assert that, as a matter of law, no independent claim for equitable relief can be based solely upon infringement of the Yakamas’ tribal sovereignty. Defendants also argue that even if such claim is deemed to exist by the court, plaintiffs have failed to allege specific facts creating a genuine issue for trial on such a claim. Finally, they assert that if tribal sovereignty itself can provide the basis for an independent claim, such .claim inheres to the Tribe alone and not to any of its individual members. Plaintiffs, in response, contend that case-law supports the assertion of their claim for equitable relief based upon the defendants’ infringement upon both the Tribe’s right to govern its members and the members’ right to be governed by Tribal law. 1. Rule 56 Provides the Applicable Standard Governing This Motion In their response, plaintiffs assert that since the defendants’ motion is based upon an argument that plaintiffs and intervenors have alleged a claim for which relief may not be granted, the applicable standard governing this motion is set forth in Fed.R.Civ.Proc. 12(b)(6). Plaintiffs further claim that this standard of law requires that their claim not be dismissed unless it appears to a certainty that they would not be entitled to relief under any set of facts that could be proved. See Plaintiffs’ Memorandum Re Tribal Sovereignty Claims (Ct.Rec. 122 at 2). However, defendants correctly point out that Rule 12 itself mandates that this motion be evaluated according to the standard of Rule 56: If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to, and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 (emphasis added). The defendants have filed their motion along with an accompanying statement of material facts and affidavits not contained in the pleadings, and the court is considering these materials in its assessment of this motion. Also, plaintiffs themselves have filed an affidavit along with their response to the defendants’ motion. Consequently, the court finds it appropriate to apply the standard of Rule 56 as set forth above in deciding this motion. 2. Facts Material to Tribal Sovereignty Motion The following facts are excerpted from defendants’ statement of material facts, submitted pursuant to LR 56(a). Plaintiffs have not filed such a statement; however, they have submitted an affidavit in support of their response, upon which the court may rely. See Affidavit of John Vitello (Ct.Rec. 123). There is no dispute of material fact with regard to this motion. Except for certain federal and tribal governmental trucks, trucks from all western states must have Washington licenses when using Washington roads at weights above 26,000 pounds, and Washington also requires log tolerance permits for certain overweight trucks. All fees for these licenses and permits are credited to the state motor vehicle fund and are used exclusively for highway purposes. These licensing and permitting fees can be prorated to reflect the amount of time that Wheeler Logging’s trucks use highways outside the Yakama Indian Reservation. All of the state enforcement actions challenged in Wheeler Logging happened outside the boundaries of the Yakama Indian Reservation. Plaintiff Wheeler Logging hauls logs to various sites in Washington. Defendants have issued citations for Wheeler Logging’s failure to obtain the licenses and permits for overweight trucks required by Washington law. Wheeler Logging plaintiffs have challenged defendants’ conduct by claiming that it “infringes plaintiffs rights of self-government as a voting age member of the Yakima Indian Nation to participate in making his own laws and being governed by them.” See Complaint in a Civil Action attached to Affidavit of Fronda Woods Re Defendants’ Motion for Summary Judgment Dismissing Tribal Sovereignty Claims. ('Wheeler Ct.Rec. 64). The Yakama Indian Nation and Delbert Wheeler have incorporated this complaint. Logs which are transported from the Yakama Reservation by Wheeler Logging, or any logging company contracted to harvest and transport Yakama tribal timber, are the property of the Yakama Indian Nation. Title remains in the Tribe until such logs are scaled, at which time they become the property of the purchaser. Ordinarily, such scaling takes place outside the Reservation. 3. Analysis of Parties’ Arguments Besides their claim that defendants’ actions constitute impermissible interference with their Treaty protected right to travel, Wheeler Logging plaintiffs and intervenor plaintiff, Yakama Indian Nation, have stated in their complaints that the doctrine of tribal sovereignty, standing alone, provides them with a source of equitable relief from the conduct of defendants. Defendants assert that tribal sovereignty does not supply plaintiffs with such an independent claim; therefore, they assert that they are entitled, as a matter of law, to summary judgment dismissing any claims by plaintiffs which are predicated solely upon this doctrine. a. Tribal Sovereignty Does Not Provide an Independent Source of Equitable Relief to the Plaintiffs. Although there is no doubt that the Indian tribes retain “attributes of sovereignty over both their members and their territory,” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1979); United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978), the notion of tribal sovereignty as a bar to state jurisdiction has undergone a considerable evolution in recent history: The trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption____ The modem cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power (emphasis added). McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1972). The doctrine of tribal sovereignty has emerged as a “backdrop” against which all applicable treaties and statutes must be read. Id. at 173, 93 S.Ct. at 1263. Defendants correctly emphasize that the licensing and permitting fees at issue in this case have been directed at the activity of plaintiffs’ trucks off-reservation. See Memorandum in Support of Defendants’ Motion for Summary Judgment Dismissing Tribal Sovereignty Claims CWheeler Ct.Rec. 63 at 7). Caselaw clearly establishes that tribal sovereignty, standing alone, does not preclude state jurisdiction over Indian conduct off-reservation. While Indian reservation lands and Indian income from on-reservation activities are generally not subject to the intrusion of state taxing authority, “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1972); White Mountain, 448 U.S. at 144 n. 11, 100 S.Ct. at 2584 n. 11. See e.g. Organized Village of Kake v. Egan, 369 U.S. 60, 75-76, 82 S.Ct. 562, 570-71, 7 L.Ed.2d 573 (1961) (“[S]tate regulation of off-reservation fishing certainly does not impinge on treaty-protected reservation self-government.”) Plaintiffs admit, as they must, the general rule established in these cases; however, plaintiffs argue that the instant case is distinguishable: Defendants go on to cite several eases for the proposition that states have jurisdiction over the conduct of Indians off the reservation. That is only the general rule, however, in the absence of an express Treaty clause to the contrary---- Regarding certain other cases cited by defendants implying that Tribal sovereignty ceases at the reservation boundary, none of those cases involved treaties reserving rights outside the reservation as is the case here (emphasis added). While this distinction may provide for an exemption from taxation, plaintiffs are forced to concede that this exemption would result from the language of the Treaty, rather than from some attribute of tribal sovereignty. Cases such as Gila River Indian Community v. Waddell, 967 F.2d 1404 (9th Cir.1992), which plaintiffs rely upon to support an independent claim based upon tribal sovereignty, address the attempted exercise of state taxing authority on tribal reservations. Id. at 1413. Such cases cannot support plaintiffs’ contention that the doctrine of tribal sovereignty precludes the state from imposing its taxing authority on Yakama activity off-reservation. b. Conclusion This motion properly serves to narrow the issues before the court in this action by focusing on what must be the source of the right claimed by the Yakama Indian Nation. If the Yakama Indian Nation is to find relief from the sovereign state’s clearly defined ability to tax, it must look to the Treaty with the Yakamas. Consequently, the court grants defendants’ motion for summary judgment dismissing independent tribal sovereignty claims. Since the court finds that no independent claim based on tribal sovereignty is available in this case, the court need not address defendants’ other arguments. D. Plaintiffs’ Motion for Summary Judgment Regarding “In Common With” and Defendants’ Motion for Summary Judgment Dismissing Treaty Claims Currently before the court are both the defendants’ and plaintiffs’ motions for summary judgment regarding the meaning of Article III. The court heard oral argument from the parties regarding these motions on November 10, 1994. In their briefs as well as oral argument, defendants assert that there is no genuine issue of fact regarding the intent of the Yakamas at the time of the Treaty signing; therefore, they are entitled to judgment as a matter of law. The plaintiffs contend, however, in their own motion for summary judgment (which is essentially a cross-motion), that the meaning of “in common with,” the pertinent phrase of the Treaty, has been defined by prior decisions. Thus, they claim that the meaning of the Treaty is unambiguous, and they are consequently entitled to declaratory judgment as a matter of law. Defendants counter the plaintiffs’ motion by arguing that Treaty fishing and travel rights are distinguishable. Therefore, the decisions relied upon by plaintiffs are inapposite to the issue in the instant case. Plaintiffs counter defendants’ motion by claiming that if the court should agree with defendants that the prior decisions are not applicable to the current issue, then there is certainly a genuine issue of material fact as to the signatories’ intent that requires adjudication at trial. Although these two motions are basically cross-motions as to the construction of the Treaty, they present two distinct options to the court. Plaintiffs’ motion is based entirely upon the legal conclusion that the prior decisions regarding fishing rights under the Treaty apply and determine the meaning of the right to travel in this ease. Such an argument makes the majority of the factual evidence presented by both parties immaterial. This option does not require the court to conduct an extensive examination into the intent of the signatories in 1855. It instead requires the court to find that the right to fish and the right to travel can be treated analogously. Defendants, of course, strenuously argue that these prior decisions construe a markedly different right under the Treaty. They stress that the right to travel and the right to fish cannot be considered analogous. As a result, the option presented in defendants’ motion invites a determination of the signatories’ intent. Naturally, this makes their motion a factually driven argument wherein defendants present evidence suggesting that the Yakamas intended or understood that they would only have the same rights to travel as non-Indian citizens. Defendants state that such a right, to share the public highways “in common with” other citizens, requires the Yakamas to take the bitter with the sweet: to share in the taxation which provides and maintains those highways. Even if the court should accept defendants’ invitation to analyze all of the circumstances which could justify a different interpretation for this Treaty language in the context of travel, that endeavor might very likely lead the court to conclude that both defendants’ and plaintiffs’ constructions of the Treaty are equally plausible. In that event, the canons of construction applying to Indian treaties would require the court to adopt the interpretation favoring the Yakamas. However, in apparent recognition of that tenet, defendants point to evidence which they claim establishes the meaning of this Treaty provision unambiguously. These cross motions constitute the crux of this litigation, and determination of them by the court should dispose of the case. The court is persuaded for reasons that follow that it cannot construe the “in common with” language as it applies to Treaty travel rights any differently than this phrase has been construed regarding the Treaty right to fish. Inherent in that holding is this court’s view that it is bound by the prior decisions on this issue and that defendants have not identified any material grounds precluding their application in this case. 1. Facts Material To Plaintiffs’ Motion The following material facts are taken from the statements submitted by the parties pursuant to LR 56. (Ct.Recs. 103,164,146, Wheeler Ct.Rec. 118). With regard to plaintiffs’ motion for summary judgment regarding the meaning of “in common with,” there are no disputes of material fact. Thus, the sole question for the court is whether the plaintiffs are entitled to judgment as a matter of law. Article III of the Treaty with the Yakamas, signed in 1855, provides in its entirety: And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with the citizens of the United States, to travel upon all public highways. The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land. Washington State law has required that motor vehicles be registered with an accompanying registration fee since 1905. Vehicles owned by individual Indians have never been exempt from Washington State vehicle registration fees. Washington has further required trucks to be licensed according to gross weight, with higher weights bearing higher licensing fees since 1915, and trucks owned by individual Indians have never been exempt from such license fees. In addition, Washington has required log tolerance permits for certain overweight trucks, with an accompanying fee, since 1953. Again, individual Indians have never been exempt from such fees. Fees paid to the State of Washington for truck licenses and log tolerance permits are credited to the state motor fund and used exclusively for highway purposes. Even prior to the signing of the 1855 Treaty, the Yakamas traveled extensively. This far-reaching travel was an intrinsic ingredient in Yakama culture, and it was of the utmost importance to the Yakamas. The Yakamas possessed a large horse herd which enabled them to travel in order to hunt, fish, and engage in other commerce. They traveled Washington State’s public roads and highways without charge until the state began enacting statutes which imposed licensing and permitting fees. 2. Analysis of Parties’ Arguments Regarding Plaintiffs’ Motion The plaintiffs’ position is founded on the fact that both the fishing right and travel right are located in the same Article of the Treaty and contain the same “in common with” language. Based on this identical language and proximity in the Treaty, plaintiffs argue that prior decisions regarding the Treaty fishing right which have already established a favorable definition of “in common with,” apply and consequently entitle them to judgment as a matter of law. Defendants oppose this argument by noting that all prior decisions regarding Article III interpreted the extent of fishing rights. No prior decisions have interpreted the right to travel provision in Article III. Defendants assert that the prior decisions are therefore inapposite and should not be relied upon by the court in determining the meaning of the travel right. a. Licensing and Permitting Fees Cannot Be Imposed on the Article III Travel Right In Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1941), appellant contended that the Washington statute which compelled him to obtain a license in order to fish for salmon violated the Treaty fishing right denoted in Article III. Id. at 683, 62 S.Ct. at 863-64. In determining how to construe the Treaty fishing right, the Supreme Court looked to such prior decisions involving the language of Article III, to the record which indicated that the right to hunt and fish was extremely important to the Indians, and to the canons requiring liberal construction of Treaty provisions in favor of the Indians. Id. at 684-85, 62 S.Ct. at 864-65. Using this methodology, the Court concluded: [Wjhile the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging a fee of the kind in question here---- The license fees prescribed are regulatory as well as revenue producing. But it is clear that their regulatory purpose could be accomplished otherwise, that the imposition of license fees is not indispensable to the effectiveness of a state conservation program. Even though this method may be both convenient and, in its general impact, fair, it acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve. Id. Thus, although the Court recognized that it was dealing with a nonexclusive right to fish in Tulee, it still held that the imposition of licensing fees was an impermissible interference with the right provided to the Yakama Indian Nation by the Treaty. Plaintiffs rely heavily upon Tulee, because it most closely parallels the situation involved in this case. If the court determines that the travel right should be accorded the same status as the fishing right, then Tulee precludes the state from imposing its licensing and permitting fees upon the plaintiffs. i. Defendants Fail to Distinguish Tulee Defendants have attempted to undercut the significance of Tulee by claiming that it does not stand for the proposition that the state may never impose licensing fees upon the Treaty right. As defendants point out, the Supreme Court stated that “the imposition of license fees is not indispensable to the effectiveness of a state conservation program.” Id. Defendants contend that this language suggests that license fees which are allocated for preservation and maintenance purposes are permissible. Since the record shows that the revenue generated by these fee requirements goes into the highway fund in part to help maintain the highways, defendants claim that Tulee does not proscribe the fees at issue. However, in its Order Re: Subject Matter Jurisdiction, Intervention (Ct.Rec. 133), this court noted that the fees at issue were predominantly revenue raising rather than regulatory. Moreover, it is clear in this case, as it was in Tulee, that the regulatory purpose of these statutes, to discourage overweight travel on the highways, can be accomplished without the imposition of these fees. Indeed, plaintiffs have already conceded that they will remain subject to the weight regulations imposed by the state which are designed to preserve the condition of the highways. Further, there is nothing in the record that suggests that these fees are “indispensable” to the preservation of the highways. The fees are not regulatory in themselves; rather they merely provide a source of revenue which the state chooses through its legislative enactments to devote a portion of towards the highway fund. The state could potentially obtain the revenue needed to build and maintain highways from different taxes. ii. The Fishing and Travel Rights are Analogous One of the arguments propounded by defendants in response to Tulee is that the fishing right and travel right are distinguishable. See Memorandum in Support of Defendants’ Motion for Summary Judgment Dismissing Treaty Claims (Ct.Rec. 102 at 17-18). Defendants point out that in Tulee the Supreme Court identified the right to fish as one which the Yakamas “reserved” by Treaty, whereas the Treaty minutes identify the roads as a “future” development. (Ct.Rec. 102 at 18). Defendants assert that since the Treaty right involved roads which were “to be built,” rather than in existence at the time of the signing of the Treaty, travel was a “granted” right not a “reserved” right; therefore, the reasoning of Tulee is inapplicable. The defendants’ distinction between the Treaty right to travel and the right to take fish ignores the history illustrating the importance of travel to the Yakamas. As the record reflects, and defendants themselves admit, the Yakamas traveled extensively, their trips taking them, for example, to Willamette Valley and Nisqually. See Defendants’ Opposition to Wheeler Logging’s Motion for Partial Summary Judgment Re Meaning of “In Common With” (Wheeler Ct. Rec. 119 at 14 n. 5). Their ability to travel provided them with the means to exercise their aboriginal practices of hunting, fishing, and trading. See Declaration of William Yallup, attached to Plaintiffs’ Local Rule 56 Statement of Material Pacts Regarding the Defendants’ Motion for Summary Judgment Dismissing Treaty Claims (Ct.Rec. 164); see also, United States v. Washington, 384 F.Supp. 312, 380 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (Judge Boldt described the Yakamas as a “food gathering culture” which existed on such resources as game and fish and which traveled extensively not only to fish for their own consumption but also to communicate and trade with other tribes located as far as Puget Sound.) Indeed, Judge Boldt, in his lengthy findings of fact, stated: At the treaty negotiations, a primary concern of the Indians whose way of life was so heavily dependent upon harvesting anadromous fish, was that they have freedom to move about to gather food, particularly salmon ... at their usual and accustomed places (emphasis added). Id. at 355. The record in this case and Boldt’s prior inquiry clearly show that the Yakamas were concerned at the Treaty negotiations with “reserving” the right to travel to those sites where they gathered food and traded, whether they did so by the trails they had been using or by the roads which were “to be built” in the future by the white settlers. Thus, the court finds that the right to travel was, just like the right to take fish, a “reserved” right. In support of this finding, the court further notes that the Treaty itself does not use the term, “reserved.” Rather, the term, “secured to,” is used to describe both the right to fish and the right to travel. The meaning of this term would seem to constitute a guarantee of something already possessed. Also, the record and Boldt’s decision further illustrate that the right to travel and the right to take fish are inextricably intertwined. The right to fish obviously depended upon the ability of the Yakamas to travel to various sites. Thus, if the right to take fish was so important to the Yakamas, see e.g. Tulee, 315 U.S. at 684, 62 S.Ct. at 864, then clearly the preservation of their right to travel to those sites upon the future roads to be built by the white settlers was equally important. This is supported by the Treaty minutes, which show that the Indians were made fully aware of the future construction of the public roads, both on and off their reservation. Through the public highways clause, the Yakamas preserved their aboriginal right not only to continue traveling off-reservation to obtain their means of subsistence, but to do so on those public highways if and when they should be built. The interrelation of the rights to fish and travel is further supported by the text of the Treaty itself. The court finds great significance in the fact that both of these rights are addressed in the same Article of the Treaty. This proximity indicates that these rights were likely considered by the signatories to be intertwined and of equal importance. Defendants’ argument, that these two rights which are addressed by almost identical language in the same Article should be given remarkably different interpretations, is simply unconvincing. iii. A Treaty Can Reserve Rights which Extend to Future Technological Developments Defendants’ suggestion that the Yakamas could not have reserved any right “to drive trucks on state highways” because these highways were a future development is unfounded. See Memorandum in Support of Defendants’ Motion for Summary Judgment Dismissing Treaty Claims (Ct.Ree. 102 at 18). Prior decisions recognize that treaty rights can persist despite technological developments not in existence at the time of the treaty signing: New conditions came into existence, to which those rights [fishing] had to be accommodated. Only a limitation, however, was necessary and intended, not a taking away.... The respondents urge an argument based upon the different capacities of white men and Indians to devise and make use of instrumentalities to enjoy the common right ... It needs no argument to show that the superiority of a combined harvester over the ancient sickle neither increased or decreased rights to the use of land held in common (emphasis added). United States v. Winans, 198 U.S. 371, 381-82, 25 S.Ct. 662, 664-65, 49 L.Ed. 1089 (1905). The extension of reserved treaty rights to future technological developments was addressed directly by Judge Boldt in his decision: The Stevens’ treaties do not reserve to the Treaty Tribes any specific manner, method or purpose of taking fish; nor do the treaties prohibit any specific manner, method or purpose.' Just as non-Indians may continue to take advantage of improvements in fishing techniques, the Treaty Tribes may, in exercising their right to take anadromous fish, utilize improvements in traditional fishing methods, such for example as nylon nets and steel hooks (emphasis added). United States v. Washington, 384 F.Supp. at 407. This decision shows that a reserved treaty right may extend to developments not even contemplated by the Indians at the time of treaty signing. Certainly then a treaty right can be reserved for a technological development which was expressly contemplated by the parties to the Treaty: the building of roads. Thus, the mere fact that the roads were to be a future development, does not preclude the Yakamas from reserving the right to travel upon them. Like their right to take fish, the Yakamas reserved the right to travel, albeit on roads to be constructed in the future, in the same fashion as they had prior to the signing of the treaty. iv. The Fishing Rights Cases Do Construe “In Common With” Plaintiffs argue that the fishing eases have given the “in common with the citizens” language of Article III a well established legal meaning; one that entitles the Tribe to rights beyond those of ordinary citizens. They conclude that, since the right to travel upon the public highways contains this identical language, the court should apply the same favorable construction given to this phrase in those prior decisions. Defendants challenge the plaintiffs’ assessment of those cases by claiming that none of the decisions addressing the Article III fishing right actually construe that particular phrase, but actually have based their decisions on other contextual factors. The defendants’ claim is flatly contradicted by Judge Boldt’s conclusion: “There is no indication that the Indians intended or understood the language ‘in common with the citizens of the Territory’ to limit their right to fish in any way.” United States v. Washington, 384 F.Supp. at 333. It is clear that in the prior decisions, any review of contextual factors was undertaken simply to ascertain the meaning of “in common with,” that is, to determine exactly what the nonexclusive right provided in Article III actually entails. In other words, the examination of context was the means whereby “in common with” was defined. For example, defendants claim that in Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942), the Supreme Court relied “on the circumstances surrounding the negotiation of the Yakama Treaty and the Indians’ desire, which the Court inferred from the minutes of the Treaty council, to continue fishing ‘in accordance with the immemorial customs of their tribes.’” See (Wheeler Ct.Ree. 119 at 5). However, in making such an argument, defendants overlook the express language of the Court: “despite the phrase ‘in common with citizens of the Territory,’ Article III conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places’ ...” (emphasis added). Tulee, 315 U.S. at 684, 62 S