224
Thomas, J., dissenting
the historical background against which the Treaty at issue was signed); Puyallup Tribe v. Department of Game of Wash., 391 U. S. 392, 395, 397 (1968) (involving treaty language almost identical to that at issue in United States v. Winans, 198 U. S. 371 (1905), and Tulee, supra); see also Antoine v. Washington, 420 U. S. 194, 206 (1975) (favorably comparing the somewhat different language of the agreement at issue with the language of the Treaties at issue in Winans and Puyallup). Most important, all the cases that the majority cites in support of the proposition that States may enforce against Indians in their exercise of off-reservation usufructuary activities only those regulations necessary for purposes of conservation, ante, at 204-205, involved the same or substantially similar treaty language reserving a right to hunt or fish. And all but Antoine also provided that the Indians could exercise their reserved rights at the usual and accustomed places.
In New York ex rel. Kennedy v. Becker, 241 U. S. 556 (1916), the Court considered significantly different language. The Big Tree Treaty of 1797, as the agreement was known, provided that the Seneca were to retain "the privilege of fishing and hunting on the said tract of land" conveyed by the agreement. 7 Stat. 602 (emphasis added); see also 241 U. S., at 562 (quoting the reservation clause). The Court characterized the Senecas' claim as one "sought to be maintained in derogation of the sovereignty of the State." Ibid. In rejecting such a claim, it stated:
"[I]t can hardly be supposed that the thought of the Indians was concerned with the necessary exercise of inherent power under modern conditions for the preservation of wild life. But the existence of the sovereignty of the State was well understood, and this conception involved all that was necessarily implied in that sovereignty, whether fully appreciated or not. We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to
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