Cite as: 526 U. S. 172 (1999)
Thomas, J., dissenting
reserve sovereign prerogative or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather we are of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject nevertheless to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised." Id., at 563-564 (emphasis added).
The only fair reading of Kennedy is that the Treaty reserved for the Seneca a privilege in common with all persons to whom the State chose to extend fishing and hunting privileges. The Court did not indicate that the Treaty limited New York's regulatory authority with respect to the Seneca in any way. See id., at 564 (the treaty privilege was subject to "that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised" (emphasis added)). Of course, then, what was "appropriate" state regulation as applied to non-Indians was "appropriate" regulation as applied to the Seneca. Cf. Puyallup Tribe, supra, at 402, n. 14 ("The measure of the legal propriety of [regulations that are to be measured by the conservation necessity standard] is . . . distinct from the federal constitutional standard concerning the scope of the police power of a State").2
2 As already noted, supra, at 222, the Court has said that "[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, 148-149 (1973) (State of New Mexico permitted to tax off-reservation activities of Tribe as they would any non-Indians). In support of that proposition in Mescalero, the Court cited the Puyallup Tribe and Tulee decisions, but not Kennedy. A possible explanation is
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