Washington State Dept. of Licensing v. Cougar Den, Inc.

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(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WASHINGTON STATE DEPARTMENT OF LICENSING
v. COUGAR DEN, INC.
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 16–1498. Argued October 30, 2018—Decided March 19, 2019
The State of Washington taxes “motor vehicle fuel importer[s]” who
bring large quantities of fuel into the State by “ground transporta-
tion.” Wash. Rev. Code §§82.36.010(4), (12), (16). Respondent Cou-
gar Den, Inc., a wholesale fuel importer owned by a member of the
Yakama Nation, imports fuel from Oregon over Washington’s public
highways to the Yakama Reservation to sell to Yakama-owned retail
gas stations located within the reservation. In 2013, the Washington
State Department of Licensing assessed Cougar Den $3.6 million in
taxes, penalties, and licensing fees for importing motor vehicle fuel
into the State. Cougar Den appealed, arguing that the Washington
tax, as applied to its activities, is pre-empted by an 1855 treaty be-
tween the United States and the Yakama Nation that, among other
things, reserves the Yakamas’ “right, in common with citizens of the
United States, to travel upon all public highways,” 12 Stat. 953. A
Washington Superior Court held that the tax was pre-empted, and
the Washington Supreme Court affirmed.
Held: The judgment is affirmed.
188 Wash. 2d 55, 392 P.3d 1014, affirmed.
JUSTICE BREYER, joined by JUSTICE SOTOMAYOR and JUSTICE
KAGAN, concluded that the 1855 treaty between the United States and
the Yakama Nation pre-empts the State of Washington’s fuel tax as
applied to Cougar Den’s importation of fuel by public highway.
Pp. 4–18.
(a) The Washington statute at issue here taxes the importation of
fuel by public highway. The Washington Supreme Court construed
the statute that way in the decision below. That court wrote that the
statute “taxes the importation of fuel, which is the transportation of
2 WASHINGTON STATE DEPT. OF LICENSING v.
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Syllabus
fuel.” 188 Wash. 2d 55, 69, 392 P.3d 1014, 1020. It added that
“travel on public highways is directly at issue because the tax [is] an
importation tax.” Id., at 67, 392 P. 3d, at 1019. The incidence of a
tax is a question of state law, Oklahoma Tax Comm’n v. Chickasaw
Nation, 515 U.S. 450, 461, and this Court is bound by the Washing-
ton Supreme Court’s interpretation of Washington law, Johnson v.
United States, 559 U.S. 133, 138. Nor is there any reason to doubt
that the Washington Supreme Court meant what it said when it in-
terpreted the statute. In the statute’s own words, Washington “im-
pose[s] upon motor vehicle fuel licensees,” including “licensed import-
er[s],” a tax for “each gallon of motor vehicle fuel” that “enters into
this state,” but only “if . . . entry is” by means of “a railcar, trailer,
truck, or other equipment suitable for ground transportation.” Wash.
Rev. Code §§82.36.010(4), 82.36.020(1), (2), 82.36.026(3). Thus, Cou-
gar Den owed the tax because Cougar Den traveled with fuel by pub-
lic highway. See App. 10a–26a; App. to Pet. for Cert. 55a. Pp. 4–10.
(b) The State of Washington’s application of the tax to Cougar
Den’s importation of fuel is pre-empted by the Yakama Nation’s res-
ervation of “the right, in common with citizens of the United States,
to travel upon all public highways.” This conclusion rests upon three
considerations taken together. First, this Court has considered this
treaty four times previously; each time it has considered language
very similar to the language now before the Court; and each time it
has stressed that the language of the treaty should be understood as
bearing the meaning that the Yakamas understood it to have in 1855.
See United States v. Winans, 198 U.S. 371, 380–381; Seufert Broth-
ers Co. v. United States, 249 U.S. 194, 196–198; Tulee v. Washington,
315 U.S. 681, 683–685; Washington v. Washington State Commercial
Passenger Fishing Vessel Assn., 443 U.S. 658, 677–678. Thus, al-
though the words “in common with” on their face could be read to
permit application to the Yakamas of general legislation (like the leg-
islation at issue here) that applies to all citizens, this Court has re-
fused to read “in common with” in this way because that is not what
the Yakamas understood the words to mean in 1855. See Winans,
198 U.S., at 379, 381; Seufert Brothers, 249 U.S., at 198–199; Tulee,
315 U.S., at 684; Fishing Vessel, 443 U.S., at 679, 684–685. Second,
the historical record adopted by the agency and the courts below indi-
cates that the treaty negotiations and the United States’ representa-
tives’ statements to the Yakamas would have led the Yakamas to un-
derstand that the treaty’s protection of the right to travel on the
public highways included the right to travel with goods for purposes
of trade. Third, to impose a tax upon traveling with certain goods
burdens that travel. And the right to travel on the public highways
without such burdens is just what the treaty protects. Therefore,
Cite as: 586 U. S. ____ (2019) 3
Syllabus
precedent tells the Court that the tax must be pre-empted. In Tulee,
for example, the fishing right reserved by the Yakamas in the treaty
was held to pre-empt the application to the Yakamas of a state law
requiring fishermen to buy fishing licenses. 315 U.S., at 684. The
Court concluded that “such exaction of fees as a prerequisite to the
enjoyment of” a right reserved in the treaty “cannot be reconciled
with a fair construction of the treaty.” Id., at 685. If the cost of a
fishing license interferes with the right to fish, so must a tax imposed
on travel with goods (here fuel) interfere with the right to travel.
Pp. 10–18.
JUSTICE GORSUCH, joined by JUSTICE GINSBURG, concluded that the
1855 treaty guarantees tribal members the right to move their goods,
including fuel, to and from market freely. When dealing with a tribal
treaty, a court must “give effect to the terms as the Indians them-
selves would have understood them.” Minnesota v. Mille Lacs Band
of Chippewa Indians, 526 U.S. 172, 196. The Yakamas’ understand-
ing of the terms of the 1855 treaty can be found in a set of unchal-
lenged factual findings in Yakama Indian Nation v. Flores, 955
F. Supp. 1229, which are binding here and sufficient to resolve this
case. They provide “no evidence [suggesting] that the term ‘in com-
mon 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, they suggest that the Yakamas under-
stood the treaty’s right-to-travel provision to provide them “with the
right to travel on all public highways without being subject to any li-
censing and permitting fees related to the exercise of that right while
engaged in the transportation of tribal goods.” Id., at 1262. A wealth
of historical evidence confirms this understanding. “Far-reaching
travel was an intrinsic ingredient in virtually every aspect of Yakama
culture,” and travel for purposes of trade was so important to their
“way of life that they could not have performed and functioned as a
distinct culture” without it. Id., at 1238. Everyone then understood
that the treaty would protect the Yakamas’ preexisting right to take
goods to and from market freely throughout its traditional trading
area. The State reads the treaty only as a promise to tribal members
of the right to venture out of their reservation and use the public
highways like everyone else. But the record shows that the consider-
ation the Yakamas supplied—millions of acres desperately wanted by
the United States to settle the Washington Territory—was worth far
more than an abject promise they would not be made prisoners on
their reservation. This Court’s cases interpreting the treaty’s neigh-
boring and parallel right-to-fish provision further confirm this under-
standing. See, e.g., United States v. Winans, 198 U.S. 371. Pp. 1–11.
BREYER, J., announced the judgment of the Court and delivered an
4 WASHINGTON STATE DEPT. OF LICENSING v.
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Syllabus
opinion, in which SOTOMAYOR and KAGAN, JJ., joined. GORSUCH, J.,
filed an opinion concurring in the judgment, in which GINSBURG, J.,
joined. ROBERTS, C. J., filed a dissenting opinion, in which THOMAS,
ALITO, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a dissent-
ing opinion, in which THOMAS, J., joined.
Cite as: 586 U. S. ____ (2019) 1
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REYER , J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1498
_________________
WASHINGTON STATE DEPARTMENT OF LICENSING,
PETITIONER v. COUGAR DEN, INC.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[March 19, 2019]
JUSTICE BREYER announced the judgment of the Court,
and delivered an opinion, in which JUSTICE SOTOMAYOR
and JUSTICE KAGAN join.
The State of Washington imposes a tax upon fuel im-
porters who travel by public highway. The question before
us is whether an 1855 treaty between the United States
and the Yakama Nation forbids the State of Washington
to impose that tax upon fuel importers who are members
of the Yakama Nation. We conclude that it does, and we
affirm the Washington Supreme Court’s similar decision.
I
A
A Washington statute applies to “motor vehicle fuel
importer[s]” who bring large quantities of fuel into the
State by “ground transportation” such as a “railcar, trailer,
[or] truck.” Wash. Rev. Code §§82.36.010(4), (12), (16)
(2012). The statute requires each fuel importer to obtain a
license, and it says that a fuel tax will be “levied and
imposed upon motor vehicle fuel licensees” for “each gallon
of motor vehicle fuel” that the licensee brings into the
State. §§82.36.020(1), (2)(c). Licensed fuel importers who
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import fuel by ground transportation become liable to pay
the tax as of the time the “fuel enters into this [S]tate.”
§82.36.020(2)(c); see also §§82.38.020(4), (12), (15), (26),
82.38.030(1), (7)(c)(ii) (equivalent regulation of diesel fuel
importers).
But only those licensed fuel importers who import fuel
by ground transportation are liable to pay the tax.
§§82.36.026(3), 82.36.020(2)(c). For example, if a licensed
fuel importer brings fuel into the State by pipeline, that
fuel importer need not pay the tax. §§82.36.026(3),
82.36.020(2)(c)(ii), 82.36.010(3). Similarly, if a licensed
fuel importer brings fuel into the State by vessel, that fuel
importer need not pay the tax. §§82.36.026(3),
82.36.020(2)(c)(ii), 82.36.010(3). Instead, in each of those
instances, the next purchaser or possessor of the fuel will
pay the tax. §§82.36.020(2)(a), (b), (d). The only licensed
fuel importers who must pay this tax are the fuel import-
ers who bring fuel into the State by means of ground
transportation.
B
The relevant treaty provides for the purchase by the
United States of Yakama land. See Treaty Between the
United States and the Yakama Nation of Indians, June 9,
1855, 12 Stat. 951. Under the treaty, the Yakamas granted
to the United States approximately 10 million acres of
land in what is now the State of Washington, i.e., about
one-fourth of the land that makes up the State today.
Art. I, id., at 951–952; see also Brief for Respondent 4, 9.
In return for this land, the United States paid the Yaka-
mas $200,000, made improvements to the remaining
Yakama land, such as building a hospital and schools for
the Yakamas to use, and agreed to respect the Yakamas’
reservation of certain rights. Arts. III–V, 12 Stat. 952–
953. Those reserved rights include “the right, in common
with citizens of the United States, to travel upon all public
Cite as: 586 U. S. ____ (2019) 3
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highways,” “the right of taking fish at all usual and accus-
tomed places, in common with citizens of the Territory,”
and other rights, such as the right to hunt, to gather roots
and berries, and to pasture cattle on open and unclaimed
land. Art. III, id., at 953.
C
Cougar Den, Inc., the respondent, is a wholesale fuel
importer owned by a member of the Yakama Nation,
incorporated under Yakama law, and designated by the
Yakama Nation as its agent to obtain fuel for members of
the Tribe. App. to Pet. for Cert. 63a–64a; App. 99a. Cou-
gar Den buys fuel in Oregon, trucks the fuel over public
highways to the Yakama Reservation in Washington, and
then sells the fuel to Yakama-owned retail gas stations
located within the reservation. App. to Pet. for Cert. 50a,
55a. Cougar Den believes that Washington’s fuel import
tax, as applied to Cougar Den’s activities, is pre-empted
by the treaty. App. 15a. In particular, Cougar Den
believes that requiring it to pay the tax would infringe the
Yakamas’ reserved “right, in common with citizens of the
United States, to travel upon all public highways.” Art.
III, 12 Stat. 953.
In December 2013, the Washington State Department of
Licensing (Department), believing that the state tax was
not pre-empted by the treaty, assessed Cougar Den $3.6
million in taxes, penalties, and licensing fees. App. to Pet.
for Cert. 65a; App. 10a. Cougar Den appealed the assess-
ment to higher authorities within the state agency. App.
15a. An Administrative Law Judge agreed with Cougar
Den that the tax was pre-empted. App. to Brief in Opposi-
tion 14a. The Department’s Director, however, disagreed
and overturned the ALJ’s order. App. to Pet. for Cert. 59a.
A Washington Superior Court in turn disagreed with the
director and held that the tax was pre-empted. Id., at 34a.
The director appealed to the Washington Supreme Court.
4 WASHINGTON STATE DEPT. OF LICENSING v.
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188 Wash. 2d 55, 58, 392 P.3d 1014, 1015 (2017). And
that court, agreeing with Cougar Den, upheld the Superior
Court’s determination of pre-emption. Id., at 69, 392
P. 3d, at 1020.
The Department filed a petition for certiorari asking us
to review the State Supreme Court’s determination. And
we agreed to do so.
II
A
The Washington statute at issue here taxes the importa-
tion of fuel by public highway. The Washington Supreme
Court construed the statute that way in the decision be-
low. That court wrote that the statute “taxes the importa-
tion of fuel, which is the transportation of fuel.” Ibid. It
added that “travel on public highways is directly at issue
because the tax [is] an importation tax.” Id., at 67, 392
P. 3d, at 1019.
Nor is there any reason to doubt that the Washington
Supreme Court means what it said when it interpreted the
Washington statute. We read the statute the same way.
In the statute’s own words, Washington “impose[s] upon
motor vehicle fuel licensees,” including “licensed import-
er[s],” a tax for “each gallon of motor vehicle fuel” that
“enters into this state,” but only “if . . . entry is” by means
of “a railcar, trailer, truck, or other equipment suitable for
ground transportation.” Wash. Rev. Code §§82.36.010(4),
82.36.020(1), (2), 82.36.026(3). As is true of most tax laws,
the statute is long and complex, and it is easy to stumble
over this technical language. But if you are able to walk
slowly through its provisions, the statute is easily fol-
lowed. We need take only five steps.
We start our journey at the beginning of the statute
which first declares that “[t]here is hereby levied and
imposed upon motor vehicle fuel licensees, other than
motor vehicle fuel distributors, a tax at the rate . . . pro-
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vided in [the statute] on each gallon of motor vehicle fuel.”
§82.36.020(1). That is simple enough. Washington imposes
a tax on a group of persons called “motor vehicle fuel
licensees” for “each gallon of motor vehicle fuel.”
Who are the “motor vehicle fuel licensees” that Wash-
ington taxes? We take a second step to find out. As the
definitions section of the statute explains, the “motor
vehicle fuel licensees” upon whom the tax is imposed are
“person[s] holding a . . . motor vehicle fuel importer, motor
vehicle fuel exporter, motor vehicle fuel blender, motor
vehicle distributor, or international fuel tax agreement
license.” §82.36.010(12). This, too, is easy to grasp. Not
everyone who possesses motor vehicle fuel owes the tax.
Instead, only motor vehicle fuel importers (and other
similar movers and shakers within the motor vehicle fuel
industry) who are licensed by the State to deal in fuel,
must pay the tax.
But must each of these motor vehicle fuel licensees pay
the tax, so that the fuel is taxed as it passes from blender,
to importer, to exporter, and so on? We take a third step,
and learn that the answer is “no.” As the statute explains,
“the tax shall be imposed at the time and place of the first
taxable event and upon the first taxable person within this
state.” §82.36.022. Reading that, we understand that
only the first licensee who can be taxed, will be taxed.
So, we ask, who is the first taxable licensee? Who must
actually pay this tax? We take a fourth step to find out.
Logic tells us that the first licensee who can be taxed will
likely be the licensee who brings fuel into the State. But,
the statute tells us that a “licensed importer” is “liable for
and [must] pay tax to the department” when “[m]otor
vehicle fuel enters into this state if . . . [t]he entry is not by
bulk transfer.” §§82.36.020(2)(c), 82.36.026(3) (emphasis
added). That is, a licensed importer can only be the first
taxable licensee (and therefore the licensee that must pay
the tax) if the importer brings fuel into the State by a
6 WASHINGTON STATE DEPT. OF LICENSING v.
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method other than “bulk transfer.”
But what is “bulk transfer”? What does it mean to say
that licensed fuel importers need only pay the tax if they
do not bring in fuel by “bulk transfer”? We take a fifth,
and final, step to find out. “[B]ulk transfer,” the defini-
tions section explains, “means a transfer of motor vehicle
fuel by pipeline or vessel,” as opposed to “railcar, trailer,
truck, or other equipment suitable for ground transporta-
tion.” §§82.36.010(3), (4). So, we learn that if the licensed
fuel importer brings fuel into the State by ground trans-
portation, then the fuel importer owes the tax. But if the
licensed fuel importer brings fuel into the State by pipe-
line or vessel, then the importer will not be the first tax-
able person to possess the fuel, and he will not owe the tax.
In sum, Washington taxes travel by ground transporta-
tion with fuel. That feature sets the Washington statute
apart from other statutes with which we are more famil-
iar. It is not a tax on possession or importation. A statute
that taxes possession would ordinarily require all people
who own a good to pay the tax. A good example of that
would be a State’s real estate property tax. That statute
would require all homeowners to pay the tax, every year,
regardless of the specifics of their situation. And a statute
that taxes importation would ordinarily require all people
who bring a good into the State to pay a tax. A good ex-
ample of that would be a federal tax on newly manufac-
tured cars. That statute would ordinarily require all
people who bring a new car into the country to pay a tax.
But Washington’s statute is different because it singles
out ground transportation. That is, Washington does not
just tax possession of fuel, or even importation of fuel, but
instead taxes importation by ground transportation.
The facts of this case provide a good example of the tax
in operation. Each of the assessment orders that the
Department sent to Cougar Den explained that Cougar
Den owed the tax because Cougar Den traveled by high-
Cite as: 586 U. S. ____ (2019) 7
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way. See App. 10a–26a; App. to Pet. for Cert. 55a. As the
director explained, Cougar Den owed the tax because
Cougar Den had caused fuel to enter “into this [S]tate at
the Washington-Oregon boundary on the Highway 97
bridge” by means of a “tank truck” destined for “the
Yakama Reservation.” Ibid. The director offers this ex-
planation in addition to quoting the quantity of fuel that
Cougar Den possessed because the element of travel by
ground transportation is a necessary prerequisite to the
imposition of the tax. Put another way, the State must
prove that Cougar Den traveled by highway in order to
apply its tax.
B
We are not convinced by the arguments raised to the
contrary. The Department claims, and THE CHIEF
JUSTICE agrees, that the state tax has little or nothing to
do with the treaty because it is not a tax on travel with
fuel but rather a tax on the possession of fuel. See Brief
for Petitioner 26–28; post, at 5 (dissenting opinion).
We cannot accept that characterization of the tax, how-
ever, for the Washington Supreme Court has authorita-
tively held that the statute is a tax on travel. The Wash-
ington Supreme Court held that the Washington law at
issue here “taxes the importation of fuel, which is the
transportation of fuel.” 188 Wash. 2d, at 69, 392 P.3d, at
1020. It added that “travel on public highways is directly
at issue because the tax [is] an importation tax.” Id., at
67, 392 P. 3d, at 1019. In so doing, the State Supreme
Court heard, considered, and rejected the construction of
the fuel tax that the Department advances here. See ibid.,
392 P.3d, at 1019 (“The Department argues, and the
director agreed, that the taxes are assessed based on
incidents of ownership or possession of fuel, and not inci-
dent to use of or travel on the roads or highways. . . . The
Department’s argument is unpersuasive. . . . Here, travel
8 WASHINGTON STATE DEPT. OF LICENSING v.
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on public highways is directly at issue because the tax was
an importation tax”). The incidence of a tax is a question
of state law, Oklahoma Tax Comm’n v. Chickasaw Nation,
515 U.S. 450, 461 (1995), and this Court is bound by the
Washington Supreme Court’s interpretation of Washing-
ton law, Johnson v. United States, 559 U.S. 133, 138
(2010). We decline the Department’s invitation to over-
step the bounds of our authority and construe the tax to
mean what the Washington Supreme Court has said it
does not.
Nor would it make sense to construe the tax’s incidence
differently. The Washington Supreme Court’s conclusion
follows directly from its (and our) interpretation of how
the tax operates. See supra, at 4–7. To be sure, it is
generally true that fuel imported into the State by trucks
driving the public highways can also be described as fuel
that is possessed for the first time in the State. But to call
the Washington statute a tax on “first possession” would
give the law an over-inclusive label. As explained at
length above, there are several ways in which a company
could be a “first possessor” of fuel without incurring the
tax. See ibid. For example, Cougar Den would not owe
the tax had Cougar Den “first possessed” fuel by piping
fuel from out of State into a Washington refinery. First
possession is not taxed if the fuel is brought into the State
by pipeline and bound for a refinery. §§82.36.026(3),
82.36.020(2)(c)(ii), 82.36.010(3). Similarly, Cougar Den
would not owe the tax had Cougar Den “first possessed”
fuel by bringing fuel into Washington through its water-
ways rather than its highways. First possession is not
taxed if the fuel is brought into the State by vessel.
§§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Thus, it
seems rather clear that the tax cannot accurately be de-
scribed as a tax on the first possession of fuel.
But even if the contrary were true, the tax would still
have the practical effect of burdening the Yakamas’ travel.
Cite as: 586 U. S. ____ (2019) 9
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Here, the Yakamas’ lone off-reservation act within the
State is traveling along a public highway with fuel. The
tax thus operates on the Yakamas exactly like a tax on
transportation would: It falls upon them only because they
happened to transport goods on a highway while en route
to their reservation. And it is the practical effect of the
state law that we have said makes the difference. We
held, for instance, that the fishing rights reserved in the
treaty pre-empted the State’s enforcement of a trespass
law against Yakama fishermen crossing private land to
access the river. See, e.g., United States v. Winans, 198
U.S. 371, 381 (1905). That was so even though the tres-
pass law was not limited to those who trespass in order to
fish but applied more broadly to any trespasser. Put
another way, it mattered not that the tax was “on” tres-
passing rather than fishing because the tax operated upon
the Yakamas when they were exercising their treaty-
protected right. Ibid.; see also Tulee v. Washington, 315
U.S. 681, 685 (1942) (holding that the fishing rights re-
served in the treaty pre-empted the State’s application of a
fishing licensing fee to a Yakama fisherman, even though
the fee also applied to types of fishing not practiced by the
Yakamas). And this approach makes sense. When the
Yakamas bargained in the treaty to protect their right to
travel, they could only have cared about preventing the
State from burdening their exercise of that right. To the
Yakamas, it is thus irrelevant whether the State’s tax
might apply to other activities beyond transportation. The
only relevant question is whether the tax “act[ed] upon the
Indians as a charge for exercising the very right their
ancestors intended to reserve.” Tulee, 315 U.S., at 685.
And the State’s tax here acted upon Cougar Den in exactly
that way.
For the same reason, we are unpersuaded by the De-
partment’s insistence that it adopted this tax after a Dis-
trict Court, applying this Court’s decision in Chickasaw
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Nation, barred the State from taxing the sale of fuel prod-
ucts on tribal land. See Brief for Petitioner 6–7; Squaxin
Island Tribe v. Stephens, 400 F. Supp. 2d 1250, 1262 (WD
Wash. 2005). Although a State “generally is free to amend
its law to shift the tax’s legal incidence,” Chickasaw Na-
tion, 515 U.S., at 460, it may not burden a treaty-
protected right in the process, as the State has done here.
Thus, we must turn to the question whether this fuel
tax, falling as it does upon members of the Tribe who
travel on the public highways, violates the treaty.
III
A
In our view, the State of Washington’s application of the
fuel tax to Cougar Den’s importation of fuel is pre-empted
by the treaty’s reservation to the Yakama Nation of “the
right, in common with citizens of the United States, to
travel upon all public highways.” We rest this conclusion
upon three considerations taken together.
First, this Court has considered this treaty four times
previously; each time it has considered language very
similar to the language before us; and each time it has
stressed that the language of the treaty should be under-
stood as bearing the meaning that the Yakamas under-
stood it to have in 1855. See Winans, 198 U.S., at 380–
381; Seufert Brothers Co. v. United States, 249 U.S. 194,
196–198 (1919); Tulee, 315 U.S., at 683–685; Washington
v. Washington State Commercial Passenger Fishing Vessel
Assn., 443 U.S. 658, 677–678 (1979).
The treaty language at issue in each of the four cases is
similar, though not identical, to the language before us.
The cases focus upon language that guarantees to the
Yakamas “the right of taking fish at all usual and accus-
tomed places, in common with citizens of the Territory.”
Art. III, para. 2, 12 Stat. 953. Here, the language guaran-
tees to the Yakamas “the right, in common with citizens of
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the United States, to travel upon all public highways.”
Art. III, para. 1, ibid. The words “in common with” on
their face could be read to permit application to the Yak-
amas of general legislation (like the legislation before us)
that applies to all citizens, Yakama and non-Yakama
alike. But this Court concluded the contrary because that
is not what the Yakamas understood the words to mean in
1855. See Winans, 198 U.S., at 379, 381; Seufert Broth-
ers, 249 U.S., at 198–199; Tulee, 315 U.S., at 684; Fishing
Vessel, 443 U.S., at 679, 684–685.
The cases base their reasoning in part upon the fact that
the treaty negotiations were conducted in, and the treaty
was written in, languages that put the Yakamas at a
significant disadvantage. See, e.g., Winans, 198 U.S., at
380; Seufert Brothers, 249 U.S., at 198; Fishing Vessel,
443 U.S., at 667, n. 10. The parties negotiated the treaty
in Chinook jargon, a trading language of about 300 words
that no Tribe used as a primary language. App. 65a;
Fishing Vessel, 443 U.S., at 667, n. 10. The parties me-
morialized the treaty in English, a language that the
Yakamas could neither read nor write. And many of the
representations that the United States made about the
treaty had no adequate translation in the Yakamas’ own
language. App. 68a–69a.
Thus, in the year 1905, in Winans, this Court wrote
that, to interpret the treaty, courts must focus upon the
historical context in which it was written and signed. 198
U.S., at 381; see also Tulee, 315 U.S., at 684 (“It is our
responsibility to see that the terms of the treaty are car-
ried out, so far as possible, in accordance with the mean-
ing they were understood to have by the tribal representa-
tives at the council”); cf. Water Splash, Inc. v. Menon, 581
U. S. ___, ___ (2017) (slip op., at 8) (noting that, to ascer-
tain the meaning of a treaty, courts “may look beyond the
written words to the history of the treaty, the negotiations,
and the practical construction adopted by the parties”)
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(internal quotation marks omitted).
The Court added, in light of the Yakamas’ understand-
ing in respect to the reservation of fishing rights, the
treaty words “in common with” do not limit the reserva-
tion’s scope to a right against discrimination. Winans, 198
U.S., at 380–381. Instead, as we explained in Tulee,
Winans held that “Article III [of the treaty] conferred upon
the Yakimas continuing rights, beyond those which other
citizens may enjoy, to fish at their ‘usual and accustomed
places’ in the ceded area.” Tulee, 315 U.S., at 684 (citing
Winans, 198 U.S. 371; emphasis added). Also compare,
e.g., Fishing Vessel, 443 U.S., at 677, n. 22 (“Whatever
opportunities the treaties assure Indians with respect to
fish are admittedly not ‘equal’ to, but are to some extent
greater than, those afforded other citizens” (emphasis
added)), with post, at 4 (KAVANAUGH, J., dissenting) (cit-
ing this same footnote in Fishing Vessel as support for the
argument that the treaty guarantees the Yakamas only a
right against discrimination). Construing the treaty as
giving the Yakamas only antidiscrimination rights, rights
that any inhabitant of the territory would have, would
amount to “an impotent outcome to negotiations and a
convention, which seemed to promise more and give the
word of the Nation for more.” Winans, 198 U.S., at 380.
Second, the historical record adopted by the agency and
the courts below indicates that the right to travel includes
a right to travel with goods for sale or distribution. See
App. to Pet. for Cert. 33a; App. 56a–74a. When the United
States and the Yakamas negotiated the treaty, both sides
emphasized that the Yakamas needed to protect their
freedom to travel so that they could continue to fish, to
hunt, to gather food, and to trade. App. 65a–66a. The
Yakamas maintained fisheries on the Columbia River,
following the salmon runs as the fish moved through
Yakama territory. Id., at 62a–63a. The Yakamas traveled
to the nearby plains region to hunt buffalo. Id., at 61a.
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They traveled to the mountains to gather berries and
roots. Ibid. The Yakamas’ religion and culture also de-
pended on certain goods, such as buffalo byproducts and
shellfish, which they could often obtain only through
trade. Id., at 61a–62a. Indeed, the Yakamas formed part
of a great trading network that stretched from the Indian
tribes on the Northwest coast of North America to the
plains tribes to the east. Ibid.
The United States’ representatives at the treaty negoti-
ations well understood these facts, including the im-
portance of travel and trade to the Yakamas. Id., at 63a.
They repeatedly assured the Yakamas that under the
treaty the Yakamas would be able to travel outside their
reservation on the roads that the United States built. Id.,
at 66a–67a; see also, e.g., id., at 66a (“ ‘[W]e give you the
privilege of traveling over roads’ ”). And the United States
repeatedly assured the Yakamas that they could travel
along the roads for trading purposes. Id., at 65a–67a.
Isaac Stevens, the Governor of the Washington Territory,
told the Yakamas, for example, that, under the terms of
the treaty, “You will be allowed to go on the roads, to take
your things to market, your horses and cattle.” App. to
Brief for Confederated Tribes and Bands of the Yakama
Nation as Amicus Curiae 68a (record of the treaty proceed-
ings). He added that the Yakamas “will be allowed to go
to the usual fishing places and fish in common with the
whites, and to get roots and berries and to kill game on
land not occupied by the whites; all this outside the Reser-
vation.” Ibid. Governor Stevens further urged the Yaka-
mas to accept the United States’ proposals for reservation
boundaries in part because the proposal put the Yakama
Reservation in close proximity to public highways that
would facilitate trade. He said, “ ‘You will be near the
great road and can take your horses and your cattle down
the river and to the [Puget] Sound to market.’ ” App. 66a.
In a word, the treaty negotiations and the United States’
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representatives’ statements to the Yakamas would have
led the Yakamas to understand that the treaty’s protec-
tion of the right to travel on the public highways included
the right to travel with goods for purposes of trade. We
consequently so construe the relevant treaty provision.
Third, to impose a tax upon traveling with certain goods
burdens that travel. And the right to travel on the public
highways without such burdens is, as we have said, just
what the treaty protects. Therefore, our precedents tell us
that the tax must be pre-empted. In Tulee, for example,
we held that the fishing right reserved by the Yakamas in
the treaty pre-empted the application to the Yakamas of a
state law requiring fishermen to buy fishing licenses. 315
U.S., at 684. We concluded that “such exaction of fees as
a prerequisite to the enjoyment of ” a right reserved in the
treaty “cannot be reconciled with a fair construction of the
treaty.” Id., at 685. If the cost of a fishing license inter-
feres with the right to fish, so must a tax imposed on
travel with goods (here fuel) interfere with the right to
travel.
We consequently conclude that Washington’s fuel tax
“acts upon the Indians as a charge for exercising the very
right their ancestors intended to reserve.” Ibid. Washing-
ton’s fuel tax cannot lawfully be assessed against Cougar
Den on the facts here. Treaties with federally recognized
Indian tribes—like the treaty at issue here—constitute
federal law that pre-empts conflicting state law as applied
to off-reservation activity by Indians. Cf. Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973).
B
Again, we are not convinced by the arguments raised to
the contrary. THE CHIEF JUSTICE concedes that “the right
to travel with goods is just an application of the Yakamas’
right to travel.” Post, at 2 (dissenting opinion); see also
ibid. (“It ensures that the Yakamas enjoy the same privi-
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leges when they travel with goods as when they travel
without them.”). But he nevertheless insists that, because
of the way in which the Washington statute taxes fuel, the
statute does not interfere with the right to travel reserved
by the Yakamas in the treaty. Post, at 3.
First, THE CHIEF JUSTICE finds it significant that “[t]he
tax is calculated per gallon of fuel; not, like a toll, per
vehicle or distance traveled.” Ibid., see also ibid. (“The tax
before us does not resemble a blockade or a toll”). But that
argument fails on its own terms. A toll on highway travel
is no less a toll when the toll varies based on the number
of axels on a vehicle traveling the highway, or on the
number of people traveling in the vehicle. We cannot,
therefore, see why the number of gallons of fuel that the
vehicle carries should make all the difference. Put another
way, the fact that a tax on travel varies based on the
features of that travel does not mean that the tax is not a
tax on travel.
Second, THE CHIEF JUSTICE argues that it “makes no
sense,” for example, to hold that “a tax on certain luxury
goods” that is assessed the first time the goods are pos-
sessed in Washington cannot apply to a Yakama member
“who buys” a mink coat “over the state line in Portland
and then drives back to the reservation,” but the tax can
apply to a Yakama member who “buys a mink coat at an
off-reservation store in Washington.” Post, at 4. The
short, conclusive answer to this argument is that there is
a treaty that forbids taxing Yakama travel on highways
with goods (e.g., fuel, or even furs) for market; and there is
no treaty that forbids taxing Yakama off-reservation
purchases of goods. Indeed, if our precedents supported
THE CHIEF JUSTICE’s rule, then our fishing rights cases
would have turned on whether Washington also taxed fish
purchased in the grocery store. Compare, e.g., Tulee, 315
U.S., at 682, n. 1 (holding that the fishing right reserved
by the Yakamas in the treaty pre-empted the application
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to the Yakamas of a state law which prohibited
“ ‘catch[ing] . . . fish for food’ ” without having purchased a
license). But in those cases, we did not look to whether
fish were taxed elsewhere in Washington. That is because
the treaty does not protect the Yakamas from state sales
taxes imposed on the off-reservation sale of goods. In-
stead, the treaty protects the Yakamas’ right to travel the
public highways without paying state taxes on that activ-
ity, much like the treaty protects the Yakamas’ right to fish
without paying state taxes on that activity.
Third, THE CHIEF JUSTICE argues that only a law that
“punished or charged the Yakamas” for an “integral fea-
ture” of a treaty right could be pre-empted by the treaty.
Post, at 6. But that is true of the Washington statute at
issue here. The treaty protects the right to travel with
goods, see supra, at 10–14, and the Washington statute
taxes travel with goods, see supra, at 4–7. Therefore, the
statute charges the Yakamas for an “integral feature” of a
treaty right. But even if the statute indirectly burdened a
treaty right, under our precedents, the statute would still
be pre-empted. One of the Washington statutes at issue in
Winans was not a fishing regulation, but instead a tres-
passing statute. That trespassing statute indirectly bur-
dened the right to fish by preventing the Yakamas from
crossing privately owned land so that the Yakamas could
reach their traditional fishing places and camp on that
private property during the fishing season. See 198 U.S.,
at 380–381. It cannot be true that a law prohibiting tres-
passing imposed a burden on the right to fish that is “inte-
gral” enough to be pre-empted by the treaty, while a law
taxing goods carried to the reservation on the public high-
way imposes a burden on the right to travel that is too
attenuated to be pre-empted by the treaty.
C
Although we hold that the treaty protects the right to
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travel on the public highway with goods, we do not say or
imply that the treaty grants protection to carry any and
all goods. Nor do we hold that the treaty deprives the
State of the power to regulate, say, when necessary for
conservation. To the contrary, we stated in Tulee that,
although the treaty “forecloses the [S]tate from charging
the Indians a fee of the kind in question here,” the State
retained the “power to impose on Indians, equally with
others, such restrictions of a purely regulatory nature . . .
as are necessary for the conservation of fish.” 315 U.S., at
684. Indeed, it was crucial to our decision in Tulee that,
although the licensing fees at issue were “regulatory as
well as revenue producing,” “their regulatory purpose
could be accomplished otherwise,” and “the imposition of
license fees [was] not indispensable to the effectiveness of
a state conservation program.” Id., at 685. See also
Puyallup Tribe v. Department of Game of Wash., 391 U.S.
392, 402, n. 14 (1968) (“As to a ‘regulation’ concerning the
time and manner of fishing outside the reservation (as
opposed to a ‘tax’), we said that the power of the State was
to be measured by whether it was ‘necessary for the con-
servation of fish’ ” (quoting Tulee, 315 U.S., at 684)).
Nor do we hold that the treaty deprives the State of the
power to regulate to prevent danger to health or safety
occasioned by a tribe member’s exercise of treaty rights.
The record of the treaty negotiations may not support the
contention that the Yakamas expected to use the roads
entirely unconstrained by laws related to health or safety.
See App. to Brief for Confederated Tribes and Bands of the
Yakama Nation as Amicus Curiae 20a–21a, 31a–32a.
Governor Stevens explained, at length, the United States’
awareness of crimes committed by United States citizens
who settled amongst the Yakamas, and the United States’
intention to enact laws that would restrain both the
United States citizens and the Yakamas alike for the
safety of both groups. See id., at 31a.
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Nor do we here interpret the treaty as barring the State
from collecting revenue through sales or use taxes (applied
outside the reservation). Unlike the tax at issue here,
which applies explicitly to transport by “railcar, trailer,
truck, or other equipment suitable for ground transporta-
tion,” see supra, at 6, a sales or use tax normally applies
irrespective of transport or its means. Here, however, we
deal with a tax applicable simply to importation by ground
transportation. Moreover, it is a tax designed to secure
revenue that, as far as the record shows here, the State
might obtain in other ways.
IV
To summarize, our holding rests upon three proposi-
tions: First, a state law that burdens a treaty-protected
right is pre-empted by the treaty. See supra, at 14–18.
Second, the treaty protects the Yakamas’ right to travel on
the public highway with goods for sale. See supra, at 10–
14. Third, the Washington statute at issue here taxes the
Yakamas for traveling with fuel by public highway. See
supra, at 4–10. For these three reasons, Washington’s fuel
tax cannot lawfully be assessed against Cougar Den on the
facts here. Therefore, the judgment of the Supreme Court
of Washington is affirmed.
It is so ordered.
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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1498
_________________
WASHINGTON STATE DEPARTMENT OF LICENSING,
PETITIONER v. COUGAR DEN, INC.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[March 19, 2019]
JUSTICE GORSUCH, with whom JUSTICE GINSBURG joins,
concurring in the judgment.
The Yakamas have lived in the Pacific Northwest for
centuries. In 1855, the United States sought and won a
treaty in which the Tribe agreed to surrender 10 million
acres, land that today makes up nearly a quarter of the
State of Washington. In return, the Yakamas received a
reservation and various promises, including a guarantee
that they would enjoy “the right, in common with citizens
of the United States, to travel upon all public highways.”
Today, the parties offer dueling interpretations of this
language. The State argues that it merely allows the
Yakamas to travel on public highways like everyone else.
And because everyone else importing gasoline from out of
State by highway must pay a tax on that good, so must
tribal members. Meanwhile, the Tribe submits that the
treaty guarantees tribal members the right to move their
goods to and from market freely. So that tribal members
may bring goods, including gasoline, from an out-of-state
market to sell on the reservation without incurring taxes
along the way.
Our job here is a modest one. We are charged with
adopting the interpretation most consistent with the
treaty’s original meaning. Eastern Airlines, Inc. v. Floyd,
499 U.S. 530, 534–535 (1991). When we’re dealing with a
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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 negotia-
tions “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 Eng-
lish—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]
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not imply that the Indian use [would] be in any way re-
stricted.” 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 re-
striction.” 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 transpor-
tation 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 every-
one’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 under-
standing. 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
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plains of Montana and Wyoming.” Ibid. This system
came with no restrictions; the Yakamas enjoyed “free and
open access to trade networks in order to maintain their
system of trade and exchange.” Id., at 1263. They trav-
eled to Oregon and maybe even to California to trade “fir
trees, lava rocks, horses, and various species of salmon.”
Id., at 1262–1263. This extensive travel “was necessary to
obtain goods that were otherwise unavailable to [the
Yakamas] but important for sustenance and religious
purposes.” Id., at 1262. Indeed, “far-reaching travel was
an intrinsic ingredient in virtually every aspect of Yakama
culture.” Id., at 1238. Travel for purposes of trade was so
important to the “Yakamas’ way of life that they could not
have performed and functioned as a distinct culture . . .
without extensive travel.” Ibid. (internal quotation marks
omitted).
Everyone understood that the treaty would protect the
Yakamas’ preexisting right to take goods to and from
market freely throughout their traditional trading area.
“At the treaty negotiations, a primary concern of the Indi-
ans was that they have freedom to move about to . . .
trade.” Id., at 1264. Isaac Stevens, the Governor of the
Washington Territory, specifically promised the Yakamas
that they would “ ‘be allowed to go on the roads to take
[their] things to market.’ ” Id., at 1244 (emphasis deleted).
Governor Stevens called this the “ ‘same libert[y]’ ” to
travel with goods free of restriction “ ‘outside the reserva-
tion’ ” that the Tribe would enjoy within the new reserva-
tion’s boundaries. Ibid. Indeed, the U. S. representatives’
“statements regarding the Yakama’s use of the public
highways to take their goods to market clearly and with-
out ambiguity promised the Yakamas the use of public
highways without restriction for future trading endeav-
ors.” Id., at 1265. Before the treaty, then, the Yakamas
traveled extensively without paying taxes to bring goods to
and from market, and the record suggests that the Yaka-
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mas would have understood the treaty to preserve that
liberty.
None of this can come as much of a surprise. As the
State reads the treaty, it promises tribal members only the
right to venture out of their reservation and use the public
highways like everyone else. But the record shows that
the consideration the Yakamas supplied was worth far
more than an abject promise they would not be made
prisoners on their reservation. In fact, the millions of
acres the Tribe ceded were a prize the United States des-
perately wanted. U. S. treaty negotiators were “under
tremendous pressure to quickly negotiate treaties with
eastern Washington tribes, because lands occupied by
those tribes were important in settling the Washington
territory.” Id., at 1240. Settlers were flooding into the
Pacific Northwest and building homesteads without any
assurance of lawful title. The government needed “to
obtain title to Indian lands” to place these settlements on
a more lawful footing. Ibid. The government itself also
wanted to build “wagon and military roads through
Yakama lands to provide access to the settlements on the
west side of the Cascades.” Ibid. So “obtaining Indian
lands east of the Cascades became a central objective” for
the government’s own needs. Id., at 1241. The Yakamas
knew all this and could see the writing on the wall: One
way or another, their land would be taken. If they man-
aged to extract from the negotiations the simple right to
take their goods freely to and from market on the public
highways, it was a price the United States was more than
willing to pay. By any fair measure, it was a bargain-
basement deal.
Our cases interpreting the treaty’s neighboring and
parallel right-to-fish provision further confirm this under-
standing. The treaty “secure[s] . . . the right of taking fish
at all usual and accustomed places, in common with citi-
zens of the Territory.” Treaty Between the United States
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and the Yakama Nation of Indians, Art. III, June 9, 1855,
12 Stat. 953 (emphasis added). Initially, some suggested
this guaranteed tribal members only the right to fish
according to the same regulations and subject to the same
fees as non-Indians. But long ago this Court refused to
impose such an “impotent” construction on the treaty.
United States v. Winans, 198 U.S. 371, 380 (1905). In-
stead, the Court held that the treaty language prohibited
state officials from imposing many nondiscriminatory fees
and regulations on tribal members. While such laws “may
be both convenient and, in [their] general impact, fair,”
this Court observed, they act “upon the Indians as a
charge for exercising the very right their ancestors intended
to reserve.” Tulee v. Washington, 315 U.S. 681, 685
(1942). Interpreting the same treaty right in Winans, we
held that, despite arguments otherwise, “the phrase ‘in
common with citizens of the Territory’ ” confers “upon the
Yak[a]mas continuing rights, beyond those which other
citizens may enjoy, to fish at their ‘usual and accustomed
places.’ ” Tulee, 315 U.S., at 684 (citing Winans, 198 U.S.,
at 371; emphasis added). Today, we simply recognize that
the same language should yield the same result.
With its primary argument now having failed, the State
encourages us to labor through a series of backups. It
begins by pointing out that the treaty speaks of allowing
the Tribe “free access” from local roads to the public high-
ways, but indicates that tribal members are to use those
highways “in common with” non-Indians. On the State’s
account, these different linguistic formulations must be
given different meanings. And the difference the State
proposes? No surprise: It encourages us to read the
former language as allowing goods to be moved tax-free
along local roads to the highways but the latter lan-
guage as authorizing taxes on the Yakamas’ goods once
they arrive there. See also post, at 3 (KAVANAUGH, J.,
dissenting).
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The trouble is that nothing in the record supports this
interpretation. Uncontested factual findings reflect the
Yakamas’ understanding that the treaty would allow them
to use the highways to bring goods to and from market
freely. These findings bind us under the doctrine of collat-
eral estoppel, and no one has proposed any lawful basis for
ignoring them. Nor, for that matter, has anyone even
tried to offer a reason why the Tribe might have bargained
for the right to move its goods freely only part of the way
to market. Our job in this case is to interpret the treaty as
the Yakamas originally understood it in 1855—not in light
of new lawyerly glosses conjured up for litigation a conti-
nent away and more than 150 years after the fact.
If that alternative won’t work, the State offers another.
It admits that the Yakamas personally may have a right
to travel the highways free of most restrictions on their
movement. See also post, at 3 (ROBERTS, C. J., dissenting)
(acknowledging that the treaty prohibits the State from
“charg[ing] . . . a toll” on Yakamas traveling on the high-
way). But, the State continues, the law at issue here
doesn’t offend that right. It doesn’t, we are told, because
the “object” of the State’s tax isn’t travel but the possession
of fuel; the fact that the State happens to assess its tax
when fuel is possessed on a public highway rather than
someplace else is neither here nor there. And just look, we
are told, at the anomalies that might arise if we ruled
otherwise. A tribal member who buys a “mink coat” in a
Washington store would have to pay the State’s sales tax,
but a tribal member who purchases the same coat at
market in Oregon could not be taxed for possessing it
on the highway when reentering Washington. See post,
at 2–7.
This argument suffers from much the same problem as
its predecessors. Now, at least, the State may
acknowledge that the Yakamas personally have a right to
travel free of most restrictions. But the State still fails to
8 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
GORSUCH, J., concurring in judgment
give full effect to the treaty’s terms and the Yakamas’
original understanding of them. After all and as we’ve
seen, the treaty doesn’t just guarantee tribal members the
right to travel on the highways free of most restrictions on
their movement; it also guarantees tribal members the
right to move goods freely to and from market using those
highways. And it’s impossible to transport goods without
possessing them. So a tax that falls on the Yakamas’
possession of goods as they travel to and from market on
the highway violates the treaty just as much as a tax on
travel alone would.
Consider the alternative. If the State could save the tax
here simply by labeling it a fee on the “possession” of a
good, the State might just as easily revive the fishing
license fee Tulee struck down simply by calling it a fee on
the “possession” of fish. That, of course, would be ridicu-
lous. The Yakamas’ right to fish includes the right to
possess the fish they catch—just like their right to move
goods on the highways embraces the right to possess them
there. Nor does the State’s reply solve the problem. It
accepts, as it must, that possessing fish is “integral” to the
right to fish. Post, at 6, n. 2 (ROBERTS, C. J., dissenting).
But it stands pat on its assertion that the treaty protects
nothing more than a personal right to travel, ignoring all
of the facts and binding findings before us establishing
that the treaty also guarantees a right to move (and so
possess) goods freely as they travel to and from market.
Ibid.
What about the supposed “mink coat” anomaly? Under
the terms of the treaty before us, it’s true that a Yakama
who buys a mink coat (or perhaps some more likely item)
at an off-reservation store in Washington will have to pay
sales tax because the treaty is silent there. And it is also
true that a Yakama who buys the same coat right over the
state line, pays any taxes due at market there, and then
drives back to the reservation using the public highways is
Cite as: 586 U. S. ____ (2019) 9
GORSUCH, J., concurring in judgment
entitled to move that good tax-free from market back to
the reservation. But that is hardly anomalous—that is the
treaty right the Yakamas reserved. And it’s easy to see
why. Imagine the Yakama Reservation reached the Wash-
ington/Oregon state line (as it did before the 1855 Treaty).
In that case, Washington would have no basis to tax the
Yakamas’ transportation of goods from Oregon (whether
they might be fuel, mink coats, or anything else), as all of
the Yakamas’ conduct would take place outside of the
State or on the reservation. The only question here is
whether the result changes because the Tribe must now
use Washington’s highways to make the trek home. And
the answer is no. The Tribe bargained for a right to travel
with goods off reservation just as it could on reservation
and just as it had for centuries. If the State and federal
governments do not like that result, they are free to bar-
gain for more, but they do not get to rewrite the existing
bargain in this Court.
Alternatively yet, the State warns us about the dire
consequences of a ruling against it. Highway speed limits,
reckless driving laws, and much more, the State tells us,
will be at risk if we rule for the Tribe. See also post, at 7–
10 (ROBERTS, C. J., dissenting). But notice. Once you
acknowledge (as the State and primary dissent just have)
that the Yakamas themselves enjoy a right to travel free of
at least some nondiscriminatory state regulations, this
“problem” inevitably arises. It inevitably arises, too, once
you concede that the Yakamas enjoy a right to travel
freely at least on local roads. See post, at 3 (KAVANAUGH,
J., dissenting). Whether you read the treaty to afford the
Yakamas the further right to bring goods to and from
market is beside the point.
It turns out, too, that the State’s parade of horribles
isn’t really all that horrible. While the treaty supplies the
Yakamas with special rights to travel with goods to and
from market, we have seen already that its “in common
10 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
GORSUCH, J., concurring in judgment
with” language also indicates that tribal members knew
they would have to “share the use of the road with whites”
and accept regulations designed to allow the two groups’
safe coexistence. Yakama Indian Nation, 955 F. Supp., at
1265. Indeed, the Yakamas expected laws designed to
“protec[t]” their ability to travel safely alongside non-
Indians on the highways. See App. to Brief for Confeder-
ated Tribes and Bands of the Yakama Nation as Amicus
Curiae 21a, 31a. Maybe, too, that expectation goes some
way toward explaining why the State’s hypothetical pa-
rade of horribles has yet to take its first step in the real
world. No one before us has identified a single challenge
to a state highway speed limit, reckless driving law, or
other critical highway safety regulation in the entire life of
the Yakama treaty.
Retreating now, the State suggests that the real prob-
lem isn’t so much about the Yakamas themselves traveling
freely as it is with their goods doing so. We are told we
should worry, for example, about limiting Washington’s
ability to regulate the transportation of diseased apples
from Oregon. See also post, at 10 (ROBERTS, C. J., dissent-
ing). But if bad apples prove to be a public menace, Ore-
gon and its localities may regulate them when they are
grown or picked at the orchard. Oregon, its localities, and
maybe even the federal government may regulate the bad
apples when they arrive at market for sale in Oregon. The
Tribe and again, perhaps, the federal government may
regulate the bad apples when they arrive on the reserva-
tion. And if the bad apples somehow pose a threat to safe
travel on the highways, even Washington may regulate
them as they make their way from Oregon to the reserva-
tion—just as the State may require tribal members to
abide nondiscriminatory regulations governing the safe
transportation of flammable cargo as they drive their gas
trucks from Oregon to the reservation along public high-
ways. The only thing that Washington may not do is
Cite as: 586 U. S. ____ (2019) 11
GORSUCH, J., concurring in judgment
reverse the promise the United States made to the Yaka-
mas in 1855 by imposing a tax or toll on tribal members or
their goods as they pass to and from market.
Finally, some worry that, if we recognize the potential
permissibility of state highway safety laws, we might wind
up impairing the interests of “tribal members across the
country.” See post, at 10 (ROBERTS, C. J., dissenting). But
our decision today is based on unchallenged factual find-
ings about how the Yakamas themselves understood this
treaty in light of the negotiations that produced it. And
the Tribe itself has expressly acknowledged that its treaty,
while extending real and valuable rights to tribal mem-
bers, does not preclude laws that merely facilitate the safe
use of the roads by Indians and non-Indians alike. Nor
does anything we say here necessarily apply to other
tribes and other treaties; each must be taken on its own
terms. In the end, then, the only true threat to tribal
interests today would come from replacing the meaningful
right the Yakamas thought they had reserved with the
trivial promise the State suggests.
Really, this case just tells an old and familiar story. The
State of Washington includes millions of acres that the
Yakamas ceded to the United States under significant
pressure. In return, the government supplied a handful of
modest promises. The State is now dissatisfied with the
consequences of one of those promises. It is a new day,
and now it wants more. But today and to its credit, the
Court holds the parties to the terms of their deal. It is the
least we can do.
Cite as: 586 U. S. ____ (2019) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1498
_________________
WASHINGTON STATE DEPARTMENT OF LICENSING,
PETITIONER v. COUGAR DEN, INC.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[March 19, 2019]
CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS,
JUSTICE ALITO, and JUSTICE KAVANAUGH join, dissenting.
In the 1855 treaty in which the Yakamas surrendered
most of their lands to the United States, the Tribe sought
to protect its way of life by reserving, among other rights,
“the right, in common with citizens of the United States,
to travel upon all public highways.” Treaty Between the
United States and the Yakama Nation of Indians, Art. III,
June 9, 1855, 12 Stat. 953. Cougar Den, a Yakama corpo-
ration that uses public highways to truck gas into Wash-
ington, contends that the treaty exempts it from Washing-
ton’s fuel tax, which the State assesses upon the
importation of fuel into the State. The plurality agrees,
concluding that Washington cannot impose the tax on
Cougar Den because doing so would “have the practical
effect of burdening” Cougar Den’s exercise of its right to
travel on the highways. Ante, at 9. The concurrence
reaches the same result, reasoning that, because the
Yakamas’ right to travel includes the right to travel with
goods, the State cannot tax or regulate the Yakamas’
goods on the highways. Ante, at 7–8 (GORSUCH, J., con-
curring in judgment).
But the mere fact that a state law has an effect on the
Yakamas while they are exercising a treaty right does not
establish that the law impermissibly burdens the right
2 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
ROBERTS, C. J., dissenting
itself. And the right to travel with goods is just an appli-
cation of the Yakamas’ right to travel. It ensures that the
Yakamas enjoy the same privileges when they travel with
goods as when they travel without them. It is not an
additional right to possess whatever goods they wish on
the highway, immune from regulation and taxation.
Under our precedents, a state law violates a treaty right
only if the law imposes liability upon the Yakamas “for
exercising the very right their ancestors intended to re-
serve.” Tulee v. Washington, 315 U.S. 681, 685 (1942).
Because Washington is taxing Cougar Den for possessing
fuel, not for traveling on the highways, the State’s method
of administering its fuel tax is consistent with the treaty.
I respectfully dissent from the contrary conclusion of the
plurality and concurrence.1
We have held on three prior occasions that a non-
discriminatory state law violated a right the Yakamas
reserved in the 1855 treaty. All three cases involved the
“right of taking fish at all usual and accustomed places, in
common with citizens of the Territory.” Art. III, 12 Stat.
953. In United States v. Winans, 198 U.S. 371 (1905), and
later again in Seufert Brothers Co. v. United States, 249
U.S. 194 (1919), we held that state trespass law could not
be used to prevent tribe members from reaching a historic
fishing site. And in Tulee v. Washington, we held that
Washington could not punish a Yakama member for fish-
ing without a license. We concluded that the license law
was preempted because the required fee “act[ed] upon the
Indians as a charge for exercising the very right their
ancestors intended to reserve”—the right to fish. 315
——————
1 There is something of an optical illusion in this case that may subtly
distort analysis. It comes from the fact that the tax here happens to be
on motor fuel. There is no claim, however, that the tax inhibits the
treaty right to travel because of the link between motor fuel and high-
way travel. The question presented must be analyzed as if the tax were
imposed on goods of any sort.
Cite as: 586 U. S. ____ (2019) 3
ROBERTS, C. J., dissenting
U. S., at 685.
These three cases found a violation of the treaty when
the challenged action—application of trespass law and
enforcement of a license requirement—actually blocked
the Yakamas from fishing at traditional locations. Apply-
ing the reasoning of those decisions to the Yakamas’ right
to travel, it follows that a State could not bar Yakama
members from traveling on a public highway, or charge
them a toll to do so.
Nothing of the sort is at issue here. The tax before us
does not resemble a blockade or a toll. It is a tax on a
product imported into the State, not a tax on highway
travel. The statute says as much: “There is hereby levied
and imposed . . . a tax . . . on each gallon of motor vehicle
fuel.” Wash. Rev. Code §82.36.020(1) (2012) (emphasis
added). It is difficult to imagine how the legislature could
more clearly identify the object of the tax. The tax is
calculated per gallon of fuel; not, like a toll, per vehicle or
distance traveled. It is imposed on the owner of the fuel,
not the driver or owner of the vehicle—separate entities in
this case. And it is imposed at the same rate on fuel that
enters the State by methods other than a public high-
way—whether private road, rail, barge, or pipeline.
§§82.36.010(4), 020(1), (2). Had Cougar Den filled up its
trucks at a refinery or pipeline terminal in Washington,
rather than trucking fuel in from Oregon, there would be
no dispute that it was subject to the exact same tax. See
§§82.36.020(2)(a), (b)(ii). Washington is taxing the fuel
that Cougar Den imports, not Cougar Den’s travel on the
highway; it is not charging the Yakamas “for exercising
the very right their ancestors intended to reserve.” Tulee,
315 U.S., at 685.
It makes no difference that Washington happens to
impose that charge when Cougar Den’s drivers cross into
Washington on a public highway. The time and place of
the imposition of the tax does not change what is taxed,
4 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
ROBERTS, C. J., dissenting
and thus what activity—possession of goods or travel—is
burdened. Say Washington imposes a tax on certain
luxury goods, assessed upon first possession of the goods
by a retail customer. A Yakama member who buys a mink
coat at an off-reservation store in Washington will pay the
tax. Yet, as the plurality acknowledges, under its view a
tribal member who buys the same coat right over the state
line in Portland and then drives back to the reservation
will owe no tax—all because of a reserved right to travel
on the public highways. Ante, at 15. That makes no
sense. The tax charges individuals for possessing expen-
sive furs. It in no way burdens highway travel.
The plurality devotes five pages to planting trees in
hopes of obscuring the forest: to delving into irrelevancies
about how the tax is assessed or collected, instead of the
substance of what is taxed. However assessed or collected,
the tax on 10,000 gallons of fuel is the same whether the
tanker carrying it travels three miles in Washington or
three hundred. The tax varies only with the amount of
fuel. Why? Because the tax is on fuel, not travel. If two
tankers travel 200 miles together from the same starting
point to the same destination—one empty, one full of
fuel—the full tanker will pay the fuel tax, the empty
tanker will pay nothing. Their travel has been identical,
but only the full one pays tax. Why? Because the tax is on
fuel, not travel. The tax is on the owner of the fuel, not
the owner of the vehicle. Why? You get the point.
The plurality responds that, even though the tax is
calculated per gallon of fuel, it remains a tax on travel
because it taxes a “feature” of travel. Ante, at 15. It is of
course true that tanker trucks can be seen from time to
time on the highways, but that hardly makes them a
regular “feature” of travel, like the plurality’s examples of
axels or passengers. And we know that Washington is not
taxing the gas insofar as it is a feature of Cougar Den’s
travel, because Washington imposes the exact same tax on
Cite as: 586 U. S. ____ (2019) 5
ROBERTS, C. J., dissenting
gas that is not in transit on the highways.
Rather than grappling with the substance of the tax, the
plurality fixates on variations in the time and place of its
assessment. The plurality thinks it significant that Wash-
ington does not impose the tax at the moment of entry on
fuel that enters the State by pipeline or by a barge bound
for a refinery, but instead when a tanker truck withdraws
the fuel from the refinery or pipeline terminal. This may
demonstrate that the tax is not on first possession of fuel
in the State, as the plurality stresses, but it hardly
demonstrates that the tax is not on possession of fuel at
all. Regardless of how fuel enters the State, someone will
eventually pay a per-gallon charge for possessing it.
Washington simply assesses the fuel tax in each case upon
the wholesaler. See 188 Wash. 2d 55, 60, 392 P.3d 1014,
1016 (2017). This variation does not indicate, as the plu-
rality suggests, that the fuel tax is somehow targeted at
highway travel.
The plurality also says that it is bound by the Washing-
ton Supreme Court’s references to the tax as an “importa-
tion tax” and tax on “the importation of fuel,” ante, at 7
(quoting 188 Wash. 2d, at 67, 69, 392 P.3d, at 1019, 1020),
but these two references to the point at which the tax is
assessed are not authoritative constructions of the object of
the tax. The state court did not reject Washington’s ar-
gument that this is a tax on fuel; instead, like the plural-
ity today, it ignored that argument and concluded that the
tax was invalid simply because Washington imposed it
while Cougar Den was traveling on the highway. In any
event, the state court more often referred to the tax as a
“tax on fuels” or “fuel tax[ ].” Id., at 58–61, 392 P. 3d, at
1015–1016.
After the five pages arguing that a tax expressly labeled
as on “motor vehicle fuel” is actually a tax on something
else, the plurality concludes . . . it doesn’t matter. As the
plurality puts it at page nine of its opinion, “even if ” the
6 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
ROBERTS, C. J., dissenting
tax is on fuel and not travel, it is preempted because it has
“the practical effect of burdening” the Yakamas’ right to
travel on the highways. The plurality’s rule—that States
may not enforce general legislation that has an effect on
the Yakamas while they are traveling—has no basis in our
precedents, which invalidated laws that punished or
charged the Yakamas simply for exercising their reserved
rights. The plurality is, of course, correct that the tres-
pass law in Winans did not target fishing, but it effectively
made illegal the very act of fishing at a traditional loca-
tion. Here, it is the possession of commercial quantities of
fuel that exposes the Yakamas to liability, not travel itself
or any integral feature of travel.
The concurrence reaches the same result as the plural-
ity, but on different grounds. Rather than holding that the
treaty preempts any law that burdens the Yakamas while
traveling on the highways, the concurrence reasons that
the fuel tax is preempted because it regulates the posses-
sion of goods, and the Yakamas’ right to travel includes
the right to travel with goods. Ante, at 7–8. But the right
to travel with goods is just an application of the right to
travel. It means the Yakamas enjoy the same privileges
whether they travel with goods or without. It does not
provide the Yakamas with an additional right to carry any
and all goods on the highways, tax free, in any manner
they wish.2 The concurrence purports to find this addi-
tional right in the record of the treaty negotiations, but
——————
2 The plurality simply assumes that the right to travel with goods is
an additional, substantive right when it reasons that the fuel tax is
preempted because it taxes an “integral feature” of travel with goods.
Ante, at 16. The concurrence makes the same assumption when it
compares the fuel tax to a tax on “ ‘possession’ of fish” Ante, at 8. That
tax would be preempted because “taking possession of fish” is just
another way of describing the act of fishing. But possession of a tanker
full of fuel is not an integral feature of travel, which is the relevant
activity protected by the treaty.
Cite as: 586 U. S. ____ (2019) 7
ROBERTS, C. J., dissenting
the record shows only that the Yakamas wanted to ensure
they could continue to travel to the places where they
traded. They did not, and did not intend to, insulate the
goods they carried from all regulation and taxation.
Nothing in the text of the treaty, the historical record, or
our precedents supports the conclusion that the right “to
travel upon all public highways” transforms the Yakamas’
vehicles into mobile reservations, immunizing their con-
tents from any state interference. Before it reaches the
reservation, the fuel in Cougar Den’s tanker trucks is
always susceptible to state regulation—it does not pass in
and out of state authority with every exit off or entry onto
the road.
Recognizing the potentially broad sweep of its new rule,
the plurality cautions that it does not intend to deprive
the State of the power to regulate when necessary “to
prevent danger to health or safety occasioned by a tribe
member’s exercise of treaty rights.” Ante, at 17. This
escape hatch ensures, the plurality suggests, that the
treaty will not preempt essential regulations that burden
highway travel. Ante, at 9–10. I am not so confident.
First, by its own terms, the plurality’s health and safety
exception is limited to laws that regulate dangers “occa-
sioned by” a Yakama’s travel. That would seem to allow
speed limits and other rules of the road. But a law against
possession of drugs or illegal firearms—the dangers of
which have nothing to do with travel—does not address a
health or safety risk “occasioned by” highway driving. I do
not see how, under the plurality’s rule or the concur-
rence’s, a Washington police officer could burden a Yaka-
ma’s travel by pulling him over on suspicion of carrying
such contraband on the highway.
But the more fundamental problem is that this Court
has never recognized a health and safety exception to
reserved treaty rights, and the plurality today mentions
the exception only in passing. Importantly, our prece-
8 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
ROBERTS, C. J., dissenting
dents—all of which concern hunting and fishing rights—
acknowledge the authority of the States to regulate Indi-
ans’ exercise of their reserved rights only in the interest of
conservation. See Tulee, 315 U.S., at 684 (“[T]he treaty
leaves the state with power to impose on Indians, equally
with others, such restrictions . . . as are necessary for the
conservation of fish . . . .”); see also Minnesota v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 205 (1999)
(“We have repeatedly reaffirmed state authority to impose
reasonable and necessary nondiscriminatory regulations
on Indian hunting, fishing, and gathering rights in the
interest of conservation.”); Confederated Tribes of Colville
Reservation v. Anderson, 903 F. Supp. 2d 1187, 1197 (ED
Wash. 2011) (“Notably absent from the binding Supreme
Court and Ninth Circuit cases dealing with state regula-
tion of ‘in common’ usufructuary rights is any reference to
a state’s exercise of its public-safety police power.”). In-
deed, this Court had previously assured the Yakamas that
“treaty fishermen are immune from all regulation save
that required for conservation.” Washington v. Washing-
ton State Commercial Passenger Fishing Vessel Assn., 443
U.S. 658, 682 (1979) (emphasis added). Adapted to the
travel right, the conservation exception would presumably
protect regulations that preserve the subject of the Yaka-
mas’ right by maintaining safe and orderly travel on the
highways. But many regulations that burden highway
travel (such as emissions standards, noise restrictions, or
the plurality’s hypothetical ban on the importation of
plutonium) do not fit that description.
The need for the health and safety exception, of course,
follows from the overly expansive interpretation of the
treaty right adopted by the plurality and concurrence.
Today’s decision digs such a deep hole that the future
promises a lot of backing and filling. Perhaps there are
good reasons to revisit our long-held understanding of
reserved treaty rights as the plurality does, and adopt a
Cite as: 586 U. S. ____ (2019) 9
ROBERTS, C. J., dissenting
broad health and safety exception to deal with the inevita-
ble fallout. Hard to say, because no party or amicus has
addressed the question.
The plurality’s response to this important issue is the
following, portentous sentence: “The record of the treaty
negotiations may not support the contention that the
Yakamas expected to use the roads entirely unconstrained
by laws related to health or safety.” Ante, at 17. A lot of
weight on two words, “may not.” The plurality cites as-
surances from the territorial Governor of Washington that
the United States would make laws to prevent “bad white
men” from harming the Yakamas, and that the United
States expected the Yakamas to exercise similar restraint
in return. Ante, at 18. What this has to do with health
and safety regulations affecting the highways (or fishing
or hunting) is not clear.
In the meantime, do not assume today’s decision is good
news for tribal members across the country. Application
of state safety regulations, for example, could prevent
Indians from hunting and fishing in their traditional or
preferred manner, or in particular “usual and accustomed
places.” I fear that, by creating the need for this untested
exception, the unwarranted expansion of the Yakamas’
right to travel may undermine rights that the Yakamas
and other tribes really did reserve.
The concurrence does not mention the plurality’s possi-
ble health and safety exception, but observes that the
Yakamas expected to follow laws that “facilitate the safe
use of the roads by Indians and non-Indians alike.” Ante,
at 11. The State is therefore wrong, the concurrence says,
to contend that a decision exempting Cougar Den’s fuel
from taxation would call into question speed limits and
reckless driving laws. But that is not the State’s principal
argument. The State acknowledges that laws facilitating
safe travel on the highways would fall within the long-
recognized conservation exception. See Tr. of Oral Arg.
10 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
ROBERTS, C. J., dissenting
12–13. The problem is that today’s ruling for Cougar Den
preempts the enforcement of any regulation of goods on
the highway that does not concern travel safety—such as
a prohibition on the possession of potentially contamin-
ated apples taken from a quarantined area (a matter of
vital concern in Washington). See id., at 13; Brief for
Petitioner 44.
The concurrence says not to worry, the apples could be
regulated and inspected where they are grown, or when
they arrive at a market. Or, if the Yakamas are taking
the apples back to the reservation, perhaps the Federal
Government or the Tribe itself could address the problem
there. Ante, at 10. What the concurrence does not say is
that the State could regulate the contraband apples on the
highway. And there is no reason offered why other con-
traband should be treated any differently.
Surely the concurrence does not mean to suggest that
the parties to the 1855 treaty intended to confer on the
Tribe the right to travel with illegal goods, free of any
regulation. But if that is not the logical consequence of
the decision today, the plurality and the concurrence
should explain why. It is the least they should do.
I respectfully dissent.
Cite as: 586 U. S. ____ (2019) 1
KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1498
_________________
WASHINGTON STATE DEPARTMENT OF LICENSING,
PETITIONER v. COUGAR DEN, INC.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
WASHINGTON
[March 19, 2019]
JUSTICE KAVANAUGH, with whom JUSTICE THOMAS
joins, dissenting.
The text of the 1855 treaty between the United States
and the Yakama Tribe affords the Tribe a “right, in com-
mon with citizens of the United States, to travel upon all
public highways.” Treaty Between the United States and
the Yakama Nation of Indians, Art. III, June 9, 1855, 12
Stat. 953. The treaty’s “in common with” language means
what it says. The treaty recognizes tribal members’ right
to travel on off-reservation public highways on equal
terms with other U. S. citizens. Under the text of the
treaty, the tribal members, like other U. S. citizens, there-
fore still remain subject to nondiscriminatory state high-
way regulations—that is, to regulations that apply equally
to tribal members and other U. S. citizens. See Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973).
That includes, for example, speed limits, truck re-
strictions, and reckless driving laws.
The Washington law at issue here imposes a nondis-
criminatory fuel tax. THE CHIEF JUSTICE concludes that
the fuel tax is not a highway regulation and, for that
reason, he says that the fuel tax does not infringe the
Tribe’s treaty right to travel on the public highways. I
agree with THE CHIEF JUSTICE and join his dissent.
Even if the fuel tax is a highway regulation, it is a non-
2 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
KAVANAUGH, J., dissenting
discriminatory highway regulation. For that reason as
well, the fuel tax does not infringe the Tribe’s treaty right
to travel on the public highways on equal terms with other
U. S. citizens.
The plurality, as well as the concurrence in the judg-
ment, suggests that the treaty, if construed that way,
would not have been important to the Yakamas. For that
reason, the plurality and the concurrence would not ad-
here to that textual meaning and would interpret “in
common with” other U. S. citizens to mean, in essence,
“exempt from regulations that apply to” other U. S.
citizens.
I respectfully disagree with that analysis. The treaty
right to travel on the public highways “in common with”—
that is, on equal terms with—other U. S. citizens was
important to the Yakama tribal members at the time the
treaty was signed. That is because, as of 1855, States and
the Federal Government sometimes required tribal mem-
bers to seek permission before leaving their reservations
or even prohibited tribal members from leaving their
reservations altogether. See, e.g., Treaty Between the
United States of America and the Utah Indians, Art. VII,
Dec. 30, 1849, 9 Stat 985; Mo. Rev. Stat., ch. 80, §10
(1845). The Yakamas needed to travel to sell their goods
and trade for other goods. As a result, those kinds of laws
would have devastated the Yakamas’ way of life. Im-
portantly, the terms of the 1855 treaty made crystal clear
that those kinds of travel restrictions could not be imposed
on the Yakamas.
In particular, the treaty afforded Yakama tribal mem-
bers two relevant rights. First was “free access” on roads
from the reservation to “the nearest public highway.”
Art. III, 12 Stat. 953. Second was a right to travel “in
common with” other U. S. citizens on “all public high-
ways.” Ibid. The right to free access from the reservation
to public highways, combined with the right to travel off
Cite as: 586 U. S. ____ (2019) 3
KAVANAUGH, J., dissenting
reservation on public highways, facilitated the Yakama
tribal members’ extensive trading network.
In determining the meaning of the “in common with”
language, we must recognize that the treaty used different
language in defining (1) the right to “free access,” which
applies only on roads connecting the reservation to the off-
reservation public highways, and (2) the right to travel “in
common with” other U. S. citizens, which applies on those
off-reservation public highways. The approach of the
plurality and the concurrence would collapse that distinc-
tion between the “free access” and “in common with” lan-
guage and thereby depart from the text of the treaty. I
would stick with the text. The treaty’s “in common with”
language—both at the time the treaty was signed and
now—means what it says: the right for Yakama tribal
members to travel on public highways on equal terms with
other U. S. citizens.
To be sure, the treaty as negotiated and written may not
have turned out to be a particularly good deal for the
Yakamas. As a matter of separation of powers, however,
courts are bound by the text of the treaty. See Oregon
Dept. of Fish and Wildlife v. Klamath Tribe, 473 U.S. 753,
774 (1985). It is for Congress and the President, not the
courts, to update a law and provide additional compensa-
tion or benefits to tribes beyond those provided by an old
law. And since 1855, and especially since 1968, Congress
has in fact taken many steps to assist tribes through a
variety of significant legislative measures. In short, la-
ment about the terms of the treaty negotiated by the
Federal Government and the Tribe in 1855 does not sup-
port the Judiciary (as opposed to Congress and the Presi-
dent) rewriting the law in 2019.
What about precedent? It is true that some of our older
precedents interpreted similar “in common with” treaty
language regarding fishing rights to grant tribal members
an exemption from certain fishing regulations, even when
4 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
KAVANAUGH, J., dissenting
the fishing regulations were nondiscriminatory. But as we
explained in the most recent of those fishing cases, those
nondiscriminatory fishing regulations had the effect of
preventing the Tribes from catching a fair share of the fish
in the relevant area. In other words, the fishing regula-
tions at issue were discriminatory in effect even though
nondiscriminatory on their face. See Washington v. Wash-
ington State Commercial Passenger Fishing Vessel Assn.,
443 U.S. 658, 676, n. 22 (1979).
That rationale for departing from the treaty text in the
narrow context of the fishing cases does not apply in the
highway context. Facially nondiscriminatory highway
regulations—such as speed limits, truck restrictions, and
reckless driving laws—are also nondiscriminatory in
effect, as relevant here. They do not deprive tribal mem-
bers of use of the public highways or deprive tribal mem-
bers of a fair share of the public highways.
Washington’s facially nondiscriminatory fuel tax is
likewise nondiscriminatory in effect. The Washington fuel
tax therefore does not violate the key principle articulated
in the fishing cases. I would adhere to the text of the
treaty and hold that the tribal members, like other citi-
zens of the State of Washington, are subject to the nondis-
criminatory fuel tax.
The Court (via the plurality opinion and the concur-
rence) disagrees. The Court relies on the fishing cases and
fashions a new right for Yakama tribal members to disre-
gard even nondiscriminatory highway regulations, such as
the Washington fuel tax and perhaps also Washington’s
similarly structured cigarette tax. The Court’s newly
created right will allow Yakama businesses not to pay
state taxes that must be paid by other competing busi-
nesses, including by businesses run by members of the
many other tribes in the State of Washington. As a result,
the State of Washington (along with other States) stands
to lose millions of dollars annually in tax revenue, which
Cite as: 586 U. S. ____ (2019) 5
KAVANAUGH, J., dissenting
will necessarily mean fewer services or increased taxes for
other citizens and tribes in the State.
In addition, the Court’s newly created right—if applied
across the board—would seem to afford Yakama tribal
members an exemption from all manner of highway regu-
lations, ranging from speed limits to truck restrictions to
reckless driving laws. No doubt because of those negative
real-world consequences, the Court simultaneously fash-
ions a new health and safety exception.* But neither the
right nor the exception comes from the text of the treaty.
As THE CHIEF JUSTICE explains, the Court’s “need for the
health and safety exception, of course, follows from the
overly expansive interpretation of the treaty right adopted
by the plurality and concurrence.” Ante, at 8.
I share THE CHIEF JUSTICE’s concern that the Court’s
new right for tribal members to disregard even nondis-
criminatory highway regulations and the Court’s new
exception to that right for health and safety regulations
could generate significant uncertainty and unnecessary
litigation for States and tribes. THE CHIEF JUSTICE says it
well: The Court “digs such a deep hole that the future
promises a lot of backing and filling.” Ibid.
Instead of judicially creating a new atextual right for
tribal members to disregard nondiscriminatory highway
regulations and then backfilling by judicially creating a
new atextual exception to that right for health and safety
regulations, I would adhere to the text of the treaty and
leave it to Congress, if it chooses, to provide additional
benefits for the Yakamas. In my respectful view, even
when we interpret any ambiguities in the treaty in favor
of the Tribe, the treaty phrase “in common with” cannot
properly be read to exempt tribal members from nondis-
criminatory highway regulations.
——————
*I understand both the plurality opinion and the concurrence to ap-
prove of a health and safety exception.
6 WASHINGTON STATE DEPT. OF LICENSING v.
COUGAR DEN, INC.
KAVANAUGH, J., dissenting
In sum, under the treaty, Washington’s nondiscrimina-
tory fuel tax may be imposed on Yakama tribal members
just as it may be imposed on other citizens and tribes in
the State of Washington. I respectfully dissent.