(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 transportation.” Wash. Rev. Code §§82.36.010(4), (12), (16). Respondent Cougar 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 between 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. 

COUGAR DEN, INC. 

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 Washington 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 interpreted the statute. In the statute’s own words, Washington “impose[s] upon motor vehicle fuel licensees,” including “licensed importer[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, Cougar Den owed the tax because Cougar Den traveled with fuel by public 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 reservation 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 Brothers 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, although the words “in common with” on their face could be read to 

permit application to the Yakamas of general legislation (like the legislation at issue here) that applies to all citizens, this Court has refused 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 indicates that the treaty negotiations and the United States’ representatives’ statements to the Yakamas would have led the Yakamas to understand 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 themselves would have understood them.” Minnesota v. Mille Lacs Band 

of Chippewa Indians, 526 U. S. 172, 196. The Yakamas’ understanding of the terms of the 1855 treaty can be found in a set of unchallenged 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 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, they suggest that the Yakamas understood the treaty’s 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 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 consideration 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 neighboring and parallel right-to-fish provision further confirm this understanding. 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. 

COUGAR DEN, INC. 

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 dissenting opinion, in which THOMAS, J., joined. 
 

 

_________________ 

_________________ 

Cite as: 586 U. S. ____ (2019) 1 

Opinion of the Court 

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, Washington, 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 importers 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 
 

 

 

2 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

Opinion of the Court 

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 importers 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 Yakamas $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 

Opinion of the Court 

highways,” “the right of taking fish at all usual and accustomed 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. Cougar 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 assessment 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 Opposition 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. 

COUGAR DEN, INC. 

Opinion of the Court 

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 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 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 importer[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 followed. 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-
 

 

Cite as: 586 U. S. ____ (2019) 5 

Opinion of the Court 

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 Washington 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. 

COUGAR DEN, INC. 

Opinion of the Court 

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 definitions 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 transportation.” §§82.36.010(3), (4). So, we learn that if the licensed 

fuel importer brings fuel into the State by ground transportation, then the fuel importer owes the tax. But if the 

licensed fuel importer brings fuel into the State by pipeline or vessel, then the importer will not be the first taxable person to possess the fuel, and he will not owe the tax. 

In sum, Washington taxes travel by ground transportation with fuel. That feature sets the Washington statute

apart from other statutes with which we are more familiar. 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 example of that would be a federal tax on newly manufactured 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 

Opinion of the Court 

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 explanation 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, however, for the Washington Supreme Court has authoritatively held that the statute is a tax on travel. The Washington 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 incident 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. 

COUGAR DEN, INC. 

Opinion of the Court 

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 Washington law, Johnson v. United States, 559 U. S. 133, 138 

(2010). We decline the Department’s invitation to overstep 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 waterways 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 described 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 

Opinion of the Court 

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 trespass 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” trespassing rather than fishing because the tax operated upon

the Yakamas when they were exercising their treatyprotected right. Ibid.; see also Tulee v. Washington, 315 

U. S. 681, 685 (1942) (holding that the fishing rights reserved 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 Department’s insistence that it adopted this tax after a District Court, applying this Court’s decision in Chickasaw 
 

 

10 WASHINGTON STATE DEPT. OF LICENSING v. 

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Opinion of the Court 

Nation, barred the State from taxing the sale of fuel products 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 Nation, 515 U. S., at 460, it may not burden a treatyprotected 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 understood as bearing the meaning that the Yakamas understood 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 accustomed places, in common with citizens of the Territory.”

Art. III, para. 2, 12 Stat. 953. Here, the language guarantees to the Yakamas “the right, in common with citizens of 
Cite as: 586 U. S. ____ (2019) 11 

Opinion of the Court 

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 Yakamas 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 Brothers, 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 memorialized 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 carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council”); cf. Water Splash, Inc. v. Menon, 581 

U. S. ___, ___ (2017) (slip op., at 8) (noting that, to ascertain 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”) 
 

12 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

Opinion of the Court 

(internal quotation marks omitted).

The Court added, in light of the Yakamas’ understanding in respect to the reservation of fishing rights, the 

treaty words “in common with” do not limit the reservation’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) (citing 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. 
 

 

Cite as: 586 U. S. ____ (2019) 13 

Opinion of the Court 

They traveled to the mountains to gather berries and 

roots. Ibid. The Yakamas’ religion and culture also depended 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 negotiations well understood these facts, including the importance 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 proceedings). 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 Reservation.” Ibid. Governor Stevens further urged the Yakamas 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’ 
 

14 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

Opinion of the Court 

representatives’ statements to the Yakamas would have

led the Yakamas to understand 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. 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 interferes 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. Washington’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-
Cite as: 586 U. S. ____ (2019) 15 

Opinion of the Court 

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 possessed 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 
 

16 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

Opinion of the Court 

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. Instead, the treaty protects the Yakamas’ right to travel the 

public highways without paying state taxes on that activity, 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 feature” 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 trespassing statute. That trespassing statute indirectly burdened 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 trespassing imposed a burden on the right to fish that is “integral” enough to be pre-empted by the treaty, while a law 

taxing goods carried to the reservation on the public highway 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 
 

 

Cite as: 586 U. S. ____ (2019) 17 

Opinion of the Court 

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 conservation 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. 
18 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

Opinion of the Court 

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 transportation,” 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 propositions: 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. 
_________________ 

_________________ 

Cite as: 586 U. S. ____ (2019) 1 

GORSUCH, J., concurring in judgment 

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 
 

2 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

GORSUCH, J., concurring in judgment 

tribal treaty, too, we must “give effect to the terms as 

the Indians themselves would have understood them.” 

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 

U. S. 172, 196 (1999). After all, the United States drew up

this contract, and we normally construe any ambiguities 

against the drafter who enjoys the power of the pen. Nor 

is there any question that the government employed that 

power to its advantage in this case. During the negotiations “English words were translated into Chinook jargon 

. . . although that was not the primary language” of the 

Tribe. Yakama Indian Nation v. Flores, 955 F. Supp. 

1229, 1243 (ED Wash. 1997). After the parties reached

agreement, the U. S. negotiators wrote the treaty in English—a language that the Yakamas couldn’t read or write. 

And like many such treaties, this one was by all accounts 

more nearly imposed on the Tribe than a product of its 

free choice. 

When it comes to the Yakamas’ understanding of the

treaty’s terms in 1855, we have the benefit of a set of 

unchallenged factual findings. The findings come from a 

separate case involving the Yakamas’ challenge to certain

restrictions on their logging operations. Id., at 1231. The 

state Superior Court relied on these factual findings in

this case and held Washington collaterally estopped from 

challenging them. Because the State did not challenge the

Superior Court’s estoppel ruling either in the Washington 

Supreme Court or here, these findings are binding on us

as well. 

They also tell us all we need to know to resolve this 

case. To some modern ears, the right to travel in common

with others might seem merely a right to use the roads 

subject to the same taxes and regulations as everyone else. 

Post, at 1–2 (KAVANAUGH, J., dissenting). But that is not 

how the Yakamas understood the treaty’s terms. To the 

Yakamas, the phrase “‘in common with’ . . . implie[d] that

the Indian and non-Indian use [would] be joint but [did] 
 

 

 

 

 

 

Cite as: 586 U. S. ____ (2019) 3 

GORSUCH, J., concurring in judgment 

not imply that the Indian use [would] be in any way restricted.” 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 restriction.” 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 transportation 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 everyone’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 understanding. 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 
 

 

4 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

GORSUCH, J., concurring in judgment 

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 traveled 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 Indians 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 reservation’” that the Tribe would enjoy within the new reservation’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 without ambiguity promised the Yakamas the use of public 

highways without restriction for future trading endeavors.” 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-
 

 

Cite as: 586 U. S. ____ (2019) 5 

GORSUCH, J., concurring in judgment 

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 desperately 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 managed 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 bargainbasement deal. 

Our cases interpreting the treaty’s neighboring and

parallel right-to-fish provision further confirm this understanding. The treaty “secure[s] . . . the right of taking fish

at all usual and accustomed places, in common with citizens of the Territory.” Treaty Between the United States 
 

 

6 WASHINGTON STATE DEPT. OF LICENSING v. 

COUGAR DEN, INC. 

GORSUCH, J., concurring in judgment 

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). Instead, 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 highways, 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 language as authorizing taxes on the Yakamas’ goods once 

they arrive there. See also post, at 3 (KAVANAUGH, J., 

dissenting). 
 

 

 

 

Cite as: 586 U. S. ____ (2019) 7 

GORSUCH, J., concurring in judgment 

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 collateral 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 continent 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 highway). 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 ridiculous. 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 Washington/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 bargain 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 nonIndians on the highways. See App. to Brief for Confederated 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 parade 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 problem 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., dissenting). But if bad apples prove to be a public menace, Oregon 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 reservation. 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 reservation—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 highways. 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 Yakamas 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 findings 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 members, 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 corporation that uses public highways to truck gas into Washington, contends that the treaty exempts it from Washington’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., concurring 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 application 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 reserve.” 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 nondiscriminatory 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 fishing 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 

—————— 

1There 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 highway 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. Applying 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 highway—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 expensive 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 Washington 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 plurality suggests, that the fuel tax is somehow targeted at 

highway travel. 

The plurality also says that it is bound by the Washington Supreme Court’s references to the tax as an “importation 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 argument that this is a tax on fuel; instead, like the plurality 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 trespass law in Winans did not target fishing, but it effectively

made illegal the very act of fishing at a traditional location. 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 plurality, 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 possession 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 additional right in the record of the treaty negotiations, but 

—————— 

2The 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 contents 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 “occasioned 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 concurrence’s, a Washington police officer could burden a Yakama’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 Indians’ 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 regulation of ‘in common’ usufructuary rights is any reference to 

a state’s exercise of its public-safety police power.”). Indeed, this Court had previously assured the Yakamas that

“treaty fishermen are immune from all regulation save 

that required for conservation.” Washington v. Washington 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 Yakamas’ 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 inevitable 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 assurances 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 possible 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 longrecognized 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 contaminated 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 contraband 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 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. 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, therefore still remain subject to nondiscriminatory state highway 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 restrictions, and reckless driving laws.

The Washington law at issue here imposes a nondiscriminatory 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 judgment, 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 adhere 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 members 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. Importantly, 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 members 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 highways.” 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 offreservation 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 distinction between the “free access” and “in common with” language 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 compensation 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, lament about the terms of the treaty negotiated by the

Federal Government and the Tribe in 1855 does not support the Judiciary (as opposed to Congress and the President) 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 regulations at issue were discriminatory in effect even though 

nondiscriminatory on their face. See Washington v. Washington 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 members of use of the public highways or deprive tribal members 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 citizens of the State of Washington, are subject to the nondiscriminatory fuel tax. 

The Court (via the plurality opinion and the concurrence) disagrees. The Court relies on the fishing cases and 

fashions a new right for Yakama tribal members to disregard 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 businesses, 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 regulations, ranging from speed limits to truck restrictions to 

reckless driving laws. No doubt because of those negative

real-world consequences, the Court simultaneously fashions 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 nondiscriminatory 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 nondiscriminatory highway regulations. 

—————— 

*I understand both the plurality opinion and the concurrence to approve 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 nondiscriminatory 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.