Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/20

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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