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
- ↑ There is something of an optical illusion in this case that may subtly distort analysis. It comes from the fact that the tax here happens to be on motor fuel. There is no claim, however, that the tax inhibits the treaty right to travel because of the link between motor fuel and highway travel. The question presented must be analyzed as if the tax were imposed on goods of any sort.
