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
