Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/29

Rh 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 (, 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