Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/34

Rh , with whom, , and 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 (, 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