Page:Washington Department of Licensing v. Cougar Den, Inc..pdf/42

Rh broad health and safety exception to deal with the inevitable fallout. Hard to say, because no party or amicus has addressed the question.

The plurality’s response to this important issue is the following, portentous sentence: “The record of the treaty negotiations may not support the contention that the Yakamas expected to use the roads entirely unconstrained by laws related to health or safety.” Ante, at 17. A lot of weight on two words, “may not.” The plurality cites assurances from the territorial Governor of Washington that the United States would make laws to prevent “bad white men” from harming the Yakamas, and that the United States expected the Yakamas to exercise similar restraint in return. Ante, at 18. What this has to do with health and safety regulations affecting the highways (or fishing or hunting) is not clear.

In the meantime, do not assume today’s decision is good news for tribal members across the country. Application of state safety regulations, for example, could prevent Indians from hunting and fishing in their traditional or preferred manner, or in particular “usual and accustomed places.” I fear that, by creating the need for this untested exception, the unwarranted expansion of the Yakamas’ right to travel may undermine rights that the Yakamas and other tribes really did reserve.

The concurrence does not mention the plurality’s possible health and safety exception, but observes that the Yakamas expected to follow laws that “facilitate the safe use of the roads by Indians and non-Indians alike.” Ante, at 11. The State is therefore wrong, the concurrence says, to contend that a decision exempting Cougar Den’s fuel from taxation would call into question speed limits and reckless driving laws. But that is not the State’s principal argument. The State acknowledges that laws facilitating safe travel on the highways would fall within the long-recognized conservation exception. See Tr. of Oral Arg.