NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
WASHINGTON STATE DEPARTMENT OF LICENSING, PETITIONER v.
COUGAR DEN, INC.
on writ of certiorari to the supreme court of washington
[March 19, 2019]
Justice Breyer announced the judgment of the Court, and delivered an opinion, in which Justice Sotomayor and Justice Kagan join.
The State of Washington imposes a tax upon fuel importers who travel by public highway. The question before us is whether an 1855 treaty between the United States and the Yakama Nation forbids the State of Washington to impose that tax upon fuel importers who are members of the Yakama Nation. We conclude that it does, and we affirm the Washington Supreme Court’s similar decision.
A Washington statute applies to “motor vehicle fuel importer[s]” who bring large quantities of fuel into the State by “ground transportation” such as a “railcar, trailer, [or] truck.” Wash. Rev. Code §§82.36.010(4), (12), (16) (2012). The statute requires each fuel importer to obtain a license, and it says that a fuel tax will be “levied and imposed upon motor vehicle fuel licensees” for “each gallon of motor vehicle fuel” that the licensee brings into the State. §§82.36.020(1), (2)(c). Licensed fuel importers who import fuel by ground transportation become liable to pay the tax as of the time the “fuel enters into this [S]tate.” §82.36.020(2)(c); see also §§82.38.020(4), (12), (15), (26), 82.38.030(1), (7)(c)(ii) (equivalent regulation of diesel fuel importers).
those licensed fuel importers who import fuel by ground transportation
are liable to pay the tax. §§82.36.026(3), 82.36.020(2)(c). For example, if a licensed fuel importer brings fuel into the State by pipeline, that fuel importer need not pay the tax. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Similarly, if a licensed fuel importer brings fuel into the State by vessel, that fuel importer need not pay the tax. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Instead, in each of those instances, the next purchaser or possessor of the fuel will pay the tax. §§82.36.020(2)(a), (b), (d).
The only licensed fuel importers who must pay this
tax are the fuel importers who bring fuel into the State by means of ground transportation.
The relevant treaty provides for the purchase by the United States of Yakama land. See Treaty Between the United States and the Yakama Nation of Indians, June 9, 1855,
951. Under the treaty, the Yakamas granted to the United States approximately 10 million acres of land in what is now the State of Washington, i.e.
, about one-fourth of the land that makes up the State today. Art. I, id.
at 951–952; see also Brief for Respondent 4, 9. In return for this land, the United States paid the Yakamas $200,000, made improvements to the remaining Yakama land, such as building a hospital and schools for the Yakamas to use, and agreed to respect the Yakamas’ reservation of certain rights. Arts. III–V,
952–953. Those reserved rights include “the right, in common with citizens of the United States, to travel upon all public highways,” “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory,” and other rights, such as the right to hunt, to gather roots and berries, and to pasture cattle on open and unclaimed land. Art. III, id.
, at 953.
Cougar Den, Inc., the respondent, is a wholesale fuel importer owned by a member of the Yakama Nation, incorporated under Yakama law, and designated by the Yakama Nation as its agent to obtain fuel for members of the Tribe. App. to Pet. for Cert. 63a–64a; App. 99a. Cougar Den buys fuel in Oregon, trucks the fuel over public highways to the Yakama Reservation in Washington, and then sells the fuel to Yakama-owned retail gas stations located within the reservation. App. to Pet. for Cert. 50a, 55a. Cougar Den believes that Washington’s fuel import tax, as applied to Cougar Den’s activities, is pre-empted by the treaty. App. 15a. In particular, Cougar Den believes that requiring it to pay the tax would infringe the Yakamas’ reserved “right, in common with citizens of the United States, to travel upon all public highways.” Art. III,
In December 2013, the Washington State Department of Licensing (Department), believing that the state tax was not pre-empted by the treaty, assessed Cougar Den $3.6 million in taxes, penalties, and licensing fees. App. to Pet. for Cert. 65a; App. 10a. Cougar Den appealed the assessment to higher authorities within the state agency. App. 15a. An Administrative Law Judge agreed with Cougar Den that the tax was pre-empted. App. to Brief in Opposition 14a. The Department’s Director, however, disagreed and overturned the ALJ’s order. App. to Pet. for Cert. 59a. A Washington Superior Court in turn disagreed with the director and held that the tax was pre-empted. Id
., at 34a. The director appealed to the Washington Supreme Court. 188 Wash. 2d 55, 58, 392 P.3d 1014, 1015 (2017). And that court, agreeing with Cougar Den, upheld the Superior Court’s determination of pre-emption. Id
., at 69, 392 P. 3d, at 1020.
The Department filed a petition for certiorari asking us to review the State Supreme Court’s determination. And we agreed to do so.
The Washington statute at issue here taxes the importation of fuel by public highway. The Washington Supreme Court construed the statute that way in the decision below. That court wrote that the statute “taxes the importation of fuel, which is the transportation of fuel.” Ibid.
It added that “travel on public highways is directly at issue because the tax [is] an importation tax.” Id.
, at 67, 392 P. 3d, at 1019.
Nor is there any reason to doubt that the Washington Supreme Court means what it said when it interpreted the Washington statute. We read the statute the same way. In the statute’s own words, Washington “impose[s] upon motor vehicle fuel licensees,” including “licensed importer[s],” a tax for “each gallon of motor vehicle fuel” that “enters into this state,” but only
“if . . . entry is” by means of “a railcar, trailer, truck, or other equipment suitable for ground transportation.” Wash. Rev. Code §§82.36.010(4), 82.36.020(1), (2), 82.36.026(3). As is true of most tax laws, the statute is long and complex, and it is easy to stumble over this technical language. But if you are able to walk slowly through its provisions, the statute is easily followed. We need take only five steps.
We start our journey at the beginning of the statute which first declares that “[t]here is hereby levied and imposed upon motor vehicle fuel licensees, other than motor vehicle fuel distributors, a tax at the rate . . . provided in [the statute] on each gallon of motor vehicle fuel.” §82.36.020(1). That is simple enough. Washington imposes a tax on a group of persons called “motor vehicle fuel licensees” for “each gallon of motor vehicle fuel.”
Who are the “motor vehicle fuel licensees” that Washington taxes? We take a second step to find out. As the definitions section of the statute explains, the “motor vehicle fuel licensees” upon whom the tax is imposed are “person[s] holding a . . . motor vehicle fuel importer, motor vehicle fuel exporter, motor vehicle fuel blender, motor vehicle distributor, or international fuel tax agreement license.” §82.36.010(12). This, too, is easy to grasp. Not everyone who possesses motor vehicle fuel owes the tax. Instead, only motor vehicle fuel importers (and other similar movers and shakers within the motor vehicle fuel industry) who are licensed by the State to deal in fuel, must pay the tax.
But must each of these motor vehicle fuel licensees pay the tax, so that the fuel is taxed as it passes from blender, to importer, to exporter, and so on? We take a third step, and learn that the answer is “no.” As the statute explains, “the tax shall be imposed at the time and place of the first taxable event and upon the first taxable person within this state.” §82.36.022. Reading that, we understand that only the first licensee who can be taxed, will be taxed.
So, we ask, who is the first taxable licensee? Who must actually pay this tax? We take a fourth step to find out. Logic tells us that the first licensee who can be taxed will likely be the licensee who brings fuel into the State. But, the statute tells us that a “licensed importer” is “liable for and [must] pay tax to the department” when “[m]otor vehicle fuel enters into this state if
. . . [t]he entry is not
by bulk transfer.” §§82.36.020(2)(c), 82.36.026(3) (emphasis added). That is, a licensed importer can only be the first taxable licensee (and therefore the licensee that must pay the tax) if the importer brings fuel into the State by a method other than “bulk transfer.”
But what is “bulk transfer”? What does it mean to say that licensed fuel importers need only pay the tax if they do not bring in fuel by “bulk transfer”? We take a fifth, and final, step to find out. “[B]ulk transfer,” the definitions section explains, “means a transfer of motor vehicle fuel by pipeline or vessel,” as opposed to “railcar, trailer, truck, or other equipment suitable for ground transportation.” §§82.36.010(3), (4). So, we learn that if the licensed fuel importer brings fuel into the State by ground transportation, then the fuel importer owes the tax. But if the licensed fuel importer brings fuel into the State by pipeline or vessel, then the importer will not be the first tax- able person to possess the fuel, and he will not owe the tax.
In sum, Washington taxes travel by ground transportation with fuel. That feature sets the Washington statute apart from other statutes with which we are more familiar. It is not a tax on possession or importation. A statute that taxes possession would ordinarily require all people who own a good to pay the tax. A good example of that would be a State’s real estate property tax. That statute would require all homeowners to pay the tax, every year, regardless of the specifics of their situation. And a statute that taxes importation would ordinarily require all people who bring a good into the State to pay a tax. A good example of that would be a federal tax on newly manufactured cars. That statute would ordinarily require all people who bring a new car into the country to pay a tax. But Washington’s statute is different because it singles out ground transportation. That is, Washington does not just tax possession of fuel, or even importation of fuel, but instead taxes importation by ground transportation.
The facts of this case provide a good example of the tax in operation. Each of the assessment orders that the Department sent to Cougar Den explained that Cougar Den owed the tax because Cougar Den traveled by highway. See App. 10a–26a; App. to Pet. for Cert. 55a. As the director explained, Cougar Den owed the tax because Cougar Den had caused fuel to enter “into this [S]tate at the Washington-Oregon boundary on the Highway 97 bridge” by means of a “tank truck” destined for “the Yakama Reservation.” Ibid
. The director offers this explanation in addition to quoting the quantity of fuel that Cougar Den possessed because the element of travel by ground transportation is a necessary prerequisite to the imposition of the tax. Put another way, the State must prove that Cougar Den traveled by highway
in order to apply its tax.
We are not convinced by the arguments raised to the contrary. The Department claims, and The Chief Justice agrees, that the state tax has little or nothing to do with the treaty because it is not a tax on travel with fuel
but rather a tax on the possession of fuel
. See Brief for Petitioner 26–28; post
, at 5 (dissenting opinion).
We cannot accept that characterization of the tax, however, for the Washington Supreme Court has authoritatively held that the statute is a tax on travel. The Washington Supreme Court held that the Washington law at issue here “taxes the importation of fuel, which is the transportation of fuel.” 188 Wash. 2d, at 69, 392 P. 3d, at 1020. It added that “travel on public highways is directly at issue because the tax [is] an importation tax.” Id.
, at 67, 392 P. 3d, at 1019. In so doing, the State Supreme Court heard, considered, and rejected the construction of the fuel tax that the Department advances here. See ibid.
, 392 P. 3d, at 1019 (“The Department argues, and the director agreed, that the taxes are assessed based on incidents of ownership or possession of fuel, and not incident to use of or travel on the roads or highways. . . . The Department’s argument is unpersuasive. . . . Here, travel on public highways is directly at issue because the tax was an importation tax”). The incidence of a tax is a question of state law, Oklahoma Tax Comm’n
v. Chickasaw Nation
515 U.S. 450
, 461 (1995), and this Court is bound by the Washington Supreme Court’s interpretation of Washington law, Johnson
v. United States
559 U.S. 133
, 138 (2010). We decline the Department’s invitation to overstep the bounds of our authority and construe the tax to mean what the Washington Supreme Court has said it does not.
Nor would it make sense to construe the tax’s incidence differently. The Washington Supreme Court’s conclusion follows directly from its (and our) interpretation of how the tax operates. See supra
at 4–7. To be sure, it is generally true that fuel imported into the State by trucks driving the public highways can also
be described as fuel that is possessed for the first time
in the State. But to call the Washington statute a tax on “first possession” would give the law an over-inclusive label. As explained at length above, there are several ways in which a company could be a “first possessor” of fuel without incurring the tax. See ibid.
For example, Cougar Den would not owe the tax had Cougar Den “first possessed” fuel by piping fuel from out of State into a Washington refinery. First possession is not taxed if the fuel is brought into the State by pipeline and bound for a refinery. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Similarly, Cougar Den would not owe the tax had Cougar Den “first possessed” fuel by bringing fuel into Washington through its waterways rather than its highways. First possession is not taxed if the fuel is brought into the State by vessel. §§82.36.026(3), 82.36.020(2)(c)(ii), 82.36.010(3). Thus, it seems rather clear that the tax cannot accurately be described as a tax on the first possession of fuel
But even if the contrary were true, the tax would still have the practical effect of burdening the Yakamas’ travel. Here, the Yakamas’ lone off-reservation act within the State is traveling along a public highway with fuel. The tax thus operates on the Yakamas exactly like a tax on transportation would: It falls upon them only because they happened to transport goods on a highway while en route to their reservation. And it is the practical effect of the state law that we have said makes the difference. We held, for instance, that the fishing rights reserved in the treaty pre-empted the State’s enforcement of a trespass law against Yakama fishermen crossing private land to access the river. See, e.g.
, United States
198 U.S. 371
, 381 (1905). That was so even though the trespass law was not limited to those who trespass in order to fish but applied more broadly to any trespasser. Put another way, it mattered not that the tax was “on” trespassing rather than fishing because the tax operated upon the Yakamas when they were exercising their treaty-protected right. Ibid.
; see also Tulee
315 U.S. 681
(1942) (holding that the fishing rights reserved in the treaty pre-empted the State’s application of a fishing licensing fee to a Yakama fisherman, even though the fee also applied to types of fishing not practiced by the Yakamas). And this approach makes sense. When the Yakamas bargained in the treaty to protect their right to travel, they could only have cared about preventing the State from burdening their exercise of that right. To the Yakamas, it is thus irrelevant whether the State’s tax might apply to other activities beyond transportation. The only relevant question is whether the tax “act[ed] upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Tulee
, 315 U. S., at 685. And the State’s tax here acted upon Cougar Den in exactly that way.
For the same reason, we are unpersuaded by the Department’s insistence that it adopted this tax after a District Court, applying this Court’s decision in Chickasaw Nation
, barred the State from taxing the sale of fuel products on tribal land. See Brief for Petitioner 6–7; Squaxin Island Tribe
, 400 F. Supp. 2d 1250, 1262 (WD Wash. 2005). Although a State “generally is free to amend its law to shift the tax’s legal incidence,” Chickasaw Nation
, 515 U. S., at 460, it may not burden a treaty-protected right in the process, as the State has done here.
Thus, we must turn to the question whether this fuel tax, falling as it does upon members of the Tribe who travel on the public highways, violates the treaty.
In our view, the State of Washington’s application of the fuel tax to Cougar Den’s importation of fuel is pre-empted by the treaty’s reservation to the Yakama Nation of “the right, in common with citizens of the United States, to travel upon all public highways.” We rest this conclusion upon three considerations taken together.
First, this Court has considered this treaty four times previously; each time it has considered language very similar to the language before us; and each time it has stressed that the language of the treaty should be understood as bearing the meaning that the Yakamas understood it to have in 1855. See Winans
, 198 U. S., at 380–381; Seufert Brothers Co.
v. United States
249 U.S. 194
, 196–198 (1919); Tulee
, 315 U. S., at 683–685; Washington
v. Washington State Commercial Passenger Fishing Vessel Assn.
443 U.S. 658
, 677–678 (1979).
The treaty language at issue in each of the four cases is similar, though not identical, to the language before us. The cases focus upon language that guarantees to the Yakamas “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.” Art. III, para. 2,
953. Here, the language guarantees to the Yakamas “the right, in common with citizens of the United States, to travel upon all public highways.” Art. III, para. 1, ibid
. The words “in common with” on their face could be read to permit application to the Yakamas of general legislation (like the legislation before us) that applies to all citizens, Yakama and non-Yakama alike. But this Court concluded the contrary because that is not what the Yakamas understood the words to mean in 1855. See Winans
, 198 U. S., at 379, 381; Seufert Brothers
, 249 U. S., at 198–199; Tulee
, 315 U. S., at 684; Fishing Vessel
, 443 U. S., at 679, 684–685.
The cases base their reasoning in part upon the fact that the treaty negotiations were conducted in, and the treaty was written in, languages that put the Yakamas at a significant disadvantage. See, e.g.
, 198 U. S., at 380; Seufert Brothers
, 249 U. S., at 198; Fishing Vessel
, 443 U. S., at 667, n. 10. The parties negotiated the treaty in Chinook jargon, a trading language of about 300 words that no Tribe used as a primary language. App. 65a; Fishing Vessel
, 443 U. S., at 667, n. 10. The parties memorialized the treaty in English, a language that the Yakamas could neither read nor write. And many of the representations that the United States made about the treaty had no adequate translation in the Yakamas’ own language. App. 68a–69a.
Thus, in the year 1905, in Winans
wrote that, to interpret the treaty, courts must focus upon the historical context in which it was written and signed. 198 U. S., at 381; see also Tulee
, 315 U. S., at 684 (“It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council”); cf. Water Splash
, 581 U. S. ___, ___ (2017) (slip op., at 8) (noting that, to ascertain the meaning of a treaty, courts “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties”) (internal quotation marks omitted).
The Court added, in light of the Yakamas’ understanding in respect to the reservation of fishing rights, the treaty words “in common with” do not limit the reservation’s scope to a right against discrimination. Winans
, 198 U. S., at 380–381. Instead, as we explained in Tulee
held that “Article III [of the treaty] conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy
, to fish at their ‘usual and accustomed places’ in the ceded area.” Tulee
, 315 U. S., at 684 (citing Winans
198 U.S. 371
; emphasis added). Also compare, e.g.
, Fishing Vessel
, 443 U. S., at 677, n. 22 (“Whatever opportunities the treaties assure Indians with respect to fish are admittedly not ‘equal’ to
, but are to some extent greater than
, those afforded other citizens” (emphasis added)), with post
, at 4 (Kavanaugh, J., dissenting) (citing this same footnote in Fishing Vessel
as support for the argument that the treaty guarantees the Yakamas only a right against discrimination). Construing the treaty as giving the Yakamas only antidiscrimination rights, rights that any inhabitant of the territory would have, would amount to “an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” Winans
, 198 U. S., at 380.
Second, the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution. See App. to Pet. for Cert. 33a; App. 56a–74a. When the United States and the Yakamas negotiated the treaty, both sides emphasized that the Yakamas needed to protect their freedom to travel so that they could continue to fish, to hunt, to gather food, and to trade. App. 65a–66a. The Yakamas maintained fisheries on the Columbia River, following the salmon runs as the fish moved through Yakama territory. Id.
, at 62a–63a. The Yakamas traveled to the nearby plains region to hunt buffalo. Id.
, at 61a. They traveled to the mountains to gather berries and roots. Ibid.
The Yakamas’ religion and culture also depended on certain goods, such as buffalo byproducts and shellfish, which they could often obtain only through trade. Id.
, at 61a–62a. Indeed, the Yakamas formed part of a great trading network that stretched from the Indian tribes on the Northwest coast of North America to the plains tribes to the east. Ibid.
The United States’ representatives at the treaty negotiations well understood these facts, including the importance of travel and trade to the Yakamas. Id
., at 63a. They repeatedly assured the Yakamas that under the treaty the Yakamas would be able to travel outside their reservation on the roads that the United States built. Id
., at 66a–67a; see also, e.g.
, at 66a (“ ‘[W]e give you the privilege of traveling over roads’ ”). And the United States repeatedly assured the Yakamas that they could travel along the roads for trading purposes. Id
., at 65a–67a. Isaac Stevens, the Governor of the Washington Territory, told the Yakamas, for example, that, under the terms of the treaty, “You will be allowed to go on the roads, to take your things to market, your horses and cattle.” App. to Brief for Confederated Tribes and Bands of the Yakama Nation as Amicus Curiae
68a (record of the treaty proceedings). He added that the Yakamas “will be allowed to go to the usual fishing places and fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites; all this outside the Reservation.” Ibid.
Governor Stevens further urged the Yakamas to accept the United States’ proposals for reservation boundaries in part because the proposal put the Yakama Reservation in close proximity to public highways that would facilitate trade. He said, “ ‘You will be near the great road and can take your horses and your cattle down the river and to the [Puget] Sound to market.’ ” App. 66a. In a word, the treaty negotiations and the United States’ representatives’ statements to the Yakamas would have led the Yakamas to understand that the treaty’s protection of the right to travel on the public highways included the right to travel with goods for purposes of trade. We consequently so construe the relevant treaty provision.
Third, to impose a tax upon traveling with certain goods burdens that travel. And the right to travel on the public highways without such burdens is, as we have said, just what the treaty protects. Therefore, our precedents tell us that the tax must be pre-empted. In Tulee
, for example,
we held that the fishing right reserved by the Yakamas in the treaty pre-empted the application to the Yakamas of a state law requiring fishermen to buy fishing licenses. 315 U. S., at 684. We concluded that “such exaction of fees as a prerequisite to the enjoyment of ” a right reserved in the treaty “cannot be reconciled with a fair construction of the treaty.” Id
., at 685. If the cost of a fishing license interferes with the right to fish, so must a tax imposed on travel with goods (here fuel) interfere with the right to travel.
We consequently conclude that Washington’s fuel tax “acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.” Ibid
. Washington’s fuel tax cannot lawfully be assessed against Cougar Den on the facts here. Treaties with federally recognized Indian tribes—like the treaty at issue here—constitute federal law that pre-empts conflicting state law as applied to off-reservation activity by Indians. Cf. Mescalero Apache Tribe
411 U.S. 145
, 148–149 (1973).
Again, we are not convinced by the arguments raised to the contrary. The Chief Justice concedes that “the right to travel with goods is just an application of the Yakamas’ right to travel.” Post
, at 2 (dissenting opinion); see also ibid.
(“It ensures that the Yakamas enjoy the same privileges when they travel with goods as when they travel without them.”). But he nevertheless insists that, because of the way in which the Washington statute taxes fuel, the statute does not interfere with the right to travel reserved by the Yakamas in the treaty. Post
, at 3.
First, The Chief Justice finds it significant that “[t]he tax is calculated per gallon of fuel; not, like a toll, per vehicle or distance traveled.” Ibid
., see also ibid.
(“The tax before us does not resemble a blockade or a toll”). But that argument fails on its own terms. A toll on highway travel is no less a toll when the toll varies based on the number of axels on a vehicle traveling the highway, or on the number of people traveling in the vehicle. We cannot, therefore, see why the number of gallons of fuel that the vehicle carries should make all the difference. Put another way, the fact that a tax on travel varies based on the features of that travel does not mean that the tax is not a tax on travel.
Second, The Chief Justice argues that it “makes no sense,” for example, to hold that “a tax on certain luxury goods” that is assessed the first time the goods are possessed in Washington cannot apply to a Yakama member “who buys” a mink coat “over the state line in Portland and then drives back to the reservation,” but the tax can apply to a Yakama member who “buys a mink coat at an off-reservation store in Washington.” Post
, at 4. The short, conclusive answer to this argument is that there is a treaty that forbids taxing Yakama travel on highways with goods (e.g.
fuel, or even furs) for market; and there is no treaty that forbids taxing Yakama off-reservation purchases of goods. Indeed, if our precedents supported The Chief Justice’s rule, then our fishing rights cases would have turned on whether Washington also taxed fish purchased in the grocery store. Compare, e.g.
, 315 U. S., at 682, n. 1 (holding that the fishing right reserved by the Yakamas in the treaty pre-empted the application to the Yakamas of a state law which prohibited “ ‘catch[ing] . . . fish for food’ ” without having purchased a license). But in those cases, we did not look to whether fish were taxed elsewhere in Washington. That is because the treaty does not protect the Yakamas from state sales taxes imposed on the off-reservation sale of goods. Instead, the treaty protects the Yakamas’ right to travel the public highways without paying state taxes on that activ- ity, much like the treaty protects the Yakamas’ right to fish without paying state taxes on that activity.
Third, The Chief Justice argues that only a law that “punished or charged the Yakamas” for an “integral feature” of a treaty right could be pre-empted by the treaty. Post
, at 6. But that is true of the Washington statute at issue here. The treaty protects the right to travel with goods, see supra
at 10–14, and the Washington statute taxes travel with goods, see supra
at 4–7. Therefore, the statute charges the Yakamas for an “integral feature” of a treaty right. But even if the statute indirectly burdened a treaty right, under our precedents, the statute would still be pre-empted. One of the Washington statutes at issue in Winans
was not a fishing regulation, but instead a trespassing statute. That trespassing statute indirectly burdened the right to fish by preventing the Yakamas from crossing privately owned land so that the Yakamas could reach their traditional fishing places and camp on that private property during the fishing season. See 198 U. S., at 380–381. It cannot be true that a law prohibiting trespassing imposed a burden on the right to fish that is “integral” enough to be pre-empted by the treaty, while a law taxing goods carried to the reservation on the public highway imposes a burden on the right to travel that is too attenuated to be pre-empted by the treaty.
Although we hold that the treaty protects the right to travel on the public highway with goods, we do not say or imply that the treaty grants protection to carry any and all goods. Nor do we hold that the treaty deprives the State of the power to regulate, say, when necessary for conservation. To the contrary, we stated in Tulee
that, although the treaty “forecloses the [S]tate from charging the Indians a fee of the kind in question here,” the State retained the “power to impose on Indians, equally with others, such restrictions of a purely regulatory nature . . . as are necessary for the conservation of fish.” 315 U. S., at 684. Indeed, it was crucial to our decision in Tulee
that, although the licensing fees at issue were “regulatory as well as revenue producing,” “their regulatory purpose could be accomplished otherwise,” and “the imposition of license fees [was] not indispensable to the effectiveness of a state conservation program.” Id
., at 685. See also Puyallup Tribe
v. Department of Game of Wash.
391 U.S. 392
, 402, n. 14 (1968) (“As to a ‘regulation’ concerning the time and manner of fishing outside the reservation (as opposed to a ‘tax’), we said that the power of the State was to be measured by whether it was ‘necessary for the conservation of fish’ ” (quoting Tulee
, 315 U. S., at 684)).
Nor do we hold that the treaty deprives the State of the power to regulate to prevent danger to health or safety occasioned by a tribe member’s exercise of treaty rights. 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. See App. to Brief for Confederated Tribes and Bands of the Yakama Nation as Amicus Curiae
20a–21a, 31a–32a. Governor Stevens explained, at length, the United States’ awareness of crimes committed by United States citizens who settled amongst the Yakamas, and the United States’ intention to enact laws that would restrain both the United States citizens and the Yakamas alike for the safety of both groups. See id.
, at 31a.
Nor do we here interpret the treaty as barring the State from collecting revenue through sales or use taxes (applied outside the reservation). Unlike the tax at issue here, which applies explicitly to transport by “railcar, trailer, truck, or other equipment suitable for ground transportation,” see supra
, at 6, a sales or use tax normally applies irrespective of transport or its means. Here, however, we deal with a tax applicable simply to importation by ground transportation. Moreover, it is a tax designed to secure revenue that, as far as the record shows here, the State might obtain in other ways.
To summarize, our holding rests upon three propositions: First, a state law that burdens a treaty-protected right is pre-empted by the treaty. See supra
at 14–18. Second, the treaty protects the Yakamas’ right to travel on the public highway with goods for sale. See supra
at 10–14. Third, the Washington statute at issue here taxes the Yakamas for traveling with fuel by public highway. See supra
at 4–10. For these three reasons, Washington’s fuel tax cannot lawfully be assessed against Cougar Den on the facts here. Therefore, the judgment of the Supreme Court of Washington is affirmed.
It is so ordered.