Kavanaugh, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 16–1498
WASHINGTON STATE DEPARTMENT OF LICENSING, PETITIONER v. COUGAR DEN, INC.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON
[March 19, 2019]
Justice Kavanaugh, with whom Justice Thomas joins, dissenting.
The text of the 1855 treaty between the United States and the Yakama Tribe affords the Tribe a “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. The treaty’s “in common with” language means what it says. The treaty recognizes tribal members’ right to travel on off-reservation public highways on equal terms with other U. S. citizens. Under the text of the treaty, the tribal members, like other U. S. citizens, therefore still remain subject to nondiscriminatory state highway regulations–that is, to regulations that apply equally to tribal members and other U. S. citizens. See Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148–149 (1973). That includes, for example, speed limits, truck restrictions, and reckless driving laws.
The Washington law at issue here imposes a nondiscriminatory fuel tax. The Chief Justice concludes that the fuel tax is not a highway regulation and, for that reason, he says that the fuel tax does not infringe the Tribe’s treaty right to travel on the public highways. I agree with The Chief Justice and join his dissent.
Even if the fuel tax is a highway regulation, it is a non-
