Supreme Court upholds treaty rights of Yakama Nation in Cougar Den fuel supplier taxation case

U.S. Supreme Court ruled 5-4 on March 19, Associate Justice Breyer: ‘To impose a tax burdens travel. And the right to travel on the public highways ... is just what the treaty protects.’

According to a landmark ruling by the U.S. Supreme Court on March 19, a Yakama Nation-licensed fuel retailer can continue importing fuel for resale on the Yakama Reservation without paying an import tax to the State of Washington.

The 5-4 decision was a narrow victory for the Yakama, with associate justices Stephen G. Breyer, Ruth Bader Ginsburg, Neil M. Gorsuch, Elena Kagan and Sonia Sotomayor ruling in the majority. Dissenting votes were given by Chief Justice John G. Roberts Jr. and associate justices Samuel A. Alito, Brett M. Kavanaugh, and Clarence Thomas.

The Washington State Department of Licensing sought several million dollars in fees and penalties from Cougar Den, Inc. for the fuel it imports from Biggs, Oregon—the region within the Yakama Nation’s historical territory—for resale on the Yakama Reservation. Cougar Den, Inc. asked the U.S. District Court to intervene; the court ruled in favor of Cougar Den, Inc. The state appealed to the nation’s high court.

According to court documents, Cougar Den, Inc. is an agent of the Yakama Nation "for the purpose of obtaining petroleum products for sale and delivery to the Yakama Indian Nation and its members.” The company verifies its sales to Yakama citizens by including the buyer’s enrollment number on the invoice, and collects and transmits Yakama Nation taxes to the Yakama government on a monthly basis.

Feb. 5, 2019 file photo, Supreme Court Associate Justices Neil Gorsuch, left, and Brett Kavanaugh watch as President Donald Trump arrives to give his State of the Union address to a joint session on Cong
In this Feb. 5, 2019 file photo, Supreme Court Associate Justices Neil Gorsuch, left, and Brett Kavanaugh watch as President Donald Trump arrives to give his State of the Union address to a joint session on Congress at the Capitol in Washington. President Donald Trump’s two Supreme Court appointees are on opposite sides of two of three cases the justices decided Tuesday March 19. Justice Neil Gorsuch is joining the court’s liberal justices in ruling that a Washington state Indian tribe doesn’t have to pay a state fuel tax. Gorsuch says an 1855 treaty makes a “handful of modest promises” to the Yakama Nation, including the right to move goods to market freely. Justice Brett Kavanaugh is dissenting, arguing that the treaty merely gives tribal members the same right to travel as everyone else. (Doug Mills/The New York Times via AP, Pool)

The high court’s majority ruled that the state’s taxes would restrict travel for the purpose of trade, in violation of the 1855 Treaty with the Yakama. Article 3 of the treaty guarantees the peoples of the Yakama Nation travel upon public highways “in common with citizens of the United States.” The high court’s majority turned to the historical record to understand the guarantee “the way the Yakamas understood it … in 1855.”

The historical record “indicates that 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,” Associate Justice Breyer wrote. “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 just what the treaty protects.”

Chief Justice Roberts wrote in dissent that the majority’s interpretation was too broad. The treaty language means “the Yakamas enjoy the same privileges whether they travel with goods or without. It does not provide the Yakamas with an additional right to carry any and all goods on the highways, tax-free, in any manner they wish,” Roberts wrote.

“The [majority] purports to find this additional right in the record of the treaty negotiations, but the record shows only that the Yakamas wanted to ensure they could continue to travel to the places where they traded. They did not, and did not intend to, insulate the goods they carried from all regulation and taxation.”

Associate Justice Kavanaugh wrote, “The treaty’s ‘in common with’ language—both at the time the treaty was signed and now—means what it says: the right for Yakama tribal members to travel on public highways on equal terms with other U. S. citizens.”

But in its earlier case before the U.S. District Court for the Eastern District of Washington, Cougar Den, Inc. argued that the Yakama treaty signers viewed travel and trade, in terms of the treaty provision, as intertwined. "Travel was particularly important for the purpose of trade" to Yakama’s treaty signers, Cougar Den. Inc.’s attorneys wrote. “The Yakamas constantly moved goods back and forth between the Coast and Interior and obtained access to goods from the Plains."

Cougar Den, Inc.’s attorneys wrote at the time, and the U.S. District Court agreed, “In acknowledgment of these trading practices, government agents promised the Yakamas that they would ‘have the same liberties outside the Reservation to go on the roads to market.’ … In entering into the 1855 Treaty, the Yakamas secured a right to ‘transport goods to market over public highways without payment of fees for that use.’”

Yakama Nation Chairman JoDe Goudy said the U.S. Supreme Court’s decision reinforces the Yakama way of life, both in historical context as well as modern interpretation.

Yakama Nation Chairman JoDe Goudy spoke when he and a delegation of tribal leaders from Washington State visited the Sacred Stone Camp at the end of August, support resolution in hand.
Yakama Nation Chairman JoDe Goudy spoke when he and a delegation of tribal leaders from Washington State visited the Sacred Stone Camp, support resolution in hand. (File photo)

“Yakamas conducted trade and commerce long before the formation of the United States, let alone Washington state’s existence,” Goudy said in a statement released by his office. “Our historical Chiefs negotiated for that right to be maintained and it was memorialized within the Articles of the Yakama Treaty of 1855 between the Yakama Nation and the United States.”

Goudy said the United States and the State of Washington continue to benefit from the land that Yakama ceded to the U.S., and that the U.S. Supreme Court’s decision upholds the promises the Yakama Nation received in return for that land.

“Today, the United States Supreme Court has acknowledged and upheld our Treaty, rightfully so, in the face of present-day individuals who sought to renegotiate the terms that were memorialized between our Nations in the year of 1855, and for that we are grateful,” he said.

“The dominating act to eliminate, over-regulate, and/or restrict our ability to conduct trade and commerce would have continued to dehumanize our Nation. Our Nation will move forward and continue to seek and initiate actions to address the well-being of those things that cannot speak for themselves—our resources—as well as our enrolled members young and old for generations to come.”

The U.S. Supreme Court case, in summary

  • Cougar Den, Inc. “is a wholesale fuel importer owned by a citizen 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. Cougar Den, Inc. 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. Cougar Den, Inc. argued that requiring it to pay the state’s fuel import tax would infringe on the Yakamas’ reserved right, as interpreted by a U.S. District Court, “to travel with goods for purposes of trade.”
  • The Washington State Department of Licensing assessed Cougar Den, Inc. several million dollars in taxes, penalties, and licensing fees for the import of fuel using public highways. Cougar Den, Inc. appealed the assessment to an administrative law judge, which agreed with Cougar Den, Inc. that the tax was pre-empted by an article in the 1855 Treaty with the Yakama. The decision was upheld by a county Superior Court and the state Supreme Court. The Department of Licensing then took the case to the U.S. Supreme Court.
  • The U.S. Supreme Court ruled 5-4 on March 19 in favor of Cougar Den. Inc., writing in one opinion that in 1855 the Yakama Nation understood the treaty’s protection of the right to travel on the public highways “included the right to travel with goods for purposes of trade,” and “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 just what the treaty protects.”
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Richard Walker, Mexican/Yaqui, is a correspondent reporting from Anacortes, Washington. Contact him at richardmollywalker@gmail.com.

Comments (3)
No. 1-2
David Hollenshead
David Hollenshead

"Yakama Nation-licensed fuel retailer can now import fuel for resale on the Yakama Reservation without paying an import tax to the State of Washington." This also helps set the legal precedence for Yakama Nation to be treated with the full rights of a US State, rather than just as a municipality of the State of Washington...

MisterE
MisterE

🤟