SCOTUS: Yakama Treaty Travel Right Preempts Washington State’s Fuels Tax

SCOTUS: Yakama Treaty Travel Right Preempts Washington State’s Fuels Tax

Legal Sidebari

SCOTUS: Yakama Treaty Travel Right
Preempts Washington State’s Fuels Tax
April 5, 2019
On March 19, 2019, the Supreme Court, in Washington State Dep’t of Licensing v. Cougar Den, Inc.,
(Cougar Den) held that the right-to-travel provision in a Yakama Indian treaty preempts application of a
state motor fuels tax on a tribal business, Cougar Den, Inc. The case involves two strands of federal
Indian law jurisprudence: interpretation of Indian treaties and state taxing authority over activities of
Indians and Indian tribes. Although the case represents an endorsement of the traditional way of
interpreting Indian treaties, the Justices did not agree as to the conclusions to draw from the language and
history of the Yakama treaty.
After a brief statement of facts, this sidebar provides an analysis of the Supreme Court’s decision in
Cougar Den. It first discusses state taxing authority over activities of tribal Indians. Next, it provides a
brief description of the Washington motor fuels tax. It then turns to the 1855 Treaty and the principles
that courts have used to interpret Indian treaties. Next, the sidebar identifies the basic points in each of the
opinions written by the Justices in Cougar Den. Finally, the sidebar addresses potential implications of
the case and possible considerations for Congress.
Statement of Facts
Cougar Den, Inc., a business owned by a Yakama tribal member, imports gasoline from Oregon, trucks it
to the reservation on state highways, and resells it to on-reservation tribal retailers. The State of
Washington taxes gasoline imported into the state. The 1855 Treaty between the Yakama Nation (Tribe)
and the United States guarantees the Tribe the “right, in common with citizens of the United States, to
travel upon all public highways.” Cougar Den successfully contended that the treaty exempts it from the
tax. The case affirms a 2017 decision of the Washington State Supreme Court that included uncontested
factual findings on the importance to the Yakamas in 1855 of being free to travel for trading purposes and
representations made to them at the time of the negotiations. Those findings were adopted by the courts
below based on a 1997 federal district court case.
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State Taxing Authority over Tribal Activity
The authority of a state to tax Indian tribes and tribal Indians differs depending upon whether the activity
is conducted on- or off-reservation. In 1976, in Moe v. Confederated Salish & KIootenai Tribes, the Court
held that state taxing authority over on-reservation activity generally requires that the legal incidence of
the tax falls on persons other than the tribe or its members. Off-reservation activity, however, is a different
matter. In 1973, in Mescalero Apache Tribe v. Jones, the Court upheld a New Mexico gross receipts tax
on an off-reservation tribal ski resort, stating that “[a]bsent express federal law to the contrary, Indians
going beyond reservation boundaries have generally been held subject to nondiscriminatory state law
otherwise applicable to all citizens of the State.”
Although Cougar Den involves a state tax imposed on off-reservation activity like the tax the Court
upheld in Mescalero, the case arises as states have had difficulty collecting judicially upheld taxes on
tribal retailers selling goods to non-Indians on Indian reservations. States have been unable to collect
these taxes without tribal cooperation because tribal sovereign immunity bars suits against a tribe absent
tribal waiver or congressional consent. In Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Indian
Tribe, decided in 1991, the Court held that tribal sovereign immunity barred a state’s enforcement action
to compel a tribe to remit taxes collected by tribal retailers on sales to non-Indians.
In 2005, in Wagnon v. Prairie Band Potawatomi Nation, the Court upheld a non-discriminatory Kansas
motor fuels tax applied to off-reservation distributors who would later resell the fuel to Indian tribal
retailers for on-reservation sales. Important to the Court’s reasoning were: (1) the fact that state law
specified that the legal incidence of and the liability for paying the tax fell on the distributor; and (2) that
the transaction being taxed–the receipt of the motor fuels in Kansas by the distributor–took place off-
reservation.
Washington’s Motor Fuels Tax
The Washington motor fuels tax is similar to the Kansas tax the Court upheld in Wagnon. Washington
enacted the tax after a 2007 federal district court decision held that Washington could not assess an earlier
version of the tax against tribal wholesalers because the tax’s legal incidence fell on tribal retailers.
Washington enacted the Cougar Den version of the motor fuels tax as a means of ensuring that the legal
incidence of the tax fell on the wholesalers’ activities off-reservation. Unlike the earlier version of the
motor fuels tax, the Cougar Den tax does not require distributors to pay the tax and pass it on to retailers,
and it is imposed off-reservation on wholesalers. It is non-discriminatory and is levied on the first
possession of motor vehicle fuel within the state by importers who transport the fuel by highway or rail. If
the fuel is transported by pipeline or vessel, the tax is imposed on wholesalers off-loading fuel from in-
state terminals, not on the pipeline or vessel operator who transported the fuel to the terminal. Currently,
all 24 Indian tribes in Washington, other than the Yakama Tribe, have negotiated fuel tax agreements to
collect and remit the motor fuels tax to the state.
The 1855 Yakama Treaty and General Principles Governing Treaty
Interpretation
Article III of the 1855 Yakama Treaty contains two clauses. The first states that “if necessary for the
public convenience, roads may be run through the said reservation; and on the other hand, the right of
way, with free access from the same to the nearest public highway, is secured to them.” The second states
“as also [is secured to them] the right, in common with citizens of the United States, to travel upon all
public highways.” There is a distinction between the two clauses. The first provides for “free access . . . to
the nearest public highway;” while the second provides a right to travel on public highways “in common
with citizens of the United States.”

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The phrase “in common with citizens of the United States” is found in another clause in Article III. That
clause guarantees to the Yakamas “the right of taking fish at all usual and accustomed places, in common
with citizens of the Territory . . . .” and has figured in several Supreme Court cases. In 1905’s United
States v. Winans (Winans), the Court interpreted the language broadly to give effect to how the Indians
must have understood it given their historical reliance on fishing for culture, subsistence, and commerce,
holding tribal fishermen immune to a state trespass action for entering private lands to access their
accustomed fishing sites. In a 1979 decision, Washington v. Washington State Commercial Passenger
Fishing Vessel Association, the Court construed the “in common with” treaty language to mean that “both
sides have a right, secured by treaty, to take a fair share of the available fish.” However, the Court has
held that a state may impose reasonable regulations on tribal treaty fishing as necessary for conservation
of the natural resource, but that other non-conservation fishing regulations, such as a non-discriminatory
license requirement (Tulee v. Washington), are impermissible.
Canons of Construction for Interpreting Indian Treaties
According to the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians, courts must “give
effect to the terms [of a treaty] as the Indians themselves would have understood them,” considering “the
larger context that frames the [t]reaty, including ‘the history of the treaty, the negotiations, and the
practical construction adopted by the parties.’” In construing Indian treaties, the Court has repeatedly
stated that “any doubtful expressions in [treaties] should be resolved in the Indians’ favor.” Nonetheless,
decisions of the Court have counseled that courts must take care not to extend treaty language beyond
what it is intended to cover. In Oklahoma Tax Comm’n v. Chickasaw Nation, for example, the Court held
that treaty language guaranteeing freedom from state law to the Chickasaw Nation and its members
“within their limits” could not be stretched by “liberal construction” beyond its stated geographic limit.
The Court thus held that Oklahoma could tax tribal members living outside of the Chickasaw Nation’s
borders.
The Cougar Den Opinions
The Two Opinions of the Majority
In Cougar Den, in two separate opinions, a five-Justice majority agree that the Yakamas would have
understood the treaty language as guaranteeing them the right to travel freely on the public highways to
and from market with goods. Both the three-Justice plurality opinion¸ written by Justice Breyer, joined by
Justices Sotomayor and Kagan, and the concurring opinion, written by Justice Gorsuch joined by Justice
Ginsburg, hold that the state fuel tax is preempted by the treaty because the tax is a tax on goods being
transported by truck from an out-of-state market to the Yakama reservation. The three-Justice plurality
opinion reaches this conclusion by determining that the Washington tax is an impermissible burden on the
treaty right-to-travel. The concurring opinion relies on uncontested facts showing that the Yakama would
have understood the treaty to protect a right to travel with goods to market. As a result, the concurring
opinion leaves open the possibility that identical language in other treaties could be interpreted differently.
Justice Breyer’s plurality opinion examines the state taxing provision and concludes, in agreement with
the interpretation of the Washington Supreme Court, the tax was taxing travel because “the State must
prove that Cougar Den traveled by highway . . . to apply its tax.” The plurality determines that the
“treaty’s right to travel on the public highways includes the right to travel with goods for purposes of
trade,” and that the tax “burdens that travel,” and is, therefore, preempted. It supports this conclusion by
referring to judicial interpretations of the phrase “in common with” in treaty fishing rights cases
beginning with Winans and to the record of treaty negotiations that included the importance of trade to the
Yakamas and assurances made to them. The plurality opinion speculates on the possibility that, as in the

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fishing rights cases, state conservation measures may be possible and health and safety regulations may
not be ruled out.
Justice Gorsuch’s concurring opinion emphasizes the “binding” and “unchallenged factual findings” that,
to the Yakamas, the right-to-travel provision was understood to provide them with use of the highways to
move their goods free of fees or taxes. The concurring opinion stresses that the 1855 treaty cemented “a
bargain-basement deal”: the Yakamas ceded a vast expanse of land “worth far more than an abject
promise that they would not be made prisoners on their reservation.” With respect to the question of
whether interpreting the right to travel to include a right to be free of certain burdens on that travel
jeopardizes the ability of the state to regulate highway safety or to prohibit contraband, Justice Gorsuch’s
opinion notes that highway safety measures have not yet been challenged and there is some evidence that
the Yakamas “expected” health and safety laws so they could share the highways with non-Indians.
The Two Dissenting Opinions
The four dissenters—Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh, signed on to the
principal dissenting opinion, which was written by the Chief Justice. According to the dissenters, as the
Yakamas interpreted the treaty, it was securing their ability to “continue to travel to the places where they
traded,” not to provide a “mobile reservation” and, therefore, because the fuels tax is not a highway tax, it
is not preempted. Justice Kavanaugh wrote a separate dissent, which was joined by Justice Thomas,
agreeing that the tax was not a highway tax and, therefore, not preempted, because, the plain meaning of
the language “in common with” secures for the Yakamas merely the right to travel on public highways
equally along with others, free of discriminatory highway regulations.
Chief Justice Roberts in the primary dissent characterizes the right-to-travel provision as “ensur[ing] that
the Yakamas enjoy the same privileges when they travel with goods as when they travel without them. It
is not an additional right to possess whatever goods they wish on the highway, immune from regulation
and taxation.” According to the dissent, the treaty fishing rights cases involved state regulations or laws
that “actually blocked” a tribe from exercising the right and, accordingly, only a highway toll or other
measure that prevented the Yakamas from using the highway would violate the treaty. The dissent opines
that, in negotiating the treaty, the Yakamas “did not intend to . . . insulate the goods they carried from all
regulation and taxation . . . . transform[ing] their vehicles into mobile reservations.” The dissent also
criticizes the majority opinions for setting forth what has not previously been recognized, “a health and
safety exception to reserved treaty rights,” and possibly opening the way for states to impose health and
safety measures in the context of treaty fishing rights.
In dissenting, Justice Kavanaugh notes that the Treaty refers to “free access” from the reservation and
travel on the highways “in common with citizens of the United States” and faults the majority opinions for
overlooking the distinction. According to Justice Kavanaugh, the right secured by the Yakamas was “the
right for . . . tribal members to travel on public highways on equal terms with other U.S. citizens,” i.e.,
subject to nondiscriminatory highway regulations. That interpretation is at variance with the broader
construction of the “in common with language” in the fishing rights cases beginning with Winans.
Implications and Considerations for Congress
In general, the case does not appear to change traditional jurisprudence on the interpretation of Indian
treaties or on the ability of states to tax activities of Indians off-reservation. With respect to the issue of
treaty interpretation, only two Justices would impose a plain meaning textual analysis on language
guaranteeing the Yakamas a right to travel. All of the other Justices, in their opinions, employ Supreme
Court jurisprudence to the effect that courts are to interpret Indian treaties as the Indians would have
understood them. Because the case involves language found in only two other Indian treaties and relies on
uncontroverted findings specific to negotiations with the Yakamas, the direct impact of the decision is

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likely to be limited. Congress may monitor any litigation that results from Washington amending its
motor fuels tax law or to test the extent of its authority to impose health and safety highway regulations or
interdict contraband being carried by Yakama Indians. Although this case does not disturb the standards
that the courts have applied to taxation of Indian activity on- and off-reservation, Congress may choose to
take the opportunity to review those rules.

Author Information

M. Maureen Murphy

Legislative Attorney

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