Washington State Dept. of Licensing v. Cougar Den, Inc.
2019 U.S. LEXIS 2086, 203 L. Ed. 2d 301, 139 S.Ct. 1000 (2019)
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Rule of Law:
A state tax imposed on goods being transported on public highways by members of the Yakama Nation for commercial purposes is preempted by the 1855 treaty's 'right to travel.' This treaty right must be interpreted as the tribe would have understood it, which includes the right to transport goods for trade without being burdened by such taxes.
Facts:
- The Yakama Nation entered into a treaty with the United States in 1855, ceding millions of acres of land.
- The treaty reserved certain rights for the Yakamas, including 'the right, in common with citizens of the United States, to travel upon all public highways.'
- Cougar Den, Inc. is a wholesale fuel company owned by a member of the Yakama Nation and operates on the Yakama Reservation.
- Cougar Den purchases large quantities of fuel from Oregon.
- Cougar Den uses its own trucks to transport this fuel from Oregon to its facility in Washington, traveling on public highways.
- The State of Washington imposes a tax on motor vehicle fuel imported into the state by ground transportation.
- Washington assessed this fuel importation tax against Cougar Den for the fuel it transported into the state.
Procedural Posture:
- The Washington State Department of Licensing assessed a tax on Cougar Den, Inc. for fuel it imported into the state.
- Cougar Den challenged the tax assessment, arguing it was exempt under the 1855 Yakama Treaty.
- The case was heard in a Washington Superior Court (a state trial court), which ruled in favor of Cougar Den, finding the tax was preempted by the treaty.
- The State of Washington, the appellant, appealed the decision.
- The Supreme Court of Washington, the state's highest court, affirmed the trial court's judgment, holding that the fuel tax impermissibly burdened the Yakamas' treaty-reserved right to travel.
- The State of Washington (petitioner) successfully petitioned the U.S. Supreme Court for a writ of certiorari to review the decision of the Washington Supreme Court.
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Issue:
Does Washington's tax on imported fuel, when applied to fuel transported over public highways by a Yakama-owned corporation for sale on its reservation, violate the 1855 Yakama Treaty's provision guaranteeing the Yakamas 'the right, in common with citizens of the United States, to travel upon all public highways'?
Opinions:
Plurality - Justice Breyer
Yes, Washington's application of the fuel tax to Cougar Den's importation of fuel is preempted by the treaty. The treaty must be interpreted based on what the Yakamas understood it to mean in 1855, not on a modern, literal reading of the text. The historical record shows that the 'right to travel' was understood by the Yakamas to include the right to travel with goods for trade, which was essential to their way of life. A tax on goods being transported on the highway is a burden on that right, similar to how a license fee was found to be a burden on the treaty's fishing right in Tulee v. Washington. Therefore, the state's fuel tax acts as a charge for exercising a reserved treaty right and is preempted.
Concurring - Justice Gorsuch
Yes, the tax is preempted because the Yakamas' original understanding of the treaty guaranteed them the right to move goods to and from market freely. Unchallenged factual findings from a lower court establish that the Yakamas understood the treaty's 'in common with' language to mean they could share the road with non-Indians, not that they would be subject to the same taxes and fees. The historical context, including promises made by Governor Isaac Stevens during negotiations, confirms that the treaty protected the tribe's pre-existing right to unrestricted trade. The tax here is an encumbrance on the ability to bring goods to market, which is exactly what the treaty forbids.
Dissenting - Chief Justice Roberts
No, the fuel tax does not violate the treaty because it is a tax on the possession of fuel, not a tax on travel. The right to travel with goods is an application of the right to travel, not an additional right to possess goods on the highway immune from taxation. Unlike a toll, the tax is calculated per gallon of fuel, not per mile traveled, and applies equally to fuel entering the state by other means, such as rail or pipeline. The tax does not charge the Yakamas 'for exercising the very right' to travel; it taxes a product they happen to be transporting while traveling.
Dissenting - Justice Kavanaugh
No, the tax does not violate the treaty because the treaty's 'in common with' language means tribal members have the right to travel on equal terms with other U.S. citizens, subject to nondiscriminatory regulations. Washington's fuel tax is a nondiscriminatory regulation applied equally to all. This interpretation is consistent with the treaty's text, which distinguishes between 'free access' on roads leaving the reservation and travel 'in common with' others on public highways. The Court's contrary interpretation creates an atextual right that exempts Yakama businesses from taxes paid by their competitors and will lead to future litigation over which state laws are permissible.
Analysis:
This decision significantly broadens the interpretation of the Yakama Treaty's 'right to travel,' extending it from a mere right of passage to a right to engage in commercial transport free from certain state taxes. It reinforces the canon of construction that Indian treaties must be interpreted as the tribes would have understood them at the time of signing. The ruling creates a new precedent that could be used to challenge other nondiscriminatory state taxes on goods transported by tribal members under similar treaties, potentially impacting state revenues and creating economic advantages for tribal enterprises. The dissents highlight the potential for this ruling to create widespread uncertainty regarding the application of state health, safety, and tax laws to tribal members exercising off-reservation treaty rights.
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