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Treaty Rights Curtail Taxing Authority

By Wilda A. Wahpepah

© jovannig | #195447264 | stock.adobe.com

The U.S. Supreme Court’s recent decision in Washington State Dept. of Licensing v. Cougar Den Inc.,1 a case pitting the Yakama Nation’s treaty right to travel against the state of Washington’s motor fuel importation tax, showed a majority of the court standing by the “Indian canons of construction.” At least two justices, however, were ready to depart from the long-established rules of treaty interpretation.

Two keys to the Cougar Den decision were extensive factual findings based upon the expert testimony of a tribal elder, an anthropologist and historian and the Washington Supreme Court’s characterization of the disputed tax as one on the importation of fuel, rather than on the possession of fuel. While the 5-4 decision vindicated the treaty rights of the Yakama Nation, it also gave vitality to the regulatory exception to pre-emption that would permit a state to regulate a tribe’s exercise of treaty rights to prevent danger to health and safety.

CLASH OF DOCTRINES
The Cougar Den case involves the intertwining legal doctrines of treaty interpretation and the limits of state taxing authority. The Indian canons of construction, developed over more than a century of U.S. Supreme Court jurisprudence, are special rules of interpretation applied to treaties with tribes. These rules of construction are different than the more textual approach to interpreting federal statutes.2 The Indian canons of construction are “rooted in the unique trust relationship between the United States and the Indians.”3 Treaties between the United States and a tribe are essentially a contract between two sovereign nations.4 Terms of treaties are to be liberally construed and understood, not as we might today, but as the Indians who signed the documents understood them.5 A court must examine the intention of the parties,6 and ambiguities must be resolved in favor of the Indians.7 The Indian canons of construction recognize that treaties were in many cases imposed upon tribes and were written in a language tribal members did not speak, leaving tribes little choice but to consent.8 Application of the canons of construction, therefore, might ensure that tribes receive the benefit of their bargain in a coercive transaction.9 Courts interpreting treaties must look beyond the written words and consider the larger context that frames the treaty, including the negotiations and the practical construction adopted by the parties.10 Tribal property rights and tribal sovereignty are to be preserved unless Congress’ intent is clear and unambiguous.11 While the canons were developed in the context of treaty interpretation, courts have applied them to federal statutes, executive orders and regulations.12 Treaties, once ratified, are the supreme law of the land.13 Thus, a state’s law cannot abridge treaty rights because of the Supremacy Clause of the U.S. Constitution.14

Under general principles of federal Indian law, tribes are immune from state taxes based upon their activity in Indian country.15 For example, tribes are immune from fuel excise taxes triggered by on-reservation sales.16 The court’s cases have established that tribes’ categorical immunity from state taxation is triggered by the legal incidence (as opposed to economic incidence) of the tax.17 If the legal incidence of the tax falls on the tribe or tribal members, the tax is prohibited. State taxes on nontribal members in Indian country are not categorically prohibited. Instead, the court has established a “pre-emption analysis” of the relevant facts and legislation involved to determine if taxes can be imposed on nontribal members in Indian country.18 If the legal incidence of the tax falls on nontribal members, the examining court must analyze the state, federal and tribal interests at stake and determine if the exercise of state authority would violate federal law or interfere with the tribe’s ability to exercise its sovereign functions.19 Outside of Indian country, tribes and tribal members are subject to nondiscriminatory state taxes unless federal law dictates otherwise.20 For example, a state may impose its gross-receipts tax on a tribal ski resort operated outside the boundaries of a reservation.21 Where an activity occurs both in and outside of Indian country, a state tax may be imposed, but it must be tailored to the amount of activity occurring outside of Indian country.22

OLD ADVERSARIES
The principal players in the Cougar Den case – the company, Yakama Nation and the state of Washington – had met in the courtroom before. The owner of Cougar Den had challenged Washington’s attempt to tax his timber-hauling trucks and the Yakama Nation had locked horns with the state over the nation’s treaty rights to fish. The events giving rise to the Cougar Den case began on Dec. 9, 2013, when the state Department of Licensing assessed Cougar Den Inc. $3.6 million for unpaid taxes, penalties, interest and licensing fees owing to its transport of motor fuel by truck 27 miles over public highways from Oregon to the Yakama reservation in eastern Washington.23 The assessment was for taxes accrued for approximately seven months of operation in 2013.24 The tax is imposed per gallon on “licensees,” defined by state law to include suppliers, exporters, blenders, distributors and importers of motor fuel.25 The tax applies to fuel as it is removed from within the state, for example when a tanker truck is filled at a refinery or bulk storage facility and when fuel enters the state by highway or rail after being removed from a refinery or bulk storage facility outside of Washington. The state’s motor fuel tax replaced a prior version that a federal court, in Squaxin Island Tribe v. Stephens, found placed the legal incidence of the tax on fuel retailers and therefore could not be imposed on tribal gas stations located in Indian country.26

Cougar Den is owned by Kip Ramsey, a Yakama tribal member, and is incorporated under the laws of the Yakama Nation.27 The Yakama Nation designated Cougar Den as its agent to obtain fuel for members of the nation, and the fuel, once arriving at the Yakama reservation, was sold at the Yakama Nation’s retail outlets.28 Cougar Den appealed the assessment to the Department of Licensing’s administrative law judge, who held that the assessment was an impermissible restriction on travel under the Yakama Nation Treaty of 1855.29 At issue was the following provision of Article III of the treaty:

[I]f 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; as also the right, in common with the citizens of the United States, to travel upon all public highways.30

The director of the Department of Licensing reversed the administrative law judge and entered his own findings of fact and conclusions of law that the treaty did not pre-empt the fuel tax and licensing requirements.31 Cougar Den appealed the final agency order to the Yakima County Superior Court, which reversed the director.32 The Superior Court held that the imposition of the tax on Cougar Den violated the Yakama Nation’s right to travel found in Article III of the treaty.33 The Department of Licensing then appealed to the Washington Supreme Court.

KEY FINDINGS OF FACT AID TREATY INTERPRETATION
The Washington Supreme Court relied upon prior interpretations of the same treaty in the U.S. Court of Appeals for the 9th Circuit, findings of fact developed in a separate federal case involving the treaty and the Indian canons of construction in its analysis. The treaty, the court stated, must be understood as the Yakamas themselves would have understood it, quoting Choctaw Nation v. Oklahoma:

The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm’s-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. As a consequence, this Court has often held that treaties with the Indians must be interpreted as they would have understood them.34

To determine what the Yakama Nation bargained for, the Washington Supreme Court turned to extensive findings of fact developed during a bench trial in a separate federal case involving the state’s imposition of licensing and permitting fees on logging trucks owned by the Yakama Nation and by Kip Ramsey and other tribal members. These findings from Yakama Indian Nation v. Flores35 were analyzed by the administrative law judge and incorporated into the decision of the Superior Court.

The findings of fact were developed during an evidentiary trial in the U.S. District Court and included the testimony of a tribal elder, an anthropology professor and historian who had written extensively about Isaac I. Stevens, the territorial governor when the treaty was made.36 According to the testimony, at the time the treaty was negotiated, the bands comprising the Yakama Nation engaged in a system of trade and exchange with other Plateau (eastern Washington, Idaho and eastern Oregon) tribes as well as more distant tribes of the Pacific Northwest coast and plains of Montana and Wyoming, traveling south to the Willamette Valley of Oregon and perhaps even as far as California for trading purposes.37 Travel to other regions was essential for maintenance of the Yakama way of life, enabling tribal members to fish, hunt, gather, trade and maintain intermarriage cultural ties.38 Prior to negotiations of the treaty, Gov. Stevens and his subordinates were aware the Yakamas traded on the Pacific coast, traveled the Columbia River to fish and traveled to the plains to hunt buffalo.39

At the time of the treaty, the United States did not charge fees for travel on its public highways in Washington territory.40 Gov. Stevens was under pressure to quickly negotiate treaties with eastern Washington tribes to make way for both settlement and the construction of a railroad to Puget Sound. Thus, the United States’ representatives believed that gaining the Yakamas’ agreement to roads across their reservation was a different and special case and were willing to accommodate many of the demands of the Yakamas.41 Gov. Stevens repeatedly assured the Yakamas they would be able to travel the public roads outside the reservation to take their goods to market.42 The minutes of the treaty negotiations reflect the issue of highway travel by the Yakamas outside their reservation was raised several times, and the minutes showed no mention of restrictions upon the right of travel on the public highways or possible assessment of fees for that travel.43

The Washington Supreme Court found based upon the findings of fact that travel was woven into the fabric of Yakama life, necessary for hunting, gathering, fishing, grazing, recreational, political and kinship purposes.44 In reliance on “these vital promises,” the court noted, the Yakama Nation ceded 90% of its land (10 million acres constituting roughly one-quarter of the present-day Washington state) in exchange for its reservation and the rights reserved in the treaty.45 “Yakama Nation thus understandably assigned a special significance to each part of the treaty at the time of the signing and continues to view the treaty as a sacred document,” the court noted.46 Although the United States negotiated with many Pacific Northwest tribes, only treaties with the Yakama, Nez Perce tribe and Flathead, Kootenai and Upper Pend d’Oreille contained highway clauses such as that found in Article III, the court stated.47

STATE COURT CONSTRUES TAX AS ON IMPORTATION, NOT POSSESSION
The Washington Supreme Court also found that the tax was on the importation of fuel, as opposed to a tax on the possession of fuel. As noted supra, Washington’s tax is imposed on motor fuels at the wholesale level, when the fuel is removed from the terminal “rack”48 or imported into the state. Licensees who import fuel by means other than “bulk transfer” (pipeline or vessel) are liable for and obligated to pay the tax on each gallon of fuel imported.49 The Department of Licensing argued that the tax was assessed based on incidence of ownership or possession of fuel, not the use or travel on roads or highways. The tax would apply even if Cougar Den did not use the highways, the Department of Licensing maintained.50 The Washington Supreme Court, however, found that by imposing the tax, the Department of Licensing had placed a condition on travel that affected the Yakama Nation’s treaty right to transport goods to market without restriction. “Where trade does not involve travel on public highways, the right to travel provision in the treaty is not implicated. Here, travel on public highways is directly at issue because the tax was an importation tax.”51

The Department of Licensing also argued that the tax constituted a regulation of travel rather than a prohibition of travel.52 While the U.S. Court of Appeals for the 9th Circuit has found that state laws with a “purely regulatory” purpose can be validly applied without violating the treaty, the court noted, the fuel tax’s requirement that fuel haulers obtain a license prior to operations was not regulatory but simply a means to collect taxes.53 The Washington Supreme Court also rejected the Department of Licensing’s argument that a decision in favor of the Yakama Nation could result in tribal members avoiding laws that regulate goods “simply by contriving to possess the goods on public highways.”54 The Department of Licensing gave the example of tribal members evading the law barring felons from possessing firearms.55 The Washington State Supreme Court found that a similar argument already had been made and rejected by the U.S. Court of Appeals for the 9th Circuit in Smiskin.

As determined by the federal courts, any trade, traveling and importation that requires the use of public roads fall within the scope of the right to travel provision of the treaty. The Department taxes the importation of fuel, which is the transportation of fuel. Here, it is simply not possible for Cougar Den to import fuel without traveling or transporting that fuel on public highways. Based on the historical interpretation of the Tribe’s essential need to travel extensively for trade purposes, this right is protected by the Treaty.56

After the U.S. Supreme Court granted the Department of Licensing’s writ of certiorari, the Yakama Nation, the Nez Perce Nation, Sacred Ground Legal Services (a nongovernmental organization) and the National Congress of American Indians participated as amici. The U.S. solicitor general filed a brief in support of the Department of Licensing.

THE COURT’S DECISION
The U.S. Supreme Court’s 5-4 judgment affirming the Washington Supreme Court was delivered on March 19, 2019, in an opinion by Justice Breyer, in which Justices Sotomayor and Kagan joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Ginsburg joined. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas, Alito and Kavanaugh joined. Justice Kavanaugh filed a dissenting opinion, in which Justice Thomas joined.

PLURALITY OPINION FINDS TAX BURDENS EXERCISE OF TREATY RIGHT TO TRAVEL
In the plurality opinion, Justices Breyer, Sotomayor and Kagan first declared that the tax was on travel by ground transportation with fuel, based upon the construction adopted by the Washington Supreme Court but also upon an elemental analysis of the statute itself.57 The plurality found that since the legal incidence of a tax is a question of state law, citing Chickasaw Nation, the court was bound by the Washington Supreme Court’s interpretation of Washington law.58 The plurality also found that while it might be true fuel trucked into the state on public highways also could be described fuel “possessed” for the first time in the state, the tax is not a tax on first possession because other first possessors are not taxed, such as importers using pipelines or vessels.59 “But even if the contrary were true,” the plurality noted, “the tax would still have the practical effect of burdening the Yakamas’ travel.”60 The plurality pointed to two prior decisions in the Yakamas’ fishing rights struggle in which the court examined the practical effect of the state law in question on the exercise of treaty rights and found state laws were pre-empted. In the first case, United States v. Winansthe court found the treaty pre-empted Washington’s enforcement of its trespass law against Yakama fishermen crossing private land to access fishing sites. In Tulee v. Washington, the court found the treaty pre-empted Washington’s application of a fishing licensing fee to Yakama fishermen.61

The plurality opinion applied the Indian canons of construction, citing four prior instances where similar language in the same treaty had been interpreted by the court as the Yakamas would have understood the language in 1855.62 The court noted that the treaty negotiations were conducted in Chinook jargon (a trading language of about 300 words that no tribe in the Pacific Northwest used as a primary language), the treaty was written in English, which the Yakama neither spoke nor wrote and many of the United States’ representations about the treaty had no adequate translation in the Yakamas’ own language.63 In particular, the court noted, the phrase “in common with” found in the Article III provisions reserving the right to fish had previously been construed by the court as a bargain for continuing rights “beyond those that other citizens may enjoy” to fish at usual and accustomed places in the ceded territory.64 Construing that phrase to give the Yakama Nation only a right against discrimination, as Justice Kavanaugh’s dissent did, would amount to an “impotent outcome to negotiations.”65 Rather, the plurality found, the Yakama bargained for the right to travel and would have understood the right to travel as including the right to travel with goods for purposes of trade.66 Washington’s fuel tax acts upon the Yakama Nation as a charge for exercising “the very right their ancestors intended to reserve.”67

The plurality concluded by noting, in response to the dissent of Chief Justice Roberts, that it did not say or imply that the treaty grants protection to carry any and all goods, that it deprives Washington of the power to regulate to prevent danger to health or safety occasioned by a tribal member’s exercise of treaty rights or that the treaty bars Washington from collecting revenue from sales or use taxes applied outside the reservation.68 The “regulatory exception” discussed by the court developed during the Pacific Northwest fishing rights cases, holding that state regulations that were “purely regulatory” could be imposed on tribal members exercising their treaty fishing rights.69

CONCURRENCE FINDS BARGAIN FOR RIGHT TO TRAVEL CANNOT BE REWRITTEN
The concurring opinion was written by Justice Gorsuch and joined by Justice Ginsburg. In the concurrence, Justice Gorsuch applied the Indian canons of construction and relied heavily upon the factual findings in the Yakama Indian Nation case. The concurrence noted the state did not challenge these findings in Yakama Indian Nation, was found by the Yakima County Superior Court to be collaterally estopped from challenging them in the litigation below and failed to appeal the estoppel ruling, making the factual findings binding on the court as well.70 In particular, Justice Gorsuch noted that Gov. Stevens “specifically promised the Yakamas that they would ‘be allowed to go on the roads to take [their] things to market.’’’71 The concurrence dismissed the Department of Licensing’s argument that the Yakamas bargained merely for the right to use public highways as any other person could. “But the record shows the consideration the Yakamas supplied was worth far more than an abject promise they would not be made prisoners on their reservation.”72 The Yakama Nation bargained for the right to travel with goods off reservation just as it could on reservation, the concurrence found and just as it had for centuries.73 “If the state and federal governments do not like that result, they are free to bargain for more, but they do not get to rewrite the existing bargain in this court.”74

The concurring opinion also found the tax violated the Yakamas’ treaty right to travel with goods to market even if the court were to construe the tax as one on possession because it was impossible to transport goods to market without possessing them.75 While this might give rise to the hypothetical instance of a tribal member buying goods in Oregon, paying taxes owed there and moving the purchase tax-free to the reservation, the concurrence stated, that was the right bargained for in the treaty.76 The concurrence dismissed fears raised in the chief justice’s dissent that Washington would not be able to regulate transportation of diseased apples from Oregon or highway safety laws would be flouted by tribal members. If bad apples prove to be a public menace, the concurrence stated, Oregon, Washington, the Yakama Nation or the federal government could impose regulations either upon sale, during transport or upon arrival on the reservation.77 Washington also might require tribal members to abide by nondiscriminatory regulations governing the safe transportation of flammable cargo as they drive their gas trucks from Oregon to the reservation on the public highway.78 “The only thing that Washington may not do is reverse the promise the United States made to the Yakamas in 1855 by imposing a tax or toll on tribal members or their goods as they pass to and from market.”79

DISSENT FINDS TAX ON POSSESSION OF FUEL DOES NOT BURDEN TRAVEL
The chief justice’s dissent was joined by Justices Thomas, Alito and Kavanaugh, and Justice Kavanaugh wrote a separate dissent joined by Justice Thomas. The chief justice’s dissent construed Tulee as holding that a state law violates a treaty right only if the law imposes liability upon the Yakamas for exercising the right their ancestors intended to reserve.80 The chief justice wrote that since the disputed tax was on the possession of fuel, it did not constitute a burden on the exercise of treaty rights.81 The chief justice noted that the court had, in prior cases, interpreted the treaty’s reservation of the right “of taking fish at all usual and accustomed places, in common with the citizens of the Territory” and had found the state laws at issue pre-empted because they blocked tribal members from fishing at traditional locations.82 The fuel tax, however, did not block travel or exact a toll, the chief justice wrote. “It is a tax on a product imported into the State, not a tax on highway travel.”83

The chief justice employed a hypothetical involving a luxury tax on mink coats to illustrate his point. If Washington taxed the purchase of mink coats, and the tax was assessed on the first possessor of the coat, if a Yakama member purchased a mink coat in Oregon and traveled back to the reservation on public highways, he would not have to pay the tax.84 This scenario would make no sense, the chief justice wrote, because the tax is a charge on individuals for possessing expensive furs. “It in no way burdens highway travel.”85 The chief justice found that the treaty right to travel with goods was “an application” of the right to travel and did not provide the Yakamas with “an additional right to carry any and all goods on the highways, tax free, in any manner they wish.”86 There is nothing in the “text of the Treaty, the historical record or our precedents,” the chief justice wrote, that supports the conclusion that the right to travel upon all public highways “transforms the Yakamas’ vehicles into mobile reservations, immunizing their contents from any state interference.”87

The chief justice called the plurality’s decision a “new rule” and suggested the public health and safety “escape hatch” discussed in the plurality’s opinion might permit a state to regulate speed limits and rules of the road but not necessarily enforce regulations that have nothing to do with travel, such as possession of drugs or illegal firearms.88 The chief justice noted that the court has only recognized an exception for state regulations in the interest of conservation.89 In the context of a right to travel, the conservation exception would presumably include regulations that preserve the subject of the Yakamas’ right by maintaining safe and orderly travel on the highways.90 Many regulations that burden travel, however, such as emissions standards or noise restrictions, do not fit that description.91 Chief Justice Roberts suggested that rather than constituting “good news” for tribes across the country, the plurality’s creation of “an untested exception” to pre-emption could undermine rights the Yakamas did reserve and prevent them from hunting and fishing in their usual and accustomed places.92

JUSTICES KAVANAUGH AND THOMAS REINTERPRET ‘IN COMMON WITH’ TERM
In his dissent, Justice Kavanaugh, joined by Justice Thomas, focused his analysis on the meaning of the phrase “in common with” in the Article III provision reserving the right to travel on public highways and also found in the reservation of fishing rights. Despite the interpretation made in fishing rights decisions previously handed down by the court, Justice Kavanaugh found the phrase meant only that the Yakama Nation could travel on equal terms with other U.S. citizens.93 Justice Kavanaugh drew this conclusion based not upon the historical record of negotiations of the treaty, but upon other treaties with other tribes, which required tribal members to seek permission before leaving their reservations.94 Justice Kavanaugh also distinguished the fishing regulations the court had previously found pre-empted by the treaty from the fuel tax.95 The fishing regulations were nondiscriminatory on their face but had a discriminatory effect because they prevented tribal members from catching a fair share of fish, he wrote. Since the fuel tax has no discriminatory effect, there is no need to “depart” from the treaty text, he wrote.96

Justice Kavanaugh stated that the effect of the Cougar Den decision would be to permit the Yakama Nation to disregard other taxes that their competitors and other tribes must pay and even disregard speed limits and reckless driving laws.97 Rather than create an “atextual right,” the court should leave it to Congress to provide additional benefits for the Yakamas, he concluded.98

IMPACT OF DECISION
As the solicitor general’s brief stated, the precise language in the Yakama’s treaty was used in only two other treaties for tribes in Idaho and Montana. The import of the case, however, is still notable as tribes in recent decades have not always had success in cases before the U.S. Supreme Court.99 Five justices recognized and applied the Indian canons of construction. Only Justices Kavanaugh and Thomas gave little or no weight to prior interpretations of the treaty and in particular the Article III phrase “in common with,” first interpreted by the court more than 100 years ago in Winans. Notably, the limits of the “public safety exception” to pre-emption of state laws that burden treaty rights are left to be determined. The structure of the fuel tax at issue – on the importer rather than the retailer – is a common framework used by other states but in this case will send Washington back to the drawing board if it intends to further pursue taxing the Yakama Nation. Although Chief Justice Roberts saw no good news in the decision for tribes, the Yakama Nation saw a just outcome. “The United States and the state of Washington have reaped the historical, present, and future benefit to one-third of the land mass and resources of present day Washington state and it is this great sacrifice that our Yakama Nation gave up to have our rights memorialized forever,” Yakama Nation Tribal Council Chairman JoDe Goudy said in a written statement issued after release of the decision.100 “Today, the United States Supreme Court has acknowledged and upheld our treaty … and for that we are grateful.”

ABOUT THE AUTHOR
Wilda Wahpepah is special counsel at Sheppard Mullin Richter & Hampton LLP, based in the District of Columbia and Norman. She represents tribal governments and entities doing business with tribes across the country. Ms. Wahpepah graduated with honors from the University of Notre Dame Law School. She is Winnebago-Kickapoo and currently serves as the chair of the Indian Law Section.

1. Wash. Dept. of Licensing v. Cougar Den Inc., 139 S. Ct. 1000 (2019) (hereinafter Cougar Den).
2. United States v. Providence Journal Co., 485 U.S. 693, 700-01 (1988); United States v. Wilson, 112 S. Ct. 1351, 1354 (1992); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 610 (1991).
3. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985).
4. Wash. v. Wash. State Comm’l Passenger Fishing Vessel, 443 U.S. 658, 675 (1979) (hereinafter, Fishing Vessel).
5. Jones v. Meehan, 175 U.S. 1, 10-12 (1899).
6. Fishing Vessel, 443 U.S. at 675.
7. Winters v. United States, 207 U.S. 564, 576 (1908).
8. Choctaw Nation v. Okla., 397 U.S. 620 (1970) (hereinafter Choctaw Nation).
9. United States v. Winans, 198 U.S. 371, 380-81 (1905) (hereinafter Winans).
10. Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999).
11. Id. at 202; United States v. Dion, 476 U.S. 734, 739-40 (1986).
12. Mille Lacs, 526 U.S. at 188-95, 202-08 (involving statute and regulations) and HRI Inc. v. EPA, 198 F.3d 1224, 1245 (10th Cir. 2000) (involving regulations).
13. Antoine v. Washington, 420 U.S. 194, 204 (1975).
14. Id.
15. McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 168-69 (1973).
16. Okla. State Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458 (1995) (state may not impose motor fuels excise tax on tribal retailers operating on tribal trust land) (hereinafter Chickasaw Nation).
17. Id. at 460.
18. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 176 (1989).
19. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980); Ramah Navajo Sch. Bd. Inc. v. Bur. Of Revenue, 458 U.S. 832, 837 (1982).
20. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 150 (1973); Chickasaw Nation, 515 U.S. at 462-63.
21. Mescalero Apache, 411 U.S. at 157-58.
22. Wash. v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 163 (1980).
23. Cougar Den, at 1007.
24. Cougar Den Inc. v. Wash. State Dept. of Licensing, 188 Wash.2d 55, 58, 392 P.2d 1014, 1015 (2017) (hereinafter Department of Licensing).
25. Wash. Rev. Code Ann. §§82.36.010(12), 82.36.020 (West 2012).
26. Squaxin Island Tribe v. Stephens, 400 F. Supp.2d 1250, 1262 (W.D. Wash. 2005).
27. Cougar Den at 1007.
28. Id.
29. Department of Licensing, 188 Wash.2d at 59; 392 P.2d at 1015.
30. Treaty with the Yakamas, 12 Stat. 951, 952-53 (1855); Department of Licensing, 188 Wash.2d at 57; 392 P.2d at 1014.
31. Department of Licensing, 188 Wash.2d at 58; 392 P.2d at 1015.
32. Id. at 58; 392 P.2d at 1016.
33. Id. at 58; 392 P.2d at 1016.
34. 397 U.S. 520, 630-31, 90 S. Ct. 1328, 1334 (1970).
35. 955 F. Supp. 1229 (E.D. Wash. 1997) (Treaty prevents state imposition of certain timber truck licensing and permit fees) (hereinafter Yakama Indian Nation).
36. Id. at 1236.
37. Id. at 1262.
38. Id. at 1263.
39. Id.
40. Id.
41. Id. at 1264-65.
42. Id. at 1264.
43. Id. at 1264-65.
44. Department of Licensing, 188 Wash.2d at 62; 392 P.3d at 1016-17.
45. Id.
46. Id. at 53; 392 P.2d at 1017.
47. The United States has entered into treaties with tribes in Idaho and Montana that contain identically worded right-to-travel provisions. See Treaty of June 11, 1855, between the United States and the Nez Perce Indians, Art. III, 12 Stat. 958; Treaty of July 16, 1855, between the United States and the Flathead, Kootenay and Upper Pend d’ Oreilles Indians, Art. III, 12 Stat. 976.
48. Washington’s code defined the term “rack” as “a mechanism for delivering motor vehicle fuel from a refinery or terminal into a truck, trailer, railcar or other means of nonbulk transfer.” Wash. Revised Code Ann §82.36.010(22).
49. Wash. Revised Code Ann §82.36.020(1)(2)(c).
50. Department of Licensing, 188 Wash. at 67; 392 P.2d at 1019.
51. Id.
52. Id.
53. Id. at 68; 392 P.2d at 1020 (citing United States v. Smiskin, 487 F.3d 1260, 1271 (9th Cir. 2007) (finding state requirement for notice prior to transport of unstamped cigarettes was to collect taxes and a condition that violated treaty)) (hereinafter Smiskin).
54. Id. at 68; 392 P.2d at 1019-20.
55. Id.
56. Id. at 69; 392 P.2d at 1020.
57. 139 S. Ct. at 1008-09.
58. Id. at 1010.
59. Id.
60. Id.
61. Id. at 1010-11.
62. Id. at 1011 (citing WinansTuleeFishing Vessel and Seufert Bros. Co. v. United States, 249 U.S. 194 (1919) (trespass law could not be used to prevent tribal members from reaching historic fishing sites).
63. Id. at 1012.
64. Id.
65. Id. at 1012 (quoting WinansTulee and Fishing Vessel).
66. Id.
67. Id. at 1013 (quoting Tulee).
68. Id. at 1015.
69. Tulee, 315 U.S. at 684. (Treaty forecloses state from charging fee but state retains power to impose on Indians, equally with others, restrictions of a purely regulatory nature necessary for conservation of fish); Puyallup Tribe v. Wash. Dept. of Game, 391 U.S. 392, 402 n.14 (1968) (State regulation concerning time and manner of fishing outside reservation permissible if necessary for conservation).
70. Id. at 1016 (Gorsuch, J., concurring).
71. Id. at 1017 (quoting Yakama Indian Nation, 955 F. Supp. at 1244).
72. Id. at 1018.
73. Id. at 1020.
74. Id.
75. Id. at 1019.
76. Id. at 1020.
77. Id. at 1021.
78. Id.
79. Id.
80. Id. at 1022 (Roberts, C.J., dissenting).
81. Id.
82. Id. (citing WinansSeufertTulee).
83. Id.
84. Id. at 1023.
85. Id.
86. Id. at 1024.
87. Id.
88. Id. at 1024-25.
89. Id. at 1025, citing Mille Lacs, 526 U.S. at 205 (state has authority to impose reasonable and necessary non-discriminatory regulations on Indian hunting, fishing, gathering rights in the interest of conservation); Confederated Tribes of Colville reservation v. Anderson, 903 F. Supp. 2d 1197, 1197 (E.D. Wash. 2011) (precedential cases do not refer to state’s exercise of police power as a permissible regulation); Fishing Vessel, 443 U.S. at 682 (treaty fishermen immune from all regulations except those required for conservation).
90. Id.
91. Id.
92. Id. at 1026.
93. Id. at 1027 (Kavanaugh, J., dissenting).
94. Id.
95. Id. at 1028.
96. Id.
97. Id.
98. Id. at 1029.
99. Matthew Fletcher, “A Short History of Indian Law in the Supreme Court,” American Bar Association Human Rights Magazine, vol. 40, issue 4 (Oct. 1, 2014).
100. Phil Ferolito, “U.S. Supreme Court: Yakamas do not have to pay state tax on wholesale fuel,” Yakima Herald, March 19, 2019.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 7 (November 2019)