Trump administration goes against tribal interests in treaty case

Wednesday, May 16, 2018  

After seven months, the Trump administration has finally provided its views in a closely-watched treaty rights case and it's not looking good for Indian Country.

In a brief submitted on Tuesday, the Department of Justice called on the U.S. Supreme Court to grant a petition in Washington State Department of Licensing v. Cougar Den. In doing so, the Trump administration is going against tribal interests and is even drawing attention to a prior case that affirmed the treaty rights of the Yakama Nation.

According to government attorneys, a business owner on the reservation must pay gasoline taxes to the state of Washington. The 1855 Yakama Treaty -- which specifically guarantees "free access" to public highways -- does not shield tribal citizens from the state's authority, they told the nation's highest court.

"The 'right, in common with citizens of the United States, to travel upon all public highways' protected by the 1855 Treaty, is not violated by the tax at issue here," the brief signed by Solicitor General Noel J. Francisco, an appointee of President Donald Trump, read.

The brief was filed a day after Indianz.Com drew attention to the long wait for the Trump administration's position in the case. The Supreme Court issued what is known as a CVSG, or a call for the views of the Solicitor General, as the influential Turtle Talk blog once explained, in early October, or more than seven months ago.

Since then, the justices have issued two more CVSGs. One was in January, when the court sought the government's guidance in Herrera v. Wyoming, another treaty rights case involving the hunting rights of the Crow Tribe.

As with Cougar Den, a state is attempting to assert its authority over a tribal citizen. Clayvin Herrera, who is Crow, was prosecuted in Wyoming for a hunt that took place in the Bighorn Mountains, which he argues is still protected by 1868 treaty with the federal government.

The Department of Justice has yet to file a brief. Judging by the wait in the Yakama case, one won't materialize until the end of the year.

The other CVSG surfaced on Monday. The Supreme Court wants the Trump administration's stance in Osage Wind v. United States, a trust relationship case involving the mineral rights of the Osage Nation.

The CVSGs come as tribes with homelands in Washington face an unusual assault on their rights. Since the start of the Supreme Court's term last October, the justices have heard two cases from the state -- one about treaties and the second about sovereignty.

If the Supreme Court agrees to hear Cougar Den, as the state and the Trump administration are urging, the move would be unprecedented. There haven't been that many Indian law cases from a single state in eight years, when there were two from Arizona on the docket in 2010. Going back further, there were two on the 2002 docket, also from Arizona.

More from the Cougar Den

Unlike the Trump administration, the Washington Supreme Court determined that the 1855 Yakama Treaty is implicated by the gas tax. In a March 2017 decision, the justices held that the Cougar Den, a fuel company based on the reservation, should not have to answer to state authority.

Extensive evidence collected during trial showed that Yakama citizens "exercised free and open access to transport goods as a central part of a trading network running from the western coastal tribes to the eastern plains tribes," Justice Charles W. Johnson wrote for the court.

He added that the "record unquestionably depicted a tribal culture whose manner of existence was dependent on the Yakamas' ability to travel."

Unhappy with that pro-treaty holding, the state of Washington petitioned the Supreme Court to overturn it. The opening brief argued that the tax does not violate the treaty, a position mirrored by the Trump team.

"The taxes do not violate a treaty right because they 'are not a charge for Cougar Den’s use of public highways' but relate to the wholesale fuel itself," Attorney General Robert W. Ferguson (D) wrote almost a year ago.

Other states rushed to Washington's side, with Idaho, Kansas, Nebraska, North Dakota, South Dakota and Wyoming all calling for the decision to be overturned. Together, those states are home to more than two dozens tribes, many of them with gas stations on their homelands and, more significantly, some with treaty provisions similar to the Yakama Nation's.

"This is not a parochial controversy affecting only one state and one tribe or its members," the attorneys general wrote. "First, other tribes with identically-worded 1855 treaty provisions have reservations in Idaho and Montana. They thus have a preemptive radius of potentially expansive geographical range."

"Finally, the Washington Supreme Court has given the Yakama treaty provision an interpretation that transforms a right to use public highways for travel purposes into an exemption from state authority to impose taxes or fees on trade conducted via highway or, by logical extension, any activity associated with the highway use," the states argued.

Industry interests chimed in with a brief of their own, also calling on the Supreme Court to resolve the dispute.

"Simply put, there is no right to trade in the treaty at issue," the Washington Oil Marketers Association and the Washington Association of Neighborhood Stores wrote.

So far, the Yakama Nation is the only tribe that has submitted a brief in response to the petition. But tribes and their advocates have been paying close attention because of the potential for the Trump administration to influence whether or not the Supreme Court accepts it.

"The court called for the views of the Solicitor General, sometimes referred to as the the tenth justice, right," attorney Joel Williams of the Native American Rights Fund told tribal leaders during the winter meeting of the National Congress of American Indians earlier this year.

"The court wants to hear the views of the United States before deciding whether or not it wants to grant cert," added Williams, referring to the process by which the court grants a particular petition.

Together, NARF and NCAI run the Tribal Supreme Court Project. Williams, who is a citizen of the Cherokee Nation, and other advocates have called the current term one of the busiest in recent memory.

Reopening an old dispute

By submitting its views in Cougar Den, the Department of Justice called attention to a decade-old case involving the Yakama Nation. In U.S. v. Smiskin, the 9th Circuit Court of Appeals concluded that the 1855 treaty protected tribal citizens from a federal tobacco contraband law.

"Tribal members were not required to notify anyone prior to transporting goods to market at the time of the treaty, and the treaty guaranteed to them the same rights today," Judge Richard A. Paez wrote for the court in March 2007.

That ruling, like Cougar Den, was based on an examination of what Yakama leaders thought when they were negotiating the treaty on behalf of their people more than 160 years ago. But government attorneys are still mad about it apparently.

"The United States continues to believe that Smiskin was wrongly decided," the brief submitted on Tuesday reads.

The Trump administration isn't calling for Smiskin to be magically overturned, however. That's because they say a subsequent ruling in King Mountain Tobacco Co. v. McKenna, also involving Yakama citizens, "clarified the limits" of the tribe's treaty rights.

But government attorneys say those two rulings are in "significant tension" with Cougar Den. That means the Supreme Court should "correct" the jurists in Washington, they argued.

The ball is now in the hands of the Supreme Court. The next step would be for the petition to be considered at an upcoming conference. Once that happens, the justices will decide whether or not to grant cert.

Washington Supreme Court Decision:
Cougar Den Inc. v. Washington State Department of Licensing (March 16, 2017)

Another Indian law case in limbo as high court turns to Trump again (May 14, 2018)
Yakama Nation sues county for arresting minor on homelands in Washington (November 6, 2017)
Supreme Court opens term with new justice and with Indian law cases on horizon (October 2, 2017)
Washington asks high court to overturn Yakama Nation treaty victory (June 23, 2017)