Davis Washines, the chairman of the Yakama Nation General Council, addresses the National Congress of American Indians during its 75th annual convention in Denver, Colorado, on October 25, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Yakama Nation treaty rights case lands at Supreme Court

Monday, October 29, 2018

Leaders of the Yakama Nation are asking for Indian Country's support as the U.S. Supreme Court hears its first tribal case of the current term.

Oral arguments in Washington State Department of Licensing v. Cougar Den take place on Tuesday morning. The outcome will determine whether the 1855 Yakama Treaty -- which specifically guarantees "free access" to public highways -- protects tribal citizens from the state of Washington's fuel tax.

“This should be a concern to all treaty tribes,” David Washines, the chairman of the Yakama Nation General Council, said last Thursday at the 75th annual convention of the National Congress of American Indians.

The tribe is not a party to the litigation and won't be able to defend the treaty before the justices. That task is instead left to Adam G. Unikowsky, a Washington, D.C., attorney who has won all seven cases he has argued at the Supreme Court, according to his law firm.

Despite that winning record, Indian Country is up against a formidable foe. Instead of asserting a trust and treaty responsibility to the Cougar Den, a fuel company on the Yakama Nation that is being subjected to the tax, the federal government is siding with the state of Washington.

First case on the Supreme Court docket is Washington v. Cougar Den. The outcome will determine whether the Yakama Nation’s treaty protects tribal citizens from the state’s gasoline tax. Arguments take plce next week, October 30. #NCAI75 pic.twitter.com/WK4030IjYH
— indianz.com (@indianz) October 25, 2018

And with the Supreme Court tilted in an even more conservative direction thanks to the arrival of Justice Brett Kavanaugh, advocates are worried about the Cougar Den's chances. The October 2018 term, which began earlier this month, marks another busy season in which tribal victories are being put to the test.

“We’re not doing very well," John EchoHawk, a citizen of the Pawnee Nation and the long-serving executive director of the Native American Rights Fund told tribal leaders at NCAI's convention, which took place last week in Denver, Colorado, the same city where the organization was formed in 1944 to address threats to the rights of Native peoples.

So long as the court sticks to the question presented in the case, Joel Williams, another NARF attorney, said even a negative decision might not impact Indian Country too harshly. The treaty provision at issue is rather specific, he told tribes who gathered in Denver.

"Only Yakama and a couple of other tribes have 'right to travel' provisions in their treaties," said Williams, who is a citizen of the Cherokee Nation.

Washines did not dispute the characterization of the case as potentially limited in reach. But he noted that the Washington Supreme Court had previously sided with the Cougar Den in affirming the treaty provision.

"This case was not our doing," Washines said. "We won all the way to the Washington Supreme Court."

It was only at the state's insistence, and with the urging of the Trump administration, that the nation's highest court agreed to review the Cougar Den's victory, he said.

"We did not force the case on the U.S. Supreme Court," Washines pointed out

Davis Washines, chairman of the Yakama Nation general council, asks for prayers as Supreme Court hears Washington v. Cougar Den on October 30. “This should be a concern to all treaty tribes,” Washines told the National Congress of American Indians in Denver. #NCAI75 pic.twitter.com/EV1YtepRhK
— indianz.com (@indianz) October 25, 2018

According to the Supreme Court's day call for October 30, Cougar Den will be heard first on Tuesday morning. One hour has been set aside for the argument.

Noah Purcell, Washington's solicitor general, will be presenting the case for the state. Cougar Den marks his second appearance before the Supreme Court this year -- in April, he also argued against treaty rights in Washington v. U.S., which ended up going in favor of tribes because the justices were deadlocked 4-4 in the matter.

A tie isn't on the table for Cougar Den, as all nine justices are slated to participate in the resolution of the dispute.

The court has reserved 30 minutes for the state of Washington. But Purcell will be sharing argument time with the federal government -- Ann O'Connell, the assistant to the solicitor general at the Department of Justice, is going to be arguing on Tuesday, according to the day call.

"The United States has an interest in the proper interpretation of treaties between the federal government and Indian tribes, in light of both the United States’ own interests as a party to such treaties and its special relationship with the Indian signatories whose rights are secured under such treaties," government attorneys wrote in a motion to participate in the hearing on Tuesday.

The remaining 30 minutes are set aside for Unikowsky, who is representing the Cougar Den, a business owned and operated by an individual Yakama citizen.

Indianz.Com on YouTube: Chairman JoDe Goudy of Yakama Nation #NativeNationsRise

The Yakama Nation hasn't been completely left out of the debate. The tribe submitted an amicus, or friend of the court, brief on September 24, calling on the Supreme Court to affirm the treaty and repudiate the so-called Doctrine of Christian Discovery, which has been used to undermine the inherent rights of indigenous peoples and their governments.

"Courts have used the doctrine to build a false legal framework to attack Native sovereignty," the brief states. "The Court should expressly repudiate the doctrine and instead rely on the Yakama Treaty as the foundation for its analysis in this dispute."

The National Congress of American Indians, the largest inter-tribal advocacy organization in the U.S., also submitted a brief, as did the Nez Perce Tribe and the Confederated Salish and Kootenai Tribes. The latter two have similar "right to travel" provisions in their treaties.

"Indian treaties are the supreme law of the land and preempt state laws that would con- strain or abrogate treaty rights; thus the answer to that question depends on the nature and scope of the treaty’s express protection of the right to travel," the two tribes wrote in their brief, filed September 24.

The Supreme Court will post an argument transcript from the Cougar Den hearing later on Tuesday afternoon. Audio will be posted on Friday.

A decision is expected before the end of the court's term in June 2019. There is no time frame for a ruling, and the justices have been known to hold onto Indian law cases for extended periods of time.

In addition to Cougar Den, the court Carpenter v. Murphy on November 27. The outcome in the closely-watched dispute will determine whether the reservation of the Muscogee (Creek) Nation continues to exist.

The court has yet to schedule arguments in Herrera v. Wyoming, another treaty rights case. The outcome will determine whether citizens of the Crow Tribe can continue to hunt on off-reservation territory.