Chairman JoDe Goudy of the Yakama Nation speaks at the Native Nations Rise rally in Washington, D.C., on March 10, 2017. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Supreme Court delivers slim victory in Yakama Nation treaty rights case

By Acee Agoyo

The U.S. Supreme Court issued its first Indian law decision of the current term on Tuesday, delivering a slim but strong victory in a treaty rights case.

By a vote of 5-4, the justices confirmed that citizens of the Yakama Nation are not required to pay a fuel tax to the state of Washington. A treaty signed with the United States in 1855 "pre-empts" the tax, Justice Stephen G. Breyer wrote in the judgment from the court.

"In our view, the state of Washington’s application of the fuel tax to Cougar Den’s importation of fuel is pre-empted by the treaty’s reservation to the Yakama Nation of 'the right, in common with citizens of the United States, to travel upon all public highways,'" Breyer wrote in the 18-page ruling, quoting from the government-to-government agreement.

Cougar Den is a business on the reservation that challenged the tax at issue in the case. The state told the owner, who is a Yakama citizen, to pay $20 million in back taxes and penalties but that's no longer on the table as a result of the high court's ruling.

“The courts have previously told the state that it cannot tax on-reservation sales, and it cannot place the burden of these taxes on reservation," attorney Mat Harrington said in a press release. "But the treaty also exempts the Yakama from paying import taxes which burden their right to travel.”

“In today’s ruling, the U.S. Supreme Court honored the solemn promises made by the U.S. government," Harrington said of the case, known as Washington State Department of Licensing v. Cougar Den.

Chairman JoDe Goudy of the Yakama Nation stands outside of the U.S. Supreme Court in Washington, D.C., and offers a prayer after he was denied entry into arguments for a case affecting his tribe's treaty rights. Photo courtesy of the Yakama Nation

Though the Yakama Nation itself wasn't a party to the case, the tribe also welcomed the development. Chairman JoDe Goudy, who was barred from attending the hearing in the case because he wouldn't remove his traditional headdress and regalia, said the ruling confirmed how the treaty was understood by those who signed it.

“Yakamas’ conducted trade and commerce long before the formation of the United States, let alone the Washington state’s existence," Goudy said in a news release. "Our historical chiefs negotiated for that right to be maintained and it was memorialized within the articles of the Yakama Treaty of 1855 between the Yakama Nation and the United States.”

While Breyer announced the court's judgment, Goudy was heartened by the concurring opinion in the case. It was written by Justice Neil Gorsuch, whose strong background in Indian law led tribes to support his nomination two years ago.

"Really, this case just tells an old and familiar story," Gorsuch observed in the 11-page opinion. "The state of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises."

"The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more," wrote Gorsuch, who was nominated to the court by President Donald Trump. "But today and to its credit, the court holds the parties to the terms of their deal. It is the least we can do."

Indianz.Com on SoundCloud: U.S. Supreme Court - Washington State Dept. of Licensing v. Cougar Den, Inc. - October 30, 2018

But Trump's other pick for the court wasn't in support of the Yakama Nation's treaty rights. Justice Brett Kavanaugh, whose nomination was opposed by some tribes, joined a dissenting opinion and, if that weren't enough, wrote his own and accused his colleagues of "rewriting the law in 2019," some 164 years after the agreement was signed.

"The court’s newly created right will allow Yakama businesses not to pay state taxes that must be paid by other competing businesses, including by businesses run by members of the many other tribes in the state of Washington," Kavanaugh contended in his six-page dissent.

"In addition, the court’s newly created right—if applied across the board—would seem to afford Yakama tribal members an exemption from all manner of highway regulations, ranging from speed limits to truck restrictions to reckless driving laws," he asserted, raising fears that tribal citizens will try to avoid following other laws.

According to the Yakama Nation, however, the court's "strongly worded decision" merely affirms the rights of tribal citizens to travel on public highways and bring goods to the market without interference. Chairman Goudy said the state's attempt to tax such activity represented an act of domination that was rightfully rejected by a majority of the justices.

"The dominating act to eliminate, overregulate, and or restrict our ability to conduct trade and commerce would have continued to dehumanize our nation,” Goudy said. "Our nation will move forward and continue to seek and initiate actions to address the wellbeing of those things that cannot speak for themselves, our resources, as well as our enrolled members young and old for generations to come."

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

Cougar Den represents another loss for the state of Washington at the nation's highest court. Just last year, Attorney General Bob Ferguson, a Democrat, was unable to overturn a victory won by tribes in another treaty rights case.

In both instances, Ferguson's actions were met with derision from tribal leaders and advocates, with one prominent Indian law attorney characterizing the appeal in Cougar Den as an abuse of power.

The decision also marked a rebuke to the Trump administration. When asked for its views in the matter, the Department of Justice told the Supreme Court that the Yakama Nation's treaty did not pre-empt the fuel tax.

Cougar Den is the first Indian law decision to emerge from the Supreme Court's current term, which began last October. Three cases of interest have been heard by the justices -- and all of them deal with treaty rights and treaty issues.

"Having these three treaty rights cases before the court," attorney Joel Williams of the Native American Rights Fund told leaders of the United South and Eastern Tribes at their recent meeting in the nation's capital, "tees it up for the court to say some significant things in this area.”

Oral arguments Cougar Den took place on October 30 and were the first of the current term. They were followed by a hearing in Carpenter v. Murphy on November 27.

At issue in Carpenter is whether the reservation of the Muscogee (Creek) Nation continues to exist. The reservation in Oklahoma had been set aside by a treaty signed in 1866.

The third Indian law case is Herrera v. Wyoming, whose outcome will determine whether citizens of the Crow Tribe can be prosecuted for hunting on off-reservation treaty territory in the state of Wyoming. Arguments took place on January 8.

Decisions in Carpenter and Herrera are expected before the court wraps up its current term, usually at the end of June.

Washington State Department of Licensing v. Cougar Den
Syllabus | Judgment [Breyer] | Concurrence [Gorsuch] | Dissent [Roberts] | Dissent [Kavanaugh]

Supreme Court Documents
Docket Sheet: No. 16-1498 | Questions Presented | Oral Argument Transcript

Indianz.Com on SoundCloud
Jam out with the justices! Listen to lawyers! No, really, these are important U.S. Supreme Court cases.

Join the Conversation

Related Stories
Supreme Court takes up another Indian law case with few on the horizon (January 8, 2019)
Leader of Yakama Nation denied entry into Supreme Court hearing (October 30, 2018)
Yakama Nation treaty rights case lands at Supreme Court (October 29, 2018)
Supreme Court gains new member as Trump's shadow looms large in Indian cases (October 9, 2018)
Indian law professors join campaign against Brett Kavanaugh (October 4, 2018)
Supreme Court takes up Indian law petitions amid major controversy (September 24, 2018)
Indian Country awaits busy season at Supreme Court amid big change (August 15, 2018)
Yakama Nation business loses treaty claim in taxation case (August 14, 2018)
Supreme Court delivers bad news to tribes as term draws to a close (June 25, 2018)
Supreme Court poised to take action on some major Indian law petitions (June 18, 2018)
Yakama Nation celebrates treaty whose provisions are questioned by Trump (June 7, 2018)
Trump administration goes against tribal interests in treaty case (May 16, 2018)
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)
Trending in News
More Headlines