With President Donald Trump looking on, Supreme Court Justice Anthony M. Kennedy, swears-in Neil M. Gorsuch to be the Supreme Court's 113th Justice during a ceremony in the Rose Garden of the White House in Washington, D.C. , on April 10, 2017. Justice Gorsuch’s wife, Louise, holds a family Bible. Photo: Shealah Craighead / White House

Gavin Clarkson: Indian Country should thank Donald Trump for Justice Gorsuch

By Dr. Gavin Clarkson, Esq.

On Tuesday, the U.S. Supreme Court handed down a huge 5-4 victory for tribal treaty rights in Washington State Department of Licensing v. Cougar Den.

Many were concerned about this case, given that the Supreme Court rarely takes up a case where Indian Country has prevailed unless it plans on ruling against tribal rights. In this situation, the Washington State Supreme Court had ruled that an 1855 Treaty with the Yakama preempted the taxation of goods imported into the reservation, including fuel trucked in over state highways.

But then the Supreme Court agreed to hear the case, the Department of Justice filed a brief supporting Washington’s position against the treaty, and Indian Country held its collective breath.

And while the most newsworthy aspect of oral argument didn’t happen inside the court itself, as Yakama Nation Chairman JoDe Goudy was denied entry because he was wearing his traditional headdress along with his regalia, reviewing the transcript provided hints that President Donald Trump has elevated a new champion for Indian Country to the Supreme Court.

Justice Neil Gorsuch was well versed in Indian law long before President Trump appointed him, and his command of the canons of treaty construction was evident early on, particularly when he pointed out to Washington’s Solicitor General that “we wouldn't normally read the term ‘in common with’ to mean one thing when it's fishing and another thing when it's highways, would we?” (referencing a 1942 Yakama fishing rights case).” He then emphasized that treaty interpretation must be done based on how the tribe would have understood the terms of the treaty at the time.

That mastery of tribal treaty construction was on full display in Gorsuch’s concurring opinion, which was joined by the usually anti-tribal Justice Ruth Bader Ginsburg as the fifth vote to support the tribal treaty right. His opinion focused extensively on the “Yakamas’ understanding of the treaty’s terms in 1855.”

Where there were ambiguities, he properly construed them in favor of the tribe, noting: “After all, the United States drew up this contract, and we normally construe any ambiguities against the drafter who enjoys the power of the pen. Nor is there any question that the government employed that power to its advantage in this case.”

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

Gorsuch also emphasized the economic importance of pre-empting the taxation of goods pursuant to the treaty, noting the value of what the tribal leaders had ceded in 1855. I found similarities with my own writing on tribal economic development as well as the opening chapters of Professor Bob Miller’s Reservation Capitalism in Gorsuch's discussion of the importance of free markets to the Nineteenth Century tribal leaders during treaty negotiations:
[T]he Yakamas enjoyed “free and open access to trade networks in order to maintain their system of trade and exchange.” They traveled to Oregon and maybe even to California to trade “fir trees, lava rocks, horses, and various species of salmon.” This extensive travel “was necessary to obtain goods that were otherwise unavailable to [the Yakamas] but important for sustenance and religious purposes.” Indeed, “far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture.” Travel for purposes of trade was so important to the “Yakamas’ way of life that they could not have performed and functioned as a distinct culture . . . without extensive travel.” Everyone understood that the treaty would protect the Yakamas’ preexisting right to take goods to and from market freely throughout their traditional trading area.

Rebutting Washington’s flawed argument that upholding the treaty right would lead to lawless highways (anyone else hear echoes of the “marauding savage” trope?), Gorsuch eviscerated that position, stating:
[T]he treaty’s terms permit regulations that allow the Yakamas and non-Indians to share the road in common and travel along it safely together. But they do not permit encumbrances on the ability of tribal members to bring their goods to and from market. And by everyone’s admission, the state tax at issue here isn’t about facilitating peaceful coexistence of tribal members and non-Indians on the public highways. It is about taxing a good as it passes to and from market—exactly what the treaty forbids.

But Justice Gorsuch saves his best for last, concluding his concurrence with a devastating critique:
Really, this case just tells an old and familiar story. 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. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

The inclusion of Ginsburg in the majority seems anomalous, given her continuing hostility towards tribal sovereignty. However, Cougar Den is not inherently a tribal sovereignty case. It is instead a case of individual Indians exercising off-reservation treaty rights albeit a tribal-citizen-owned corporation incorporated under Yakama law.

Ginsburg has supported individual Indians in the past, and she joined Justice Stephen G. Breyer in the Mille Lacs Band of Ojibwe case, which also involved off-reservation treaty rights for individual Indians.

Indianz.Com on SoundCloud: U.S. Supreme Court - Herrera v. Wyoming - January 8, 2019

The obvious question is what will happen with the remaining off-reservation treaty rights case, Herrera v. Wyoming, which involves a citizen of Crow Tribe engaging in subsistence hunting off-reservation in the state of Wyoming. Although Ginsburg was not present for oral argument, she is expected to participate in the decision along with the two other justices who participated in Mille Lacs.

I attended the Herrera oral argument in January, and Gorsuch was devastatingly effective in dismantling Wyoming’s argument. He even succeeded in getting the federal government to agree that Ward v. Race Horse -- a prior Supreme Court decision that limited off-reservation treaty rights -- should be overturned.

"What do you say to the suggestion that we just be done with Race Horse and overrule it?" Gorsuch asked.

"The government would be fine with that. We would invite the court to overrule Race Horse," responded Frederick Liu, an assistant to the Solicitor General at the Department of Justice.

Although the majority and concurrence in Cougar Den cite U.S. v. Winans more than a dozen times, my favorite passage from Winans apparently motivates much of Gorsuch’s treaty rights jurisprudence. My Indian law students over the years have been forced to memorize a certain relevant passage from Winans, and Gorsuch clearly understands the same:
New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them -- a reservation of those not granted.

Based on my reading of the Cougar Den decision, I anticipate at least a 5-4 decision upholding the off-reservation hunting rights, with Justices Gorsuch, Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan likely voting as a majority to uphold tribal treaty rights.

The question will be how many of the conservative justices will be persuaded by Gorsuch’s mastery of Indian law concepts and towering intellect. Although I doubt Justice Clarence Thomas or Samuel Alito will support the off-reservation hunting rights, it is possible that either Chief Justice John G. Roberts, Justice Brett Kavanaugh -- or both -- might support those rights, particularly given that the Solicitor General filed a brief in support of those rights and made a strong showing during oral argument.

I am less hopeful that Indian Country will prevail in the other case before the Supreme Court, Carpenter v. Murphy, if for no other reason than Gorsuch recused himself because the case arose out of the Tenth Circuit Court of Appeals where he was a member at the time. On the plus side, a 4-4 tie among the remaining justices would affirm the Tenth Circuit’s decision.

Finally, Cougar Den will hopefully create momentum for a re-examination of state taxation of tribal economies generally, whether judicially or congressionally. Although the revisions to the Indian Trader Act regulations appear to have stalled, the devastating impact of dual taxation of job creators in Indian Country continues to suppress tribal economic growth. I look forward to Justice Gorsuch’s examination of those issues when cases like Tulalip v. Washington come before the court in the next few years.

I reached out to the Department of Justice to ask why they decided to support tribal rights in Herrera but not in Cougar Den or Carpenter, but a spokesperson politely declined to comment.

Dr. Gavin Clarkson is a citizen of the Choctaw Nation. He is the former Deputy Assistant Secretary for Policy and Economic Development in the Department of the Interior, a former Associate Professor in the College of Business at New Mexico State University, and a former candidate for U.S. Congress. Clarkson has a BA and MBA from Rice University, is a cum laude graduate of the Harvard Law School and is the first tribal citizen to ever earn a doctorate from the Harvard Business School (in Technology and Operations Management). At Harvard, he was the President of the Native American Law Students Association, Managing Editor of the Harvard Journal of Law and Technology, and the only doctoral graduate in the history of the Harvard Business School who has also placed in a livestock show.

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

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