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TREATY INTERPRETATION

Washington State Department of Licensing v. Cougar Den, Inc.

Issues

Does a Washington State fuel tax violate an 1855 treaty between the Yakama Nation and the United States that protects the Yakama’s “right to travel” when the tax is applied to a Yakama corporation that uses a public highway to transport fuel into Washington?

In this case, the Supreme Court will determine whether the Yakama Treaty of 1855 (“the Treaty”), which guarantees to the Yakama Indians the right to travel upon Washington public highways, creates a right for tribal members to avoid the Washington State fuel tax, which imposes a tax on fuels used for the propulsion of motor vehicles on Washington highways. Petitioner Washington State Department of Licensing (“the State”) argues that the tax applies because the Treaty does not expressly preempt the tax and because the tax attaches to the possession of fuel, not the transportation of fuel. Respondent Cougar Den, Inc. contends that, according to well-established rules of Indian treaty interpretation, the Treaty preempts the fuel tax and, further, the tax is an importation tax necessarily implicating the Yakama Indians right to travel. From a policy perspective, the Court’s decision in this case will have potential implications on Washington tax revenues, environmental concerns, and competitiveness in the fuel market.

Questions as Framed for the Court by the Parties

Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways.

The Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”) is an Indian Tribe recognized by the federal government. Brief for Respondent, Cougar Den, Inc. at 2. The Yakama Nation and the United States entered into a treaty (“the Treaty”) in 1855.

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