Only three other tribal treaties in the United States have “right to travel” provisions, and the Yakama have been uniquely vigilant in defending it. For more than one hundred years, the Yakama have continuously and successfully defended their treaty rights in state and federal court.
See e.g., US v. Winans, 25 S. Ct. 662 (1905) (fishing rights reserved in the treaty pre-empted Washington’s enforcement of a trespass law against Yakama fishermen crossing private land to access a river);
Tulee v. Washington, 62 S. Ct. 862 (1942) (fishing rights reserved in treaty pre-empted Washington law’s requirement that a Yakama fisherman obtain a fishing license and pay a fishing licensing fee);
Indian Nation v. Flores, 955 F. Supp. 1229 (E.D. Wash. 1997) (treaty protected Yakama trucks hauling logs from the Yakama Reservation from paying tonnage licensing fees and log tolerance permits for their trucks);
U.S. v. Smiskin, 487 F.3d 1260 (9th Cir. 2007) (Washington’s pre-notification requirement that Yakama give notice to state officials before transporting unstamped cigarettes within the state violated right to travel provision).
More recently, the United States Supreme Court in
Washington State Dept. of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019) considered whether Washington’s fuel tax statute, which taxed a fuel supplier’s (i.e., Cougar Den, Inc., a tribal-member-owned Yakama Nation corporation) importation of fuel into Washington by public highways, was a tax upon traveling with goods to market and thus preempted by the Yakama’s treaty rights. The justices held that the treaty’s “right to travel” for trade provision: (i) protects the Yakama’s right to transport goods to market unencumbered; and (ii) prohibits Washington from burdening the importation of motor vehicle fuel.
In defiance of this recent U.S. Supreme Court precedent, between 2020 and 2022, the Arizona Department of Transportation (“ADOT”) issued multi-million-dollar fuel tax assessments against Cougar Den for its importation of fuel for retail sale from Nevada to the Fort Mohave Indian Reservation along a 1.3-mile stretch of Arizona public highway. Arizona levies a fuel tax on motor vehicle fuel possessed, used, or consumed in the state. Even though the fuel tax statute expressly states that the tax is imposed on consumers, it is structured such that the entity importing the fuel “pre-collects” and later remits the fuel tax to ADOT. The statutory scheme is designed this way, among other reasons, so ADOT can impose a tax on fuel imported and sold on tribal lands, since it cannot directly tax an Indian tribe or its members inside Indian country.
Working with Washington counsel and Frazer Ryan attorney
Doug John, Cougar Den appealed the assessments to ADOT’s Executive Hearing Office. ADOT’s attorneys tried to frame the dispute as a tax appeal, rather than a treaty rights case. ADOT argued that the Washington tax in
Cougar Den differed from the Arizona statutory scheme. ADOT reasoned that the Washington tax fell directly on Cougar Den’s express use of public highways. By contrast, Arizona’s tax expressly falls on the consumer, not Cougar Den. Thus, ADOT argued Arizona’s tax was not imposed on Cougar Den’s use of the public highways.
On cross motions for summary judgment, an administrative law judge rejected ADOT’s strained argument. The judge ruled in Cougar Den’s favor, finding that while the fuel tax may ultimately be passed along to the consumer, since Cougar Den imports fuel over a public highway, the Arizona statute requires Cougar Den to be licensed and to pre-collect and remit a tax, which directly burdens its treaty-protected rights. Because the Yakama’s treaty right to unburdened travel is a federally protected activity, Arizona’s interference with that activity is preempted by federal law.
In a complete victory for Cougar Den, the judge voided all the assessments and ADOT withdrew millions in subsequent tax assessments against Cougar Den.
