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Neil Gorsuch joins liberals giving Yakama Nation a Supreme Court victory over state of Washington

March 21, 2019 Updated Thu., March 21, 2019 at 7:19 p.m.

Supreme Court Justices Neil Gorsuch, left, and Brett Kavanaugh, who were both appointed to the court by President Trump, were on opposite sides of a case involving the Yakama Nation this week. Gorsuch joined the court’s liberal justices in ruling that a Washington state Indian tribe doesn’t have to pay a state fuel tax. Kavanaugh dissented. (Doug Mills / AP)
Supreme Court Justices Neil Gorsuch, left, and Brett Kavanaugh, who were both appointed to the court by President Trump, were on opposite sides of a case involving the Yakama Nation this week. Gorsuch joined the court’s liberal justices in ruling that a Washington state Indian tribe doesn’t have to pay a state fuel tax. Kavanaugh dissented. (Doug Mills / AP)

The Supreme Court sided with the Yakama Nation over Washington state Tuesday, ruling that the 1855 treaty between the confederated tribe and the U.S. took precedence over a state gas tax law.

The 5-4 decision in Washington State Department of Licensing v. Cougar Den, Inc. found that the state department was wrong to assess $3.6 million in taxes, penalties and fees on a wholesale fuel importer owned by a tribal member who sold gas to Yakama-owned gas stations on the Yakama Reservation.

The decision is a “small justice” that helps right “a huge number of historical wrongs,” said Margo Hill, a Spokane tribal member who teaches tribal law and economic development at Eastern Washington University.

“In this one case, this one little case, the judges are reading the law the way they’re supposed to,” said Hill, who grew up on the Spokane Reservation. “It’s a small justice, but we’ll take it.”

The ruling affirmed earlier decisions by the state Supreme Court and a Superior Court. Attempts to contact representatives of the Yakama Nation were unsuccessful.

In an argument written by Justice Stephen Breyer, the nation’s highest court found that the importer, Cougar Den, had the “right, in common with citizens of the United States, to travel upon all public highways,” and that right applied to “travel with goods for purposes of trade.” Breyer was joined by justices Sonia Sotomayor and Elena Kagan.

State law says that a “motor vehicle fuel importer” who bring large amounts of fuel into the state by “ground transportation” is required to obtain a license, and must pay a fuel tax that will be “levied and imposed upon motor vehicle fuel licensees” for “each gallon of motor vehicle fuel” that is transported into the state.

Breyer pointed to a 1942 Supreme Court decision, Tulee v. Washington, that found the treaty reserved fishing rights to Yakama people, and pre-empted state law requiring fisherman to buy fishing licenses.

In a concurring, separate opinion, Justice Neil Gorsuch argued that the treaty specifically gave Yakama people “the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.”

“Far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture,” Gorsuch wrote in his opinion, which was joined by Justice Ruth Bader Ginsburg. Traveling for trade was so important to their “way of life that they could not have performed and functioned as a distinct culture” without it, and would’ve been “made prisoners on their reservation.”

Gorsuch was the only conservative justice to join the court’s liberal members in the decision.

The dissenting opinion was written by Chief Justice John Roberts, and joined by justices Samuel Alito, Clarence Thomas and Brett Kavanaugh.

In his opinion, Roberts wrote that gas tax did not infringe on the Yakama people’s right to travel, and noted that the treaty did not grant them “an additional right to possess whatever goods they wish on the highway, immune from regulation and taxation.”

“The tax before us does not resemble a blockade or a toll. It is a tax on a product imported into the State, not a tax on highway travel,” Roberts wrote.

‘The least we can do’

Hill, who worked as a tribal attorney for the Spokane Tribe for 10 years and was also a tribal court judge for the Coeur d’Alene Tribe, said she was unsure if the decision would affect other Eastern Washington tribes, noting that she knew of only two other tribes with treaties that explicitly included language about transportation and mobility: the Nez Perce and the Confederated Salish and Kootenai Tribes.

Regardless, Hill said she was particularly moved by Gorsuch’s opinion, and read its final paragraph aloud.

“Really, this case just tells an old and familiar story,” Gorsuch wrote. “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.”

Hill said the decision was a long-deserved recognition of who the Yakamas were when they negotiated the treaty, and who they remain to be today.

“Here’s a tribe who negotiated mobility into the treaty in 1855,” she said. “The movement of goods, and their central location, made their trading network integral to every part of their lives.”

The Yakamas moved goods across nearly half the continent, and traded many things, including dried salmon, horses, fir trees and pumice.

“They traded to the plains for buffalo. They traded to the Pacific coast for shellfish,” she said. “They traveled clear to California, to the plains of Wyoming. That’s part of why they negotiated so hard in their treaty. It is their art of survival, really.”

The 1855 treaty ceded 12 million acres of tribal land to the federal government, which encompassed land as far north as Lake Chelan, east to Washtucna and south to the Columbia River Gorge. In 1859, when the treaty was signed by by Gov. Isaac Stevens, newspapers “declared all ceded lands open and available for white settlement,” according to the nation’s website.

It was this pressure to allow white settlement that forced the Yakamas to negotiate a treaty earlier than the other tribes of Eastern Washington, Hill said.

“Settlers were coming into central Washington. They wanted the agricultural lands. It was a quarter of Washington state,” she said. “There were huge pressures. The Yakamas were doing their best to protect their lands and protect their people.”

In 1871, the U.S. government stopped negotiations with tribes with the passage of the Indian Appropriations Act, which ruled that Native American tribes would no longer be recognized as independent nations by the federal government.

Other local tribal nations do not have formal treaties with the U.S. government. Instead, the reservations of the Spokane Tribe of Indians, the Kalispel Tribe of Indians and the Confederated Tribes of the Colville Reservation were created by executive orders, which is the most common way such reservations were created.

Executive order reservations typically have the same rights as those created by treaty, and have the same federal recognition under U.S. law.

Whether a tribe has sovereignty due to a treaty or executive order, Hill said the courts long ago decided to “read the law in a favorable light to Indians.” These so-called “canons of construction” help judges interpret documents in favor of Native American interests, a policy first articulated by Chief Justice John Marshall in 1832.

While very complex, in short this favorable interpretation is done because the tribes were at such a disadvantage when signing treaties or entering into other agreements with the federal government.

“There’s a huge number of historic wrongs,” Hill said. “But here’s the Supreme Court actually doing what they’re supposed to.”

The Yakama Indian Reservation currently is about 1.1 million acres. The Confederated Tribes and Bands of the Yakama Nation is comprised of Klikitat, Palus, Wallawalla, Wanapam, Wenatchi, Wishram and Yakama peoples.

“The United States and the state of Washington have reaped the historical, present, and future benefit to one-third of the land mass and resources of present day Washington state and it is this great sacrifice that our Yakama Nation gave up to have our rights memorialized forever,” said Tribal Council Chairman JoDe Goudy in a statement, according to the Yakima Herald-Republic. “Today, the United States Supreme Court has acknowledged and upheld our treaty rightfully so in the face of present day individuals who sought to renegotiate the terms that were memorialized between our nations in the year of 1855, and for that we are grateful.”

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