Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty

With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreement about the rules of tribal treaty interpretation.

Justice Stephen Breyer’s plurality opinion, joined by Justices Sonia Sotomayor and Elena Kagan, holds that an 1855 treaty guaranteeing the Yakama “the right, in common with citizens of the United States, to travel upon all public highways,” pre-empts a tax triggered when motor fuel “enters into [Washington] state.” The tax exempts entry by “bulk transfer,” i.e., by “pipeline or ship” rather than “ground transportation. The Washington Supreme Court found that the tax targeted the right to travel by highway with fuel, and the Supreme Court agreed. Relying on time-honored canons of treaty interpretation, as well as the agreed-upon history of the treaty negotiations, the plurality found that the right to travel with goods for sale or distribution was a key part of the treaty. Because the motor-fuel tax imposed a “tax upon traveling with certain goods,” it impermissibly burdened that treaty right.

At oral argument the state argued, and the justices seemed concerned, that ruling for Cougar Den would permit travel with fireworks, diseased apples, or other goods hazardous to health and safety. The plurality, however, emphasized that “we do not say or imply that the treaty grants protection to carry any and all goods,” or that “the treaty deprives the State of the power to regulate to prevent danger to health and safety.” The plurality analogized to earlier decisions finding that the treaty right to fish “in common with” the citizens of the United States did not pre-empt state regulations “necessary to the conservation of fish” or “indispensable to the effectiveness of a state conservation program.” The court suggested that the records of the treaty negotiations might support a state right to regulate highway travel for health and safety, but did not squarely announce a state right to regulate.

Justice Neil Gorsuch, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. The concurrence was even more emphatic about why the 1855 treaty should be interpreted as the Yakama understood it: It was drafted by the United States in a language the Yakamas could not read, and the Yakamas gave up a vast territory in exchange for their reserved treaty rights. “The Tribe bargained for a right to travel with goods off reservation just as it could on reservation and just as it had for centuries. If the State and federal governments do not like that result, they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.”

Unlike the plurality opinion, the concurrence came down firmly in favor of the power of the state to regulate treaty travel. By guaranteeing the right to use the highways “in common with the citizens of the United States,” the treaty indicated that tribal members knew they would have to “accept regulations designed to allow the two groups’ safe coexistence.” This would include “critical safety regulation[s]” on the highways. Although diseased apples should be regulated where grown or sold, if they “somehow pose a threat to safe travel on the highways,” Washington could regulate them, “just as the State may require tribal members to abide nondiscriminatory regulations governing the safe transportation of flammable cargo.”

But if the concurring justices only wanted to express their opinion on something the Supreme Court did not decide, why concur in the judgment only, rather than in the opinion? Chief Justice John Roberts’ dissent suggests that the plurality held that the treaty pre-empts any law that burdens the Yakamas when traveling on the highways, while the concurrence relied more on the right to travel with goods, but the difference seems slim. Perhaps the concurring justices disagreed that the court should grant deference to the Washington Supreme Court’s interpretation of the state statute, or with the formalist approach the court took in determining that the fuel tax was a tax on travel. Both concerns would be consistent with Ginsburg’s 2005 dissent in Wagnon v. Prairie Band Potawatomi Nation, but both seem like something the five justices could have resolved in the course of issuing a majority opinion.

Roberts wrote a dissent joined by Thomas, Justice Samuel Alito and Kavanaugh. The dissent disagreed that the tax falls on travel with, rather than possession of, fuel, noting that the same per-gallon tax would apply if the fuel entered by rail, barge or pipeline. Because the tax burdens possession rather than travel, the dissenters argued, it does not affect the treaty right. The dissenters were also dubious that the treaty would permit state regulation of travel to protect health and safety.

Although the chief justice’s dissent did not raise any fundamental disagreement regarding treaty law, Kavanaugh proposed an interpretation that departs from past precedent. Joined by Thomas, he argued that the “in common with” language meant that the treaty guaranteed the Yakamas only the right “to travel on the public highways on equal terms with other U.S. citizens.” The state, therefore, could apply any nondiscriminatory laws to that travel. This is a possible interpretation of the treaty text, but it runs up against more than a century of Supreme Court precedent, as well as (Gorsuch slyly noted) the treaty’s “original meaning.”

In United States v. Winans, the Supreme Court in 1905 rejected precisely this interpretation of the same treaty’s guarantee to the Yakamas of rights to fish “in common with” U.S. citizens at their usual and accustomed fishing grounds. Winans called the argument that the treaty guaranteed no more than the fishing rights of any white man “certainly an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.” As Breyer’s and Gorsuch’s opinions noted, the Supreme Court has rejected Kavanaugh’s interpretation of the “in common with” language several times since Winans. Gorsuch also highlighted the “uncontested factual findings” establishing that this was not how the treaty was understood when drafted: “Our job in this case is to interpret the treaty as the Yakamas originally understood it in 1855–not in light of new lawyerly glosses conjured up for litigation a continent away and more than 150 years after the fact.” Although Kavanaugh’s questions during oral argument appeared receptive to the treaty argument, this opinion suggests a willingness to disregard established doctrines of federal Indian law.

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Past cases linked to in this post:

United States v. Winans, 198 U.S. 371 (1905)
Wagnon v. Prairie Band, 546 U.S. 95 (2005)