American Indian Law Practice Group Secures Victory for Treaty Rights
Related Practice: American Indian Law
An Administrative Law Judge has ruled in favor of Stokes Lawrence client Cougar Den, Inc., affirming the supremacy of the Yakama Nation’s Treaty of 1855 over state fuel tax statutes that would encumber the right to travel reserved by the Treaty. The ruling states that Cougar Den “is exempt from the assessment [of state motor fuel taxes] pursuant to Article III of the Treaty of 1855.” This decision not only upholds the Yakama Nation’s Treaty right to travel (Article III, para. 1) but also protects the inter-tribal trade between Cougar Den and other Sovereign Tribal Nations, emphasizing the significance of treaties and Tribal Sovereignty.
In April 2021, the Washington State Department of Licensing ("DOL") issued fuel tax assessments against Cougar Den’s fuel distribution. But the Washington Supreme Court and U.S. Supreme Court had previously ruled in 2017 and 2019 that Cougar Den’s fuel distribution activities were exempt from taxation pursuant to its Treaty. Cougar Den, Inc. v. Wash. State Dep’t of Licensing, 188 Wn.2d 55 (2017), aff’d, 139 S. Ct. 1000 (2019). Notwithstanding these precedents, the State of Washington attempted to tax Cougar Den’s recent distribution, alleging that this more recent distribution activity was different and therefore taxable because Cougar Den did not import the fuel from another state, and that the fuel was delivered to tribal retailers outside the Yakama reservation. The judge rejected these arguments, reasoning that the distribution activity in question impermissibly burdened the Treaty right to travel.
Cougar Den President and Yakama Nation Tribal Elder “Punia” Kip Richard Ramsey, Sr. stated, “As numerous federal, state, and tribal courts have recognized, travel was and is an intrinsic part of the Yakama way of life. For the members of the Yakama Nation, the right to travel the highways without restriction is a living, sacred right preserved by our ancestors. We are gratified that an officer of the State of Washington today agreed, ruling that the State of Washington must again stop trying to violate the Treaty.”
“This is a significant victory,” said Derek Red Arrow Frank, co-leader and co-founder of the American Indian Law Practice Group. “A few years after being rebuked by the Washington Supreme Court and the U.S. Supreme Court, Washington chose to attack Treaty Rights again. But the guarantees of federal law are clear: any such burden must be preempted, especially where the fuel tax statute exclusively pays for the construction and maintenance of the very highways that the Yakama were guaranteed the Right to Travel without condition.” As Justice Gorsuch observed in the previous dispute, “this case just tells an old 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 promises. The State [of Washington] is now dissatisfied with the consequences of one of these promises. It is a new day, and now it wants more.” Cougar Den II, 139 S. Ct. at 1021.
The Stokes Lawrence attorneys who advocated for Cougar Den included Brendan Monahan, Mat Harrington (who in 2016 successfully argued the original landmark Cougar Den case before Washington’s Supreme Court), Derek Red Arrow Frank, Marthy Hernandez and Claire Taylor.
