Page 10
Spilyay Tymoo, Warm Springs, Oregon
November 7, 2018
Yakama gas tax case at Supreme Court
Leaders of the Yakama
Nation are asking for Indian
Country’s support, as the U.S.
Supreme Court weighs its
first tribal case of the cur-
rent term.
Oral arguments in Wash-
ington State Department of
Licensing v. Cougar Den hap-
pened last week, with the
Justices appearing to be di-
vided on the question.
The outcome will deter-
mine whether the 1855
Yakama Treaty—which spe-
cifically guarantees “free ac-
cess” to public highways—
protects tribal citizens from
the state of Washington’s
fuel tax.
“This should be a con-
cern to all treaty tribes,” said
David Washines, the chair-
man of the Yakama Nation
General Council.
The tribe is not a party
to the litigation, and won’t
be able to defend the treaty
before the justices. That
task is instead left to Adam
G. Unikowsky, a Washing-
ton, D.C., attorney who has
won all seven cases he has
argued at the Supreme
Court, according to his law
firm.
Despite that winning
record, Indian Country is up
against a formidable foe. In-
stead of asserting a trust and
treaty responsibility to the
Cougar Den, a fuel company
on the Yakama Nation that
is being subjected to the tax,
the federal government is sid-
ing with the state of Wash-
ington.
According to a summary
of last week’s proceeding,
provided by the Native
American Rights Fund:
“Justices
Kagan,
Sotomayor and Gorsuch
dominated the questioning
of the Washington State De-
partment of Licensing attor-
ney Noah Purcell, with Jus-
tice Kavanaugh asking a few
questions as well.
“These justices kept re-
turning to the theme of the
tribes’ bargained-for right to
transport goods to market
on highways off-reserva-
tion. For example, when the
department asserted that it
could impose the tax at is-
sue because it is non-dis-
criminatory, Justice Kagan
questioned why that mat-
tered:
“‘It does seem to me that
from the Yakama’s point of
view, and they’re, after all,
the people who entered into
the treaty… this tax is bur-
dening exactly what they bar-
gained to get, which is the
ability to transport their
goods without any burdens,
without a tax.’
“Justice Kavanaugh simi-
larly questioned whether the
state’s non-discriminatory
imposition of the tax mat-
tered by emphasizing the
tribes’ bargain:
“‘But… the effect was
that, in taking your goods to
market, which was the
promise, in exchange for a
huge area of land, an area
of land the size of the State
of Maryland that was given
up by the tribe, that you
could take your goods to
market. And this burdens, as
Justice Kagan said, this bur-
dens substantially their abil-
ity to take goods to market.’”
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