Supreme Court Takes Indian Treaty Right-to-Travel Case (CRS Report for Congress)
| Release Date |
Oct. 25, 2018 |
| Report Number |
LSB10208 |
| Report Type |
Legal Sidebar |
| Authors |
M. Maureen Murphy |
| Source Agency |
Congressional Research Service |
Summary:
On October 30, 2018, the Supreme Court is to hear oral arguments in Washington State Department of
Licensing v. Cougar Den, Inc., a challenge to a 2017 Washington Supreme Court decision interpreting the
intersection of Washington State’s taxing authority with a right-to-travel provision in an 1855 treaty (1855
Yakama Treaty) between the United States and the Yakama Indian Nation (Tribe). The treaty provision
guarantees the Tribe a “right, in common with citizens of the United States, to travel upon all public
highways.” In the decision under review, the Washington Supreme Court held that this provision insulates
Cougar Den, Inc., (Cougar Den)—a business owned by a tribal member—from having to pay a
Washington State motor fuels tax on gasoline Cougar Den trucks into the state and resells to onreservation
retailers. Without the treaty language, as conceded by both parties in the litigation, the state
could impose the motor fuels tax on Cougar Den. A decision by the Court in Cougar Den, therefore, is
likely to delineate the reach of the right-to-travel provision in the Yakama treaty and, by implication, in
identically worded provisions in treaties with two other tribes. The decision may also have implications
for state taxation of Indian activities on- and off-reservation generally.
This sidebar provides a preview of Cougar Den. First, the sidebar provides general background on state
taxing authority over the activities of Indian tribes. Next, the sidebar discusses Washington’s motor fuels
tax, the 1855 Yakama Treaty, and principles governing courts’ interpretation of treaties. The sidebar then
analyzes the lower court’s decision and the arguments before the Court. Finally, the sidebar addresses
potential implications of Cougar Den and considerations for Congress.
