# Amicus Curiae Brief — Wash. State Dep't of Licensing v. Cougar Den, Inc., 138 S. Ct. 294 (2017) (No. 16-1498) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0758%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text No. 16-1498 WASHINGTON STATE DEPARTMENT OF LICENSING, Petitioner, Vv. COUGAR DEN, INC., A YAKAMA NATION CORPORATION, Respondent. * On Petition For Writ Of Certiorari To The Supreme Court Of Washington —> BRIEF OF AMICUS CURIAE CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION IN SUPPORT OF RESPONDENT a M. PATRICE KENT Tom ZEILMAN MARCUS M. SHIRZAD Counsel of Record YAKAMA NATION LAW OFFICES OF OFFICE OF LEGAL COUNSEL Tom ZEILMAN P.O. Box 150, 401 Fort Rd. 32 N. Third Street, WA 98948 Suite 310 (509) 865-7268 P.O. Box 34 marcus@yakamanation-olc.org Yakima, WA 98907 (509) 575-1500 tzeilman@qwestoffice net Counsel for Amicus Curiae i TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE...................... 1 SUMMARY OF THE ARGUMENT ..................... 2 REASONS FOR DENYING THE PETITION...... 5 Il. The Petition Asks this Court to Reject the Washington Supreme Court’s Routine Ap- plication of Well-Settled Law Regarding Indian Treaty Interpretation .................... 5 Il. The Petition Asks this Court to Take a Highly Fact-Bound Matter and Find Con- flict Where None Exists.....................0000000 8 Ill. The Petition Asks this Court to Ignore Available Remedies and Judicially Ex- pand States’ Authority to Tax Based on Unfounded Assertions of States’ Interests and Unpredictable Impacts. ....................... 9 CORFU cc ccscccssosnpsquneuvepatnecersvnvemnesswvecwwecesies 12 il TABLE OF AUTHORITIES Page CASES Choctaw Nation v. United States, 318 U.S. 423 ETI cscecocosescecsncctdénnnenacdepeanapoctiinmbitihdlsitsietdiitamieddiiie’ 5 County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) ........ ssapiiedebigciiitinineantiivesiceieniveinnnen 5 Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).............. 3,7 Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996)...2, 6, 7 Foster v. Neilson, 27 U.S. 253 (1829) .................ceeseesees 6 King Mountain Tobacco Co., Inc. v. McKenna, 768 F.3d 989 (9th Cir. 2014)..............ccccceeeeees 3, 7, 8,9 Mescalero Apache Tribe v. Jones, 411 U.S. 145 CEI asibvincchitncidinatnandedneeitnipebiiaeimenitntninateitinmntedeens 6 Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995) ..........cccscssecsereesseeessreees 10 State v. Towessnute, 154 P. 805 (Wash. 1916) .............. 2 Tulee v. State of Washington, 315 U.S. 681 (1942).......... scieiciniaindinpceeaininibiidiiatidindintinnctimidiiesiiiadtesainiea 2,5 United States v. Smiskin, 487 F.3d 1260 (9th Cir. SIPS Paccccanssrswentacedettsnnentescenidietinnteindmmiinetenmenias 3, 7,9 United States v. Winans, 198 U.S. 371 (1905)...... 2, 5,6 Yakima Indian Nation v. Flores, 955 F. Supp. 1229, aff'd, 157 F.3d 762 (9th Cir. 1998) (E.D. TPE: HTEUT cnanensstddstiiacaninoniidadsancidetuuminiaepeslantitiie 1, 2,7 ili TABLE OF AUTHORITIES ~— Continued Page FEDERAL LAWS Treaty With the Yakamas, 12 Stat. 951 (June 9, 1855, ratified Mar. 8, 1859, proclaimed Apr. BD, BED weastntnaeererareeniidenniicerenveevenmntarsrent 2,6, 7,8 1 INTEREST OF AMICUS CURIAE' The Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”) is a federally rec- ognized Indian Tribe that has inhabited and occupied the mid-Columbia River Basin since time immemorial. Long before the Yakama People first encountered American settlers, they were “inveterate traders” with extensive trading practices and territory. Yakama In- dian Nation v. Flores, 955 F. Supp. 1229, 1238 (E.D. Wash. 1997), aff’d, 157 F.3d 762 (9th Cir. 1998). Their trading practices included trade with travelers enter- ing Yakama territory, as well as trade that occurred well beyond their lands. Yakama Indian Nation, 955 F. Supp. at 1238. The significance of the Yakamas’ trading practices was recognized during the United States Govern- ment’s treaty negotiations near present day Walla Walla, Washington. Jd. at 1264. On June 9, 1855, the United States Government and the leaders of fourteen Indian tribes and bands entered into a treaty, the Treaty With the Yakamas. 12 Stat. 951 (June 9, 1855, ratified March 8, 1859, proclaimed April 18, 1959). * Counsel of record for all parties received notice at least 10 days prior to the due date of amicus curiae’s intention to file this brief, and the parties have consented to its filing. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the prepa- ration or submission of this brief. No person or entity other than amicus curiae, its members or its counsel made a monetary con- tribution to its preparation or submission. 2 As the sovereign government primarily responsi- ble for the regulation, administration and protection of those rights guaranteed to it in 1855, the Yakama Nation’s interest in this appeal is the proper interpre- tation of the Yakama Treaty and how it applies to Cougar Den, Inc. (“Respondent”), a Yakama-owned business that is licensed and regulated by the Yakama Nation, and to the Washington State Department of Li- censing (“Petitioner”). The Yakama Nation must and will intercede as a litigant or amicus curiae to defend the Yakamas’ treaty rights when a party, such as the State government here, overreaches in a disingenuous attempt to fundamentally alter those solemn commit- ments the United States Government made to the Yakama People in 1855. + SUMMARY OF ARGUMENT For over 100 years, Washington State has sought to limit the rights guaranteed to the Yakamas by the Yakama Treaty. See, e.g., United States v. Winans, 198 U.S. 371 (1905); State v. Towessnute, 154 P. 805 (Wash. 1916); Tulee v. State of Washington, 315 U.S. 681 (1942). The Petition for Writ of Certiorari before this Court is simply an extension of Washington State’s continuing efforts to limit the Yakama Treaty. Over the past two decades, Washington State has repeatedly assaulted the Yakama Treaty’s Article LI right to travel provision. See, e.g., Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996) (“Cree I”); Yakama Indian 3 Nation, 955 F. Supp. 1229; Cree v. Flores, 157 F.3d 762 (9th Cir. 1998) (“Cree IT’); United States v. Smiskin, 487 F.3d 1260 (9th Cir. 2007); King Mountain Tobacco Co. v. McKenna, 768 F.3d 989 (9th Cir. 2014). Petitioner continues this assault, carrying forward Washington State’s centuries-old pattern of aggression against the Yakama Treaty. Time and again courts — including the Washington Supreme Court in this matter — have held that the Yakama Treaty’s right to travel provision unambigu- ously “guarantee|s] the Yakamas the right to transport goods to market” for “trade and other purposes.” Cree II, 157 F.3d at 769. This is the case regardless of what “goods” are being transported. Smiskin, 487 F.3d at 1268. If a state fee or restriction interferes with the right to transport, then it is per se invalid. Jd. Washington State’s current fuel tax scheme, en- acted in 2007, was deliberately tailored by the state legislature to target the Yakama Nation, the Yakama People, and Yakama businesses in an effort to circum- vent the protections guaranteed by the Yakama Treaty. Pet. 5-6. As implemented, the fuel tax scheme levies a tax and imposes licensing requirements on a specific activity — the act of importing fuel, i.e., transporting fuel, into Washington State. Despite the challenge filed by Petitioner, the Washington Supreme Court found such statutory scheme to violate federal law. Pet. 14a, 16a. As held by the Washington Supreme Court, inter- pretation of the Yakama Treaty under controlling 4 canons of interpretation confirms that the Yakama Treaty is a federal law that exempts Yakamas from taxes and licensing requirements that place restric- tions on the Yakama Peoples’ use of public highways. Pet. 4a, 14a, 16a. In its review of this highly fact-bound matter, the Washington Supreme Court found travel on public highways to be directly at issue because the fuel tax scheme placed a tax on the “transportation of fuel”, and “[hJere, it was simply not possible for [Re- spondent] to import fuel without traveling or trans- porting that fuel on public highways.” Pet. 16a. Not only did the Washington Supreme Court rightfully re- ject Petitioner’s assertion that Respondent was not be- ing taxed for using public highways, it reached its decision after evaluating the body of precedent devel- oped in the Ninth Circuit and found any alleged con- flict to be distinguishable on the facts. Pet. 6a-14a. Petitioner once again seeks to narrow Yakama Treaty rights while expanding its authority. Petitioner asks this Court to reject the Washington Supreme Court’s routine application of well-settled law regard- ing Indian treaty interpretation. Petitioner asks this Court to take a highly fact-bound matter and find conflict where none exists. Finally, based on unfounded assertions of States’ interests and unpredictability cre- ated by the Washington Supreme Court’s decision, Pe- titioner asks this Court to ignore available remedies and to instead reverse a century of thoughtful judicial practice and abrogate rights guaranteed by the United States Government to the Yakama Nation and its peo- ple in 1855. 5 Petitioner asks too much, and its groundless invi- tation to this Court to review the Washington Supreme Court’s decision should be denied. + REASONS FOR DENYING THE PETITION I. The Petition Asks this Court to Reject the Washington Supreme Court’s Routine Ap- plication of Well-Settled Law Regarding Indian Treaty Interpretation The ruling by the Washington Supreme Court fol- lows this Court’s precedent requiring Indian treaties in general, and the Yakama Treaty in particular, to be interpreted as the Indians understood the treaty terms when courts are addressing treaty-based challenges to state regulation. This Court has repeatedly held that the interpre- tation of Indian treaties is subject to canons of con- struction favorable to the Indian party. See, eg., County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 227 (1985); Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943). Under these canons, treaties are interpreted broadly and the text of a treaty must be construed as the Indians would naturally have un- derstood it at the time of the treaty, with doubtful or ambiguous expressions resolved in the Indian’s favor. Winans, 198 U.S. at 380-81 (“we have said we will con- strue a treaty with the Indians as [the Indians] under- stood it”); Tulee, 315 U.S. at 684-85 (“It is our responsibility to see that the terms of the treaty are 6 carried out, as far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council”). Sources beyond the treaty necessarily aid that interpretation. Winans, 198 U.S. at 381 (“How the treaty in question was under- stood may be gathered from the circumstances”). Petitioner asserts that the Washington Supreme Court’s treaty analysis conflicts with this Court’s prec- edent. Pet. 25. There is no support in the record for Pe- titioner’s untenable assertion. The Washington Supreme Court acknowledged that state taxes and licensing requirements apply to the Yakamas “{a]bsent express federal law to the con- trary,” and rightfully concluded that the Yakama Treaty constitutes such express federal law. Pet. 4a (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149 (1973)); See also, Cree I, 78 F.3d at 1403 (“A treaty can constitute such an express federal law”); Foster v. Neilson, 27 U.S. 253, 314 (1829) (explaining that a treaty is the “law of the land” and is “to be re- garded in courts of justice as equivalent to an act of the legislature”). The Washington Supreme Court observed that the issue before it centered “on the interpretation of the ‘right to travel’ provision in the [Yakama] treaty, in the context of importing fuel into Washington State.” Pet. la. Appropriately, the Washington Supreme Court followed this Court’s well-settled rule of Indian treaty interpretation and applied these canons in its exami- nation of the Yakama Treaty’s text and its assessment 7 of the factual record regarding the historical meaning of the right to travel provision developed in Cree /, Yakama Indian, Cree II, Smiskin, and King Mountain. Pet. 5a-12a. The Washington Supreme Court rightfully con- cluded that Petitioner’s erroneous “interpretation of the [right to travel] treaty provision ignore[d] the his- torical significance of travel to the Yakama,” and simi- larly ignored “the rule of treaty interpretation” established by this Court. Pet. 6a. The Washington Su- preme Court held that “the right to travel provision in the treaty protects the [Yakama]’s historical practice of using the roads to engage in trade and commerce.” Pet. 14a. It also held that, here, the right to travel provision of the Yakama Treaty had been implicated as “any trade, traveling, and importation that requires the use of public roads fall[s] within the scope of the right{s}” guaranteed by the Yakama Treaty. Pet. 16a. Not only did the Washington Supreme Court rule correctly, it demonstrated no conflict with this Court’s holdings that warrants this Court’s review. The Wash- ington Supreme Court’s decision was well reasoned and correctly applied this Court’s well-settled rule of Indian treaty interpretation. Sa 8 Il. The Petition Asks this Court to Take a Highly Fact-Bound Matter and Find Con- flict Where None Exists Petitioner asserts that the Washington Supreme Court and the Ninth Circuit are split. Pet. 13. Despite the assertion, the conflict alleged is not present here because the Washington Supreme Court based its de- cision on specific and distinguishable facts. In ruling in Respondent’s favor, the Washington Supreme Court evaluated the body of precedent developed in the Ninth Circuit, found any alleged conflict to be distinguisha- ble on the facts, and concluded that Petitioner’s argu- ments to the contrary were unpersuasive. Pet. 6a-13a. The Washington Supreme Court rightly rejected Petitioner’s argument that the specific facts presented in this matter were more similar to King Mountain, ob- serving that under the facts of King Mountain, the right to travel provision in the Yakama Treaty was “not implicated” because the specific economic activity that was the subject of King Mountain did “not involve travel on public highways.” Pet. 13a. In contrast, the Washington Supreme Court eval- uated the specific facts presented to it and found them to be “nearly identical” to the facts presented in Smiskin as both involved “travel on public highways,” and in both instances “the State placed a condition on that travel, which affected the Yakamas’ treaty right to transport goods to market without restriction.” Jd. The Washington Supreme Court also found such restriction to be more than simple regulation of a Treaty protected 9 activity, with the licensing requirement here serv- ing as a vehicle for tax collection, just as the pre- notification requirement had served in Smiskin. Pet. 14a. In recognition of the critical distinctions between King Mountain and Smiskin, the Washington Supreme Court distinguished Ninth Circuit precedent, correctly concluded that Smiskin controls, and provided expla- nation for why the conflicts alleged by Petitioner did not prove that other courts would reach different deci- sions if faced with the same or very similar facts. Pet. 13a-14a. Given this reconciliation of Ninth Circuit precedent, there is no conflict that warrants this Court’s review. ° Ill. The Petition Asks this Court to Ignore Available Remedies and Judicially Expand States’ Authority to Tax Based on Un- founded Assertions of States’ Interests and Unpredictable Impacts Petitioner advocates for a major shift in authority and proposes that this Court narrow the commit- ments made to the Yakama Nation in 1855 in order to save the States from loss of imaginable future reve- nues generated by imposition of unlawful taxes and penalties. Pet. 29-30. Petitioner similarly claims that such action is necessary to shield the States from a guarantee of unpredictability created by the Washing- ton Supreme Court’s decision. Pet. 30-31. This over- reach by Petitioner has become an all too common and 10 disingenuous argument that the Yakama Nation must unwaveringly defend against to protect the Yakamas’ treaty rights. In carrying forward Washington State’s two- decade assault on the Yakama Treaty’s right to travel provision, Petitioner describes to this Court general- ized allegations of harm to taxpayers, competitive dis- advantages faced by businesses, and loss of state revenue resulting from the Yakamas exercise of the Yakama Treaty’s right to travel provision. Pet. 24, 29. Petitioner raised similar concerns before the Washing- ton Supreme Court, claiming that a finding in favor of Respondent would lead to “unimagined and unin- tended preemption of fundamental state powers.” Pet. 14a. The Washington Supreme Court summarily re- jected this assertion, holding that this matter does not present the “parade of horribles” concern raised by Pe- titioner. Pet. 16a. Unfounded assertions of States’ in- terests and unpredictable impacts by Petitioner do not and cannot demonstrate why this matter merits this Court’s review. Antithetical to Petitioner’s generalized allega- tions, Petitioner has asserted good reason for this Court to not review the Washington Supreme Court de- cision. If States are unable to enforce a tax because the legal incidence is on Indians or Indian tribes in viola- tion of federal law, then States are free to amend their laws to shift the tax’s legal incidence. See e.g., Okla- homa Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995). Petitioner acknowledges that such statu- tory lawmaking is an available remedy to its taxation 11 problem presented here, with the state legislature having enacted a similar curative measure in 2007 that resulted in Washington State’s current fuel tax scheme. Pet. 5-6. Such available remedy provides suf- ficient reason for this Court to deny the Petition. Rather than accept this remedy to its taxation concern, Petitioner would instead have this Court step into the shoes of both Congress and the state legislature to judicially abrogate treaty rights guaran- teed to the Yakama People. The Washington Supreme Court refuted a similar assertion. Not only did it reject Petitioner’s generalized allegation of an unfounded “parade of horribles” that would beset the States ab- sent judicial treaty reform, the Washington Supreme Court rightfully held that “[i]f the State has concerns about [the Yakama Treaty right to travel] provision, only Congress can revise or restrict the provisions, not this court.” Pet. 16a. Absent clear congressional commands, Petitioner's goal of treaty reform must yield to the United States Government’s interest in honoring the solemn commit- ments made to the Yakama Nation in 1855. ° 12 CONCLUSION The Petition for Writ of Certiorari should be denied. Respectfully submitted, M. PATRICE KENT TOM ZEILMAN MARCUS M. SHIRZAD Counsel of Record YAKAMA NATION LAW OFFICES OF OFFICE OF LEGAL COUNSEL TOM ZEILMAN P.O. Box 150, 401 Fort Rd. 32 N. Third Street, Toppenish, WA 98948 Suite 310 (509) 865-7268 P.O. Box 34 marcus@yakamanation-olc.org Yakima, WA 98907 (509) 575-1500 tzeilman@qwestoffice.net --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0758%3A06. Public record. Not legal advice.