Amicus Curiae Brief — Wash. State Dep't of Licensing v. Cougar Den, Inc., 138 S. Ct. 294 (2017) (No. 16-1498)

pecoRD FILED

AND 4 No. 16-1498 JUL 17 2017

— SLPFLEE oy? ies

3u The '

Supreme Court of the Anited States

- °

WASHINGTON STATE DEPARTMENT OF LICENSING,

Petitioner,

Vv.

COUGAR DEN, INC.,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Washington

°

BRIEF AMICUS CURIAE OF THE STATES OF

IDAHO, KANSAS, NEBRASKA, NORTH DAKOTA,

SOUTH DAKOTA, AND WYOMING IN SUPPORT

OF PETITIONER

¢

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

CLAY R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amicus Curiae States

[Additional Counsel Listed On Inside Cover]

COCKLE LEGAL BRIEFS (800) 225-6964

Lew Ltvary

DEREK SCHMIDT

Attorney General

State of Kansas

DOUG PETERSON

Attorney General

State of Nebraska

WAYNE STENEHJEM

Attorney General

State of North Dakota

MARTY JACKLEY

Attorney General

State of South Dakota

PETER K. MICHAEL

Attorney General

State of Wyoming

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE STATES.......

SUMMARY OF THE ARGUMENT .....................

TEE ciceictniiienreqnivininsemeeeteintsnsaninentegtetiiins

I.

IT.

Ill.

THE PETITION PRESENTS AN OPPOR-

TUNITY FOR THIS COURT TO REAF-

FIRM THE NEED FOR “EXPRESS”

FEDERAL LAW EXEMPTING TRIBES OR

THEIR MEMBERS FROM APPLICATION

OF NONDISCRIMINATORY STATE LAW

WHEN OFF RESERVATION .....................

THE WASHINGTON SUPREME COURT'S

INTERPRETATION OF THE YAKAMA

TREATY’S RIGHT-TO-TRAVEL PROVI-

SION NOT ONLY CONFLICTS WITH THE

NINTH CIRCUITS INTERPRETATION

BUT ALSO PRESENTS A SIGNIFICANT

QUESTION OVER PROPER APPLICA-

TION OF THE INDIAN CANONS THAT

THIS COURT SHOULD RESOLVE ...........

THE SCOPE OF THE RIGHT-TO-TRAVEL

PROVISION IN THE YAKAMA TREATY

HAS PRACTICAL AND LEGAL SIGNIFI-

CANCE FAR BEYOND THE CONTRO-

11

il

TABLE OF AUTHORITIES

Page

CASES

Arizona Dep't of Revenue v. Blaze Constr. Co.,

I enoneniunne 3

California v. Cabazon Band of Mission Indians,

I a lees atisan onesies 5

Cass County v. Leech Lake Band of Chippewa In-

Ss EI I i iicstcdencnenteenssreiomnmernsceses 9

Choctaw Nation v. Oklahoma, 397 U.S. 620

EES ee SIR ES AR LOE RA ee I RES eee oo 15

Choctaw Nation v. United States, 318 U.S. 423

Re? ato eee Tes Ty ee 15

County of Yakima v. Confederated Tribes and

Bands of Yakima Indian Nation, 502 U.S. 683

EEE inteitcepiniecinnsiadtuniionpeadébidieaiventennnbebiienaenil 6, 7, 8, 10

Cree v. Flores, 157 F.3d 762 (9th Cir. 1998).......... 12,13

Cree v. Waterbury, 78 F.3d 1400 (9th Cir. 1996)......... 20

King Mountain Tobacco Co. v. McKenna, 768

ce ee 13, 14

King Mountain Tobacco Co. v. McKenna, No. CV-

11-3018-LRS, 2013 WL 1403342 (E.D. Wash.

ST itcicibitiiiinininniseieeacesitihensaiddeiddinmanmeencdeesen 14

Kiowa Tribe v. Mfg. Techns., Inc., 523 U.S. 751

Sais cleotide dacdbaleceliateaciias olimeeeiellanideidaciesieniahdeadchetahinianaadeden 7

Mescalero Apache Tribe v. Jones, 411 U.S. 145

III tii bo) ceeceactigia laden addadnispiaineeeanniiiiags passim

Michigan v. Bay Mills Indian Cmty., 134 S. Ct.

EEN Sa aE AT ae Re Seema ed aes OEE 7

lll

TABLE OF AUTHORITIES — Continued

Page

Moe v. Confederated Salish and Kootenai Tribes,

a ice A Lae, 2c eT ee 19

Montana v. Blackfeet Tribe, 471 U.S. 759 (1985) ....... 10

Navajo Tribal Util. Auth. v. Arizona Dep’t of Rev-

enue, 608 F.2d 1228 (9th Cir. 1979) ............0..cc eee. 19

Nw. Bands of Shoshone Indians v. United States,

ERE RIE EEN EAS SEN SS Sa 15

Oklahoma Tax Comm’n v. Chickasaw Nation,

Cn esemiooeaie 1,7, 9,18

Oklahoma Tax Comm’n v. Citizen Band Pota-

watomi Indian Tribe, 498 U.S. 505 (1991)................ 7

Organized Vill. of Kake v. Egan, 369 U.S. 60

i etl 6

Oregon Dep’t of Fish and Wildlife v. Klamath In-

dian Tribe, 473 U.S. 753 (1985)..............ccccccseseeeesees 15

Osceola v. Florida Dep’t of Revenue, 893 F.2d

Ss I i cemenoduenii 19

Ramsey v. United States, 302 F.3d 1074 (9th Cir.

ERS EERE EE SE OTC MO EN aN On a Se 17

Tulee v. Washington, 315 U.S. 681 (1942)............... 6, 10

United States v. Smiskin, 487 F.3d 1260 (9th Cir.

SERRE ER cee oe eee: bc ENE ee eon 13

Wagnon v. Prairie Band of Potawatomi Nation,

I 7

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ....... 15

iv

TABLE OF AUTHORITIES — Continued

Page

Yakama Indian Nation v. Flores, 955 F. Supp.

1229 (E.D. Wash. 1997), aff’d, 157 F.3d 762

ER 11, 12, 13, 17, 19

STATUTES

RE IERIE A PRES TSE ee EER aes 7

SEL ES SERS A Sa Ae ei a eRe a 8

ep REST CT ES EERE EERE amen Mane 7

I a ssislale 19

I a i a a 9

INDIAN TREATIES

Treaty of Dancing Rabbit Creek, Sept. 27, 1830,

EERSTE Ya eA ee 9

Treaty With the Flatheads, July 16, 1855, 12

Stat. 975 (1859)........ (ti SOS REE FSS EES REPO ea ea 18

Treaty With the Nez Perces, June 11, 1855, 12

RA ETE te See RY ER 18

Treaty With the Yakama, June 9, 1855, 12 Stat.

EE A EDC Se ieee eSNG Re passim

RULES

a ssiaitdonniadaeadamnimeiiade 1

Se IE TTI ec laicdacslapcciescidsieleensbenenidabasadiosiaainmipimiiaioniNiin 1

1

INTEREST OF AMICUS CURIAE STATES'

In Oklahoma Tax Comm’n v. Chickasaw Nation,

515 U.S. 450, 460 (1995), this Court recognized legal

incidence as “‘a reasonably bright-line standard’” in

determining challenges by a tribe or a tribal member

to a state tax. But legal incidence constitutes only the

starting point by identifying who the taxpayer is. As

the Court explained in Wagnon v. Prairie Band Pota-

watomi Nation, 546 U.S. 95, 101 (2005), the where of

the tax — t.e., whether the legal incidence attaches in-

side or outside Indian country — has equally “signifi-

cant consequences.” That is so because “[al]bsent

express federal law to the contrary, Indians going be-

yond reservation boundaries have generally been held

subject to nondiscriminatory state law otherwise ap-

plicable to all citizens of the State.” Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148-49 (1973). Here, no

dispute exists about the “who” or the “where.” The tax-

payer is Respondent, a Yakama Nation member-owned

corporation, while the legal incidence of the Washing-

ton motor fuels tax concededly attached when Re-

spondent’s contractor entered the state outside the

Yakama Indian Reservation with fuel purchased in Or-

egon. The dispute thus narrows down to a single ques-

tion: Does the right-to-travel provision in Article III of

the 1855 Treaty with the Yakama Nation embody the

requisitely “express federal law to the contrary” that

* Under S. Ct. R. 37.2, counsel of record for all parties re-

ceived notice at least ten days prior to the due date of this brief of

amici curiae’s intention to file it. Neither consent nor leave of

Court is required under S. Ct. R. 37.4.

2

prevents application of the Washington statute to Re-

spondent?

The amicus curiae States have a straightforward

interest in that question being answered definitively.

This is not a parochial controversy affecting only one

State and one tribe or its members. First, other tribes

with identically-worded 1855 treaty provisions have

reservations in Idaho and Montana. Second, the right-

to-travel provisions in these treaties extend to “all pub-

lic highways.” [Emphasis added.] They thus have a

preemptive radius of potentially expansive geograph-

ical range. Finally, the Washington Supreme Court has

given the Yakama treaty provision an interpretation

that transforms a right to use public highways for

travel purposes into an exemption from state authority

to impose taxes or fees on trade conducted via highway

or, by logical extension, any activity associated with

the highway use. This interpretation conflicts with de-

cisions from the Ninth Circuit Court of Appeals deal-

ing with the same treaty language and misapplies the

Indian canons of construction. That misapplication, if

followed by other courts, will prevent or significantly

complicate the enforceability of not only fuel taxes but

also other tax laws. These considerations plainly war-

rant granting certiorari.

3

SUMMARY OF THE ARGUMENT

This Court recognizes the necessity of “reasonably

bright-line standard|[s]” for the efficient administra-

tion of federal and state tax laws to determine their

applicability to Indians. Arizona Dep’t of Revenue v.

Blaze Constr. Co., 526 U.S. 32, 37 (1999). Two comple-

mentary standards control the outcome here — one tai-

lored specifically to revenue-generating laws, and the

other sweeping across the broad range of state regula-

tion but initially announced in a taxation context. Both

reflect the importance of a tax’s legal incidence. Within

Indian country set aside for their occupancy, tribes and

tribal members possess immunity from state taxation

whose legal incidence falls upon them absent Congres-

sional consent. Once a tribe or its members leave In-

dian country set aside for their occupancy, the rule

flips; i.e., they become subject to nondiscriminatory,

generally applicable state law unless “express federal

law to the contrary” says otherwise. Mescalero Apache

Tribe, 411 U.S. at 148-49. Together, these rules mean

that courts in taxation cases must resolve where the

tax’s legal incidence attaches and whether the requi-

site federal law authorization or prohibition exists.

The present dispute comes to this Court only as to

the second of those inquiries. The parties agree that

the legal incidence of Washington’s motor fuels tax at-

tached to Respondent upon the fuel’s importation into

the state and outside the Yakama Reservation. The

right-to-travel provision in Article III of the 1855

Treaty constitutes the sole “express federal law to the

contrary” proffered to exempt Respondent from the

4

Washington tax’s application. However, neither the

provision’s literal language nor the extensive treaty

negotiation analysis in prior federal court litigation

supports this reliance. The Washington Supreme

Court’s holding instead conflicts with Ninth Circuit de-

cisions addressing claims predicated on the Article III

right to travel and, more fundamentally, rests on an

interpretation that misapplies Indian canons of con-

struction.

The Washington court’s misreading of the right-to-

travel provision has legal and practical significance far

beyond Washington State boundaries or motor fuel

taxes. Isaac Stevens, then Superintendent for the

Washington Territory, negotiated a series of treaties

with Pacific Northwest and Intermountain tribes dur-

ing 1854 and 1855, including two with Idaho and Mon-

tana tribes that contain right-to-travel language

identical to the first paragraph in Article II{. The deci-

sion below therefore directly invites adoption of busi-

ness models like Respondent’s by members of those

tribes. Equally important, the Article III provision se-

cures to the several tribes and their members “the

right ... to travel upon all public highways.” No need

existed in this case to resolve the exact geographical

reach of “all public highways,” but it plainly has a scope

beyond the boundaries of Idaho, Montana and Wash-

ington and, if not simply assigned its literal meaning,

portends complex and resource-depleting litigation

over the treaty parties’ understanding concerning the

scope and nature of the highway right. Finally, dis-

putes over the application of the Yakama right-to-

travel provision have arisen in a variety of taxation

5

and other contexts involving a tribal member’s off-

reservation use of the public highway system for

commercial purposes. Leaving in place the current un-

certainty over the provision’s proper interpretation

will increase the likelihood of continued attempts to

escape application of state law comparable to Respon-

dent’s activity here and impede the States’ ability to

fashion appropriate legislative responses.

»

ARGUMENT

I. THE PETITION PRESENTS AN OPPOR-

TUNITY FOR THIS COURT TO REAFFIRM

THE NEED FOR “EXPRESS” FEDERAL

LAW EXEMPTING TRIBES OR THEIR

MEMBERS FROM APPLICATION OF NON-

DISCRIMINATORY STATE LAW WHEN

OFF RESERVATION

Substantial symmetry exists with respect to on-

and off-reservation application of state tax law to In-

dian tribes and their members. Although this Court

has “not established an inflexible per se rule preclud-

ing state jurisdiction over tribes and tribal members in

the absence of congressional consent” with respect to

on-reservation conduct, “[i]n the special area of taxa-

tion of Indian tribes and tribal members, we have

adopted a per se rule.” California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 214-15 & n.17 (1987).

This distinction flows from the fact that “the federal

tradition of Indian immunity from state taxation is

very strong and that the state interest in taxation is

6

correspondingly weak” — making it “unnecessary to re-

balance these interests in every case.” Jd. at 215 n.17;

see also County of Yakima v. Confederated Tribes and

Bands of Yakima Indian Nation, 502 U.S. 683, 688

(1992) (“And our cases reveal a consistent practice of

declining to find that Congress has authorized state

taxation unless it has ‘made its intention to do so un-

mistakably clear.’”).

The Court has set in place a corresponding, if

broader, per se rule subjecting tribes and their mem-

bers to nondiscriminatory state law once they leave

their reservations. See Organized Vill. of Kake v. Egan,

369 U.S. 60, 75 (1962) (“State authority over Indians is

yet more extensive over activities, such as in this case,

not on any reservation. It has never been doubted that

States may punish crimes committed by Indians, even

reservation Indians, outside of Indian country... .

Even where reserved by federal treaties, off-reserva-

tion hunting and fishing rights have been held subject

to state regulation, . . . in contrast to holdings by state

and federal courts that Washington could not apply the

laws enforced in Tulee |v. Washington, 315 U.S. 681

(1942)] to fishing within a reservation.”) (citations

omitted).

This Court succinctly synthesized earlier deci-

sions on off-reservation state authority in Mescalero

Apache Tribe, a case involving challenged application

of New Mexico gross receipts and compensating use

taxes to an off-reservation tribal ski resort located on

federal land. There, the Court found that Section 5 of

the Indian Reorganization Act of 1934 (“IRA”), 25

7

U.S.C. § 465 — which exempts “any lands or rights ac-

quired” under the IRA by the United States on behalf

of a tribe or Indian from state and local taxation — pro-

vided the requisite “express federal law to the con-

trary” to preempt application of compensating use tax

imposed on ski lifts permanently affixed to tribally

leased land but not the gross receipts tax on income

generated from the resort’s operation. 411 U.S. at 155-

59. The Court has adhered to Mescalero Apache Tribe’s

formulation of off-reservation state authority. E.z.,

Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,

2034 (2014) (state gaming law); Kiowa Tribe v. Mfg.

Techns., Inc., 523 U.S. 751, 755 (1998) (contract enforce-

ment); Chickasaw Nation, 515 U.S. at 462-64 (income

tax imposed on tribal members domiciled off reserva-

tion with respect to Indian country tribal employ-

ment); see also Wagnon, 548 US. at 112-13 (rejecting

application interest-balancing test applied to on-

reservation taxation of non-members engaged in com-

mercial transactions with tribes or their members to

non-Indian fuel distributor where the tax incidence

arose off reservation); cf Oklahoma Tax Comm’n v. Cit-

izen Band Potawatomi Indian Tribe, 498 U.S. 505, 511

(1991) (distinguishing Mescalero Apache Tribe based

on the status of trust land as Indian country with re-

spect to imposition and collection of cigarette tax on

sales to tribal members).

This Court has rarely found the express-federal-

law exception to exist in the state taxation context. In

County of Yakima, it held Section 5 of the Genera! Al-

lotment Act of 1887 (“GAA”), 25 U.S.C. § 348, and GAA

8

Section 6, as amended by the 1906 Burke Act, id. § 349,

authorizes imposition of state ad valorem taxes on res-

ervation land patented in fee to tribal members. 502

U.S. at 263-64 (“Thus, when § 5 rendered the allotted

lands alienable and encumberable, it also rendered

them subject to assessment and forced sale for taxes.

[4] The Burke Act proviso . . . made this implication of

§ 5 explicit, and its nature more clear. . . . [T]he proviso

reaffirmed for such ‘prematurely’ patented land what

§ 5 of the General Allotment Act implied with respect

to patented land generally: subjection to state real es-

tate taxes.”).* It followed County of Yakima in Cass

2 Section 6, as amended by the Burke Act, provides:

At the expiration of the trust period and when the

lands have been conveyed to the Indians by patent in

fee, as provided in section 348 of this title, then each

and every allottee shall have the benefit of and be sub-

ject to the laws, both civil and criminal, of the State or

Territory in which they may reside; and no Territory

shall pass or enforce any law denying any such Indian

within its jurisdiction the equal protection of the law:

Provided, That the Secretary of the Interior may, in his

discretion, and he is authorized, whenever he shall be

satisfied that any Indian allottee is competent and ca-

pable of managing his or her affairs at any time to

cause to be issued to such allottce a patent in fee sim-

ple, and thereafter all restrictions as to sale, incum-

brance, or taxation of said land shall be removed and

said land shall not be liable to the satisfaction of any

debt contracted prior to the issuing of such patent: Pro-

vided further, That until the issuance of fee-simple pa-

tents all allottees to whom trust patents shall be issued

shall be subject to the exclusive jurisdiction of the

United States: And provided further, That the provi-

sions of this Act shall not extend to any Indians in the

former Indian Territory.

9

County v. Leech Lake Band of Chippewa Indians, 524

U.S. 103 (1998), where it unanimously upheld imposi-

tion of county property taxes on reservation land that

had been conveyed in fee under the Nelson Act, Act of

Jan. 14, 1889, ch. 24, 25 Stat. 642, and eventually reac-

quired by the resident tribe. Jd. at 115 (“When Con-

gress makes Indian reservation land freely alienable,

it manifests an unmistakably clear intent to render

such land subject to state and local taxation.”). Other

than the compensating use tax in Mescalero Apache

Tribe, the Court has never held preempted a state tax

imposed on a tribe or tribal member where the legal

incidence attached off reservation.*

* This Court did reject in Chickasaw Nation the argument

that the Treaty of Dancing Rabbit Creek, Sept. 27, 1830, 7 Stat.

333 (1846), provided the requisitely express federal law exemp-

tion with respect to taxing the income of tribal members residing

outside, but employed within, Indian country. The members relied

upon a provision that secured to the tribe “‘the jurisdiction and

government of all the persons and property that may be within

their limits west, so that no Territory or State shall ever have a

right to pass laws for the government of the [Chickasaw] Nation

of Red People and their descendants . . . but the U.S. shall forever

secure said [Chickasaw] Nation from, and against, all [such]

laws... .’” 515 U.S. at 465. The Court made short work of the ar-

gument, looking to the treaty’s unambiguous text:

By its terms, the Treaty applies only to persons and

property “within [the Nation’s] limits.” We comprehend

this Treaty language to provide for the Tribe’s sover-

eignty within Indian country. We do not read the Treaty

as conferring supersovereign authority to interfere

with another jurisdiction’s sovereign right to tax in-

come, from all sources, of those who choose to live

within that jurisdiction’s limits.

Id. at 466.

10

Mescalero Apache Tribe, County of Yakima and

Cass County make plain that the term “express” — or

its alternative formulation of “unmistakably clear”

(Montana v. Blackfeet Tribe, 471 U.S. 759, 765 (1985))

— demands, if not explicit language removing otherwise

extant off-reservation taxing authority, a treaty or

statutory provision whose application necessarily pre-

cludes the exercise of that authority. See, e.g., Tulee,

315 US. at 685 (“[T]he state is without power to charge

the Yakimas a fee for fishing. . . . We believe that such

exaction of fees as a prerequisite to the enjoyment of

fishing in the ‘usual and accustomed places’ cannot be

reconciled with a fair construction of the treaty.”). The

Washington court did not apply that stringent stan-

dard. Indeed, other than a perfunctory nod to

Mescalero Apache Tribe at the beginning of its legal

analysis (Pet. 4a), the majority opinion paid no discern-

ible heed to the necessity of an “express” — as opposed

to a judge-made conclusion drawn from laboriously

wrought treaty construction — exemption from state

law. The Washington Supreme Court’s decision thus

charts a course that finds no precedent in this Court’s

application of the “express federal law” exception and

calls for certiorari review.

11

Il. THE WASHINGTON SUPREME COURT'S

INTERPRETATION OF THE YAKAMA

TREATY’S RIGHT-TO-TRAVEL PROVISION

NOT ONLY CONFLICTS WITH THE NINTH

CIRCUIT’S INTERPRETATION BUT ALSO

PRESENTS A SIGNIFICANT QUESTION

OVER PROPER APPLICATION OF THE IN-

DIAN CANONS THAT THIS COURT

SHOULD RESOLVE

A. Petitioner presents a detailed discussion of

the conflict between the Ninth Circuit’s and the Wash-

ington Supreme Court’s reading of the Article III right-

to-travel provision. Pet. 13-24. The amicus States

concur in that analysis. However, they believe that two

points bear emphasis.

First, the Washington court correctly concluded

from the record made in Yakama Indian Nation v. Flo-

res, 955 F. Supp. 1229 (E.D. Wash. 1997), aff’d, 157 F.3d

762 (9th Cir. 1998), that “[t]ravel was woven into the

fabric of Yakama life in that it was necessary for hunt-

ing, gathering, fishing, grazing, recreational, political,

and kinship purposes” and that “at the time, the Yaka-

mas exercised free and open access to transport goods

as a central part of a trading network running from the

western coastal tribes to the eastern plains tribes.” Pet.

7a (emphasis added); see Yakama Indian Nation, 955

F. Supp. at 1238-40. The Yakama Indian Nation find-

ings reflect why the treaty parties included “the right,

in common with citizens of the United States, to travel

12

upon all public highways”: travel outside the reserva-

tion set aside under Article II of the treaty was neces-

sary for the Nation and its members to carry on their

traditional trade and subsistence practices.

But even a casual review of Yakama Indian Na-

tion’s summary of the tribe’s pre-treaty practices re-

veals nothing that suggests that either the federal or

the tribal negotiators intended to reserve in Article

IIIs first paragraph a right to trade or engage in usu-

fructuary activities. Had parties so intended, that par-

agraph plainly would have incorporated a reference to

such activities. The Article instead addresses location-

related reserved rights in the second paragraph — all

of which involve subsistence practices.‘ The Washing-

ton court’s analysis additionally stripped the Yakama

Indian Nation findings from the challenged regulatory

context — truck license and overweight permit fees —

that directly conditioned lawful use of the vehicles be-

ing used to travel. See Cree v. Flores, 157 F.3d 762, 769

(9th Cir. 1998) (“We agree with the district court that,

* The second paragraph reads:

The exclusive right of taking fish in all the streams,

where running through or bordering said reservation,

is further secured to said confederated tribes and

bands of Indians, as also the right of taking fish at all

usual and accustomed places, in common with the citi-

zens of the Territory, and of erecting temporary build-

ings for curing them; together with the privilege of

hunting, gathering roots and berries, and pasturing

their horses and cattle upon open and unclaimed land.

Treaty With the Yakama, June 9, 1855, art. III, 12 Stat. 951, 953

(1859).

13

in light of those and its other findings, the Treaty

clause must be interpreted to guarantee the Yakamas

the right to transport goods to market over public high-

ways without payment of fees for that use.”). So, for ex-

ample, nothing in the Yakama Indian Nation decision

or its affirmance in Cree v. Flores suggests that a tribal

member would be immune from paying a sales tax on

meals or beverages purchased off reservation while

hauling logs to a mill for processing.* The Washington

Supreme Court’s reasoning proves too much.

Next, the Washington court’s analysis of United

States v. Smiskin, 487 F.3d 1260, 1279 (9th Cir. 2007),

and King Mountain Tobacco Co. v. McKenna, 768 F.3d

989, 996 (9th Cir. 2014), is similarly flawed. Pet. 9a-

14a. Smiskin found that the treaty right-to-travel

precluded application of a state law that made trans-

portation of unstamped cigarettes within Washington

by persons other than licensed wholesalers unlawful

unless the state liquor control board received prior

notice. 487 F.3d at 1263. Although reaching a highly

questionable result, the Ninth Circuit panel none-

theless tied the involved illegality — the absence of

5 Although not at issue in this case, the amicus States see

nothing in the Yakama Indian Nation treaty history findings to

support the proposition that state gas or diesel taxes could not be

imposed on tribal or tribal member vehicles for off-reservation

purchases where the legal incidence falls upon the consumer.

Those taxes derive from discretionary decision-making on the

tribe’s or a member’s part; i.e., the State does not require them to

purchase the fuel off reservation any more than it requires them

to purchase food or drink at a highway convenience store. But that

type of tax at least has some relationship to the means of trans-

portation. The taxes here do not.

14

pre-notification — to the treaty right; ie., the pre-

notification requirement conditioned the tribal mem-

ber’s right to use the public highways lawfully. Jd. at

1266 (“Tribal members were not required to notify an-

yone prior to transporting goods to market at the time

of the treaty, and the Treaty guaranteed to them the

same rights today.”). King Mountain Tobacco runs

counter to the Washington Supreme Court’s treaty in-

terpretation, since it specifically held that Article II

does not create a right to trade. 768 F.3d at 998 (“there

is no right to trade in the Yakama Treaty”). Contrary

to the majority opinion’s apparent understanding (Pet.

13a), moreover, the tribal member-owned company

shipped the involved goods (unblended tobacco) from

the reservation for processing and then shipped the

blended product back to the Yakama Reservation in its

own trucks. Jd. at 991; see also King Mountain Tobacco

Co. v. McKenna, No. CV-11-3018-LRS, 2013 WL

1403342, at *2, *7 (E.D. Wash. Apr. 5, 2013) (describing

King Mountain Tobacco’s business model and exten-

sive off-reservation contacts with North Carolina for

tobacco blending). King Mountain Tobacco’s Article III

analysis turned not on the absence of the company’s

use of public highways in its commercial activities but

on the absence of any restriction under the challenged

state tobacco regulation on the right to use those high-

ways. A critical difference exists, in short, between

denying access to the public highway system and bur-

dening through taxation or other regulatory measures

activity that occurs in connection with use of that sys-

tem. Here, the challenged law does not restrict the

Respondent’s right to travel on Washington public

15

highways; it simply requires Respondent, like any

other motor fuel distributor, to pay a tax upon “first re-

ceipt” of fuel in the state.

B. More fundamentally, review of the Washing-

ton Supreme Court’s decision is warranted because it

misapplied the Indian canons of construction. They in-

struct that “treaties with Indians must be interpreted

as [the Indians] would have understood them, and any

doubtful expressions in them should be resolved in the

Indians’ favor.” Choctaw Nation v. Oklahoma, 397 U.S.

620, 631 (1970). The canons have ancient lineage, trac-

ing back at least to Justice M’Lean’s concurring opin-

ion in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582

(1832). This Court nevertheless has recognized that

“the context shows that the Justice meant no more

than that the language should be construed in accord-

ance with the tenor of the treaty.” Nw. Bands of Sho-

shone Indians v. United States, 324 U.S. 335, 353

(1945). Consistent with that admonition, “courts can-

not ignore plain language that, viewed in historical

context and given a ‘fair appraisal,’ ... clearly runs

counter to a tribe’s later claims.” Oregon Dep't of Fish

and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774

(1985); see also Choctaw Nation v. United States, 318

U.S. 423, 432 (1943) (“But even Indian treaties cannot

be re-written or expanded beyond their clear terms to

remedy a claimed injustice or to achieve the asserted

understanding of the parties.”).

The off-reservation right-to-travel provision in Ar-

ticle III of the Yakama treaty must be read in pari ma-

teria with the preceding portion of the first paragraph

16

and the second paragraph. The treaty parties unam-

biguously limited the exchange of promises in the first

to road- or highway-related matters. The tribe ac-

cepted the Government's right to establish roads “for

the public convenience” through the reservation — to

which the tribe otherwise had exclusive occupancy

rights under Article Il® — but reserved (1) “the right of

way, free access to the nearest public highway” from

the reservation and (2) “the right, in common with cit-

izens of the United States, to travel upon all public

highways.” The second paragraph then identified the

other Article III rights reserved to the tribe under the

treaty — i.e., the exclusive right of taking fish from

streams on or bordering the reservation; the right of

taking fish “at all usual and accustomed places, in com-

mon with the citizens of the Territory”; the right to

erect temporary buildings for fish curing purposes; and

hunting, gathering and pasturing rights “upon open

and unclaimed lands.” No ambiguity attends the fun-

damental activities to which the tribe reserved rights

to engage in under Article III. The treaty’s unvar-

nished language thus reflects that the treaty parties

® In relevant part, Article II provides with respect to the land

set apart for tribal occupancy:

All which tract shall be set apart and, so far as neces-

sary, surveyed and marked out, for the exclusive use

and benefit of said confederated tribes and bands of In-

dians, as an Indian reservation; nor shall any white

man, excepting those in the employment of the Indian

Department, be permitted to reside upon the said res-

ervation without permission of the tribe and the super-

intendent and agent.

12 Stat. at 952.

17

identified the rights that they intended to reserve for

the tribe’s benefit. Conspicuously absent from those ac-

tivities is the right to trade free of territorial (now

state) restriction.

The Yakama Indian Nation district court findings

concerning the right-to-travel provision, if anything,

underscore that the first paragraph merely “reserved

[to the Yakamas] the right to travel in pursuit of tradi-

tional practices.” 955 F. Supp. at 1253. Those practices

included the usufructuary activities reserved under

the second paragraph of Article III and one not re-

served under the treaty — the Yakamas’ pursuit of

“trade and exchange” with other tribes. Jd. at 1252.

Viewed in its textual and historical contexts, therefore,

the right-to-travel provision served to facilitate the ex-

ercise of certain subsistence and commercial activities,

not to create sub silentio an entirely new reserved right

immune in whole or part from off-reservation applica-

tion of non-discriminatory state law.

The plain treaty ianguage brings this dispute full

circle back to the necessity of Respondent establishing

“express federal law” that forecloses application of the

state motor fuels tax. In that regard, the Ninth Cir-

cuit’s decision in Ramsey v. United States, 302 F.3d

1074 (9th Cir. 2002), has singular relevance given its

determination that the right-to-travel provision did

not contain the “express exemptive language” essential

to negate imposition of federal excise taxes on heavy

trucks and diesel fuel with respect to off-reservation

use. /d. at 1078-79. Although Ramsey involved federal,

16

and the second paragraph. The treaty parties unam-

biguously limited the exchange of promises in the first

to road- or highway-related matters. The tribe ac-

cepted the Government’s right to establish roads “for

the public convenience” through the reservation — to

which the tribe otherwise had exclusive occupancy

rights under Article II® — but reserved (1) “the right of

way, free access to the nearest public highway” from

the reservation and (2) “the right, in common with cit-

izens of the United States, to travel upon all public

highways.” The second paragraph then identified the

other Article III rights reserved to the tribe under the

treaty — i.e., the exclusive right of taking fish from

streams on or bordering the reservation; the right of

taking fish “at all usual and accustomed places, in com-

mon with the citizens of the Territory”; the right to

erect temporary buildings for fish curing purposes; and

hunting, gathering and pasturing rights “upon open

and unclaimed lands.” No ambiguity attends the fun-

damental activities to which the tribe reserved rights

to engage in under Article [I. The treaty’s unvar-

nished language thus reflects that the treaty parties

® In relevant part, Article [] provides with respect to the land

set apart for tribal occupancy:

All which tract shall be set apart and, so far as neces-

sary, surveyed and marked out, for the exclusive use

and benefit of said confederated tribes and bands of In-

dians, as an Indian reservation; nor shall any white

man, excepting those in the employment of the Indian

Department, be permitted to reside upon the said res-

ervation without permission of the tribe and the super-

intendent and agent.

12 Stat. at 952.

17

identified the rights that they intended to reserve for

the tribe’s benefit. Conspicuously absent from those ac-

tivities is the right to trade free of territorial (now

state) restriction.

The Yakama Indian Nation district court findings

concerning the right-to-travel provision, if anything,

underscore that the first paragraph merely “reserved

[to the Yakamas] the right to travel in pursuit of tradi-

tional practices.” 955 F. Supp. at 1253. Those practices

included the usufructuary activities reserved under

the second paragraph of Article III and one not re-

served under the treaty — the Yakamas’ pursuit of

“trade and exchange” with other tribes. Jd. at 1252.

Viewed in its textual and historical contexts, therefore,

the right-to-travel provision served to facilitate the ex-

ercise of certain subsistence and commercial activities,

not to create sub silentio an entirely new reserved right

immune in whole or part from off-reservation applica-

tion of non-discriminatory state law.

The plain treaty language brings this dispute full

circle back to the necessity of Respondent establishing

“express federal law” that forecloses application of the

state motor fuels tax. In that regard, the Ninth Cir-

cuit’s decision in Ramsey v. United States, 302 F.3d

1074 (9th Cir. 2002), has singular relevance given its

determination that the right-to-travel provision did

not contain the “express exemptive language” essential

to negate imposition of federal excise taxes on heavy

trucks and diesel fuel with respect to off-reservation

use. Id. at 1078-79. Although Ramsey involved federal,

18

not state, taxes, it nevertheless stands for the other-

wise inescapable conclusion that Article III's first par-

agraph says nothing that precludes Washington or

other States from taxing activities, other than argua-

bly those described in the second paragraph, that occur

during the tribe’s or its members’ use of public high-

ways. Unless judicially expanded beyond its text, in

sum, the right-to-travel provision does not embody the

requisitely “express” federal limitation on a State’s au-

thority to apply its non-discriminatory laws to the

Yakama Nation or its members. The Indian canons do

not sanction this expansion by either the Washington

Supreme Court or the Ninth Circuit. Cf Chickasaw

Nation, 515 U.S. at 466 (“But liberal interpretation

cannot save the Tribe’s claim, which founders on a

clear geographical limit in the Treaty.”).

lll. THE SCOPE OF THE RIGHT-TO-TRAVEL

PROVISION IN THE YAKAMA TREATY HAS

PRACTICAL AND LEGAL SIGNIFICANCE

FAR BEYOND THE CONTROVERSY HERE

This is not a parochial dispute whose outcome af-

fects only Petitioner and Respondent or one type of tax.

Superintendent Stevens alone or jointly with Joel

Palmer, then Superintendent for the Oregon Territory,

negotiated identically worded right-to-travel provi-

sions shortly after the Yakama treaty with the Nez

Perce Tribe, whose reservation is in Idaho, and the

Flathead Tribes, whose reservation is in Montana.

Treaty With the Nez Perces, June 11, 1855, art. ITI, 12

Stat. 957, 958 (1859); Treaty With the Flatheads

19

(Treaty of Hell Gate), July 16, 1855, art. III, 12 Stat.

975, 976 (1859). Both States are therefore subject to

the same type of federal-state court conflict involved

here. Indeed, the Washington Supreme Court’s deci-

sion invites such state court litigation because of the

possibility of achieving a more generous construction

of the treaty provision than under extant Ninth Circuit

precedent. The jurisdictional limitation in 28 U.S.C.

§ 1341 further ensures state court litigation when, as

in this case, only a tribal member or corporate surro-

gate sues. Moe v. Confederated Salish and Kootenai

Tribes, 425 U.S. 463, 474-75 (1975); Navajo Tribal Util.

Auth. v. Arizona Dep’t of Revenue, 608 F.2d 1228, 1324

(9th Cir. 1979); see also Osceola v. Florida Dep’t of Rev-

enue, 893 F.2d 1231, 1235 (11th Cir. 1990).

Yet beyond the Northwest is a broad swath of po-

tentially affected States. The right-to-travel provision

in the three treaties applies to “all public highways.”

{Emphasis added.| Literally read, the provision’s geo-

graphical reach extends throughout the United States.

Even a more limited construction — eg., the Yakama

Nation’s pre-treaty trade, usufructuary and social

travel area — would encompass a huge territory. See

Yakama Indian Nation, 955 F. Supp. at 1238 (“The

Yakamas’ way of life depended on goods that were not

available in the immediate area; therefore, they were

required to travel to the Pacific Coast, the Columbia

River, the Willamette Valley, California, and the plains

of Wyoming and Montana to engage in trade.”). And to

the extent the dispute involved application of the Nez

Perce or Flathead treaty right-to-travel provision, the

specter of “undertakling] a factual inquiry into the

20

intent and understanding of the parties at the time the

Treaty was signed to determine the meaning of the

highway right” looms. Cree v. Waterbury, 78 F.3d 1400,

1404 (9th Cir. 1996).

Finally, as the litigation to date over the Yakama

provision reflects, the range of possibly affected taxes

or fees is substantial. Aside from fuel, motor vehicle

and tobacco taxes, the Washington Supreme Court’s

reasoning arguably captures taxes on items purchased

off reservation and transported on “public highways”

back to the reservation by a tribal member for commer-

cial use or sale (or, conceivably, for personal use).

States, in theory, can enact ameliorative laws that al-

ter a tax’s legal incidence and shift it to an entity with

no immunity (see Pet. 3-4), but no discernable interest

in efficient governance is served by requiring them to

adjust their statutory regimes when a decision from

this Court may avoid the need for, or clarify the appro-

priate scope of, a legislative response. There is, as well,

no assurance that this species of a single State’s legis-

lative fix will eradicate the possibility for tax avoid-

ance by tribal members. Respondent has successfully

done so to this point by purchasing fuel in Oregon and

using an exemption under that State’s law to eliminate

any taxation on its distribution of motor fuel. Given the

centrality of effective tax administration to any gov-

ernment, a high measure of certainty in the rules of

the road is essential so that, if required, States can de-

velop legislative responses to such tactics. This Court

should step in and provide that certainty here.

S

21

CONCLUSION

The Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

LAWRENCE G. WASDEN

Attorney General

STEVEN L. OLSEN

Chief of Civil Litigation

CLAY R. SMITH

Counsel of Record

Deputy Attorney General

P.O. Box 83720

Boise, ID 83720-0010

Telephone: (208) 334-2400

Email: clay.smith@ag.idaho.gov

Counsel for Amicus Curiae States

July 2017