Gorsuch Sides With Liberal Justices to Spoil Washington's Attempt to Rewrite Tribal Law

Photo: Jabin Botsford (Getty Images)

Neil Gorsuch sided with the more liberal side of the bench on Tuesday to hand the Yakama Tribe a victory in the first Indian law decision from the Supreme Court’s current term.

The case, Washington State Department of Licensing v. Cougar Den Inc, featured a state fuel tax that the state of Washington believed a Yakama-owned gas station, Cougar Den, should have to pay, despite the tribal nation’s treaty excusing its citizen from paying some state taxes. While the case was not widely covered, the 5–4 decision by the justices secured an important legal recognition of the tribe’s 1855 treaty. The decision was written by Justice Stephen Breyer, with Breyer ruling in his decision that “the fuel tax to Cougar Den’s importation of fuel is pre-empted by the treaty’s reservation to the Yakama Nation.”

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Chairman JoDe Goudy, who was barred from attending oral arguments for wearing his traditional Yakama regalia, praised the decision in a statement sent out by the Yakama Tribe following the decision.

“The United States and the State of Washington have reaped the historical, present, and future benefit to 1/3 of the land mass and resources of present day Washington State and it is this great sacrifice that our Yakama Nation gave up to have our rights memorialized forever,” Goudy wrote in the statement. “Today, the United States Supreme Court has acknowledged and upheld our Treaty rightfully so in the face of present day individuals who sought to renegotiate the terms that were memorialized between our Nations in the year of 1855, and for that we are grateful.”

The case was initially brought by the Washington state Department of Licensing in 2013. At issue was the state government’s interpretation of the Yakama Treaty of 1855—the document sets forth that in exchange for the land the Yakama ceded to the federal government, tribal businesses and individuals based on the reservation are not required to pay state taxes. Given the constant threat of military violence around all of the treaty negotiations the United States forced on hundreds of sovereign nations as it expanded westward, the Yakama were left with little choice but to accept the deal.

The Washington state government eventually grew tired of holding up its end of the bargain and in 2013, the Department of Licensing attempted to argue in court that Cougar Den, a gas station on the Yakama reservation, owed the state $20 million in back taxes and penalties. In 2015, the Yakima County Superior Court ruled in favor of the Yakama Tribe; two years later, the Washington Supreme Court reached the same conclusion. The state, hellbent on undercutting the treaty, then decided to appeal to the Supreme Court.

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With the addition of Justice Brett Kavanaugh to the bench, there were some well-founded fears over how this particular court would handle treaty cases given its conservative majority. But thanks to Gorsuch’s professional history of serving on western courts, his familiarity with the crucial nature of tribal sovereignty and treaties ultimately resulted in him coming down on the opposite side of his conservative colleagues.

Not only did Gorsuch vote in favor of the Yakama, he penned a concurring opinion for him and Justice Ruth Bader Ginsburg, the foremost liberal on the bench. Gorsuch wrote that he believed “[o]ur job in this case is to interpret the treaty as the Yakamas originally understood it in 1855—not in light of new lawyerly glosses conjured up for litigation.”

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Here’s hoping Gorsuch holds the same line of thinking when a case concerning the Indian Child Welfare Act inevitably come across his desk.

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