Washington State Dept. of Licensing v. Cougar Den, Inc.
The Supreme Court ruled that Washington could not tax a Yakama-owned fuel company for trucking gasoline over public highways to the reservation, because an 1855 treaty protects the Tribe's right to travel those highways free of such burdens.
No single opinion commanded a majority, but five justices agreed the tax was unlawful — three reasoning that the tax burdened travel itself, two reasoning that the treaty specifically protects moving goods to and from market. Four dissenting justices argued the tax targeted possession of fuel, not travel, and warned the ruling could unsettle other nondiscriminatory state laws.
“Washington’s fuel tax “acts upon the Indians as a charge for exercising the very right their ancestors intended to reserve.””
The plurality's core conclusion that the tax burdens the Yakamas' treaty-protected right to travel.
How it got here: A Washington Superior Court and the Washington Supreme Court both ruled the tax was preempted by the treaty; the state agency sought Supreme Court review.
The Case in Depth
What happened
Cougar Den, a wholesale fuel importer owned by a Yakama Nation member, buys fuel in Oregon and trucks it over Washington's public highways to sell to Yakama-owned gas stations on the reservation. Washington assessed Cougar Den $3.6 million in taxes and penalties for importing fuel by highway. Cougar Den argued the tax was barred by an 1855 treaty guaranteeing the Yakamas the right to travel on public highways.
The question before the Court
Could Washington tax a Yakama-owned fuel company for trucking gasoline over public highways to the reservation, given an 1855 treaty protecting the Tribe's right to travel those highways?
Why it matters
Yakama-owned businesses that import goods by public highway to the reservation may be exempt from certain state taxes that competing businesses must pay, potentially costing Washington and other states with similar treaties real tax revenue. The decision also raises open questions about how far the ruling reaches into other highway regulations affecting tribal members.
What changes now
This is a final merits decision, and Washington cannot collect the fuel tax from Cougar Den as applied here. The plurality and concurrence both said the ruling does not bar all highway regulation of tribal members, leaving open how far the decision extends to other taxes, fees, or safety rules affecting Yakama travel — a question the dissents predicted would generate further litigation.
What this does not decide
The plurality said it does not hold that the treaty protects carrying any and all goods, deprives Washington of power to regulate for conservation or health and safety, or bars sales and use taxes applied off the reservation. The dissents argued this leaves genuinely unresolved how far the new right and its exceptions actually reach.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch agreed the tax was preempted but on narrower grounds: unchallenged factual findings from an earlier case bound the Court here and showed the Yakamas understood the treaty to guarantee a right to move goods, including fuel, to and from market without fees tied to that movement. He rejected the State's arguments about 'first possession' and health/safety consequences as unsupported by the record.
Dissent — Justice Roberts
“Because Washington is taxing Cougar Den for possessing fuel, not for traveling on the highways, the State’s method of administering its fuel tax is consistent with the treaty.”The dissent's central objection that the tax targets fuel possession, not highway travel.
The Chief Justice argued the tax targets possession of fuel, not travel, since it applies equally regardless of how fuel enters the state and is calculated per gallon rather than per vehicle or mile. He warned the plurality's 'practical effect' theory and the concurrence's 'right to travel with goods' theory both lack grounding in precedent and could unsettle far more state regulation than the majority admits.
Dissent — Justice Kavanaugh
Justice Kavanaugh argued the treaty's 'in common with' language means tribal members travel on equal terms with other citizens, so they remain subject to nondiscriminatory laws like this fuel tax. He argued the Court's new right invites significant lost tax revenue and unnecessary litigation, and that any additional benefits for tribes should come from Congress, not judicial reinterpretation of old treaty text.
How the Court got there
The legal reasoning, step by step
- The plurality first determined what the Washington tax actually taxes, relying on the Washington Supreme Court's own interpretation that the law is an importation tax tied to travel by ground transportation, since fuel brought in by pipeline or vessel escapes the tax entirely.
- The plurality then applied the Court's longstanding approach to interpreting treaties with Native American tribes: the words of an 1855 treaty must be read according to how the Yakama people themselves understood them at the time, not according to their literal or modern English meaning.
- Applying that approach, the plurality found that historical negotiation records showed the Yakamas understood their guaranteed right to travel on public highways to include traveling with goods for trade, based on assurances tribal negotiators received from U.S. officials.
- Because a tax on traveling with goods burdens the very travel the treaty protects, the plurality concluded that precedent — particularly a case striking down a fishing license fee as an improper charge on a reserved treaty right — required treating the fuel tax the same way.
- Justice Gorsuch's concurrence reached the same result through a narrower route, relying on unchallenged factual findings from an earlier case that bound the parties here, showing the Yakamas understood the treaty to let them move goods, including fuel, to and from market without paying fees tied to that movement.
Doctrinal impact
Cases affected by this decision
Reaffirms Tulee v. Washington (315 U. S. 681)
Relied on as controlling precedent that treaty-protected rights cannot be burdened by state fees tied to exercising them.