Washington State Dept. of Licensing v. Cougar Den, Inc.
The Supreme Court ruled that Washington State cannot collect its fuel-importation tax from a Yakama-owned company that trucks gasoline over public highways into the reservation, because an 1855 treaty protects the Tribe's right to travel those highways with goods for trade.
The splintered ruling means the 1855 treaty's promise of highway travel covers moving goods to market, not just personal movement, limiting how states can tax or regulate tribal commerce that crosses public roads.
“If the cost of a fishing license interferes with the right to fish, so must a tax imposed on travel with goods (here fuel) interfere with the right to travel.”
The plurality's core analogy between fishing-license fees and the fuel tax's burden on treaty-protected travel.
How it got here: A Washington Superior Court and then the Washington Supreme Court both ruled the tax preempted by treaty; the State asked the Supreme Court to review that decision.
The Case in Depth
What happened
Cougar Den, a fuel-importing company owned by a Yakama Nation member, trucks gasoline from Oregon across Washington's public highways to sell to Yakama-owned gas stations on the reservation. Washington's Department of Licensing assessed Cougar Den $3.6 million in taxes, penalties, and fees for importing fuel by highway. Cougar Den argued the tax couldn't be applied to it because of an 1855 treaty promising the Yakamas the right to travel public highways.
The question before the Court
Does an 1855 treaty giving the Yakama Nation the right to travel on public highways stop Washington State from taxing a tribal company that trucks fuel in from Oregon?
Why it matters
Washington loses the ability to collect this fuel tax from Cougar Den and similarly situated Yakama businesses, costing the state tax revenue. The ruling could also affect how other states tax or regulate goods carried by tribal members under similar 19th-century treaty language, though the Court stressed the decision rests on facts specific to the Yakama treaty.
What changes now
This is a final merits decision affirming the Washington Supreme Court, so Washington cannot collect the fuel tax from Cougar Den on these facts. The case does not return to any court for further proceedings on the merits. States with similar treaty language or fuel-tax schemes may face new challenges, and Washington may need to reconsider how it taxes fuel imported by other tribal businesses.
What this does not decide
The Court said it does not decide that the treaty blocks all state regulation of goods carried by tribal members -- conservation rules, health-and-safety regulations, and ordinary sales or use taxes on off-reservation purchases remain unaffected. The dissents argued this carve-out is unstable, but the majority and concurrence stressed the ruling is narrow.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch agreed the tax is preempted but reasoned differently: unchallenged factual findings from an earlier case bind the Court on how the Yakamas understood the treaty in 1855, and those findings show the Tribe secured a right to move goods, including fuel, to and from market entirely free of taxes or fees, not merely a right to travel personally.
Dissent — Justice Roberts
“It is a tax on a product imported into the State, not a tax on highway travel.”The dissent's central objection that the fuel tax targets possession, not travel.
Chief Justice Roberts argued the tax targets possession of fuel, not highway travel itself, since it applies equally to fuel entering by pipeline, rail, or barge and is calculated per gallon rather than per trip. He said the treaty only guarantees Yakamas the same travel privileges as everyone else, not immunity from taxes on goods they happen to be carrying, and criticized the majority's new 'health and safety' exception as unsupported by precedent.
Dissent — Justice Kavanaugh
Justice Kavanaugh argued the treaty's 'in common with' language means tribal members travel on equal terms with other citizens, remaining subject to nondiscriminatory highway regulations like the fuel tax. He warned the Court's new right to disregard nondiscriminatory highway laws, plus its improvised health-and-safety exception, would create uncertainty and cost states tax revenue, and said any additional benefits for the Tribe should come from Congress, not courts.
How the Court got there
The legal reasoning, step by step
- The Court first had to pin down what the Washington tax actually taxes. Because a state court's reading of its own state law is binding, the Court accepted the Washington Supreme Court's conclusion that the law taxes the act of importing fuel by ground transportation, not merely the possession of fuel.
- The Court then looked to how it had read the treaty's similar 'right to fish' language in four earlier cases, each holding that treaty terms must be understood the way the Yakamas themselves understood them in 1855, not by their literal modern wording.
- Based on the historical record of the treaty negotiations, the Court found that the Yakamas would have understood their promised right to travel public highways as including the right to carry goods along those highways for trade, since trade was central to Yakama life.
- Applying the same logic used in fishing-rights cases -- where a license fee for fishing was struck down because it charged tribal members for exercising a reserved right -- the Court concluded that taxing travel with goods likewise burdens the reserved right to travel, so the tax is preempted.
- The Court limited its holding by clarifying that the treaty does not shield tribal members from health-and-safety regulations, conservation measures, or ordinary sales taxes on off-reservation purchases -- only from charges tied to exercising the treaty-protected right to travel with goods.
Doctrinal impact
Cases affected by this decision
Reaffirms Tulee v. Washington (315 U. S. 681)
The Court relies on Tulee's rule that fees charging tribal members for exercising a treaty right are preempted.
Reaffirms United States v. Winans (198 U. S. 371)
The Court leans on Winans' approach of reading treaty language as the Yakamas understood it in 1855.