Brett Stuff
Judging the Judges
Term Year: 2018

Washington State Department of Licensing, Petitioner v. Cougar Den, Inc.

Summary Analysis

DATE: 2019-03-19
DOCKET: 16-1498
NAME: Washington State Department of Licensing, Petitioner v. Cougar Den, Inc.

   AUTHOR: Breyer
   JOINING: Sotomayor, Kagan
   GOOD: No

OPINION: Concurring
   AUTHOR: Gorsuch
   JOINING: Ginsburg
   GOOD: No

OPINION: Dissenting
   AUTHOR: Roberts
   JOINING: Thomas, Alito, Kavanaugh
   GOOD: No

OPINION: Dissenting
   AUTHOR: Kavanaugh
   JOINING: Thomas
   GOOD: No

Case Commentary

I would say no, but not for the reason The Court provides.

First, let me state that I presume that The State of Washington has no right to Tax the Yakama Nation. And as such, cannot collect Sales, Property, or Income Tax from the Yakama Nation (or its members). And if it could, the case before us would be moot.

So the real question at hand (the underlying question) is whether through legal manipulations The State of Washington can Tax the Yakama when they use the roads... you know, rather than directly.

I would still say no.

And I disagree with all of The Court's Opinions, because all fail to address the underlying question of Tax Authority, which is the real question in this case.

So, what is my opinion?

As said, I presume The State of Washington cannot tax the Yakama Nation. And I shall be treating Cougar Den, Inc. as I would a Governmental Agency of a Foreign Government (i.e. a Sovereign Nation). Clearly, the Agency has the same rights as the Nation. And thus, Cougar Den, Inc. cannot be taxed by The State of Washington... unless it engages in business inside The State of Washington. But Cougar Den, does not. Rather, it is transporting goods through The State of Washington, making said transport a matter of Interstate Commerce, which (I believe) The State of Washington is barred from Taxing (or interfering with). What The State of Washington could do (under normal circumstances) is charge for the use of its roads in a non-discriminatory manner... but this, too, is barred by the treaty... or at least, I will assume that it is.

Meaning, The State of Washington cannot do thing one about the Yakama Nation transporting fuel to its Reservation.

Now, no one (least of all The State of Washington) would care about any of this if the Yakama Nation weren't turning around and selling the Fuel to Retail Customers who are (presumably) overwhelmingly Washington Citizens... and are lured by cheaper prices on account of not having to pay State Taxes.

But that does not change the legality of the situation. What it does is call into question whether the Yakama Nation is acting like a good neighbor. Of course, there are no end of State Line Liquor Stores, so this isn't anything new. And for the most, The State of Washington should probably (but just probably) suck it up.

But they don't have to.

And The State of Washington has many tools at its disposal to fight a Trade War with the Yakama Nation if that is what they want to do.
Now, I don't know about the legalities of any of these. But I do know that with court cases running into the decades, the damage will be done by the time any legal decision is made.

Furthermore, Fuel Concessions are not the only thing the Yakama Nation cares about. They have wonderful Hunting and Fishing rights... which would be worth significantly less if The State of Washington were to simply take a laissez faire attitude and grant the same rights to ALL residents of Washington (most especially, in the vicinity of the Yakama Reservation). Sure, the Wildlife Stocks would plummet. But why bother with conservation if you're just saving the Wildlife Stocks for someone else (i.e. the Yakama Nation)?

The point I am making is Trade War!

Do you really want one?

On the other hand, it is really not my problem. And besides, the Yakama Nation would (likely, but what do I know) have very few Retail Customers for Gas, Cigarettes, and the like, if avoidance of Washington State Tax were not only possible but something a significant portion of the Residents of The State of Washington found desirable.

Seriously, where is your Democracy, when it is the Citizens themselves who are trying to avoid Governmental Imposed Sanctions?

In other news, the Treaty Between the United States and the Yakama Nation of Indians (1855-06-09) was verbally negotiated in very constrained language, which consisted of (quite literally) only a few hundred words. There was no nuance of thought.

I, personally, have no need to go back to the negotiation table and try to discern what was said, inferred, or intended... nor do I have any desire to round things in the Yakama's favour.

But I am happy (well, not really) to grant the Yakama Nation:

Now, I'm (quite personally) against honouring any of the Indian Treaties. Let's break them all and fold All of the Indian Nations into the Grand Old US of A.

Sorry, I do not care what one man said to another 100 Years Ago. I didn't promise it. And I most certainly did not promise it to you.

I do not care about the promises of dead men.

Furthermore (and isn't it sort of odd how this seems to come up in every case), I believe in Equality for Everyone All of the Time.

I'm not really seeing how the existence Indian Nations accomplishes this.

On the other hand, I've got no great love for the Existing Governmental Structure. What has The State of Washington ever done for me? So, why does my heart so readily come to its defence?

It's an interesting question.

Finally, let me discuss for a moment why I think this case is about Taxes and not "the right, in common with citizens of the United States, to travel upon all public highways."

First, it is clearly about Taxes. Remittance of Taxes is what Washington State is suing over.

And second, the right to use the road does not give an unlimited right to use the roadway however, whenever, and for whatever purpose the Yakama Nation might desire. It's clearly a shared right in common with others and as others use it.

More complicated is the question of whether the right to use the road means the right to use the road free of Taxes and other fees.

At first, I would have said no.

But in the end, I come to believe the opposite is true.

The State of Washington lets motorists from every other State in the Union use its roads without any special encumbrances (or so, I believe). So why not let Yakama Nation vehicles use them free of any additional encumbrances, as well?

It's not the Opinion I would have written up two days ago. So, it's just as well life intervened.

Judging the Judges

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This case was definitely Worthy to me, as it caused me to re-think some of my old held notions regarding Indian Sovereignty.

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A Personal Opinion/Editorial