March 20, 2019

Jenner & Block Partner Adam G. Unikowsky won his eighth case before the US Supreme Court in a 5-4 decision in Washington State Department of Licensing v. Cougar Den, Inc., the first case of the Roberts Court to interpret an Indian treaty.

Washington State Department of Licensing v. Cougar Den, Inc. concerns the Yakama Nation’s 1855 treaty with the United States and its preemptive effect on Washington state taxes.  The 1855 treaty guarantees the Yakama Nation and its members the right “to travel upon all public highways”; a number of Supreme Court cases throughout the twentieth century held that a similarly worded right-to-fish provision in the treaty preempted Washington laws, such as those requiring the payment of license fees, that interfered with the exercise of Yakama fishing rights.

The case arose when Washington attempted to enforce its fuel importation tax against Cougar Den, Inc., a tribally incorporated, tribal-member owned Yakama business that the Yakama Nation has appointed as its sole agent for the purpose of importing fuel to the Yakama Reservation for sale and delivery to Yakama members.  Since 2013, Cougar Den has imported fuel to the Yakama Reservation from Oregon.  In doing so, Cougar Den trucks travel along a 27-mile section of Highway 97 within the Nation’s ceded lands that stretches from the Washington-Oregon border to the southern boundary of the Yakama Reservation.  Attempting to exploit this gap between the Oregon and Yakama borders, in December 2013 the Washington State Department of Licensing assessed Cougar Den over $3.5 million in fuel taxes and penalties.

On behalf of Cougar Den, Mr. Unikowsky argued that the record of the treaty negotiations left no doubt that the Yakamas intended to reserve the right to travel with goods to trade, and that the tax was preempted because traveling with goods to trade was the exact activity that triggered the tax.  Mr. Unikowsky also stressed the value of the concessions that the Yakama Nation had made to the United States in 1855, illustrating that the promises the Nation received from the United States in exchange must have been understood to have real significance.

The plurality opinion by Justice Breyer agreed that the Washington tax “taxes the importation of fuel by public highway” because “the Yakamas’ lone off-reservation act within the State [wa]s traveling along a public highway with fuel.”  And in an opinion concurring in the judgment, Justice Gorsuch picked up the theme of requiring the United States to honor the bargain it struck:

“Really, this case just tells an old and familiar story.  The state of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure.  In return, the government supplied a handful of modest promises.  The State is now dissatisfied with the consequences of one of those promises.  It is a new day, and now it wants more.  But today and to its credit, the Court holds the parties to the terms of their deal.  It is the least we can do.”

This is Mr. Unikowsky’s eighth consecutive win in the Supreme Court, and he is currently undefeated in Supreme Court cases where he has served as lead counsel.  In the previous term, Mr. Unikowsky argued Sveen v. Melin and Artis v. District of Columbia, winning both cases.  In the 2016-2017 term, he argued three cases on behalf of pro bono clients and won them all:  Howell v. Howell; Honeycutt v. US; and Kokesh v. SEC.  In the 2015-2016 term, he won Puerto Rico v. Sanchez Valle and V.L. v. E.L.

The National Law Journal featured the win in its “Supreme Court Brief” column, noting that Mr. Unikowsky “has done it again” after winning seven previous cases in the past three years. Bloomberg Law and Law360 also covered the decision.   

In addition to Mr. Unikowsky, the Jenner & Block team who worked on the case included Ian Heath Gershengorn, who is chair of the firm’s Appellate and Supreme Court Practice, Partner Sam Hirsch and Associate Leonard R. Powell.

Please click here to read the Supreme Court’s decision.