III of the Yakama Nation Treaty of 1855 provides in pertinent
[I]f necessary for the public convenience, roads may be run
through the said reservation; and on the other hand, the
right of way, with free access from the same to the nearest
public highway, is secured to them; as also the right, in
common with citizens of the United States, to travel upon all
Treaty with the Yakamas, 12 Stat. 951, 952-53 (1855).
issue in this case centers on the interpretation of the
"right to travel" provision in the treaty, in the
context of importing fuel into Washington State. The
Washington State Department of Licensing (Department)
challenges Cougar Den Inc.'s importation of fuel without
holding an importer's license and without paying state
fuel taxes under former chapter 82.36 RCW, repealed
by LAWS OF 2013, ch. 225, § 501, and former chapter
82.38 RCW (2007).
administrative law judge (ALJ) ruled in favor of Cougar Den,
holding that the right to travel on highways should be
interpreted to preempt the tax. The Department's
director, Pat Kohler, reversed. On appeal, the Yakima County
Superior Court reversed the director's order and ruled in
favor of Cougar Den. We affirm.
and Procedural History
Den is a Confederated Tribes and Bands of the Yakama Nation
(Yakama Nation) corporation that transports fuel from Oregon
to the Yakama Indian Reservation, where it is sold. Kip
Ramsey, Cougar Den's owner and president, is an enrolled
member of the Yakama Nation.
Den began transporting fuel in 2013 from Oregon to the Yakama
Indian Reservation. Cougar Den contracted with KAG West, a
trucking company, to transport the fuel into Washington from
March 2013 to October 2013.
December 9, 2013, the Department issued assessment number
756M against Cougar Den, demanding $3.6 million in unpaid
taxes, penalties, and licensing fees for hauling the fuel
across state lines. Cougar Den appealed the assessment to the
Department's ALJ, who held in his initial order that the
assessment was an impermissible restriction under the treaty.
The Department sought review of the ALJ's initial order.
Upon review, the director of the Department reversed the ALJ
and entered findings of fact and conclusions of law.
director held that the Yakama treaty did not preempt the
taxes, license requirements, and penalties sought against
Cougar Den. Cougar Den then petitioned for review of the
final order by the Department. The Yakima County Superior
Court, sitting in an appellate capacity, reversed the
director's order and held that the taxation violated the
tribe's right to travel. The Department appealed the
superior court's decision and sought direct review under
RAP 4.2(a)(2). We granted direct review.
case began as a challenge to an administrative order;
therefore, review is governed by chapter 34.05 RCW. Under
that statute, in relevant part, we review to determine
whether the decision is an erroneous interpretation or
application of the law. Generally, an '"agency
decision is presumed correct and the challenger bears the
burden of proof.'" King County Pub. Hosp. Dist.
No. 2 v. Dep't of Health, 178 Wn.2d 363, 372, 309
P.3d 416 (2013) (quoting Providence Hosp. of Everett v.
Dep 't of Soc. & Health Servs., 112 Wn.2d 353,
355, 770 P.2d 1040 (1989)). However, this case involves a
treaty interpretation, which is a legal question reviewed de
novo. Chi. Title Ins. Co. v. Office of Ins.
Comm'r, 178 Wn.2d 120, 133, 309 P.3d 372 (2013)
("The agency's interpretation of pure questions of
law is not accorded deference." (citing Hunter v.
Univ. of Wash., 101 Wn.App. 283, 292, 2 P.3d 1022
(2000))). This court sits in the same position as the
superior court, reviewing the standards of the Washington
Administrative Procedure Act, chapter 34.05 RCW, directly to
the record established before the agency.
State law imposes a tax on fuels used for the propulsion of
motor vehicles on the highways of the state. In 2013, when
Cougar Den transported fuel into the state, chapter 82.36 RCW
governed taxes on motor vehicle fuel, or gasoline, and former
chapter 82.38 RCW governed taxes on "special fuel,
" which includes diesel fuel. Fuel taxes are imposed at
the wholesale level, when fuel is removed from the terminal
rack or imported into the state. Former RCW 82.36.020(2)
(2007); former RCW 82.38.030(7) (2007).
Yakama Indian Reservation is a federally recognized Indian
tribal reservation located within the state of Washington.
Outside an Indian reservation, Indian citizens are subject to
state tax laws, "[a]bsent express federal law to the
contrary." Mescalero Apache Tribe v. Jones, 411
U.S. 145, 148, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). A treaty
constitutes an express federal law. There is no dispute that
the taxes and licensing requirements would apply if the
treaty provision does not apply here. However, Cougar Den
asserts that the right to travel provision in the treaty
precludes the State from demanding unpaid taxes, penalties,
and licensing fees for hauling the fuel across state lines
(relying on treaty language that "the right of way ...
is secured to them ... to travel upon all public
United States Supreme Court has established a rule of treaty
interpretation: Indian treaties must be interpreted as the
Indians would have understood them.
The Indian Nations did not seek out the United States and
agree upon an exchange of lands in an arm's-length
transaction. Rather, treaties were imposed upon them and they
had no choice but to consent. As a consequence, this Court
has often held that treaties with the Indians must be
interpreted as they would have understood them.
Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31, 90
S.Ct. 1328, 25 L.Ed.2d 615 (1970).
It is our responsibility to see that the terms of the treaty
are carried out, so far as possible, in accordance with the
meaning they were understood to have by the tribal
representatives at the council, and in a spirit which
generously recognizes the full obligation of this nation to
protect the interests of a dependent people.
Tulee v. Washington, 315 U.S. 681, 684-85, 62 S.Ct.
862, 86 L.Ed. 1115 (1942).
Ninth Circuit has recognized this rule of treaty
construction. See United States v. Smiskin,
487 F.3d 1260, 1264 (9th Cir. 2007); Cree v. Flores,
157 F.3d 762, 769 (9th Cir. 1998) (Cree II).
Treaties are broadly interpreted, with doubtful or ambiguous
expressions resolved in the Indians' favor.
Department argues that Cougar Den's reading of the right
to travel provision is overly broad. It asserts that the
Ninth Circuit cases involving the right to travel forbid the
State from specifically restricting the right to travel on a
highway, but allow the State to restrict or regulate a
specific good that is incidentally brought over a highway.
The Department argues that the treaty does not preempt
Washington State fuel taxes in this case. Both parties here
support their arguments by citing several Ninth Circuit
Department's interpretation of the treaty provision
ignores the historical significance of travel to the Yakama
Indians and the rule of treaty interpretation established by
the United States Supreme Court. In ruling in Cougar
Den's favor, both the ALJ and the Yakima County Superior
Court based their decisions on the history of the right to
travel provision of the treaty, relying on the findings of
fact and conclusions of law from Yakama Indian Nation v.
Flores, 955 F.Supp. 1229 (E.D. Wash. 1997).
factual record regarding the treaty interpretation of the
historical meaning of the right to travel relied on below was
developed in a federal action, Cree
Because the rule of treaty interpretation requires that
treaties be read as the Indians would have understood them,
the district court conducted an extensive factual inquiry
regarding the treaty and the historical context of the right
to travel provision. The court determined that the treaty and
the right to travel provision in particular was of tremendous
importance to the Yakama Nation at the time the treaty was
signed. Travel was woven into the fabric of Yakama life in
that it was necessary for hunting, gathering, fishing,
grazing, recreational, political, and kinship purposes.
Importantly, at the time, the Yakamas exercised free and open
access to transport goods as a central part of a trading
network running from the western coastal tribes to the
eastern plains tribes. The court found that the record
unquestionably depicted a tribal culture whose manner of
existence was dependent on the Yakamas' ability to
travel. Yakama Indian Nation, 955 F.Supp. at 1239.
time the treaty was drafted, agents of the United States knew
of the Yakamas' reliance on travel. During negotiations,
the Yakamas' right to travel off reservation had been
repeatedly broached, and assurances were made that entering
into the treaty would not infringe on or hinder their tribal
practices. Promises were made to protect the Indians from
'"bad white men'" if the tribes agreed to
live within designated reservations. Yakama Indian
Nation, 955 F.Supp. at 1243. Agents of the United States
thus repeatedly emphasized in negotiations that tribal
members would retain the '"same liberties .. .to
go on the roads to market.'"' Yakama Indian
Nation, 955 F.Supp. at 1244. The court further
determined that "both parties to the treaty expressly
intended that the Yakamas would retain their right to travel
outside reservation boundaries, with no conditions
attached." Yakama Indian Nation, 955 F.Supp. at
1251. The treaty was presented as a means to preserve Yakama
customs and protect against further encroachment by white
settlers. There was no mention of any sort of restriction on
hunting, fishing, or travel other than the condition that the
government be permitted ...