Imagining U.S. Supreme Court Justices Ruth Bader Ginsburg and Neil Gorsuch agreeing seemed impossible during Gorsuch’s confirmation hearing, but that happened in the case of Washington State Department of Licensing v. Cougar Den, Inc. Their agreement, in an opinion written by Justice Gorsuch concurring with the three other liberal justices, is the result of both the liberal Ginsberg and the libertarian Gorsuch standing for individual rights.
The case pitted a gasoline transport company owned by Yakama Nation tribal members against Washington state taxing authorities. The state wanted to tax Cougar Den for importing gasoline from out-of-state to stations on the reservation using public highways. Cougar Den refused to pay the $3.6 million tax bill, citing an 1855 treaty between the Yakama Nation and the U.S. government reserving the Yakamas’ “right, in common with citizens of the United States, to travel upon all public highways.”
Most Native American taxation cases center around whether tribes or states have taxation jurisdiction. Without taxation authority, tribal governments must depend on the federal government which now supplies, albeit poorly, public services As legal scholar Robert Miller asked at a recent conference, “how do you exercise sovereignty if you have no money? Who pays the tribal police? Who builds the tribal courthouse?”
Had the Court focused on tax jurisdiction, it is unlikely that Ginsburg, with her record of opposition to tribal sovereignty, would have joined Gorsuch.
Because the defendant was a company, not the tribe, the case was, in words of Justice Gorsuch, about “the ability of tribal members to bring their goods to and from market” and the court’s job was to adopt an “interpretation most consistent with the treaty’s original meaning.” The Gorsuch-Ginsburg concurrence concluded that “the treaty doesn’t just guarantee tribal members the right to travel on the highways free of most restrictions on their movement; it also guarantees tribal members the right to move goods freely to and from market using these highways.”
In writing the concurring opinion in Cougar Den, Gorsuch affirmed two important freedoms. First, it recognizes that the freedom to travel was vital to the Yakamas who were careful to ensure that “they would not be made prisoners on their reservation.” Second, it preserves the Yakamas’ “preexisting right to take goods to and from market freely throughout their traditional trading area.”
These same freedoms were articulated by Chief Joseph in 1879: “Let me be a free man, free to travel, free to work, free to trade where I choose, free to choose my own teachers, free to follow the religion of my fathers, free to talk, think, and act for myself.”
A recent conference co-hosted by the Coushatta Tribe of Louisiana focused on these same themes. The conference title — All Roads Lead to Chaco Canyon—might confuse anyone not familiar with pre-contact Indian economies. Coushatta Tribal Chairman David Sickey explained that Chaco Canyon, in New Mexico, “was a cultural center with far-reaching commerce,” Just as Chaco Canyon was an important trading hub between AD 900 and 1150, Chairman Sickey dedicated the conference “to helping tribal nations re-engage with the global economy ... We are here to share forward-looking ideas for tribal entrepreneurship and trade.”
Barriers to trade in Indian Country go beyond taxes on gasoline transported on public highways. On reservations, property rights are incomplete. Indian land is held in trust by the federal government, making it off limits as a source of collateral for the loans most entrepreneurs rely on for start-up capital. Patrice Kunesh, a vice president at the Federal Reserve Bank of Minneapolis explained to the conference that "Property systems provide a fundamental framework for how markets and economies operate. Well defined property rights are pre-conditions to successful economic development.”
The rule of law is also unclear on reservations, making outsiders hesitant to do business in Indian Country. Nancy Vermeulen, whose finance company in Billings, Montana, makes loans to Indians, told Forbes Magazine, “We take on such a huge extra risk with someone from the reservation. If I knew contracts would be enforced, then I could do a lot more business there.” This is why Raymond Austin, Justice Emeritus of the Navajo Nation Supreme Court, advised conference participants that “it is important to work toward an independent tribal justice system.”
As Native Americans work to renew Indian economies from the ground up, the decision reached by Gorsuch and his liberal colleagues in Cougar Den is significant because recognizes the importance of individual freedom for Native Americans. Whether conservative, liberal, or libertarian, justice begins with the individual.
This op-ed originally appeared at Indian Country Today.