By Joe Sexton
Washington State Attorney General Bob Ferguson is running for governor next year and he is the clear front-runner according to a recent polling. Ferguson leads the field among self-identified Democratic voter respondents, with 42% of respondents backing Ferguson over second-place contender Hillary Franz who polled at 16%. What the polls and the media are not highlighting, though, is Ferguson’s long history of hostility towards Tribes and their Treaty rights.
In fact, Ferguson’s lack of respect for Tribal treaty rights is so regressive that even Trump-appointed U.S. Supreme Court Justice Neil Gorsuch finds it repellant.
The most glaring evidence of this is found in Ferguson’s continuing open hostilities against the Treaty rights of the Yakama People, a ceaseless conflict with a Yakama business owner waged over several legal battles. Ferguson has repeatedly lost each and every battle over the last decade.
Yet he persists in his crusade.
In what most reasonable people would consider the final nail in the coffin for Ferguson’s contention that the Yakama Treaty Right to Travel does not pre-empt Washington state’s fuel tax scheme, the U.S. Supreme Court handed Ferguson a loss on the issue in 2019. That decision came after Ferguson lost in the Washington State Supreme Court in 2017 [1], which followed another loss in Yakima County Superior Court.
At every adjudicative step from an administrative appeal to the highest courts in this state and the nation, Ferguson and the State Department of Licensing (DOL) were told—over and over again—that the Yakama Treaty pre-empts any state law burden on the Yakama People’s right to travel. Justice Gorsuch wrote in his concurring 2019 opinion that affirming the 1855 Treaty rights of the Yakama People was the least “we can do”:
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.
One would think a person with any measure of respect for Tribal Treaty rights would get the message by that point. Ferguson, unfortunately, has not. To quote a Ninth Circuit Court of Appeals opinion—from another Stevens Treaty rights case Ferguson lost before SCOTUS—he still “has a remarkably one-sided view of the Treaties.” For whatever reason, he and DOL remain “dissatisfied” with the Treaty of 1855. They are still trying to find a way to undermine its “modest promises”—four years after losing at the U.S. Supreme Court.
(Governor Stevens with indigenous leaders, Walla Walla Council, May 1855.
Illustration by Gustav Sohon, Courtesy Washington State Historical Society)
Why Ferguson wants to continue his losing battle is unclear. What is clear is that the fight involves money. The fight over this issue started back when Barack Obama was president, with a 2013 state tax assessment for $3.6 million against Cougar Den, Inc., a Yakama-member owned business. A decade later, in 2023, Ferguson claims the Yakama-owned business owes “$34,979,246.89 (excluding penalties and interest).” To the surprise of no one except perhaps DOL and Ferguson, the state has been handed another loss.
Once again back before a state administrative law judge (ALJ), a decision was issued on October 2, 2023, finding Ferguson’s dishonest [2] attempts to circumvent and undermine the Yakama Treaty unpersuasive:
Here, it is not possible for the Respondent to remove fuel from a terminal without traveling or transporting that fuel on public highways. Accordingly, the Respondent has met its burden to establish that, just like the fuel tax at issue in Cougar Den I & II, taxes assessed pursuant to RCW 82.38.030(9)(a) impermissibly burden the Respondent’s treaty-protected Right to Travel.
Money is no excuse to undermine Tribal Treaty rights. The least Ferguson and DOL can do at this point is finally recognize that they have lost their war against the Yakama People. But will they now, or ever? Or are they hoping for yet another battle at the U.S. Supreme Court, now reinforced with a bigger cadre of anti-tribal jurists?
Joe Sexton is a partner with Galanda Broadman. His practice focuses on complex civil litigation defending indigenous rights and litigating tribal environmental and cultural resources disputes in federal, tribal, state, and administrative forums. He has litigated indigenous civil rights matters on behalf of individuals and represents tribal governments outside of the courtroom in economic development and natural resources matters. He has argued before the Washington State Supreme Court, the Washington Court of Appeals, and the United States District Court, and he has represented clients before the United States Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.
[1] Galanda Broadman appeared and argued as amicus counsel on behalf of the Confederated Tribes and Bands of the Yakama Nation before the Washington State Supreme Court.
[2]The ALJ chose more diplomatic language in its order granting Cougar Den summary judgment: “The Department’s contention that taxes under RCW 82.38.030(9)(a) attach the moment fuel is removed from the rack, without being tied to travel at all . . . rests entirely upon its misapprehension, and misstatement of the law.” Straining to make their argument fit the law, the state twisted the statute’s language to claim that fuel is taxed when it is “removed at the rack.” The statute’s language, however, uses language Ferguson’s team omitted from their brief in describing the taxable event: i.e., when fuel is “removed from the rack.” As the ALJ found, removing fuel “from the rack” —as the statute prescribes—requires travel. This omission was certainly purposeful, and used in this case in a cynical effort to continue a fight against the Yakama Treaty that’s never been successful.
