hear argument first this morning k sixteen fourteen ninety eight washington state department of licensing versus cougar den mr purcell mr chief justice and may it please the court the treaty guarantees the tribes the right in common with others to travel by public highway but it says nothing that would cramp a generally applicable tax on goods like this on the contrary it's hard to tell me could shoot tax the tribes the other state could certainly tax them that are they've conceded that whether we could tax some as a matter of state law i don't think so but but but not surely not under the transition is in my mind whether the travel rights to freely use the highways permit you to tax them for an incidence can carry the fuel from another state on a highway through your state correct now the court below called this in importation tax you've been resisting that and you call it a use tax but if it's an importation tax it's not equally applied they were wholesalers of all kind who can within the state so this tax applies to fuel purchased in washington or outside of washington what is the the license this is the way to get them not to pay who pays for the fuel then once your license your wholesaler you bring it in or by pipeline well then start then the person who buys the fuel uses it correct well if you're bringing into a terminal or a finery than than the taxes do when it's picked up at a term or a foreigner who actually pays the taxes a comp good question depending on whether the energy that owns the fuel in the tank is a supplier or not but that's when the taxes do if we accept that the travel provision intitled this tried to travel with goods back and forth to a market without a tax without a license just like in the fishing rights case then what gives you the right to charge them within the state meaning they're traveling free of tax free if licenses they go to the reservation you can't tax them on the reservation so i'm not quite sure what permits you to tax them at all if you can tax them when they picked up the field there's two crucial points about that you are first of all crude and concedes that we could tax a purchase  of the reservation even though that would not have been taxed in eight hundred fifty five what's doing that with a market at the market yes but but you've just admitted that at the market where they pick this up you could say well the point is you're out of the treaty did not preserve everything exactly as it was an eight hundred fifty five the key point here is that this court has adopted a clear rule that it has to offer a solution taxes to offer solutions to taxes can be applied to tribes if if they're not discriminatory and if the answers are frustrations here that's the case so there are a lot of issues in this case but just to make it easier for me could i ask you to assume a couple of them and then we could focus on one so you know one issue is does the right to travel include the right to travel with goods and i'm going to ask you to just assume that it does and then another question is does this treaty preempt generally a pluggable taxes and that's you've been talking a lot about that and i'm just going to ask you to assume that it does another words you know if if if you have a toll on a road for example the fact that it's generally applicable you still can't apply it to members of the communication i'm just going to ask  assume that ok so if both of those things are true then it seems to me we come to me the hardest issue which is how do we look at this tax do we look at it as a tax that is preventing the yakama from doing exactly what they bargained for in this treaty in other words it you know it's not preventing but  yakama from traveling on roads with goods or you keep on saying one no because it's not targeted at that it's not directed at that it's a more a broad tax on the possession of fuel and i guess what i want to ask you is why that matters i mean it it does seem to me that from the yakama as point of view and thereafter all the people who entered into the treaty from the optimist point of view this tax is burdening exactly what they bargained to get which is the ability to transport their goods without any burdens without a ta itself regardless of whether or how it's transported i know you maybe i'm not making myself clear you're sort of saying well the tax applies in other circumstances to people who aren't transporting fuel but i'm saying from the ockham's point of view they're transporting goods on the road exactly is the treaty says they can and why do they care if you apply your tax and other circumstances as well why should they care why does it matter what the full scope of the tax is if from the yacht commis point of view the tax burdens exactly what they got as a result of its treaty because your honor this court has never said that a person or company can make an activity exempt from sleep on it to be like your possession by engaging in that activity while also engaged in a tree protected activity like travel if that's the rule that a yacht club member could possess illegal firearms or illegal drugs or diseased apples in their car to just give a range of examples and bring them into the state and say your laws against these things violate my right to travel by public highway and that cannot possibly be the right approach but also would preempt any sort of city even in the fishing rights case which you don't see as  as comparable but others might argue it is the state can regulate for public interest conservation points the indian tribe has conceded that you could read the ole for public interest on a highway that wasn't superceded by the treaty but what they bargained for was to right to carry goods back and forth from the market without a burden that was their bargain right it issued the great to fish but here that is not at all what happened or impose its will to do it well in the court has never said that the state can generally regulate fishing right in the public interest it's only said that the state can regulate for the conservation of fish well that's the public interest was that it allowed the state to impose certain regulations that facilitate both native and non native travel on the same highways  the safety regulations speed limits would facilitate travel in common that's what the district court held in the akamai indian nation of course that wouldn't cover something like for example regulating firearm possession or regulate the questions that we've been talking about in terms that it does provide some safety regulations for example right well presuming that would allow for example a speed limit but not any other sort of regulation on the goods themselves which is what the state's trying to do here i mean and what's odd under the who ends theory is that the state that's all that under the yakima indian nation holding that's all that the treaty would allow you to do and i guess i'm wondering in the first instance why why you're not a stopped from arguing a different position today for a number of reasons you are  first of all true this court has always treated the interpretation as a question of law for this court to decide to know and that's how this court has always approached the interpretation it is never considered itself and by legal conclusions reached by a lower court even in the same case i don't feel bound to wonder if you are read as a matter of state law the argument is just the wrong that were bound by any of those statements in the l g s ruling or the spirit ruling but more importantly this court has never considered self found by i would really legal conclusions in a district court opinion and yet when any nation dealt with a very narrow issue of a fee as a precondition to use the highway that is not what we have here who are then and the acclamation are free to use the highway and not pay this tax what they can't do is possess fuel and bring it into the state or purchase it in the state without paying the tax but they were told at the time of the treaty that you could go on the roads to take your things to market as if you would be treated off reservation as if you were still on the exchange for a huge area of land on an area of land the size of the state of maryland that was given up by the tribe that you could take your goods to market and this burdens as justice kagan said this burden substantially their ability to take goods to market you know to yakima remain entirely free to take goods to market and who then has conceded that the state can tax their their trading of goods offers or ration as they must so the idea that the treaty preserve highway and none of the reasons the court deviated from that ordinary meaning in the fishing cases apply here but even if the court decided that it was some right beyond what you wanted others in terms of travelling without paying a fee for travelling what we have here is not a fee for travelling farther the tax legislation tax is a wide range of activities one is a tax is fuel that's removed in the state from a refinery but the one that's being applied here is that it taxes the motor vehicle fuel entering into this state so entering into this is a pretty standard importation tax which is to say that it's taxed in the travel of goods into the state which again seems to be what the yakama got as a result of this treaty the ability to take goods to market and to take goods from market regardless where that market is but again you are the fuel tax applies to a purchase inside washington outside of washington and brought in washington any means it would apply if they were bringing in by private toll road it is not a den doing how would you describe what cougar den is doing what its activity is because the way i would describe cougar dens activity is that it's bringing goods from market well two things about that are first of all the treaty does not i just really asked how would you describe who could gens activities are i would describe as possessing fuel in washington your honor that is why they pay the taxes and keep in mind clinton is not even doing the  as opposed to transporting fuel they all the tax because they possess fuel they are not transporting the fuel and so if you ask he says i'm taking my pigs to market and somebody says what are you doing jack he says no i'm taking my pigs to market now i think you're possessing your page jack one of the state had a rule that diseased pigs could not leave a certain area under the undercarriage and seriously cannot apply that rule and so this is a regulation of the goods a tax of the goods not a tax on the travel that's the crucial point here that's that's one of the crucial points the other crucial point is under the best reading of the treaty this is a nondiscriminatory tax that applies to everyone and so it would not be preempted even if it were that reading of in common with was rejected by the court in the fishing cases it was honor but none of the reasons the court gave in those cases apply here is the court really gave three reasons and in the two leak case the court said it was despite the phrase in common with others that it was going to read that fishing right is creating a greater right for the tribes than for non indians and there are sort of historical textual and practical reasons and the practical reason first and foremost was an equal right would have left no fish for the indians to take because they're so vastly outnumbered by non indians and that's just not the case here allowing equal rights as the house we normally read a phrase t the same meeting in all of its applications and we wouldn't normally read the term in common was to mean one thing when it's fishing and another thing when it's highway would we be kind of an extraordinary set of statutory or nothing on a button to leave this court said it was sort of article the next next concern would be then what we do about the fact this is also how the district court concluded after a very careful reading in the aca indian nation about the history of the treaty went through and looking at the original an understanding of both parties in its  iginal meaning at that time and that the indians understood it not to mean a common regulation pluggable to everybody but again that they would be able to do the same things that they've always done just with  non native persons present the meaning of the treaty of course the question of law for this court to decide to know and if the court doesn't want to reach that issue of course you can simply say that whatever the treaty means about travel this is a tax on goods i'd like to reserve the right or my time for a little fine thank you counsel washington's motor fuel tax the treaty protects the right in common with others to travel upon the public highways it does not give tribal members immunity from excise taxes on goods that they're carrying inside their trucks inside but that they're brought outside of the reservation or obtained outside of the reservation for trade or for any other purpose respondent acknowledges that tribal members are not exempt from the economic framework for trading goods that has developed outside of the reservation if respondent had obtained this fuel from our primary in washington it could be taxed for that transaction if oregon had charged a tax on this transaction the respondent would have to pay it washington's tax is and is an economic burden on the fuel that's being carried in the truck it's not a restriction on their ability to use the highway in common with others soon i think you're mostly right but what about hoops gosling i mean can we can the state impose tolls on the highway say they really want people to use mass transit we're going to have a thousand dollar toll i don't think they do that the state well if the state could impose a one thousand dollar toll if it was doing that for everybody for anybody now by the way nobody or hardly anyone can use the highways including the truck i think that that hypothetical is quite unlikely simply because i believe that there are unlikely to impose it that's why it's a hypothetical there's there's an anti discrimination rule built slauson of course as soon if you agree to that i'm going to say it's only fifty and then i'm going to say it's him right and then the rebut i'm driving up and i would have thought they can't do that but if they can't do that this is gasoline and maybe all those oregon  and california and over all the places and everybody pays and that's true but if you pay a high gasoline tax it's pretty hard to travel and they're supposed to be able to travel on the highway just as if you get all the salmon out of the river it's pretty hard to fish i suppose there could be circumstances where the restriction that's placed on travel on the highway are so severe that it undermines your can you say that they have they cannot take steps to remove significant numbers of salmon from the stream and they cannot take steps sufficient to significantly limit the right to travel on the highway by these people do what you want for the of the citizens so i think there's a couple of distinctions that we need to draw between what you're hypothesizing and what is happening here the first is that yes there could be circumstances in which the restriction that's imposed is so severe that know i don't have a number to give you i think that you know the district court could determine what what was too burdensome that actually they didn't make any of these arguments no that's correct and i think the other thing is even if you thought that the treaty preempted things like fees to use the highway such as a toll or a licensing fee that was issued at issue increase so you adopted the ninth circuit's rule of what kinds of things are preempted it still wouldn't preempt this tax which isn't a fee to use the highway it's a tax an economic burden on the goods that are being carried in the truck that the text of article three secures to the rock is only the right in common with others to travel upon the public highways and that right by its plain terms doesn't protect activities other than highway travel there's nothing in the negotiating history either that well there's only one central park which is they travel the highways for free they weren't burdened by economic rate by economic manner in travel in the highway so we go back to justice briar's question which is whether it's fifty cents or a million dollars you're saying if it's fifty cents or five or ten presumably it's ok you burden them with that you just can't burden them and i presume you would say every other citizen by imposing a million dollars to start your point well i don't i don't think the state is ever going to impose a tax that is so burdensome that nobody can travel on the highways but our yes we believe so you're going back to the point that just discourse which ended with which is that you're reading in common with all others differently in this context than in the fishing rights context yes and i think the reason that it's different in this context than in the fishing context is because of the right at issue i think there are textual differences and historical differences between those two causes well the one difference that you can't get around is they didn't sign a treaty and give away that much real estate to get nothing in return to be treated exactly like every other citizen you know really in the high end i think one one thing that is really really important about this right to travel provision the right to use the public highways is that the tribe was receiving an assurance from governor stevens that if they gave up the rest of the land in exchange for the reservation they would still be able to leave the reservation they would still be able to travel throughout the area and that they would be able to that given the constitutional rights to travel and equal protection you just described no i mean i think at the time it was it was just a reassurance to the tribe that governor stevens was given there are examples cited on page thirty eight of the petitioners brief where at the time in the mid eighty's hundreds there were restrictions on members leaving reservations there are instances where people would report back to congress that the indian agent on the reservation would issue a pass and tell the tribal members how long they could be gone from the reservation and for one think any of that would hold up today no certainly not  but at the time it was a reassurance from the governor see the purpose was the purpose wasn't just to leave the reservation the purpose as i understand it was to weave for the for trade and if you sober in the trade that seems inconsistent with the purpose i don't think justice kavanagh that that respondent is even arguing that the trade can't be burdened once they leave the reservation their knowledge that the transaction if they purchased the fuel in washington could be taxed that it could be taxed if oregon w to impose a tax here so it's not that they're exempt from the economic framework for trade that's going on outside the reservation if we could go back to the fishing cases for just a moment what is at issue is the transport of goods to and from the market which is what it seems the comma is engaging in here that's true i mean they are transporting goods from market and they are when they come back from oregon with the fuel but that's not the treaty just protects the right in common with others to use the if highway if i disagree with you on that and i hadn't understood that you were taking that position in your brief but if i disagree with you on that and i use and i understand in common with the way to really understood in common with them it seems well they're they are they're doing what this treaty says that the that this they're doing exactly what this treaty protests which is transporting goods to and from market think that under that view justice kagan the most you could get is to the ninth circuit's whine where they've said that the state can't impose a feel like a licensing fee or a toll or something like that to use the highway even if it's being imposed across the board what's happening here is a different type of restriction that's an economic burden on the goods that are being transported to and from market that the respondent could see that it could be taxed for the purchase point but not because of the but not movement points not when the goods go from one state to another on the highway right but that the distinction between those things i think is pretty thin oregon could have could have taxed this transaction it doesn't because oregon like washington doesn't place a tax on fuel that's headed out of the state assume that it will be taxed while it might anything but shouldn't we say that the state has to do things the right way which is to say the state has to do things without violating the treaty and if the state has another way to do it go for it i think the state has tried many different ways to impose this tax that have been struck down by various courts what the state has done here is basically followed this court's advice and wagon on which is to move the incidence of the tax up to the supply chain to off the reservation but not the state has done is to tax exactly the activity that's protected under the treaty which is the which is the transportation of goods to and from market i don't think so there's i think there's a distinction between if you think that that the tribe wouldn't be subject to a uniform tax if it taxed the very thing that they were trying to preserve which was the ability to use the public highways then that would just it would just mean that you couldn't charge them a fee to use the highway or something like that not that you couldn't tax the goods that are in the truck i think one thank you thank you coun mr chief justice it may please the court the akamai treaty pre amps the application of the fuel tax to respond and for two reasons the first reason is that when responding transports fuel it exercises the right to travel secured by the acme treaty as such it has the right to do that without incurring a tax obligation regardless of whether this tactic styled as one on possession or transportation second even if this case turned on what the tax is on this really is a tax on transportation because that's what the statute says and that's how the state court construed as a matter of state law so if this these were apples coming into the state of washington and there was a fee to or they inspected the apples to make sure they weren't diseased and the people who owned the apples had to pay that fee is that problematic if it wasn't motor fuel oil but just apples to feed to inspect the apples different diseases from spreading to other washington apples your honor we wouldn't object to the inspection at all we might object to the fee but the inspection oh well that's kind of the buzz but in other words everybody else bringing apples and has to pay the fee to inspect the apples but the tribe doesn't even though that the free can't be assessed if the tribe is transporting the apples i think that treasury of the state cannot cannot be assessed on the tribe when they're exercising the treaty right but even if the apples don't belong to the tribe they're bringing them to somebody you know they're just bringing them down the road would depend on who has to pay the tax so that in this particular tax if you just appoint an agent to transport of for you you the importer who appoints the agent pays the tax so i think that if the tax was levied on the person who so if the taxpayer was the person who own the apples and just hired an indian in a truck to bring it yeah but the state let you know then i think that this is out what's going on here i thought it was would the statute does that says that's the transportation that's taxed but the taxes imposed on the owner so if you hire someone in a truck to transport for something for you which makes perfect sense of the state wouldn't want the trucker to have to pay this tax which will probably exceed the fee getting for transporting it so the state the statute imputes the act of transportation to the owner of the fuel that's in the definition of motor vehicle fuel import importer and so in this case cougar den transports the fuel both the an agent which is a contractor and also it uses own trucks there's a declaration in the record that says that sometimes it uses its own trucks sometimes it hires a contractor but so if it's the owner why do you keep why does it interfere with a right to travel well it's the it's the owners transportation either itself or via an agent the states never distinguished by the way the transportation could read and so on trucks and it's age and that's just the argument the state did not make in its brief and you know so ultimately it's the owner that pays the tax and the idea is if you hire a truck that's not different from just using the trucks alone the point is the scenic one non of taxation under the statute is the transportation of goods to market and whether you do with your own truck or you hire someone else in a truck doesn't change the fact that there's a make a difference and i think this is the argument on the other side that it's assessed per gallon in other words that suggest as opposed to per mile that you're carrying it not just that it's it's based on possession if it's based on right there at that moment how much do you have they don't care where it's going they don't care if you use it all up right at the border or whatever it has nothing to do with with travel it's purely on the good itself well i don't agree i don't think that you can just say a tax is on a good i think this court is always required an analysis of the precise activity engaged in by the taxpayer so the  case the argument that the tribe made in that case was that really this is a tax on the fuel that's all that we tale and the test this court adopted was you've got to have this focused analysis of what is the taxpayer doing that triggers the application of the tax and in this case the thing that the taxpayer is doing is importing the fuel by its terms the statute says that the taxable event is the entry of fuel to the state so the traveling with the fuel and the taxpayer under the statute is defined as the importer and so i think that just has to be tax on importation and incidentally it's not even just that it's the importer that pays the tax the tax actually distinguishes for licensed importers between people who use highways and people who don't use these and i'm sorry no what if th what if the statute said the first and city to possess the fuel in the state must pay the tax so we would still say that's preempted although our legal analysis might differ a little bit why would that be preemptive well first of all i think that as applied to fuel that comes in from out of state really first possession just is inherently importation in other words you can't be the first possessor of fuel at least that originates out of state unless you're the one hauling it into the states so in that context i just think first possession kind of means and i thought you just said we have to focus on what the statute says is being taxed so if the statute says expressly it's that possession is being taxed that doesn't matter ok so we have two arguments in our brief a broader argument and now the broader argument actually doesn't depend on what the statute says it depends on what the tribal member is doing so if the tribal member can show that the only thing that they're doing is exercising a treaty right which is to say transporting goods to market the don't pay the tax no matter how the statute is style well then that's very artificial and you get into this metaphysical question of what they're doing they're doing many things you know when they're you know when the farmer is bringing his pigs to market he's doing many things he's traveling with the pigs he's possessing the pigs he's breathing he may be doing all kinds of other things well yeah but i think that is things that are inherent in transportation like breathing while you're transporting it i think would be sort of wrapped up in transportation i mean in fact of this case what we have here is an indian distributor transporting fuel to an indian reservation to be s an indian retailer on the reservation and potentially to indian customers really the only connection that cougar town has off reservation is that it's hauling this fuel this is one of the things i understand this is many states have laws against bringing in of all kinds of things are so if they don't bring it in you can't transport it on so if your point is that they have a right to transport things i would have thought you would have said a ban was worse use tax when you bring it into our state and then another state says we're going to legalize marijuana but we tax it pretty high and another state says we you know you i can go on and on and on and you're saying well this tribe that doesn't have to pay the tax on marijuana it doesn't have to pay the ordinary sales tax which take the form of the use tax in the state and i could probably think of ten other examples and my goodness i say why why no is that your position what i said no it is not our position i can now find home glad it isn't because my own position not a good argument against but i'd like like to i'd like to know what your position is then we are not claiming exemption from sales taxes we draw distinction between the acquisition of something which is not travel and the transportation is something that is so if you always specially for gas yes so if you buy i didn't see that in your brief i put the argument to them and i just didn't see that in your brief that you were that can be taxed that's not travel but here that's happening out of state i don't think there would be a treaty problem with the taxation of that but the state hasn't tried to tax that purchase in oregon and so that's that's out of the case and so the only thing that the state is taxing in the state of washington is the transportation so it's actually what do you mean that it doesn't say it taxes the transportation i think it does i mean it talks does taxable say you know the statute better than i does the statute say we impose a tax on the when marijuana enters this state and you just told me that would be ok the taxpayer is defined as the importer and the state court construed the statute as a tax on twenty importer of marijuana must pay a tax of ninety tax on marijuana is imposed now what were the words you use i want to use the same ones upon entry of the marijuana into the state that's all i just trying to she does not depend on the good that's being imported if it's a tax on fuel or a tax marijuana it would be the same artists are now what you're claiming is that and this is what's bothering me and i'm trying to get to it you're saying that the truck unlike anyone else in the state can refuse to pay taxes that really have nothing to do with transportation but have to do with drug regulation which have to do with keeping certain bad things out which have to do with raising money for other reasons that you see what i'm saying is in the sense of it is why would this treaty give it a try the right not to pay taxes that have really nothing to do with transportation that's just the way it's outer let me answer that in two yes the first answer is if it's truly a regulatory fine if it's like you can't possess marijuana and we are punishing you then we don't view that as a tax we view that as a regulation i think that you know the distinction between taxes and fines might in some cases be evade your question the words of the treaty i think it's the in common with language that opens the door to certain types of regulatory rules i think that by implication the fact that the yakima ceded rights and all of this land probably opens door to the state to protect public safety in that land right so the persons carrying a firearm are diseased apples which is going to cause other people to die and there's a similar justification for permitting those laws as permitting speed limit what does that come from those would you prefer you prohibit certain things you tax certain things where does that come from well so this is the line the court drew in the to the case with respect to the fishing clause and in the pew alec case there's like explicit language saying we distinguish between the two so we're following the court's lead on this issue and the court has essentially said that tax isn't necessary in the relevant sense and so you don't need the tax to ensure the non indians can use the resource in common with indians and similarly i don't think you need a tax to insure you know public safety in the relevant sense whereas i think that you really need to prevent you know diseased apples or firearms in order to protect public safety if an off reservation sales tax is ok as you say it is why is an off reservation possession tax not ok well i don't think this is a possession tax your honor i think it's a it's a transportation suppose it is a possession is that then ok so we we have a broader like reservation possession tax so we have a broader argument are briefing an hour or so the broader one is not in the nahrawan it is so the broader argument or previous you've got to look at the tribal member is doing and because you can't it's like a tax on breathing right you can't transport something without possessing it just like you can't transport it without reading that seems to be an argument that it's a shame and that it's really getting to transportation and share might be too strong a word but it's not it's really about transportation not possession what if it's really about possession so i think one of the broadest possible version of argument we probably i'm not going to push this very hard i think it would be preempted but i'm not going to push very hard because i think that this really is a transportation tax i think is actually quite helpful to look at why the statute is written the way it is to understand why we really think this is a transportation tax so i get that the overall goal of the state is to ensure that all fuel sold at retail is subject to attacks but the natural way to do that is just to tax the retail sale but this court has held in the chickasaw nation case that those types of taxes are preempted and in fact some washington taxes were preempted and so with the state decided to do is as my colleague states move the incidents outside the reservation but the thing is for tack for fuel like this when you have an indian distributor hauling it from out of state to the indian reservation to sale to an indian retailer the only connection between this fuel and off reservation activity is that you're hauling it across this stretch of land that's get well what if you have the the tank where the fuel is going to go in is right by the border and it's a tax on fuel that goes into the tank they don't care what you do with it you can transport it you can whatever you want to do with it and it's owned by cougar down the the tank and they use it transported in their trucks now which the state doesn't care about transportation it just wants as soon as that comes in the border with no involvement by then it comes into its tax in their tank and then that's it of stories far as the states concerned i understand overall the state just wants the money in some sense but the reason it's structured this tax this way is because it no one talking about my hypothetical tax ok it's soon as it goes into  e tank not one of the tanker trucks then it's taxed on that as soon as you get it enters into a tank at the border and it's taxed is that ok nothing to do about transportation at all well if you're referring to like taking that the fuel from the truck and putting into a big tank off of the reservation at the border if that's the hypothetical and non non indian truck you know that if that's a hypothetical then that wouldn't be transportation of a delivery to some retailers some other tank or something like and what i'm actually buffered about is people are going to buy millions of things online and so a state says the following we just want our sales tax and so they pass a statute that looks like this when something you bought online and tears into the state a tax is due you know that's pretty close to the statute and what i'm having trouble is seeing how your argument that's why i had this other arguments were just if you want to but you don't accept that ok how your argument would permit the state to do it would deny the state the right to tax the indian tribe when they've done what everybody hypothetical buying things online i think it would depend on how the statue defined the taxable event so of course there's some recent developments in the long way for a case involving out of state taxation so if the state is capable of taxing the sale in other words the tax event is the transaction itself that wouldn't be a treaty issue there might be other issues on a comic was whatever that wouldn't be a treaty issue so if that that is the incidence in some sense of the tax if that's the thing that's being taxed then that wouldn't necessarily be a treaty problem so yes you are so if there is it depends on what's being taxed shipment on the highway and it's an indian who's paying the tax then i think that that would that would restrict the right to travel because maybe if this shipment of goods into our with i think that again this court has really drawn it is has not really talked about in terms of a tax on goods that the court has analyzed in terms of a tax on the relevant activity so there's a tax on the sale or tax on the transportation but you've got to look at what the taxpayer specifically doing i think that's what the wagon so i don't mean to evade your hypothetical i just i just really depends on exactly how the statute to structure so puzzling as opposed to fuel arrives by tanker and it is taxed when it reaches  the port of seattle but everybody knows that at that point it's going to be transferred to trucks owned by cooper down would that be what would your position be that would not be preempted first of all would probably be a non indian taxpayer who pays the tax because i'm assuming the tanker truck is owned by someone who is not small so is it somebody in the tribe even so i don't think so i think that the wagner case really i think what why would it not be because the taxable transaction isn't the transportation of the fuel we don't re state claims to just have this broad umbrella protection of any trade that's in any way facilitated by highway travel what we say is that you've gotta have a very focused look at what precisely is being taxed as what does it matter whether it arrives by se or across the border from oregon well if the if the relevant taxable event is the entry into a port is the relevant taxable ben is the possession the first possession within the border of washington  depends if that's an area where rise by a tanker truck the first possessor is someone who's using a big boat and is not traveling on public highway so that possessor is not exercising any writing to treat now i understand there might be downstream economic consequences and could be done but i think that we're just trying to follow the analysis in the wagon case which has required this specific analysis of what's being taxed i think is right because it's it seems to me you can look at this in one of two ways and which way you look at it in part you know suggests who should w the first is huge you could say what is the taxpayer here doing is what the taxpayer here doing within the terms of the treaty in there it just seems to me that you win because what the taxpayer is doing  transporting goods to and from market and you can say he's possessing the goods you can say he's breathing while he's transporting the goods but what he's doing is transporting goods to and from market so so that suggests that you should win where the focus is on the activity taxed but what i hear the state and the s g and its brief saying is you shouldn't focus on the thing that the taxpayer is still and you should instead sort of look to the purpose of the state and you should look to what is the full scope of that to vot is that the state is trying to tax and why they have this tax and according to them they have this tax because they want to get to every single taxpayer who possesses fuel in the state and this is what's necessary to get to yakama taxpayers so what should we focus on the activity that's the taxpayer is doing or the purpose of the state legislation so of course i think it's the activity and i think that your question is really what this case boils down to and i think there's a lot of reasons why the form around serous correct in the water is not first of all i just think that the treaty right focuses on indians rights as the indian has the right to trade and travel excuse me i don't see a focus on sort of the holistic content of state and why it's an act in a particular tax also i think in the wagon case the whole argument by the tribe in that case is that with the state was really trying to do was bring things on the reservation the court said we don't look at these broad assessments of purpose we look at this formal analysis of the thing that's being taxed and that's really just the analysis that we're asking the court to do here and actually in the right to fish cases the court has done the same thing when the court has understood the right to fish as a sentry providing an easement on private property to fish that preempts any state laws that would prevent you to go on the property those laws are the ultimate generally applicable laws they apply to indians and non indians they applied regardless of whether you're going on the property of the fish were to do something else they had absolutely nothing whatsoever to do with fishing but they were still held to be preempted because we looked at what the indian was trying to do with which is fish and the court held that the treaty gave the indian the right to do that i think it's also true by the way with like the reservation tax versus off reservation tax distinction like  nation this court held that a tax on resin on an reservation activity was preempted the tax issue had was not targeting indian reservations it was a generally applicable tax that apply to everybody but as applied to protected activity in that case on reservation right that's true but we haven't disputed that the state can collect order of the retailer to collect the tax from non indian consumers so if the state is concerned about collecting that tax we haven't disputed that's the way to do it and this is what the court said in chickasaw nation it says if the state wants to make sure th selected from non indian consumers it could just amend its laws to to provide that and we haven't disputed i'm not talking about on indians i'm talking about the indian consumer i have now read the statute again and it seems there are four relevant words the tax on fuel applause when the fuel enters into this state and now all i have to do you substitute for the word few things bought online which could be anything at all and then we can have disease thing or i don't know what marijuana and you are saying and i think you are saying this but this statute which had to do with travel on the roads applies to all those things as long as the words tax applies when it enters into this state and now i hope i'm wrong or maybe i'm right i don't know what i want to hear here and that's not exactly our position because there's a few other things that have to be true so first of all the tax cuts that also by the way house to be the case that it goes by fedex or it goes by u p s or it goes by a truck or something like that it can't just go buy an airplane and be delivered by a drone i've got that now what else so we again we have a broader argument in our can we do have one specific argument in our brief which focuses on the fact that this this travel through the the seated area now i think that we would still be preempted even if it was outside the seated area but sort of the narrowest arguing our brief goes like this right to look at what the indians secured you have to look at what they had and they had something special on this particular stretch of land which is a tax immunity and therefore if you want to quit they kept it's an immunity that applies specifically when the truck is going across that land now i will say that for off for travel off the seated area i probably still would be arguing preemption in that the treaty by its terms applies to all public highways but the narrowest version of argument our brief really only applies to disc particular travel because of the special rights that the tribe enjoyed on that stretch of land at the time the language of the treaty does not distinguish grassy that area and the other air so the text to hook for that would be the word secure which this court has construed as requiring looking at what they already possess and on another question which is your position depends on disaggregating possession and transportation but you could possess something without transporting you can obviously transport without possessing fuel tax why can't we decider gate possession transportation first of all i think that in many ways these are state law questions like there's this fundamentalist butin this case about whether this is just like one statute on first possession or a whole bunch of different subsections that are tax and different types of things one of which is transportation and it's kind of a philosophical question but i think that ultimately that's a state law question not a federal question it seems to me if the state court is construing authority if a state court construed it differently from the state court you would have a different time and i think i'd probably still try to argue preemption but i think it would be much harder than the argument i'm currently there's preemption because you know you're taxing treaty protected activity based on the statute as a store authority construed by the state court i just want like to say one thing about why i think that you know it's part of this what the state is doing here is quite inconsistent with i think w the expectation of the tribe would have been eight hundred fifty five because the tribe was actually specifically concerned about transporting fuel along this route right and so governor stevens promised in the treaty minutes you can take your goods to market to the river which is a reference to the columbia river and this actually used to be their land so as consideration for giving up this stretch of land which at the time it was their own land that they agreed that they would continue to travel across that they'd have the right to travel and so i think it is a little bit of a bait and switch to the  well now we're going to basically exploit the fact that you have to travel across this stretch of land to impose this tax that we wouldn't otherwise be able to impose and by the way the effect of the tax is to mimic and a tax on the reservation on reservation retailers and i think that you know i haven't talked about the treaty cannon so far because i think neutral principles are more than sufficient to resolve this case for respondent but at least under the generous interpretation principles for indians i i think that's what the indians thought they were getting that this exploitation of the travel on the very land they gave up securing for themselves the right to travel across it i think that it's very natural and consistent with what i think the expectation of the activists would have been that they could continue traveling across that land with their goods as they were already doing it at the  time and that means that means transporting without paying a fee or owing an obligation to the states mean anything that this tax is literally traveling to through to reporting by a highway there is no tax importation by license people they don't pay the tax only the user who buys a place a tax correct yes i think that's actually a very important point in this case because the state cash this is a first possession tax but honestly that's just the states gloss on it that's not what it says and in fact that's not even how it operates because if you're the first possessor to be a highway you pay the tax but your license importer and you're a first possessor of the boat you don't or you want to characterize it as a transport tax in the statute doesn't say that either will i think that this to mean that the state court is responsible for construe state rights as import which is the importer pays a tax on page one twenty one of the joint appendix the taxpayer is defined as the import and the state courts said which i think is intuitive that importation is a species of transportation and so there's an authoritative decision that this statute taxes transportation so probably this isn't it's not consistent you're right the wholesaler slices whole schiller's are the importers but they don't pay the tax yet so this is it just doesn't work that way and the state is just adding this gloss that this is just one big tax on first possession even though obviously when you just look at the words of the statute it isn't one and that's why i think the court should just use the words of the statute which talk about importation an entry and the construction of that by the state court rather than deterring preemption essentially by the gloss placed on the state's attorneys based on words are not in the statute nor did the state court think those things to be true state the obvious the value of the current value of the land the tribe gave up is enormous it's a third of the state of washington i believe and thank you council for minutes mr justice i'd like to point out two crucial facts about what will happen if you accept graham's position first to justice buyers point if you accept their position the acma members can transport goods nationwide without taxation or regulation that's why you see such a broad coalition of states joining them because they don't have our society with everybody they have true with the united states your honor and its counsel just said the right to travel says on all public highways it makes no sense to limit it to the seated area even historically it would make a sense because the travel beyond the tree see the area  and also trying to use the history when it helps them by trying to limit the geography but they're not when it hurts them like you know what goods can be transported or how it can be transported of course the fuel and the highway and these roads did not exist at the time the second crucial point and that one treaty there's no similar there's no similar rationale here the court has never said that we can regulate fishing more generally than that there's no distinction this court cases in treaties between taxing and regulation more broadly medically are actually rejected exactly that argument the second point is that under their theory we could completely ban the transportation of fuel by highway if we did it for regulatory reason like we decided it's not safe we just ban it all right and that would be fine but we can't impose a generally placable tax on goods like fuel because it happens to apply travels on the highway that makes absolutely no sense that there's no plausible way to read the treaty that would lead to that result this is a tax on fuel possession it is not a tax on highway travel the state court explicitly said it would apply regardless of whether  for their purchases on tribal lands your honor that is the system that we had before we adopted this system and it was struck down by a federal court in washington and then we adopted this tax model on what this court said was a ok and wagon on it also like address not just does not address the issue in this case wagon was about who the tax applies to and where the instance of the tax is in this case those things are undisputed who are demos a tax and it's off reservation so the rule is that the tax can apply unless preempted by express federal law and here there's nothing in the treaty that preempts this tax there's just no possible way to read the right to travel by public highway in common with others to preempt a tax on goods so so you know it just does not do what they're what they're asking to do lagaan describe a tax that the city of washington modeled its tax on and i just think it's crucial also to understand that even their limited seating area argument does not work it does not work it's contrary to the treaty text which has a right to