In a blow to state Indian tribes, the Washington State Supreme Court just issued their decision in the tribal gas tax tax, siding with the plaintiff and sending the case back to the trial court to proceed without the tribes as a party.
In 2006, Governor Christine Gregoire negotiated an agreement with Washington State Indian tribes that exempts tribally owned fuel stations from paying 75% of state gas taxes. The compacts allow the tribes to spend the money on non-highway purposes, a clear violation of the 18th Amendment. A group called the Automotive United Trades Organization (AUTO) challenged the compacts and a lower court dismissed the case because the tribes had sovereign immunity. AUTO appealed to the Supreme Court.
Washington Policy Center filed an Amicus Brief asking the Supreme Court to accept direct review on this case, which they ultimately did. WPC also conducted a price survey of 18 tribal stations located in five metropolitan areas around the state. We found that tribal stations consistently charge less for fuel than non tribal operators and in one case we found the tribal station selling gas for up to 48 cents cheaper.
In the 5-4 decision, the majority opinion took significant issue with many of the States’ arguments defending the tribes and the compacts:
Citing Marbury v. Madision, the majority wrote:
Moreover, the notion that potentially unconstitutional government conduct must be redressed through the legislature is frankly astonishing given the bedrock principle that it is “emphatically the province and duty of the judicial department to say what the law is.”
And then this zinger:
Sovereign immunity is meant to be raised as a shield by the tribe, not wielded as a sword by the State.
The court concludes:
While the tribes are necessary parties whose joinder is not feasible due to sovereign immunity, in the circumstances of this case they are not indispensable.
We reverse the trial court’s order of dismissal and hold that this action can proceed without the tribes “in equity and good conscience” under CR 19(b).5.
Read the full decision here.