In the treaty, the tribe reserved “the right, in common with citizens of the United States, to travel upon all public highways.”[1] Cougar Den, Inc., was a corporation owned by the Yakama Nation, and which imported gasoline onto the reservation for sale to tribal members.

The matter was first heard by an administrative law judge, who ruled in favor of the tribe, and that the tax was preempted by the treaty.

[5] Cougar Den then petitioned in the Yakima County Superior Court, which was sitting in an appellate capacity.

The Superior Court reversed the Director's decision, holding that the tax was preempted by treaty.

[12] Therefore, the "State must prove that Cougar Den traveled by highway in order to apply its tax.

"[15] Since the tax placed a burden on the right of the tribe to travel on the highway with goods, the state law was preempted by the treaty, and the lower decision was affirmed.

[17][18] In his view, the Court was "charged with adopting the interpretation most consistent with the treaty’s original meaning.

[20] He felt that the tribe believed that the treaty provided them “with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods.”[21] Justice Gorsuch concluded his opinion with: "Really, this case just tells an old and familiar story.

Justice Kavanaugh stated that the treaty merely allowed tribal members to travel on public highways on the same basis as non-Indian citizens.