OT:RR:CTF:VS H305388 AP
Mr. J Coats
6400 Redwood Drive Ste. 300
Rohnert Park, CA 94928
RE: Customs duties on imports by Yakama tribe persons/entities from Canada
Dear Mr. Coats:
This is in response to your request for a binding ruling dated August 20, 2019, filed on behalf of JC Company ("requestor" or "JC"), on whether the Treaty between the United States and the Yakama Nation of Indians, June 9, 1855, 12 Stat. 951 ("Yakama Treaty") exempts goods from customs duties that Yakama tribe persons or entities import into Washington State by ground from Canada.
The Yakama Treaty was signed in 1855 and became effective in 1859. Under the treaty, the Yakama Nation of Native Americans ("Yakamas") granted 10 million acres of land to the U.S. government. In return, the Yakamas reserved their right to fish, hunt, gather roots and berries, and pasture their horses and cattle in the ceded land. Article III of the Treaty secures the Yakamas, "the right of way, with free access from the [reservation] to the nearest public highway" and "the right, in common with the citizens of the United States, to travel upon all public highways."
During the treaty proceedings, known as Walla Walla Council, in the Walla Walla Valley in southeastern Washington Territory, Isaac Stevens, the Territorial Governor of the Washington Territory and the Superintendent of Indian Affairs for Washington Territory explained to the present Yakama tribal members that:
We do not want you to agree not to get roots and berries and not to go off to the buffalo. We want you to have your roots and to get your berries, and to kill your game. We want you if you wish to mount your horses and go to the Buffalo plains, and we want more; we want you to have peace there.
There is plenty of Salmon on these Reservations, there are roots and berries, there is also some game. You will be near the great road and can take your horses and your cattle down the river and to the Sound to market. Though near to the great roads, you are a little off from them, and you will not be liable to be troubled by travelers passing through.
You will be allowed to pasture your animals on land not claimed or occupied by settlers, white men. You will be allowed to go on the roads to take your things to market, your horses and cattle. You will be allowed to go to the usual fishing places and fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites. All that outside the reservation.
Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1244 (E.D. Wash. 1997).
General Palmer added during the treaty proceedings:
My brother has stated that you will be permitted to travel the roads outside the reservation. We have some kind of roads which perhaps you have never seen. We may wish to make one of the roads from the settlements east of the mountain to our settlements here. They may desire to run that road through your reservation. If we desire to do so we wish that privilege. That kind of road we call a rail road. . . . Now if our chief desires to construct such a road through your country, we want you to agree that he shall have the privilege. You would have the benefit of it as well as the other people ... Now as we give you the privilege of traveling over roads, we want the privilege of making and traveling roads through your country, but whatever roads we make through your country will not be for your injury.
In this context, JC requests a ruling on whether goods imported by the Yakamas into Washington State by ground from Canada would be duty free under the Yakama Treaty.
Whether the Yakama Treaty exempts from customs duties merchandise imported by Yakama persons or entities into Washington State by ground from Canada.
LAW AND ANALYSIS:
Article 3 of the Yakama Treaty states:
And provided, That, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways.
The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory, and of erecting temporary buildings for curing them; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.
General note 1, Harmonized Tariff Schedule of the United States ("HTSUS"), provides, in part, that, "All goods provided for in this schedule and imported into the customs territory of the United States from outside thereof, ... are subject to duty or exempt therefrom as prescribed in general notes 3 through 29, inclusive." There is no exemption in the general notes that would provide an exemption from duty for goods imported by Native Americans.
Article I, Section VIII of the U.S. Constitution states, in relevant part:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, ... but all duties, imposts and excises shall be uniform throughout the United States; ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Article VI of the U.S. Constitution (Supremacy Clause) states, in pertinent part:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
In Farr Man & Co. v. United States, 4 CIT 55, 63, 544 F. Supp. 908, 914 (1982) (quoting Whitney v. Robertson, 124 U.S. 190, 193 (1888)), the Court of International Trade noted:
By the Constitution a Treaty is placed on the same footing, and made of like obligation with an Act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the Treaty on the subject is self executing.
Requestor cites to the recent Supreme Court case Wash. State Dep't of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019), in support of its claim that the Yakama Treaty exempts the Yakamas from payment of customs duties on merchandise when they import into Washington State by ground from Canada. However, unlike here, in Cougar Den, two federal laws (a treaty and a federal legislative act) were not at issue. Rather, in Cougar Den, the court considered the Yakama Treaty (a federal law) and a conflicting state law, and under the Supremacy Clause of the U.S. Constitution, federal law prevails over a conflicting state law.
In Cougar Den, the Supreme Court affirmed, by a vote of 5-4, in an opinion by Justice Breyer, that the right to travel provision of the Yakama Treaty pre-empted the Washington State's fuel tax as applied to importation of fuel by public highway for sale within the reservation. The court remarked that the state's fuel tax did not just tax possession or importation of fuel but taxed importation by ground transportation. The court explained that a statute that taxes possession or importation would require all people who bring a good into the state to pay a tax but the Washington statute was different because it singled out ground transportation. The court noted that the Yakama Treaty was federal law and preempted a conflicting state law, which restricted a treaty-protected right.
Congress has the power to regulate commerce with the Indian tribes. Under the Supremacy Clause of the U.S. Constitution, the Yakama Treaty and customs statutes have the same standing under the law. As an administrative agency, we have no authority to declare an enactment of Congress to be unconstitutional. The issue of whether the laws of Congress are constitutional is reserved to the courts.
Federal courts have interpreted the meaning of the right to travel provision under the Yakama Treaty of 1855 and we are bound by their interpretation. In Cree v. Flores, 157 F.3d 762, 767 (9th Cir. 1998), the court noted that, "To the Yakamas, travel was significant for many reasons, including trade, subsistence, and maintenance of religious and cultural practices." The court stated that the Yakama Treaty provided that the Yakamas might use public highways "in common with citizens of the United States" meaning "that the Yakamas could use the public highways together with citizens." Id. at 771. In Yakama Indian Nation, 955 F. Supp. at 1246, the court held that article III of the Yakama Treaty did not define the scope of the right to travel or the precise meaning of "in common with." In the Yakama language "those words would mean or suggest customary or public use, or open to everyone, such as open to general use without restrictions." Id. at 1247. "The Yakamas understood the term ... as common usage among Indians and non-Indians with no restrictions placed upon tribal members." Id. The Native Americans "retained the right to travel the public roads, on and off-reservation, and that right would be exercised 'in common with' non-Indians. In other words, both Indians and non-Indians would use the public roads simultaneously." Id.
The HTSUS became effective on January 1, 1989, and replaced the previous tariff schedules of the United States. The HTSUS is statutory law enacted by the Congress and is binding upon U.S. Customs and Border Protection ("CBP"). General note 1, HTSUS, provides that goods imported into the United States are subject to duty or exempt from duty as prescribed in general notes 3-29. There is no exemption in the general notes that would exempt from duty goods imported by Yakama tribe members or by Native Americans. We note that the HTSUS provides for duty exemptions under the special classification provisions set forth in chapter 98, HTSUS, which cover, for example, articles exported and used abroad, and returned temporarily to the U.S. for repairs and alteration, and goods advanced or improved abroad, if the conditions and requirements of a provision are met. However, requestor has not claimed a duty exemption under chapter 98 and has not presented supporting documentation showing that the conditions and requirements of a chapter 98 provision are met. Under these circumstances, the merchandise is presently not exempt from customs duties and fees.
Federal courts have traced the history of the Yakama Treaty and statutory tariff laws enacted by Congress, and have found that Native Americans are not exempt from customs duties. In United States v. Garrow, 24 C.C.P.A. 410, 88 F.2d 318 (1937), a Native American woman residing in Canada entered the United States carrying baskets for sale. The duty collector at the port imposed a duty under the Tariff Act of 1930. She claimed that the baskets were duty free under article III of the Treaty of Amity, Commerce, and Navigation concluded between the United States and Great Britain on November 19, 1794 (known as the Jay Treaty). Article III of the Jay Treaty carried into the tariff acts enacted from 1799 through 1894 and was repealed by the Tariff Act of
July 24, 1897. See Garrow, 24 C.P.P.A. at 412-15. Article III of the Jay Treaty was abrogated by the War of 1812 between the United States and Great Britain. The court held that "when a Treaty and a Statute are in conflict, that which is later in date prevails." Id. at 413. The court explained that "[i]n 1897, when a general revision of the import duty laws of the United States was undertaken, apparently there was a change in congressional policy, as the provision for the free entry of peltries and goods of Indians was omitted from that revision, and duties were generally imposed by various provisions of said act upon the goods herein involved." Id. at 419. The baskets were subject to customs duties under the Tariff Act of 1930 because there was neither a treaty nor a statutory exemption.
Also, in Akins v. United States, 64 C.C.P.A. 68, 72, 551 F.2d 1222, 1226 (1977), the court noted that after the war of 1812, Congress continued to include the Native American duty exemption in tariff legislation until 1897. Congress intended to terminate the exemption and the Congressional intent manifested in the Tariff Act of 1897. Since 1897, "no such exemption has been provided by statutes and duties have been enforced by customs officials." Akins, 64 C.C.P.A. at 73, 551 F.2d at 1226. The court further noted that, "the War of 1812 ended the right ... of bringing ... goods across the border into the United States without the payment of duty ... Although a measure of the equities lies with the Indians, we cannot revive the duty exemption which history and the law have firmly ended." Akins, 64 C.C.P.A. at 73, 75, 551 F.2d at 1228, 1230.
More recently, in Ramsey v United States, 302 F.3d 1074 (9th Cir. 2002), the court found that there was not express language in the Yakama Treaty to exempt Native Americans from federal heavy vehicle and diesel fuel taxes under the Internal Revenue Code (e.g., 26 U.S.C. 4041). The court noted that the "applicability of a federal tax to Indians depends on whether express exemptive language exists within the text of the statute or treaty." Id. at 1078. The court found that the Yakama Treaty did not contain "express exemptive language" to discern an intent to exempt the Native Americans from federal heavy vehicles and diesel fuel taxation. Id. The Yakama Treaty simply states that "free access from the [reservation] to the nearest public highway, is secured to [the Yakama]; as also the right, in common with citizens of the United States, to travel upon all public highways." Id. at 1080. The only exemptive language in the Treaty according to the court was the "free access" language. However, the court concluded that "free access" "does not modify the right to travel upon the public highways." Id. In addition, "[i]n common with" "does not express an intent to exempt the Yakama from taxes." Id. Absent express preemptive language, the federal heavy vehicle and diesel fuel taxes applied to the Yakamas.
Finally, we have located two customs rulings on point. In Headquarters' Ruling Letter ("HQ") 563136, dated Jan. 28, 2005, CBP concluded that since Congress removed tax exemptions for Indians by statute in 1897, absent the applicability of another preferential duty provision, goods shipped from Canada into the tribal land of St. Regis Band within the state of New York were subject to customs duties and fees. In
HQ 958766, dated Dec. 22, 1995, Customs concluded that the Jay Treaty, which provided for exemption from duties on goods belonging to Native Americans passing or repassing the borders of Canada and the United States, was abrogated in 1812 and unworked rubies and sapphires originating from China and imported from Canada by a member of the Chippewa Tribe of Lake Superior were subject to customs duties. Similarly, the Yakamas are subject to customs duties and fees because there is neither a treaty exemption nor a federal statutory exemption currently in place.
The Yakama Treaty does not exempt from customs duties and fees merchandise imported by Yakama tribe persons and entities into Washington State by ground from Canada. Absent the applicability of another preferential duty provision, such goods are subject to customs duties and fees.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed with a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Monika Brenner, Chief
Valuation and Special Programs Branch
 The basic edition of the 2019 HTSUS took effect on January 1, 2019.
 Article 3 of the Jay Treaty stated: "No duty of entry shall ever be levied by either party on peltries brought by land or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians."
 After the war of 1814, the United States and Great Britain ratified the Treaty of Peace and Amity, December 24, 1814, 8 Stat. 218 (1815) (known as the Treaty of Ghent).