The US Supreme Court continued the November term, hearing oral arguments in one case concerning Indian tribal rights and a second regarding a criminal defendant’s right to appeal after guilty plea.

The first case, Washington State Department of Licensing v. Cougar Den Inc., asks the court to determine whether a 2006 state tax imposed on fuel importation violates the 1855 treaty that guarantees Indian tribes the ability to freely transport good to the market, just as they had always done. The petitioner, the Department of Licensing, sued Cougar Den, owned by Yakama tribal citizen Kip Ramsey, in 2013 after it learned that Cougar Den was transporting gasoline from Oregon to the Yakama reservation gas stations in Washington without paying the 2006 import tax.

Before the Supreme Court, the petitioner argued that the tax does not violate the treaty because it does not tax the use of highways or the travel itself, only the goods purchased and transported to the reservation. The court struck back with concerns that the tax takes away the very right that the tribes bargained for in 1855 when signing the treaty. Justice Brett Kavanaugh summed up the arguments, saying:

[T]hey 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 reservation. … But the effect was that, in taking your goods to market, which was the promise, in exchange for a huge area of land, 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. … [T]his burdens substantially their ability to take goods to market.

The US argued in support of the petitioner’s argument, saying the treaty protects: “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.”

Cougar responded to the arguments, saying the treaty pre-empts the tax on fuel because the tax is meant to tax Indians: “[W]hen Respondent transports fuel, it exercises the right to travel secured by the Yakama treaty. As such, it has … the right to do that without incurring a tax obligation, regardless of whether this tax is styled as one on possession or transportation.”

The second case the court heard was Garza v. Idaho, which asks the court whether a presumption of prejudice applies, “where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?”

The case arose when the petitioner, a criminal defendant, pleaded guilty and still asked his counsel to appeal. Before the Supreme Court, the petitioner argued that based on court precedent, “where a defendant pleads guilty and instructs his trial counsel to notice an appeal, disregarding that instruction renders ineffective assistance in which prejudice is presumed.” One problem the petitioner rebutted was the fact that pleading guilty waives many issues that are permitted to be raised on appeal. Regardless, petitioner said that precedent supports his argument because counsel’s “disregard for the instruction to notice of an appeal forfeits the entire direct appeal and because the attorney then usurps a fundamental decision that rests with the client alone.”

The respondent pushed back, saying that in signing the plea agreement, Garza waived the process of an appeal, rather than an issue to raise on appeal:

The plea agreement in this case that was signed by Mr. Garza contains many provisions.  Some of those provisions include that he would plead guilty to certain charges, that the State would not then bring … other charges and would dismiss an enhancement. Mr. Garza agreed to the particular sentence he would receive.

The court must now determine whether Gilberto Garza was prejudiced by his lawyer’s failure to appeal or whether Garza has to show that he was prejudiced by indicating what issues he would have raised had he appealed. The Supreme Court of Idaho agreed with the lower courts that Garza’s counsel was not ineffective in failing to appeal.