Whether the Ninth Circuit erred in holding that the Yakama Treaty must include 'express exemptive language' to create an exemption from a federal tax or fee

QUESTIONS PRESENTED Although exemptions to tax laws should be express, that tax canon is not dispositive if the words of an Indian treaty or statute “are susceptible of a more extended meaning than their plain import.” Squire v. Capoeman, 351 U.S. 1, 7 (1956) (quotations omitted). Despite Capoeman, the circuit courts are split as to the standard for determining whether a treaty creates a federal tax exemption. In the Ninth Circuit, an Indian treaty must include “express exemptive language” (also referred to as “a definitely expressed exemption”) to exempt Indians from a federal tax or fee. Pet. App. 27a, 86a. In the Third, Eighth and Tenth Circuits, however, an exemption will be found — even if not “definitely expressed” — if the treaty can reasonably be construed to confer an exemption. The issues presented are: 1. Whether the Ninth Circuit erred in holding that the Yakama Treaty must include “express exemptive language” to create an exemption from a federal tax or fee. 2. Whether the Ninth Circuit erred in holding that the federal tobacco excise tax, 26 U.S.C. § 57015703, and the Fair and Equitable Tobacco Reform Act (““FETRA”), 7 U.S.C. § 518-519, apply to the Yakama Indians even though (1) the Yakama Treaty creates a right to travel in order to protect the Yakama Indians’ ability to trade and (2) these taxes and fees are triggered by the transport of goods — rather than by sale or manufacture.