546US1
Unit: $U11
[08-22-08 15:19:52] PAGES PGT: OPIN
Cite as: 546 U. S. 95 (2005)
105
Opinion of the Court
Kaul does not foreclose our determination that the distrib utor bears the legal incidence of the Kansas motor fuel tax. As an initial matter, it is unclear whether the court’s refer ence to “nontribal members” is a reference to the non-tribal member retailers or the non-tribal-member distributors. At the very least, Kaul’s imprecise language cannot be charac terized as a definitive determination. Moreover, the 1998 amendments to the Kansas fuel provisions, including the amendment to § 79–3408(c) that provides that “the incidence of this tax is imposed on the distributor,” were not applied in Kaul. Id., at 473, 970 P. 2d, at 66 (identifying provisions that were repealed in 1998 as being “in effect during the period relevant to this case”); id., at 474, 970 P. 2d, at 67 (noting that a “critical statute” to its holding was the 1995 version of § 79–3409, which was amended in 1998). Accord ingly, Kaul did not speak authoritatively on the provisions before us today. B The Nation maintains that we must apply the Bracker interest-balancing test, irrespective of the identity of the taxpayer (i. e., the party bearing the legal incidence), be cause the Kansas fuel tax arises as a result of the on reservation sale and delivery of the motor fuel. See Brief for Respondent 15. Notably, however, the Nation presented a starkly different interpretation of the statute in the pro ceedings before the Court of Appeals, arguing that “[t]he balancing test is appropriate even though the legal incidence of the tax is imposed on the Nation’s non-Indian distributor and is triggered by the distributor’s receipt of fuel outside the reservation.” Appellant’s Reply Brief in No. 03–3218 (CA10), p. 3 (emphasis added); see also 241 F. Supp. 2d, at 1311 (District Court observing that “it is undisputed that the legal incidence of the tax is directed off-reservation at the fuel distributors”). A “fair interpretation of the taxing stat ute as written and applied,” Chemehuevi Tribe, 474 U. S., at
