546US1
116
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WAGNON v. PRAIRIE BAND POTAWATOMI NATION Ginsburg, J., dissenting
Justice Ginsburg, with whom Justice Kennedy joins, dissenting. The Kansas fuel tax at issue is imposed on distributors, passed on to retailers, and ultimately paid by gas station customers. Out-of-state sales are exempt, as are sales to other distributors, the United States, and U. S. Government contractors. Fuel lost or destroyed, and thus not sold, is also exempt. But no statutory exception attends sales to Indian tribes or their members. Kan. Stat. Ann. §§ 79–3408; 79–3409; 79–3417 (1997 and 2003 Cum. Supp.). The Prairie Band Potawatomi Nation (hereinafter Nation) maintains a casino and related facilities on its reservation. On nearby tribal land, as an adjunct to its casino, the Nation built, owns, and operates a gas station known as the Nation Station. Some 73% of the Nation Station’s customers are casino patrons or employees. Prairie Band Potawatomi Nation v. Richards, 379 F. 3d 979, 982 (CA10 2004). The Nation imposes its own tax on fuel sold at the Nation Sta tion, pennies per gallon less than Kansas’ tax. Ibid.1 Both the Nation and the State have authority to tax fuel sales at the Nation Station. See Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137 (1982) (describing “[t]he power to tax [as] an essential attribute of Indian sover eignty[,] . . . a necessary instrument of self-government and territorial management,” which “enables a tribal govern ment to raise revenues for its essential services”). As a practical matter, however, the two tolls cannot coexist. 379 F. 3d, at 986. If the Nation imposes its tax on top of Kansas’ tax, then unless the Nation operates the Nation Station at a substantial loss, scarcely anyone will fill up at its pumps. Effectively double-taxed, the Nation Station must operate as an unprofitable venture, or not at all. In these circum 1 The Federal Government also imposes a tax on the “removal, entry, or sale” of all motor fuel. 26 U. S. C. § 4081(a)(1). Neither the State nor the Nation contests the applicability of this tax to fuel destined for the Nation Station.
