546US1
Unit: $U11
[08-22-08 15:19:53] PAGES PGT: OPIN
Cite as: 546 U. S. 95 (2005)
123
Ginsburg, J., dissenting
beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Id., at 148–149. Accord Chick asaw Nation, 515 U. S., at 462–465 (State permitted to tax income of tribal members residing outside Indian country). Cases of the Mescalero I kind, however, do not touch and concern what is at issue in the instant case: taxes for mally imposed on nonmembers that nonetheless burden on reservation tribal activity. Conceding that “we have never addressed th[e] precise issue” this case poses, the Court asserts that “our Indian tax immunity cases counsel against” application of the Bracker interest-balancing test to Kansas’ fuel tax as it impacts on the Nation Station. Ante, at 110. The Court so maintains on the ground that the Kansas fuel tax is imposed on a nonIndian and is unrelated to activity “on the reservation.” Ante, at 110–113. As earlier explained, see supra, at 121, one can demur to the assertion that the legal incidence of the tax falls on the distributor, a nontribal entity. With re spect to sales and deliveries to the Nation Station, however, the nontribal entity can indeed be described as “engaged in [an on-reservation] transaction with [a tribe].” Arizona Dept. of Revenue v. Blaze Constr. Co., 526 U. S. 32, 37 (1999). The reservation destination of fuel purchased by the Na tion Station does not show the requisite engagement, in the Court’s view, but I do not comprehend why. The destination of the fuel counts not only under § 79–3408(a) (2003 Cum. Supp.) (fuel tax “is hereby imposed on . . . all motor vehicle fuels . . . used, sold or delivered in this state”).8 To whom and where the distributor sells are the criteria that deter mine the “transactions” on which “[n]o tax is . . . imposed,” § 79–3408(d), and, correspondingly, the transactions on which 8 Because § 79–3408(a) (2003 Cum. Supp.) does not aid the Court’s theory that the State’s tax operates entirely off reservation, the Court essentially reads the provision out of the statute, or treats it as harmless surplus. See ante, at 107.
