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WAGNON v. PRAIRIE BAND POTAWATOMI NATION Ginsburg, J., dissenting
the tax is imposed. As earlier explained, see supra, at 119– 120, the tax is in reality imposed only on fuel actually resold by the distributor to an in-state nonexempt purchaser. Here, that purchaser is the Nation Station, plainly an on reservation venture.9 Balancing tests have been criticized as rudderless, afford ing insufficient guidance to decisionmakers. See Colville, 447 U. S., at 176 (Rehnquist, J., concurring in part, concur ring in result in part, and dissenting in part) (criticizing the “case-by-case litigation which has plagued this area of the law”); Brief for Petitioner 30–32. Pointed as the criticism may be, one must ask, as in life’s choices generally, what is the alternative. “The principle of tribal self-government, grounded in notions of inherent sovereignty and in congres sional policies, seeks an accommodation between the inter ests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” Colville, 447 U. S., at 156. No “bright-line” test is capable of achieving such an accommodation with respect to state taxes formally 9 At the Court of Appeals level, the Nation presented no “starkly differ ent interpretation of the statute.” Ante, at 105. This Court, in citing Appellant’s Reply Brief in No. 03–3218 (CA10), p. 3, to the contrary, appar ently failed to read on. At page 12, the Reply Brief states: “The fact that the state tax is technically imposed off-reservation on a non-Indian is not controlling. The state tax is directed at and burdens reservation value.” Moreover, it is surely putting words in the Nation’s mouth to assert that “[u]nder the Nation’s view . . . any off-reservation tax imposed on the manu facture or sale of any good imported by the Nation or one of its members would be subject to interest balancing.” Ante, at 114. The Nation itself expressly “does not contend . . . that a non-discriminatory, off-reservation state tax of general applicability may be precluded simply because the tax has an adverse economic impact on a Tribe or its members.” Brief for Respondent 1. As the Nation points out and the Court of Appeals com prehended, “the actual issue presented here [is] the permissibility of a state tax that effectively nullifies a Tribe’s power to impose a comparable tax on fuel sold at market price by a tribally owned, on-reservation gas station.” Ibid. (emphasis in original); see Prairie Band Potawatomi Na tion v. Richards, 379 F. 3d 979, 986 (CA10 2004).
