546US1
Unit: $U11
[08-22-08 15:19:53] PAGES PGT: OPIN
Cite as: 546 U. S. 95 (2005)
125
Ginsburg, J., dissenting
imposed on non-Indians, but impacting on-reservation ven tures. The one the Court adopts inevitably means, so long as the State officially places the burden on the non-Indian distributor in cases of this order, the Tribe loses. Faute de mieux and absent congressional instruction otherwise, I would adhere to precedent calling for “a particularized in quiry into the nature of the state, federal, and tribal inter ests at stake.” Bracker, 448 U. S., at 145. II I turn to the question whether the Court of Appeals cor rectly balanced the competing interests in this case. Kansas and the Nation both assert a substantial interest in using their respective fuel taxes to raise revenue for road mainte nance. Weighing competing state and tribal interests in raising revenue for public works, Colville observed: “While the Tribes do have an interest in raising reve nues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services.” 447 U. S., at 156–157. In Colville, it was “painfully apparent” that outsiders had no reason to travel to Indian reservations to buy cigarettes other than the bargain prices tribal smokeshops charged by virtue of their claimed exemption from state taxation. Id., at 154–155. The Court upheld the State of Washington’s taxes on cigarette purchases by nonmembers at tribal smokeshops. No “principl[e] of federal Indian law,” the Court said, “authorize[s] Indian tribes . . . to market an ex emption from state taxation to persons who would normally do their business elewhere.” Id., at 155.
