546US1
126
Unit: $U11
[08-22-08 15:19:53] PAGES PGT: OPIN
WAGNON v. PRAIRIE BAND POTAWATOMI NATION Ginsburg, J., dissenting
This case, as the Court of Appeals recognized, bears scant resemblance to Colville. “[I]n stark contrast to the smoke shops in Colville,” the Nation here is not using its asserted exemption from state taxation to lure non-Indians onto its reservation. 379 F. 3d, at 985. The Nation Station is not visible from the state highway, and it advertises no exemp tion from the State’s fuel tax. Including the Nation’s tax, the Nation Station sells fuel “ ‘within 2¢ per gallon of the price prevailing in the local market.’ ” Id., at 982 (quoting the Nation’s expert’s report); see also App. 36–40.10 The Nation Station’s draw, therefore, is neither price nor prox imity to the highway; rather, the Nation Station operates almost exclusively as an amenity for people driving to and from the casino. The Tenth Circuit regarded as valuable to its assessment the opinion of the Nation’s expert, which concluded: “ ‘[T]he Tribal and State taxes are mutually exclusive and only one can be collected without reducing the [Nation Station’s] fuel business to virtually zero.’ ” 379 F. 3d, at 986. Kansas “submitted [no] contradictory evidence” and did not argue that the expert opinion offered by the Nation was “either incorrect or exaggerated.” Ibid.11 In this respect, the case 10 Tribes, it should be plain, cannot prevail in the interest-balancing anal ysis simply because they tax the same product or activity that the State seeks to tax. See Washington v. Confederated Tribes of Colville Reser vation, 447 U. S. 134, 156 (1980). Otherwise, “the Tribes could impose a nominal tax and open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing custom from surrounding areas.” Id., at 155; see infra, at 130. 11 At oral argument, it was suggested that the Nation Station might pass on both taxes to its customers if it were willing to forgo some of its profits. Tr. of Oral Arg. 3–6, 25–27, 48–50. This speculation apparently did not take account of the opinion and explanation of the Nation’s expert, which stands uncontradicted in the record developed in the lower courts. More over, the Nation’s counsel informed the Court: “[T]he [T]ribe is being forced right now to subsidize the sales at the [Nation S]tation at a loss, which it’s doing for the balance of this litigation.” Id., at 25; cf. ante, at 114–115.
