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WAGNON v. PRAIRIE BAND POTAWATOMI NATION Opinion of the Court

motor fuel, Kan. Stat. Ann. § 79–3408 (2003 Cum. Supp.),1 and pass along the cost of that tax to their customers, including the Nation.2 The Nation sells its fuel within 2 cents per gallon of the prevailing market price. Prairie Band Potawatomi Nation v. Richards, 379 F. 3d 979, 982 (CA10 2004). It does so not­ withstanding the distributor’s decision to pass along the cost of the State’s fuel tax to the Nation, and the Nation’s decision to impose its own tax on the station’s fuel sales in the amount of 16 cents per gallon of gasoline and 18 cents per gallon of diesel (increased to 20 cents for gasoline and 22 cents for diesel in January 2003). Ibid. The Nation’s fuel tax gener­ ates approximately $300,000 annually, funds that the Nation uses for “ ‘constructing and maintaining roads, bridges and rights-of-way located on or near the Reservation,’ ” including the access road between the state-funded highway and the casino. Ibid. The Nation brought an action in Federal District Court for declaratory judgment and injunctive relief from the State’s collection of motor fuel tax from distributors who deliver fuel to the reservation. The District Court granted summary judgment in favor of the State. Applying the Bracker interest-balancing test, it determined that the balance of state, federal, and tribal interests tilted in favor of the State. The court reached this determination because “it is undis­ puted that the legal incidence of the tax is directed off­ reservation at the fuel distributors,” Prairie Band Potawa­ tomi Nation v. Richards, 241 F. Supp. 2d 1295, 1311 (Kan. 1 The Kansas Legislature recently amended the fuel tax statute. 2005 Kan. Sess. Laws ch. 46. The text of the sections to which we refer re­ mains the same, although the subsection numbers have changed. For con­ sistency, our subsection references are to the 2003 version applied by the lower courts and cited by the parties. 2 The record does not clearly establish whether the distributor passed along the cost of the tax to the Nation’s gas station. At oral argument, petitioner acknowledged that the record was unclear, but represented that the distributor was in fact passing along the cost of the tax to the Nation.