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WAGNON v. PRAIRIE BAND POTAWATOMI NATION Ginsburg, J., dissenting

“the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber,” and the state ofﬁcials were “unable to justify the taxes except in terms of a generalized interest in raising revenue.” 448 U. S., at 151. The Court has repeatedly applied the interest-balancing approach described in Bracker in evaluating claims that state taxes levied on non-Indians should be preempted be­ cause they undermine tribal and federal interests.2 In many cases, both pre- and post-Bracker, a balancing analysis has yielded a decision upholding application of the state tax in question. See, e. g., Cotton Petroleum Corp. v. New Mex­ ico, 490 U. S. 163, 183–187 (1989) (State permitted to impose a severance tax on a non-Indian company that leased tribal land for oil and gas production); Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 154–159 (1980) (State permitted to tax non-Indians’ purchases of cigarettes from on-reservation tribal retailers); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 481–483 (1976) (same). Sometimes, however, par­ ticularized inquiry has resulted in a holding that federal or tribal interests are superior. See, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U. S. 832, 843–846 (1982) (State prohibited from imposing gross­ receipts tax on a non-Indian contractor constructing an on­ reservation tribal school). Kansas contends that the interest-balancing approach is not suitably employed to assess its fuel tax for these reasons: (1) The Kansas Legislature imposed the legal incidence of 2

The Court has also applied the interest-balancing approach to other forms of state regulation relating to Indian tribal societies. See, e. g., California v. Cabazon Band of Mission Indians, 480 U. S. 202, 216–217 (1987) (State prohibited from regulating non-Indian customers of tribal bingo operation); New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 333–343 (1983) (Mescalero II) (State barred from enforcing game laws against non-Indians for on-reservation hunting and ﬁshing).