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

v. State Dept. of Revenue, 266 Kan. 464, 474, 970 P. 2d 60, 67 (1998).6 Kansas is mistaken, however, regarding the legal signiﬁ­ cance of this shift. Chickasaw Nation clariﬁed only that a State could shift the legal incidence to non-Indians so as to avoid the categorical bar applicable when a state excise tax is imposed directly on a tribe or tribal members for on­ reservation activity. 515 U. S., at 460. At the same time, Chickasaw Nation indicated that a shift in the legal inci­ dence of the kind Kansas has legislated would trigger—not foreclose—interest balancing. Ibid.7 Kansas and the Court heavily rely upon Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973) (Mescalero I). That case involved a ski resort operated by the Mescalero Apache Tribe on off-reservation land leased from the Federal Gov­ ernment. This Court upheld New Mexico’s imposition of a tax on the gross receipts of the resort. Balancing was not in order, the Court explained, because the Tribe had ventured outside its own domain, and was fairly treated, for gross re­ ceipts purposes, just as a non-Indian enterprise would be. In such cases, the Court observed, an express-preemption standard is appropriately applied. As the Court put it: “Absent express federal law to the contrary, Indians going 6

As earlier observed, supra, at 119, Kansas retained the opening decla­ ration that the tax “is hereby imposed on the use, sale or delivery of all motor vehicle fuels. . . used, sold or delivered in this state for any purpose whatsover.” Kan. Stat. Ann. § 79–3408(a) (2003 Cum. Supp.). 7 The only “bright-line standard” Chickasaw Nation advanced is the cat­ egorical bar on tolls imposed directly on tribes or their members. 515 U. S., at 460. No doubt a tribal retailer may ﬁnd an upstream state tax on its suppliers less burdensome than a downstream tax on its consumers. See ante, at 111, n. 5. But administrative ease is hardly the dispositive consideration. The Court has never limited interest balancing to state taxes imposed on the non-Indian consumers of tribal enterprises; it has also applied this approach to state regulation of the non-Indian suppliers of tribal enterprises. See, e. g., Department of Taxation and Finance of N. Y. v. Milhelm Attea & Bros., 512 U. S. 61, 73–75 (1994).