Hammond

We must decide whether Indian tribes have sovereign immunity from an Idaho state tax on motor fuel delivered by non-tribal distributors to tribally-owned gas stations for sale on Indian reservations. The Supreme Court of Idaho ruled in 2001 that the incidence of essentially the same tax fell impermissibly on the Indian tribes, and that Congress had not through the *679 Hayden-Cartwright Act authorized states to abrogate the Indian tribes’ sovereign immunity from taxation on the fuel sold on their reservations. After this state court ruling became final, the Idaho legislature attempted to modify the impact of the state court ruling by amending the tax law to provide expressly that the incidence of the Idaho state tax falls on the non-tribal distributors, not on the tribes who owned the retail gas stations located on the tribes’ reservations. The tribes sued the Idaho State Tax Commissioners (“Commissioners”) in federal district court to enjoin them from collecting the motor fuels tax. Notwithstanding the legislative amendment, the district court reached the same conclusion that the Supreme Court of Idaho had reached, that the incidence of the tax fell on the tribes and that…

dissenting:

I respectfully dissent.

In my view', the Hayden-Cartwright Act expressly authorizes the tax at issue because it permits the state to impose the tax regardless of its incidence. The Act renders unnecessary the majority’s highly indeterminate analysis of where the incidence of the tax falls.

That Act generally enables states to tax sales of fuel by or through “filling stations [and] licensed traders ... located on United States military or other reservations.” 1 If “military or other reservations” includes Indian reservations, the Act authorizes the tax. The Supreme Court identified the precise issue of whether “reservations” includes Indian reservations, and expressly avoided resolving it. 2 I would now answer that question in the affirmative.

There are two reasons that Indian reservations are “reservations” for purposes of the statute. First, it says so. It explicitly covers “reservations” and does not limit its coverage to military reservations. Black’s Law Dictionary defines “reservation” as “[a] tract of public land set aside for a special purpose; esp., a tract of land set aside for use by an American Indian tribe.” 3 The Supreme Court says that “[t]he word is…