John Paul Stevens

“ The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government-that it exists primarily to provide for the common good.' Carmichael v. ”

“ Turning to the question whether the state taxes were inconsistent with the federal interest in fostering the economic development of Indian tribes, the district court found that the "economic and legal burden of paying the state taxes falls on Cotton or its buyers" and that " [n] o economic burden falls on the tribe by virtue of the state taxes." Id., at 15. More specifically, it found that the state taxes had not affected the Tribe's ability to collect its taxes or to impose a higher tax, and had "not in any way deterred production of oil and gas" on the reservation. ”

“ It is, of course, true that the total taxes paid by Cotton are higher than those paid by off-reservation producers. But neither the State nor the Tribe imposes a discriminatory tax. The burdensome consequence is entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction. As we noted in Merrion, the tribal tax does "not treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation." ”

“ There is nothing remarkable in the proposition that, in authorizing mineral leases, Congress sought to provide Indian tribes with a profitable source of revenue. It is however quite remarkable, indeed unfathomable in our view, to suggest that Congress intended to remove all state-imposed obstacles to profitability by attaching to the Senate and House Reports a letter from the Secretary that happened to include the phrase "the greatest return from their property." ”

“ Cotton also argues that New Mexico's severance taxes-"insofar as they are imposed without allocation or apportionment on top of Jicarilla Apache tribal taxes"-impose "an unlawful multiple tax burden on interstate commerce." Brief for Appellants 33. In support of this argument, Cotton relies on three facts: (1) that the State and the Tribe tax the same activity; (2) that the total tax burden on Cotton is higher than the burden on its off-reservation competitors who pay no tribal tax ”

“ As we pointed out in the Merrion footnote, see n. 5, supra, a multiple taxation issue may arise when more than one State attempts to tax the same activity. If a unitary business derives income from several States, each State may only tax the portion of that income that is attributable to activity within its borders. ”

“ The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause. ”

“ States with mutually exclusive territorial jurisdiction to trade "with" Indian tribes.
Accordingly, we have no occasion to modify our comment on this question in the Bracker case:
"Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other." ”

“ Congress first authorized mineral leasing on Indian lands in 1891. See Act of Feb. 28, 1891, § 3, 26 Stat. 795, 25 U.S.C. § 397 (1891 Act) . That legislation, which empowered tribes to enter into grazing and mining leases, only applied to lands "occupied by Indians who have bought and paid for the same," and was thus interpreted to be inapplicable to Executive Order reservations. See British-American Oil Producin Co. v. Board of Equalization of Montana, 299 U.S. 159, 161-162, 164, 57 S.Ct. ”

“ Second, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer-or by those living in the community where the taxpayer is located-must equal the amount of its tax obligations. ”

“ Montana, 453 U.S., at 617, 101 S.Ct., at 2953 (noting that because the taxed activity took place exclusively within Montana-although much of it on federal lands within the State-no nexus or apportionment problem existed) . Unless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases. ”

“ Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973) ) . As a result, questions of pre-emption in this area are not resolved by reference to standards of pre-emption that have developed in other areas of the law, and are not controlled by "mechanical or absolute conceptions of state or tribal sovereignty." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 665 (1980) . Instead, we have applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved. ”