Mescalero Apache Tribe v. O'cheskey

I join in Chief Judge Seth’s opinion, but write separately to point out certain controlling distinctions between this case and Merrion v. J¡carilla Apache Tribe, 617 F.2d 537 (10th Cir., 1980), treating an Indian tribe’s power to tax.

In my view, at issue in this case is a question we did not address in Merrion —“whether the state’s tax interferes with the federal interest in regulating the affairs of the Indians,” id. at 546 (emphasis in original), in violation of the Indian Commerce Clause, art. I, § 8, cl. 3, of the United States Constitution. To answer this question it is necessary to…