Rogers County Board of Tax Roll Corrections v. Video Gaming…

                 Cite as: 592 U. S. ____ (2020)            1

                     THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
       ROGERS COUNTY BOARD OF TAX ROLL
          CORRECTIONS, ET AL. v. VIDEO
          GAMING TECHNOLOGIES, INC.
       ON PETITION FOR WRIT OF CERTIORARI TO THE
             SUPREME COURT OF OKLAHOMA
             No. 19–1298. Decided October 19, 2020

   The petition for a writ of certiorari is denied.
   JUSTICE THOMAS, dissenting from the denial of certiorari.
   Earlier this year, the Court “disregard[ed] the ‘well set-
tled’ approach required by our precedents” and transformed
half of Oklahoma into tribal land. McGirt v. Oklahoma, 591
U. S. ___, ___–___ (2020) (ROBERTS, C. J., dissenting) (slip
op., at 1–2). That decision “profoundly destabilized the gov-
ernance of eastern Oklahoma” and “create[d] significant
uncertainty” about basic government functions like “taxa-
tion.”

Ibid. The least we

could do now is mitigate some of
that uncertainty.
   This case presents a square conflict on an important
question: Does federal law silently pre-empt state laws as-
sessing taxes on ownership of electronic gambling equip-
ment when that equipment is located on tribal land but
owned by non-Indians? Here, the Oklahoma Supreme
Court said yes. But a few years earlier, the Second Circuit
said no. Mashantucket Pequot Tribe v. Ledyard, 

722 F.3d 457

(2013). This disagreement alone merits review.
   “[T]axes are the life-blood of government, and their
prompt and certain availability an imperious need.” Bull v.
United States, 

295 U.S. 247

, 259 (1935). By enjoining a tax
on ownership of property, the Oklahoma Supreme Court
has disrupted funding for schools, health departments, and
law enforcement. And although this case concerns only
electronic gambling equipment, it injects uncertainty about
2   ROGERS COUNTY BOARD OF TAX ROLL CORRECTIONS v.
           VIDEO GAMING TECHNOLOGIES, INC.
                  THOMAS, J., dissenting

whether state and local governments can tax the ownership
of many other kinds of property located on millions of acres
of now-tribal land. The sooner localities in Oklahoma re-
ceive a clear answer, the sooner they can plan accordingly
and avoid serious funding shortfalls.
   This case also presents an opportunity to clear up tension
among courts about how to apply pre-emption principles at
the intersection of federal law, state law, and tribal land.
This Court has created a “flexible” test for evaluating
whether federal law implicitly pre-empts state taxation of
non-Indians on tribal land. Cotton Petroleum Corp. v. New
Mexico, 

490 U.S. 163

, 176 (1989). But our “flexible” test
has provided little guidance other than that courts should
balance federal, tribal, and state interests. White Mountain
Apache Tribe v. Bracker, 

448 U.S. 136

, 142, 144–145
(1980). This vague test is no prescription for the “certain
availability” of tax revenue. 

Bull, 295 U.S., at 259

.
   Because the Court declines to take up this case, geo-
graphical happenstance will continue to play an outsized
role in a State’s ability to raise revenues, and pre-emption
law will remain amorphous. “The State of Oklahoma de-
serves more respect under our Constitution’s federal sys-
tem” than we give it today. McGirt, 591 U. S., at ___
(THOMAS, J., dissenting) (slip op., at 4). I respectfully dis-
sent from the Court’s decision to deny certiorari.
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