This Article examines forty years of federal and state courts’ application of the Bracker balancing test, which considers whether a state tax is preempted when assessed against a non-Indian on tribal land. First, this Article chronicles the history and progression of the Bracker balancing test in the Supreme Court. Second, this Article cross-tabulates judicial findings of no preemption with key characteristics of all lower court state taxation decisions that cite Bracker. Third, this Article reports the results of regression analyses that reveal lower courts were less likely to find preemption of cigarette taxes, more likely to find state fuel taxes were preempted, and that other key case characteristics were not significantly associated with preemption. Fourth, this Article identifies the inconsistent outcomes generated by lower courts in their application of the Bracker balancing test. Fifth, this Article presents ways in which the judiciary can revise and clarify the Bracker balancing test, in the hope of providing greater predictability and producing uniformity in the lower courts.
McClure, William and McClure, Thomas E.
"Rebalancing Bracker Forty Years Later,"
American Indian Law Journal: Vol. 9
, Article 6.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol9/iss2/6