The opinion
GUILFORD, District Judge,
concurring in the judgment:
I concur in the result.
This case requires us to determine if a tax imposed on certain economic activity of the Tribes of the Yakama Nation creates a “legal incidence” upon the Tribes. The impact of various forms of taxation on a people has been apparent throughout our country’s history, going back at least to when American patriots — ironically dressed as Indians — threw tea into Boston Harbor. The burden of taxation was the fuel in the fire of freedom ignited by our country’s founders, and that burden continues to be a powerful factor in today’s politics.
In this case, the tax burden must be analyzed through the prism of the “legal incidence” test, which often focuses on the issue of whether the tax can be passed through or passed along to others. An economist reviewing this “pass through” issue would analyze the demand elasticity for the product being taxed. In further review of the burden of taxation, an economist, aware of the negative slope of demand curves, would conclude that increasing the price of a product through a tax necessarily will decrease sales volume. And in comparing the impact of immediate cash payments with deferred payments, an economist would review interests rates and the time value of money. But as the majority opinion recognizes, economic analysis of the burdens of taxation has been forbidden in reviewing “legal incidence.” In Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 459-60 , 115 S.Ct. 2214 , 132 L.Ed.2d 400 (1995), the Supreme Court analyzed “legal incidence” while rejecting guidance from what it called the “more venturesome approach” involving economic reality, stating:
If we were to make “economic reality” our guide, we might be obliged to consider, for example, how completely retailers can pass along tax increases without sacrificing sales volume — a complicated matter dependent on the characteristics of the market for the relevant product.
Indians in the Tribes of the Yakama Nation might well wonder how the analysis of what courts call “legal incidence” can be done without reviewing the economic reality of the tax burden on them. And here, a review of these economic realities likely would reveal that the tax at issue imposes an economic burden on Indians in the Yakama Nation. But the law requires an analysis through a prism that blocks economic reality. Thus, following Supreme Court authority, without the guidance of economic reality, I must concur with the majority’s opinion. Apart from economic reality, the provisions of the Revised Code of Washington §§ 82.24 et seq. are not materially different from those upheld in Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 , 100 S.Ct. 2069 , 65 L.Ed.2d 10 (1980), and they follow established principles of Indian tax immunity. Thus, I concur in the judgment.