In May, the American Indian Law Journal, operated by the Seattle University School of Law, published an article co-authored by Professor Tom McClure and his son Bill, an attorney practicing in Tacoma, Washington. Unlike most law journal articles, this piece combines legal analyses with social science research.

The essay, “Rebalancing Bracker Forty Years Later,” examines 40 years of federal and state courts’ application of the balancing test formulated by the United States Supreme Court in White Mountain Apache v. Bracker.  The balancing test is used by courts to determine whether a state tax is preempted when assessed against a non-Indian on tribal land.

The McClures initially chronicle the history and progression of the Bracker balancing test in the Supreme Court. Next, they cross-tabulate judicial findings of no preemption in 59 lower court decisions with key characteristics of all lower court state taxation decisions that cite Bracker. Third, using regression analyses, they find that 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, they identify inconsistent outcomes generated by lower courts in their application of the Bracker balancing test. Finally, the authors present 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.

Last year, two dissenting Supreme Court Justices criticized the Bracker test. Chief Justice John Roberts described the Bracker balancing test as “a nebulous balancing test,” which lacks rigidity and “mires state efforts to regulate on reservation lands in significant uncertainty, guaranteeing that many efforts will be deemed permissible only after extensive litigation, if at all.” Justice Clarence Thomas concluded that until the Supreme Court reassesses the Bracker test “pre-emption law will remain amorphous.”

The McClures expect that the Supreme Court will take up this issue this decade. As measured by the downloads of this article, this piece appears to be popular to attorneys who specialize in tribal law.