Litigation involving the state taxation of Indian tribes and associated activities performed on Indian lands has grown in recent years given the increase in the number and scope of for-profit transactions engaged in by Indian tribes and non-Indian businesses. The proliferation of casinos on Indian reservations is a high-profile example of new economic development initiatives performed on Indian lands. Arrangements involving non-casino entertainment facilities and resource extraction have also become prevalent. With the additional economic development occurring on tribal lands, states are likely to concentrate their efforts in maximizing revenue through the taxation of these activities, even though it is often difficult to discern whether a transaction that is associated with tribal lands may be taxed.

Following the Court of Appeals' decision, the Tribe requested rehearing by the full court of the utility tax decision, which motion was denied. 22 Following the denial, the Tribe requested review by the U.S. Supreme Court, and its application for certiorari is currently under consideration. 23 If certiorari is granted, a substantive decision in this area would prove interesting to those impacted by the interplay of state taxation and Indian law.

Based on the Court of Appeals' holding, it stands to reason that whether a tax affecting land provided to Indians pursuant to Sec. 465 is precluded under the terms of the statute depends, at least in part, on whether the tax is determined to be impermissible taxation of land or a right in land or permissible taxation of economic activity or tangible property. Notably, the Court of Appeals drew a distinction between taxation of a right in land – impermissible under Sec. 465 – and permissible taxation of economic activity or tangible property "removed by one or more degrees from the land." Taxation of the ability to lease and taxation of use of materials as permanent improvements constitute impermissible taxation of a right in land under the Court of Appeals' holding and Mescalero, respectively. Taxation of sales receipts constitutes permissible taxation of economic activity under Mescalero. Additionally, the Court implied in this decision that taxation of oil and gas production may constitute permissible taxation of economic activity on tangible property, under the theory that such activity is removed by at least one degree from the land.