(dissenting). I dissent because I believe that federal law preempts the State of Wisconsin from taxing the income John Anderson earned from educational activities on the Lac Courte Oreilles reservation. Anderson is an enrolled member of the tribe who lives off the reservation. He has served tribal education as a high school guidance counselor, public information officer for the elementary and high *277schools, director of education for the tribe, and president of the Lac Courte Oreilles Community College.
As the majority states, when analyzing state taxation of income earned on a reservation, the United States Supreme Court has established a preemption analysis distinct from that applied in other areas of the law. In each case, the court must conduct a "particularized examination of the relevant state, federal, and tribal interests." Cotton Petroleum Corp. v. New Mexico, 109 S. Ct. 1698, 1707 (1989) (quoting Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 838 (1982)). Determining whether federal law preempts state taxation "is primarily an exercise in examining congressional intent." Cotton, 109 S. Ct. at 1707. In examining the relevant federal statutes and treaties, the court must recognize the tradition of tribal sovereignty and the broad policy of promoting tribal independence and development. Moreover, preemption is not limited to situations in which Congress has expressly stated its intent to preempt state activity; the court may find implied Congressional preemption. Ambiguities in federal law are "resolved in favor of tribal independence." Cotton, 109 S. Ct. at 1707. In sum, "the relevant preemption test is a flexible one sensitive to the particular state, federal, and tribal interests involved." Cotton, 109 S. Ct. at 1711.
The Supreme Court's decisions applying this case-by-case preemption analysis provide uncertain guidance to state and federal courts. One commentator described Supreme Court Indian law decisions as "a chaotic lot" and critiqued the decisions concerning Congress's preemption of state taxation as follows:
[The Court] requires a case:by-case consideration of whether the state tax is "preempted" by federal statutes and treaties, supposedly read generously to pre*278serve tribal immunity. Since no federal statute or treaty expressly preempts the state law, these cases necessarily become unguided judicial excursions identifying and weighing the state interests in taxation and the federal policy on a particular matter ... for a particular reservation. The Court seems to have ignored the value of manageable judicial standards . . ,1
Justice Rehnquist wrote that the extent to which states can tax economic activity on Indian reservations within their borders "seems destined to demand its attention over and over again until the Court sees fit to articulate, and follow, a consistent and predictable rule of law." Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 847 (1982) (Rehnquist, J., dissenting).
Examining the statements of Congressional intent relevant to this case, I conclude that Congress has implicitly preempted state taxation of the income Anderson earned from educational activities on the reservation. Congress has clearly and affirmatively expressed the relevant policy: As a primary goal of federal policy, Congress seeks to promote and improve tribal education and to accomplish this goal through tribal self-determination of educational policies.2 The Bureau *279of Indian Affairs (BIA) has promulgated regulations appropriate to this policy. In all, federal policy consistently implements Congressional intent by reserving great control and discretion to individual tribes in the determination of educational policies while ensuring technical and financial support from the federal government as necessary. I believe this federal scheme, when examined in accordance with the Supreme Court's preemption analysis favoring tribal independence, preempts the state taxation at issue in this case.
Congress's clearest statement of its policy is the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. secs. 450 et seq. Before passage of the act, the federal government completely controlled most facets of Indian education. In passing the Self-Determination Act, Congress stated its desire to promote "an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services." 25 U.S.C. sec. 450a(b). To implement this policy, Congress expressed its intention to refrain from the comprehensive regulation of education:
The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational. . . services to Indian communities so as to render such services more responsive to the needs and desires of those communities. 25 U.S.C. sec. 450a(a).
*280Furthermore, Congress found that "parental and community control of the educational process is of crucial importance to the Indian people." 25 U.S.C. sec. 450(b)(3).
The BIA promulgated regulations to enact these policies. Consistent with a goal of achieving tribal self-determination in education, the regulations concerning educational policy are not extensive. The BIA's goals include ensuring that tribes "fully exercise self-determination and control in planning, priority-setting, development, management, operation, staffing and evaluation in all aspects of the education process;" encouraging and defending the tribes' right "to govern their own internal affairs in all matters relating to education;" and ensuring that "qualified . . . Indian educators are recruited for positions appropriate to their cultural background and qualifications." 25 C.F.R. secs. 32.4(a)(3), (g)(2), and (m) (1991).
Congress's laws and the BIA's regulations are limited to those necessary to help the tribes achieve control over education, including the provision of technical and financial support. In fact, for all practical purposes, the Lac Courte Oreilles schools are supported exclusively by federal funds. Findings of Fact, Anderson v. DOR, No. 1-11838 (Tax App. Comm'n, Mar. 3, 1987). In addition, the Tribally Controlled Community College Assistance Act, enacted in 1976, 25 U.S.C. secs. 1801, etseq., helped create the Lac Courte Oreilles Community College, of which Anderson served as president. The BIA accordingly promulgated regulations "to support and encourage the establishment, operation, and improvement" of these community colleges, 40 C.F.R. sec. 41.1 (1991), not to regulate their functions extensively.
Anderson and others in similar positions advance the goals of this federal scheme. Anderson advances *281these goals through his position regardless of where he lives. Neither the DOR nor the majority cites any federal policy that encourages tribal educators to live on the reservation. Taxation of the income Anderson earned from educational activities burdens the achievement of these federal goals by tapping federally provided funds used to promote tribal education.3
In concluding that federal law does not preempt state taxation in this case, the majority understates the relevant federal and tribal concerns and overstates the relevant state interests. The majority essentially relies on two considerations to support its conclusion that the state tax is not preempted: (1) the absence of a "pervasive federal regulatory scheme" governing tribal education and (2) the absence of detailed federal regulations specifically governing compensation paid to individuals in Anderson's position. While these considerations are ’ certainly relevant to the preemption analysis, they in no way preclude the conclusion that federal law preempts state taxation in this case.
First, I agree with the majority's reading of White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). In these cases the Supreme Court based its holding of federal preemption at least in part on "comprehensive" BIA regulations governing logging and the construction of educational facilities, the on-the-reservation activities taxed by the state. These regulations left "no room" for additional state *282burdens. White Mountain, 448 U.S. at 145-48; Ramah, 458 U.S. at 839-42. Despite the Supreme Court's reliance on the pervasive federal regulatory schemes in White Mountain and Ramah, the Supreme Court used those pervasive schemes only as evidence of preemption; the Court in no way indicated that a pervasive federal regulatory scheme is necessary to hold that federal law preempts a state tax.
The Ramah case is particularly instructive for purposes of the issue before us. In Ramah, the Supreme Court ruled that federal law preempted the imposition of New Mexico's gross receipts tax on a non-Indian company constructing school facilities on a reservation. The Court cited comprehensive federal regulations governing the construction and financing of Indian school facilities. The Court wrote that the burden of the state tax, "although nominally falling on the non-Indian contractor, necessarily impedes the clearly expressed federal interest in promoting the 'quality and quantity' of educational opportunities for Indians by depleting the funds available for the construction of Indian schools." Ramah, 458 U.S. at 842.
Despite the absence in this case of "comprehensive regulations" governing the development and implementation of tribal educational policy, the same "clearly expressed federal interest" preempts the imposition of the state income tax and the resulting depletion of funds available for education. The quantity of regulation is not the appropriate measure of federal preemption. Rather, in this case, the absence of regulation reflects a clearly expressed federal policy.
Second, the Supreme Court's Indian law decisions do not require preemption of the specific activity taxed to support federal preemption. In Ramah, the majority opinion noted that the court must examine the totality *283of the federal scheme and not the specific target of the tax. Ramah, 458 U.S. at 841-42 n.5. The totality of the federal scheme governing tribal education preempts the tax in this case.
Finally, the majority describes as a "vital state interest" the assessment of income taxes in return for the governmental functions the state provides taxpayers living outside the reservation. The services the state provides to Anderson are similar to those New Mexico provided to the non-Indian taxpayers in Ramah. Although the Ramah decision does not discuss the off-reservation activities of the construction company, one must assume that planning and management activities, support staff functions, and the acquisition and storage of equipment for the construction project all occurred off the reservation in locations serviced by state government. In Ramah, the Supreme Court rejectéd New Mexico's attempt to justify its tax as compensation for state services benefiting these off-reservation activities: "The only arguably specific interest advanced by the State is that it provides services to [the school construction company] for its activities off the reservation. This interest, however, is not a legitimate justification for a tax whose ultimate burden falls on the tribal organization." Ramah, 458 U.S. at 843-44. Similarly, the state provides services that directly benefit Anderson, but the state's interest does not justify a tax which necessarily impedes the clearly expressed federal interest in promoting educational opportunities for the tribe by depleting the funds available for education.
Accordingly, I dissent.
I am authorized to state that Chief Justice Nathan S. HEFFERNAN joins this dissent.^
Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137, 1187, 1189 (1990). See also Charley Carpenter, Note, Preempting Indian Preemption: Cotton Petroleum Corp. v. New Mexico, 39 Cath. U. L. Rev. 639 (1990); Kristina Bogardus, Note, Court Picks New Test in Cotton Petroleum, 30 Nat. Resources J. 919 (1990).
See, e.g., 25 U.S.C. sec. 450a(c), in which Congress declared that "a major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life *279areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being."
One need only look to elementary economic principles to understand that the tribe will almost certainly bear all or some of the burden from the imposition of the state income tax. Wages paid to educators on the reservation will be equivalent to higher wages paid to educators off the reservation only if the reservation wage is exempt from state income tax.