Cite as: 515 U. S. 450 (1995)
Opinion of the Court
The State made no reference to the Hayden-Cartwright Act in the courts of first and second instance. And even though the Court of Appeals flagged the Act's possible relevance,6 Oklahoma did not mention this 1936 legislation in its petition for certiorari. Nor is Oklahoma's newly discovered claim of vintage legislative authorization "fairly included" 7 in the question the State tendered for our review: "Whether principles of federal pre-emption or Indian sovereignty preclude a State from imposing a tax on motor fuel sold by an Indian tribe . . . . ?" Pet. for Cert. (i). As a court of review, not one of first view, we will entertain issues withheld until merits briefing " 'only in the most exceptional cases.' " Yee v. Escondido, 503 U. S. 519, 535 (1992) (citation omitted). This case does not fit that bill.
B
Assuming, then, that Congress has not expressly authorized the imposition of Oklahoma's fuels tax on fuel sold by the Tribe, we must decide if the State's exaction is nonetheless permitted. Oklahoma asks us to make the determination by weighing the relevant state and tribal interests, and urges that the balance tilts in its favor. Oklahoma emphasizes that the fuel sold is used "almost exclusively on state roads," imposing "very substantial costs on the State—but no burden at all on the Tribe." Brief for Petitioner 9. The State
6 The Court of Appeals noted: "In White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 151, n. 16 . . . (1980), the Supreme Court declined to reach the question whether Indian reservations might be encompassed by the Hayden-Cartwright Act, 4 U. S. C. § 104, which provides for the imposition of state fuel taxes 'on United States military or other reservations.' This issue was not raised before this court, and we express no opinion on it." 31 F. 3d 964, 972, n. 4 (1994).
7 This Court's Rule 14.1(a); see Yee v. Escondido, 503 U. S. 519, 533 (1992). Cf. Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379-380 (1995) (reaching issue addressed in decision under review and "fairly embraced within" both the question set forth in the petition for certiorari and the argument advanced in the petition).
457
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