Barona Band of Mission Indians v. Yee ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARONA BAND OF MISSION INDIANS, 
also known as BARONA GROUP OF
CAPITAN GRANDE BAND OF MISSION
INDIANS; BARONA TRIBAL GAMING
AUTHORITY,
Plaintiffs-Appellees, No. 06-55918
v.
 D.C. No.
CV-05-00257-DMS
BETTY T. YEE; BILL LEONARD;
CLAUDE PARRISH; JOHN CHIANG; OPINION
STEVE WESTLY, each in his or her
official capacity as a member of
the California State Board of
Equalization,
Defendants-Appellants.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
February 7, 2008—Pasadena, California
Filed June 18, 2008
Before: Harry Pregerson, Glenn L. Archer, Jr.,* and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
*The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
7057
7060 BARONA BAND OF MISSION INDIANS v. YEE
COUNSEL
Bill Lockyer, W. Dean Freeman, Domini Pham, Leslie Bra-
nam Smith, San Diego, California, for the appellants.
Art Bunce, Kathryn Clenney, Law Offices of Art Bunce,
Escondido, California, for the appellees.
OPINION
WARDLAW, Circuit Judge:
We must decide whether a non-Indian contractor who pur-
chases construction materials from non-Indian vendors, which
are later delivered to a construction site on Indian land, is
exempt from state sales taxes. The California State Board of
Equalization (the “Board”) appeals the grant of summary
judgment in favor of the Barona Band of Mission Indians (the
“Tribe”) in which the district court determined that the bal-
ancing test set forth in White Mountain Apache Tribe v.
Bracker, 448 U.S. 136 (1980), preempted a state sales tax lev-
BARONA BAND OF MISSION INDIANS v. YEE 7061
ied against a non-Indian subcontractor performing electrical
work on the Tribe’s multi-million dollar casino expansion.
Because the Tribe, as part of its highly lucrative gambling
enterprise, merely marketed a sales tax exemption to non-
Indians as part of a calculated business strategy, we conclude
that its strategic effort to receive construction services from
non-Indians at a competitive discount by circumventing the
state sales tax does not outweigh California’s interest in rais-
ing general funds for its treasury. The district court had juris-
diction under 28 U.S.C. § 1362, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.1 We reverse and remand to the
district court for further proceedings consistent with this opin-
ion.
I. BACKGROUND
After nearly two centuries of displacement of the Barona
Band of Mission Indians by European and then American
encroachment, the United States enacted legislation to provide
a tract of land in rural San Diego County to serve as a reserva-
tion for the Tribe. Until the early 1990s, however, the Tribe
suffered from deep structural economic difficulties. Following
the nationwide trend of Native Americans seeking to infuse
economic life into depressed reservations, the Tribe opened
up a casino in 1996: the Barona Valley Ranch Resort &
Casino — “Where The Real Players Play, and Win.”
By 2001, enough of these real players had played and lost
for the Tribe to plan a $75 million expansion to the casino
floor and hotel, replete with a new wedding chapel, parking
1
Although the Board has not pursued on appeal its contention that we
lack jurisdiction under the Tax Injunction Act, 28 U.S.C. § 1341, we must
consider the issue sua sponte. Having done so, we agree with the district
court that our courts have jurisdiction to entertain this action. Both the dis-
trict court and we have jurisdiction because this is an appeal from an
action by the Tribe under 28 U.S.C. § 1362 to challenge a state imposed
tax. See Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463,
474-75 (1976).
7062 BARONA BAND OF MISSION INDIANS v. YEE
structure and other resort amenities. The Tribe entered into a
lump sum contract with a general contractor, Hensel Phelps
Construction Co. (the “prime contract”) to construct the
expansion. Under California law, a lump sum contract “means
a contract under which the contractor for a stated lump sum
agrees to furnish and install materials or fixtures, or both.”
CAL. ADMIN. CODE tit. 18, § 1521(a)(8). Under the prime con-
tract’s terms, Hensel Phelps entered into a series of subcon-
tracts with contractors in the various trades to complete
discrete tasks. To that end, Hensel Phelps subcontracted with
Helix Electric, Inc. to perform the expansion’s electrical
work.
As part of the prime contract terms, the Tribe touted a
method it had devised to circumvent state sales tax, which
would otherwise fall on the contractor, by scheduling deliver-
ies to occur on tribal lands. Section 3.6.2 of the prime contract
reads: “[Barona Band] is a federally recognized Indian Tribe
and is therefore qualified for an exemption from California
state sales and use tax on the purchase of tangible personal
property if certain criteria are met. This Project is being struc-
tured, in accordance with Attachment O, to take advantage of
the tax-exempt status of the [Tribe].” Attachment “O” to the
prime contract carefully details the steps necessary for Hensel
Phelps and its subcontractors to enjoy sales tax-free construc-
tion work. Under Attachment “O,” Hensel Phelps and any
subcontractor are designated as the Tribe’s “purchasing agent
for the procurement of Construction Supplies.” The contrac-
tual language next provides a blueprint for the parties to fol-
low in order to avoid state sales taxes. In bold lettering,
Attachment “O” requires that any purchase made by Hensel
Phelps and its subcontractors should only become officially
consummated, with title transferring, on the Tribe’s property.2
2
Parties may not alter the substance of a transaction by inserting legal
formalisms into contractual language. See Northrop Corp. v. Bd. of Equal-
ization, 110 Cal. App. 3d 132, 142-43 (Cal. Ct. App. 1980) (holding that
contract’s claim that title would not pass could not defeat economic reality
BARONA BAND OF MISSION INDIANS v. YEE 7063
All “shipping orders and delivery receipts,” according to the
contract, must include the following language:
THIS SALE IS NOT COMPLETE, AND TITLE
DOES NOT PASS, UNTIL DELIVERY IS
ACCEPTED BY THE BUYER ON THE
BARONA INDIAN RESERVATION.
In a further effort to shield subcontractors from California
state sales tax, the prime contract directs that the “Contractor
shall not make advance payments to suppliers for materials or
equipment which have not been delivered or stored at this
site.” Provided that Hensel Phelps and its subcontractors
properly follow these steps, the Tribe promises to indemnify
and defend them against any assessment of tax liability.
Under these terms, Helix Electric performed nearly four
million dollars worth of sales-tax-free electrical work on the
casino expansion. A Board-conducted audit concluded that
Helix Electric owed slightly over $200,000 in sales and use
tax emanating from purchases of construction materials—with
title purporting to transfer on Tribe territory—from non-
Indian vendors for use on the casino expansion. The Board
issued a formal Notice of Determination to Helix demanding
that it pay sales taxes in that amount. Helix Electric then
sought indemnification from Hensel Phelps, which in turn
sought reimbursement from the Tribe. The Tribe sued indi-
vidual members of the Board in their official capacity in the
United States District Court for the Southern District of Cali-
fornia, seeking declaratory relief. The Tribe sought a judicial
determination that the California state sales tax was invalid
that required appellant to remit sales tax to the state). On the record before
us, it is unclear whether the economic realities of the subcontractors’ work
conformed to the advantageous assertions of title transfers contained in the
contract. Nevertheless, we need not determine this factual matter to
resolve the appeal before us.
7064 BARONA BAND OF MISSION INDIANS v. YEE
(1) per se as a direct tax on the Tribe; (2) under the Bracker
balancing test as a tax leveled against non-Indians on Indian
territory; or (3) as preempted by the Indian Gaming Regula-
tory Act, 25 U.S.C. §§ 2701, et seq. (“IGRA”). The parties
filed cross-motions for summary judgment and submitted a
Joint Statement of Undisputed Material Facts.
While the district court disagreed that the tax was a per se
improper tax levied against the Tribe, it did agree that the tax
failed the Bracker balancing test and granted the Tribe’s
motion for summary judgment. The Board timely appeals.
II. DISCUSSION
A. Per Se Invalidity
Historically, the United States Supreme Court treated reser-
vations as places where, in Chief Justice Marshall’s words,
the “laws of [a State] can have no force.” Worcester v. Geor-
gia, 6 Pet. 515, 561 (1832). This viewpoint, however, has
softened over time, and the modern Court has “acknowledged
certain limitations on tribal sovereignty.” New Mexico v. Mes-
calero Apache Tribe, 462 U.S. 324, 331 (1983); see also
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §§ 6.01-6.03
(2005) (outlining shift from traditional view of Indian sover-
eignty). Thus, Indian tribes and their possessions are akin to
legal hybrids, “unique aggregations possessing attributes of
sovereignty over both their members and their territory . . .
retain[ing] any aspect of their historical sovereignty not
‘inconsistent with the overriding interests of the National
Government.’ ” Mescalero, 462 U.S. at 332 (citing Washing-
ton v. Confederated Tribes, 47 U.S. 134, 153 (1980)).
[1] The historically entrenched idea of tribal autonomy,
however, remains central to our reasoning when confronted
with the application of state laws on tribal territory.
“[T]raditional notions of Indian self-government are so deeply
engrained in our jurisprudence that they have provided an
BARONA BAND OF MISSION INDIANS v. YEE 7065
important ‘backdrop’ against which vague or ambiguous fed-
eral enactments must always be measured.” Bracker, 448 U.S.
at 143 (internal citation omitted). A doctrine comparable, yet
not identical, to federal preemption developed to protect tribes
from State encroachment. Id. (“Tribal reservations are not
States, and the differences in the form and nature of their sov-
ereignty make it treacherous to import to one notions of pre-
emption that are properly applied to the other.”). Unlike tradi-
tional preemption, two conceptual barriers have been erected
to block State law from regulating Indian behavior: federal
enactments and Indian sovereignty. See Ramah Navajo School
Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832,
837 (1982). Thus, “State jurisdiction is preempted by the
operation of federal law if it interferes or is incompatible with
federal and tribal interests reflected in federal law, unless the
State interests at stake are sufficient to justify the assertion of
State authority.” Mescalero, 462 U.S. at 334.
[2] This legal framework has often required us to undertake
careful balancing of various interests. See Bracker, 448 U.S.
at 142 (“[T]here is no rigid rule by which to resolve the ques-
tion whether a particular state law may be applied to an Indian
reservation or to tribal members.”). Not so with state taxation
of Indian tribes. “In the special area of state taxation of Indian
tribes and tribal members, we have adopted a per se rule.”
California v. Cabazon Band of Mission Indians, 480 U.S.
202, 216 n.17 (1987). On the narrow question of whether a
state can tax Indian activity on an Indian reservation, the law
is clear. “[W]e adhere to settled law: when Congress does not
instruct otherwise, a State’s excise tax is unenforceable if its
legal incidence falls on a Tribe or its members for sales made
within Indian country.” Oklahoma Tax Comm’n v. Chickasaw
Nation, 515 U.S. 450, 453 (1995).
The dispositive question for per se analysis is who the state
is taxing and where. “[U]nder our Indian tax immunity cases,
the ‘who’ and the ‘where’ of the challenged tax have signifi-
cant consequences. We have determined that ‘[t]he initial and
7066 BARONA BAND OF MISSION INDIANS v. YEE
frequently dispositive question in Indian tax cases . . . is who
bears the legal incidence of [the] tax.’ ” Wagnon v. Prairie
Band Potawatomi Nation, 546 U.S. 95, 101 (2005) (citing
Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450(1995)). The Court has instructed that lower courts seeking to
determine the legal incidence of the taxation should look to
the “fair interpretation of the taxing statute as written and
applied.” California Bd. of Equalization v. Chemehuevi Tribe,
474 U.S. 9, 11 (1985).
[3] The party bearing the legal incidence of a state tax may
well differ from the party bearing the economic burden of that
tax. For instance, under Attachment “O” to the prime contract,
the Tribe will be the economically burdened party due to its
promise to indemnify Hensel Phelps and Helix Electric for
any state sales tax they are required to pay if the Board pre-
vails. That the Tribe will pay the tax, however, does not
resolve the question of who bears the tax’s legal incidence.
The Court has rejected an argument equating the two: “[O]ur
focus on a tax’s legal incidence accommodates the reality that
tax administration requires predictability. . . . 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 com-
plicated matter dependent on the characteristics of the market
for the relevant product.” Oklahoma Tax Comm’n, 515 U.S.
at 459-60.
[4] Therefore, we must examine the underlying California
statutes to determine whether the legal incidence falls upon
the Tribe, which would render the tax per se invalid, or Helix
Electric, a non-Indian party beyond the categorical exemption
from state taxation. As the district court correctly noted,
“[u]nder California statutes and regulations, a construction
contractor [Helix Electric] is the ‘consumer’ of materials fur-
nished later to a client pursuant to a construction contract.”
“Either sales tax or use tax applies with respect to the sale of
the materials to or the use of the materials by the construction
BARONA BAND OF MISSION INDIANS v. YEE 7067
contractor.” CAL. ADMIN. CODE tit. 18, § 1521(b)(2)(A)(1).
Under CAL. ADMIN. CODE tit. 18, § 1521(a)(8), the “lump-
sum” contract entered into by the parties falls within the tax-
ing ambit of § 1521(b)(2)(A)(1). Thus, we agree with the dis-
trict court that the legal incidence of the California sales tax,
under the pertinent regulations, falls upon Helix Electric, a
non-Indian party.
[5] The Tribe attempts an end-run around the “legal inci-
dence” test by structuring its contract to designate subcontrac-
tors as “purchasing agents” for the tax-exempt Tribe. Along
with the district court, we decline to extend the per se test,
rooted in due respect for Indian autonomy, to provide tax
shelters for non-Indian businesses. The parties may not alter
the economic reality of a transaction—a subcontractor per-
forming electrical work for a general contractor—to reap a
windfall at the public’s expense. “The incidence of taxation
depends upon the substance of a transaction. . . . To permit the
true nature of a transaction to be disguised by mere formal-
isms, which exist solely to alter tax liabilities, would seriously
impair the effective administration of . . . tax policies.” See
Comm’r v. Court Holding Co., 324 U.S. 331, 334 (1945). The
legal incidence of the sales tax falls on Helix Electric, a non-
Indian entity which purchased the construction materials, and
the structuring of the expansion as set forth in Attachment O
fails to per se exempt non-Indians from a valid state tax.
B. Bracker Balancing Test
[6] Without the convenience of a per se bright line test, we
turn to the Bracker balancing test, developed for those “diffi-
cult questions . . . where, as here, a State asserts authority
over the conduct of non-Indians engaging in activity on the
reservation.” Bracker, 448 U.S. at 144. The test calls for care-
ful attention to the factual setting, requiring “a particularized
inquiry into the nature of the state, federal, and tribal interests
at stake, an inquiry designed to determine whether, in the spe-
cific context, the exercise of state authority would violate fed-
7068 BARONA BAND OF MISSION INDIANS v. YEE
eral law.” Id. at 145. The factual sensitivity of the test means
that “ ‘no rigid rule’ governs such an exercise of state authori-
ty.” Red Mountain Machinery Co. v. Grace Inv. Co., 29 F.3d
1408, 1410 (9th Cir. 1994). As an aid, however, “[t]he
Supreme Court has identified a number of factors to be con-
sidered when determining whether a state tax borne by non-
Indians is preempted, including: ‘the degree of federal regula-
tion involved, the respective governmental interests of the
tribes and states (both regulatory and revenue raising), and the
provision of tribal or state services to the party the state seeks
to tax.” Salt River Pima-Maricopa Indian Community v. Ari-
zona, 50 F.3d 734, 736 (9th Cir. 1995) (citation omitted).
As a backdrop to the Bracker test, we note a parallel line
of authority that aids in our analysis. The Court has previ-
ously expressed disfavor toward tribal manipulation of tax
policy to gain “an artificial competitive advantage over all
other businesses in a State.” Washington v. Confederated
Tribes of Colville Indian Reservation, 447 U.S. 134, 155
(1980) (hereinafter, “Colville”). In Colville, Indian tobacco
dealers, selling non-tribal products to non-Indians, sought
tribal exemption from Washington State’s tobacco excise tax
in order to sell less expensive products to budget-minded cus-
tomers willing to travel to the reservation for the savings. Id.
at 145. The Court declined to extend the preemption doctrine
to cloak the tribe’s business practice. “What the smokeshops
offer these customers, and what is not available elsewhere, is
solely an exemption from state taxation. . . . We do not
believe that principles of federal Indian law, whether stated in
terms of pre-emption, tribal self-government, or otherwise,
authorize Indian tribes thus to market an exemption from state
taxation to persons who would normally do their business
elsewhere.” Id. at 155. We have understood Colville to sup-
port the principle that “[w]hen state taxes are imposed on the
sale of non-Indian products to non-Indians, as . . . in the so-
called ‘smoke shop’ cases, the preemption balance tips toward
state interests.” Salt River Pima-Maricopa Indian Cmty., 50
F.3d at 737.
BARONA BAND OF MISSION INDIANS v. YEE 7069
[7] Tribal interests are implicated by the imposition of the
California tax on the construction work performed by Helix
Electric on Tribal territory. The Tribe enjoys a right to auton-
omy within its territory, as noted in Bracker itself: “[T]here
is a significant geographical component to tribal sovereignty,
a component which remains highly relevant to the pre-
emption inquiry; though the reservation boundary is not abso-
lute, it remains an important factor to weigh in determining
whether state authority has exceeded the permissible limits.”
Bracker, 448 U.S. at 151. However, the right of territorial
autonomy is significantly compromised by the Tribe’s invita-
tion to the non-Indian subcontractor to theoretically consum-
mate purchases on its tribal land for the sole purpose of
receiving preferential tax treatment. That these sophisticated
parties contracted to create a taxable event on Indian territory
which otherwise would occur on non-Indian territory factually
distinguishes the present case from the multitude of cases
where courts have analyzed state taxation on non-Indians per-
forming work on Indian land. See, e.g., Bracker, 448 U.S. at
137-38 (preempting Arizona’s motor carrier license and use
fuel taxes on non-Indian timber company entering Indian ter-
ritory to fell trees planted on Indian territory); Crow Tribe of
Indians v. Montana, 819 F.2d 895, 897 (9th Cir. 1987) (pre-
empting Montana coal taxes against non-Indians mining coal
located under reservation).
[8] It also appears that permitting the tax on Helix Electric
may affect the overall profitability of the Tribe’s casino oper-
ation. If the California sales tax is validated, the Tribe must,
according to the contract, indemnify Helix Electric for over
$200,000. This amount will be compounded by amounts paid
to the other subcontractors, as well as Hensel Phelps. This
alone, however, does not bar the imposition of a tax on non-
Indians. See Salt River Pima-Maricopa Indian Cmty., 50 F.3d
at 737 (“[T]he Ninth Circuit and the Supreme Court have
repeatedly held that ‘reduction of tribal revenues does not
invalidate a state tax.’ ”); Crow Tribe of Indians v. Montana,
650 F.2d 1104, 1116 (9th Cir. 1981) (“It is clear that a state
7070 BARONA BAND OF MISSION INDIANS v. YEE
tax is not invalid merely because it erodes a tribe’s revenues,
even when the tax substantially impairs the tribal govern-
ment’s ability to sustain itself and its programs.”). It is true
that tribes have an interest in their economic self-sufficiency.
See California v. Cabazon Band of Mission Indians, 480 U.S.
202, 218 n.20 (1987) (“It is important to the concept of self-
government that tribes reduce their dependence on Federal
funds by providing a greater percentage of the cost of their
self-government.”) (citing 19 Weekly Comp. of Pres. Doc. 99
(1983)). However, this concern carries minimal weight in the
context of a $75 million casino expansion, and where but for
the contractual arrangement providing for indemnification by
the Tribe, it would be Helix’s revenues— and not the Tribe’s
—that would be reduced. Recognizing, moreover, that the
legal incidence of the tax falls upon a non-Indian subcontrac-
tor, we find the tribal interests to be weak.
[9] The federal interests triggered by the tax are similarly
minimal. Federal interests are greatest when the government’s
regulation of a given sphere is “comprehensive and perva-
sive.” Ramah, 458 U.S. at 839. In Ramah, the Court found
significant federal interests since “[t]he direction and supervi-
sion provided by the Federal Government for the construction
of Indian schools le[ft] no room for the additional burden
sought to be imposed by the State through its taxation.” Id. at
841-42. The Court made a similar finding in Bracker regard-
ing federal regulation of timber sales. Bracker, 448 U.S. at
145 (“At the outset we observe that the Federal Government’s
regulation of the harvesting of Indian timber is comprehen-
sive.”). This is contrasted with the degree of regulation found
presently in IGRA. Through IGRA, Congress comprehen-
sively regulates Indian gaming; however, California’s tax is
not on Indian gaming activity or profits, but rather on con-
struction materials purchased by a non-Indian electrical sub-
contractor, which could be used for a multitude of purposes
unrelated to gaming. Simply put, IGRA is a gambling regula-
tion statute, not a code governing construction contractors, the
legalities of which are of paramount state and local concern.
BARONA BAND OF MISSION INDIANS v. YEE 7071
Cf. Atchison, T & S.F. Ry. Co. v. Public Utilities Comm’n of
Cal., 346 U.S. 346, 355 (1953) (noting that “the construction
. . . of public streets is a matter peculiarly of local concern”).
The federal government has a concomitant interest in the
Tribe’s economic self-sufficiency. As with the related tribal
interest, the federal government’s interest in Indian economic
vitality does not alone defeat an otherwise legitimate state tax.
See Salt River Pima-Maricopa Indian Cmty., 50 F.3d at 739(“The federal government has expressed an interest in assist-
ing tribes in their efforts to achieve economic self-sufficiency.
However, that interest does not, without more, defeat a state
tax on non-Indians.”). This interest continues to fade when the
commercial activity is rigged to trigger a tax exemption. See
Colville, 447 U.S. at 155 (noting that “a congressional con-
cern with fostering tribal self-government and economic
development [does] not go so far as to grant tribal enterprises
selling goods to nonmembers an artificial competitive advan-
tage over all other businesses in a State”). Moreover, as noted
with the related tribal interest, our concern with self-
sufficiency necessarily lessens in the specific context of a
multi-million dollar casino expansion.
[10] We agree with the Board that the Bracker analysis tips
in its favor where the state levies a neutral sales tax on non-
Indians’ purchases which—but for contractual creativity—
would have occurred on non-Indian land. In these circum-
stances, we find the state interest in the application of its gen-
eral sales tax to be greater than the combined federal and
tribal interests. Raising revenue to provide general govern-
ment services is a legitimate state interest. See Crow Tribe of
Indians, 650 F.2d at 1113 (“Of course, revenue raising to sup-
port government is a proper purpose behind most taxes.”);
Salt River Pima-Maricopa Indian Cmty., 50 F.3d at 737 (“The
state also has a legitimate governmental interest in raising
revenues, and that interest is likewise strongest when the tax
is directed at off-reservation value and when the taxpayer is
the recipient of state services.”). We recognize that the state
7072 BARONA BAND OF MISSION INDIANS v. YEE
interest strengthens where there is a nexus between the taxed
activity and the government function provided, and that such
a nexus is not found here. See Ramah, 458 U.S. at 843. Nev-
ertheless, the state has a parallel interest in preventing the
manipulation of its tax laws to aid a casino in shopping tax
exemptions to local businesses who otherwise would remit
sorely needed revenue to the state. In the precise factual con-
text presented here, the general state interests of revenue rais-
ing and consistent application of its tax laws trump the weak
interests of the Tribe and federal government. We conclude
that California’s tax of Helix Electric is a valid exercise of
state power under the Bracker test.
C. Preemption by IGRA
[11] The Tribe also contends that the California sales tax on
the construction equipment used by Tribal subcontractors has
been directly preempted by IGRA. We agree, however, with
the Board that IGRA’s comprehensive regulation of Indian
gaming does not occupy the field with respect to sales taxes
imposed on third-party purchases of equipment used to con-
struct the gaming facilities.3 IGRA’s core objective is to regu-
late how Indian casinos function so as to “assure the gaming
is conducted fairly and honestly by both the operator and
players.” 25 U.S.C. § 2702(2). Extending IGRA to preempt
any commercial activity remotely related to Indian gaming—
employment contracts, food service contracts, innkeeper
codes—stretches the statute beyond its stated purpose.4
3
The Tribe points with approval to 25 U.S.C. § 2710(d)(4), which states
that “nothing in this section shall be interpreted as conferring upon a State
or any of its political subdivisions authority to impose any tax, fee, charge,
or other assessment upon an Indian tribe.” However, as discussed above,
the tax in question has been imposed upon the non-Indian outfit Helix
Electric and not on the Tribe itself.
4
We agree with the Board that the compact entered into by the Tribe
and the State does not bear on our analysis here. See In re Indian Gaming
Related Cases, 147 F.Supp.2d 1011, 1018 (N.D. Cal. 2001) (“States can-
not insist that compacts include provisions addressing subjects that are
only indirectly related to the operation of gaming facilities.”). The ques-
tion before us is properly framed as a tax levied on a non-Indian tribe, and
therefore falls outside the scope of the compact.
BARONA BAND OF MISSION INDIANS v. YEE 7073
The Court has developed the Bracker test to determine
whether federal interests preempt state taxes. If we were to
accept the Tribe’s argument that IGRA itself preempts the
state taxation of non-Indian contractors working on tribal ter-
ritory, we would effectively ignore Bracker and its progeny.
The Court has provided an analytical framework to resolve
this question, which we must apply here.
III. CONCLUSION
Because the legal incidence of the California sales tax falls
upon the non-Indian subcontractor, we agree with the district
court’s holding that the tax passes muster under the Chicka-
saw Nation per se test. 515 U.S. at 453. We disagree, how-
ever, that the Bracker preemption test invalidates the state tax
where the Tribe has invited commercial activity onto its terri-
tory for the purpose of marketing a sales tax exemption to
non-Indian businesses who would otherwise be liable for the
state tax under laws of general applicability. We therefore
reverse the district court’s grant of summary judgment to the
Tribe, and remand for judgment to be entered in favor of the
members of the California State Board of Equalization.
REVERSED AND REMANDED.