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
BETTY T. YEE; BILL LEONARD;
CLAUDE PARRISH; JOHN CHIANG;
STEVE WESTLY, each in his or her
official capacity as a member of
the California State Board of
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.
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.
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
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