1

Filed 9/25/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE ex rel. XAVIER 

BECERRA, as Attorney General, etc.,

Plaintiff and Respondent,

v.

ARDITH HUBER,

Defendant and Appellant.

 A144214

 (Humboldt County

 Super. Ct. No. DR110232)

I. INTRODUCTION

This appeal is from a summary adjudication order and permanent injunction 

entered in an enforcement action by the Attorney General on behalf of the People of the 

State of California against Ardith Huber, a member of the Wiyot Band of Indians. Huber

owns and operates a tobacco smokeshop on the Table Bluff Rancheria, an area where the 

Wiyots live just outside of Crescent City, in Humboldt County.

The Attorney General’s complaint alleges a claim for violation of the Unfair 

Competition Law, Business and Professions Code section 17200 et sequitur (the UCL) 

and cites as predicate “unlawful acts” violations of three statutes applicable to cigarette 

sales and marketing, the Tax Stamp Act (Rev. & Tax. Code, § 30161), the Directory Act 

(Rev. & Tax. Code, § 30165.1, subd. (e)(2)), and the Fire Safety Act (Health & Saf. 

Code, § 14951, subd. (a)). He also pleads, as separate claims, violations of the Directory 
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Act and the Fire Safety Act. The trial court granted summary adjudication to the to the 

People, denied it to Huber, and entered a permanent injunction on all three claims.

Huber’s primary argument on appeal is an attack on subject matter jurisdiction. 

She contends that, under a federal statute granting California courts plenary criminal 

jurisdiction but limited civil jurisdiction over cases arising on Indian reservations, the 

trial court lacked power to proceed on any of the three claims in this case. She also 

argues that, under the doctrine of Indian preemption, which limits the reach of state law 

to conduct by Indians on Indian reservations, all the statutes the Attorney General seeks 

to enforce here are preempted by paramount federal authority.

We reverse in part, agreeing the court lacked subject matter jurisdiction to proceed 

on the UCL claim, but in all other respects affirm.

II. BACKGROUND

A. Huber Enterprises and the Table Bluff Rancheria

Huber runs a sole proprietorship out of her home called Huber Enterprises, selling 

cigarettes at retail and wholesale. Although Huber once sold other brands of cigarettes, 

after 2007 she has sold exclusively Native American brands, which she describes as 

“cigarettes manufactured by Indians on Indian lands, . . . shipped and sold through Indian 

and tribally-owned distributors to Indian and tribally-owned retail smokeshops located on 

Indian lands.”

The retail component of Huber’s enterprise is onsite business. Customers include 

tribe members and nonmembers who come to the Table Bluff Rancheria to make 

purchases there. The wholesale component of the enterprise is with “over two dozen 

Indian smokeshops owned either by Indian tribes or [i]ndividual tribal members and 

operated within [other] . . . recognized Indian reservation[s].” Deliveries are made to 

these “inter-tribal” customers by truck, using California highways.

Huber Enterprises is licensed to do business pursuant to the Wiyot Tribal Business 

Code and the Wiyot Tribal Tobacco Licensing Ordinance (Ordinance No. 01-10). 

Ordinance No. 01-10 was promulgated June 14, 2010, for purposes of, inter alia, 

“promot[ing] tribal economic development,” “regulat[ing] and licens[ing] the 
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manufacture, distribution, wholesaling, and retailing of tobacco products,” 

“complement[ing] and enforc[ing] federal standards relating to or prohibiting the sale, 

distribution, possession, exposure to, access to, advertising and promotion of, and use of 

tobacco products,” and “encourag[ing] and foster[ing] traditions and culture of the 

Tribe.”

Ordinance No. 01-10 requires licensees to pay—and Huber Enterprises does 

pay—a quarterly excise tax administered through a tribal tax stamp system. Taxes 

collected in this manner are deposited into a dedicated Tribal Tobacco Fund, earmarked 

solely for the expenses of “[t]obacco-related school and community health education 

programs,” “[s]moking and tobacco-use prevention measures,” and “[a]ssistance to tribal 

and community members for cessation of smoking and tobacco use.”

There is no dispute in this case that today the Wiyot Band of Indians is a federally 

recognized tribe and that the Table Bluff Rancheria falls within the broad definition of 

“Indian country” under federal law, as do individual allotments of land to enrolled tribe 

members such as Huber. (18 U.S.C. § 1151; see Oklahoma Tax Com. v. Sac & Fox 

Nation (1993) 508 U.S. 114, 123 [“Indian country” encompasses “formal and informal 

reservations, dependent Indian communities, and Indian allotments, whether restricted or 

held in trust by the United States”].)

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Federally protected territory in California falling within the federal definition of 

“Indian country” has a unique history that differs in some respects from the history of 

federally protected Indian lands in other states, where in many cases treaties with tribes 

determined the boundaries of tribal territory. (See Cohen, Handbook of Federal Indian 

Law (2012 ed.) § 3.04[2][a], p. 185 (Cohen).) Early in the 20th century, the United 

States sought to improve “the landless, homeless or penurious state of many California 

Indians” by purchasing numerous small tracts of land known as “ ‘[r]ancherias.’ ” 

(Williams v. Gover (9th Cir. 2007) 490 F.3d 785, 787.) The United States holds these 

rancheria lands in trust for resident Indians, controlling the land pursuant to a “special 

fiduciary duty owed by the United States to the Indian people.” (Table Bluff Band of 

Indians v. Andrus (N.D.Cal. 1981) 532 F.Supp. 255, 258.) A federal statute passed in 

1958 known as the California Rancheria Act (Pub.L. No. 85-671 (Aug. 18, 1958) 72 Stat. 

619-621), amended in 1964 (Pub.L. No. 88-419 (Aug. 11, 1964) 78 Stat. 390-391) (the 
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B. The Directory Act, the Fire Safety Act, and the Tax Stamp Act

At the center of the appeal are three sets of statutes governing different aspects of 

the sale and distribution of cigarettes in California. In order to provide some general 

legal context and set the stage for the specific issues framed by the appeal, we begin by 

summarizing these statutes.

First, California, along with many other states, has enacted legislation designed to 

implement the provisions of the 1998 Tobacco Master Settlement Agreement (the 

MSA).2 Under the pertinent California statutes, cigarettes sold in this state must be 

produced by manufacturers who either (a) have signed the MSA and agreed to pay 

substantial sums to the state to cover, among other things, health care costs generated by 

tobacco use among Californians, or (b) in lieu of signing the MSA, have agreed to pay 

sufficient funds into a reserve fund in escrow to guarantee a source of compensation 

should liability arise. (Health & Saf. Code, §§ 104555-104557.) Under the Directory 

Act, the Attorney General maintains a published list of all cigarette manufacturers who 

have annually certified their compliance with the requirements of the MSA or the 

alternative escrow funding requirements. (Rev. & Tax. Code, § 30165.1, subds. (c) & 

(d).) It is categorically illegal for any “person” to “sell, offer, or possess for sale in this 

state, ship or otherwise distribute into or within this state” cigarettes that are not in 

 

Rancheria Act) established a process for terminating the trust relationship between the 

United States and the Indian people residing on 41 enumerated California rancherias and 

reservations. (Table Bluff, at p. 258.) A plan of termination for the Table Bluff 

Rancheria was prepared under the Rancheria Act, but because federal authorities failed to 

carry out various prerequisites to termination, the plan never took effect. (Id. at p. 259.) 

Throughout this opinion, we will occasionally use the term “reservation,” equating it with 

rancheria, since there is no dispute that the Table Bluff Rancheria qualifies as “Indian 

country,” and since many of the pertinent United States Supreme Court cases arose in 

states where tribes live on reservations.

2

See Annotation, Validity, Construction, Application, and Effect of Master 

Settlement Agreement (MSA) Between Tobacco Companies and Various States, and 

State Statutes Implementing Agreement; Use and Distribution of MSA Proceeds (2007) 

25 A.L.R.6th 435, section 2 (summarizing mechanics of MSA and state statutes 

implementing its provisions).
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compliance with the Directory Act. (Id., § 30165.1, subd. (e)(2); see Health & Saf. Code, 

§ 104555.)

Second, under the Fire Safety Act, any manufacturer of cigarettes sold in 

California must meet specified testing, performance, and packaging standards established 

for the purpose of minimizing the fire hazards caused by cigarettes. (Health & Saf. Code, 

§§ 14951, subd. (a)(1)-(3), 14952-14954.) This statute provides that all cigarettes sold in 

this state must, among other things, be packaged in a specified manner and certified with 

the State Fire Marshal as compliant with these safety standards. (Id., § 14951, subd. (a).)

It is categorically illegal for any “person” to “sell, offer, or possess for sale in this state 

cigarettes” that do not comply with the Fire Safety Act. (Ibid.)

Third, to reduce smoking and fund healthcare research related to diseases caused 

by smoking (Rev. & Tax. Code, §§ 30131 & 30121 et seq.), California imposes excise 

taxes that “shall be paid by the user or consumer” (id., § 30107) but that must be 

collected by distributors at the time of sale and remitted by them to the state (id., 

§ 30108). Compliance with this remittance obligation is administered under the Tax 

Stamp Act, which requires all cigarette packages sold in California to have tax stamps 

affixed to them. (Rev. & Tax. Code, § 30161.) Subject to exceptions, it is illegal for any 

“person” to “knowingly possess[], or keep[], store[], or retain[] for the purpose of sale, or 

sell[] or offer[] to sell, any package of cigarettes to which there is not affixed” a tax 

stamp required by the Tax Stamp Act. (Rev. & Tax. Code, § 30474, subd. (a).)

C. Procedural History

After sending two cease-and-desist letters charging Huber with violating various 

provisions of state law governing distribution and sales of cigarettes, the Attorney 

General filed this action in Humboldt County in March 2011. The complaint pleaded

three causes of action. The first alleged violation of the Directory Act. The second 

alleged violation of the Fire Safety Act. And the third alleged violation of the UCL, 

specifying violations of the Tax Stamp Act, the Directory Act, and the Fire Safety Act as 

predicate “unlawful acts” warranting entry of a permanent injunction and an award of 

civil penalties.
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Specifically, it was alleged that Huber Enterprises sold cigarettes in packages 

without an affixed tax stamp and failed to collect and remit excise taxes, all in violation 

of the Tax Stamp Act (Rev. & Tax. Code, § 30161); sold cigarettes purchased from 

manufacturers not listed by the Attorney General on the statewide tobacco directory, in 

violation of the Directory Act (id, § 30165.1, subd. (e)(2)); and sold cigarettes in 

packaging that does not meet required safety standards, in violation of the Fire Safety Act 

(Health & Saf. Code, § 14951, subd. (a)).3

On cross motions for summary adjudication, the trial court denied Huber’s motion;

granted the Attorney General’s motion in part, leaving open triable issues concerning 

civil penalties; and entered a permanent injunction. By its terms, the injunction applies 

only to sales to nonmembers of the Wiyot Tribe and permits Huber to continue operating 

so long as she complies with the Directory Act, the Fire Safety Act, and the Tax Stamp 

Act. This appeal followed.

III. DISCUSSION

Only the grant of the permanent injunction is on appeal. “ ‘A permanent 

injunction is a determination on the merits that a plaintiff has prevailed on a cause of 

action . . . against a defendant and that equitable relief is appropriate. A permanent 

injunction . . . is a final judgment on the merits.’ ” (Dawson v. East Side Union High 

School Dist. (1994) 28 Cal.App.4th 998, 1041.) Normally, “[t]he trial court’s decision to 

grant a permanent injunction rests within its sound discretion and will not be disturbed on 

appeal absent a showing of a clear abuse of discretion.” (Shapiro v. San Diego City 

Council (2002) 96 Cal.App.4th 904, 912.) But where an appeal attacks the legal premises 

of a permanent injunction on undisputed ultimate facts—as is the case here—our review 

is de novo. (Dawson, at p. 1041.)

Because the order granting summary adjudication in favor of the Attorney General 

and denying it to Huber supplies the basis for the permanent injunction, we must in turn 

 

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There is no standalone cause of action for violation of the Tax Stamp Act.
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review whether summary adjudication was correctly granted as to each of the three 

causes of action. We review de novo an order granting summary judgment or summary 

adjudication. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) “As a 

practical matter, ‘ “we assume the role of a trial court and apply the same rules and 

standards which govern a trial court’s determination of a motion for summary 

judgment.” ’ ” (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 536.) A summary 

adjudication motion “proceed[s] in all procedural respects as a motion for summary 

judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

A. Subject Matter Jurisdiction

The United States Supreme Court “first addressed the sovereign status of [Indian] 

tribes in three opinions known today as the Marshall Trilogy after their author, Chief 

Justice John Marshall. (See Worcester v. The State of Georgia (1832) 31 U.S. 515 . . . ; 

Cherokee Nation v. Georgia (1831) 30 U.S. 1 . . . (Cherokee Nation); Johnson v. 

M’Intosh (1823) 21 U.S. 543 . . . .) Broadly speaking, these cases established that ‘states 

lack jurisdiction in Indian country, that tribes are “domestic dependent nations” to whom 

the United States owes a fiduciary obligation, and that Indian affairs are the exclusive 

province of the federal government.’ ” (People v. Miami Nation Enterprises (2016) 

2 Cal.5th 222, 233-234.) Within this dependency relationship as Chief Justice Marshall 

conceived of it, relations between tribes and individual states are governed exclusively by 

the United States, and thus, absent express congressional authorization by treaty or 

legislation, state law does not extend to Indian territory. (See Worcester v. The State of 

Georgia, supra, 31 U.S. at p. 561.) From this basic principle evolved a closely related 

corollary—that absent congressional authorization, state courts lack subject matter 

jurisdiction to adjudicate cases arising on Indian lands. (See Williams v. United States

(1946) 327 U.S. 711, 714 & fn. 10 [criminal jurisdiction]; Williams v. Lee (1959) 

358 U.S. 217, 220, 222-223 (Williams) [civil jurisdiction].)

Huber’s main contention here is that California courts have no subject matter 

jurisdiction over this case because it involves her on-reservation activities as a member of 

the Wiyot Tribe. Central to her argument is a federal statute known as Public Law 280 
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(Pub.L. No. 83-280 (Aug. 15, 1953) 67 Stat. 588-590) by which Congress granted six 

states, one of which is California, plenary criminal jurisdiction over “offenses committed 

by or against Indians” within Indian country (18 U.S.C. § 1162(a); see People v.

McCovey (1980) 36 Cal.3d 517, 535) and limited civil jurisdiction over “causes of action 

between Indians or to which Indians are parties” in cases arising in Indian country 

(28 U.S.C. § 1360(a); see Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1147, fn. 4

(Boisclair); People ex rel. Dept. of Transportation v. Naegele Outdoor Advertising Co.

(1985) 38 Cal.3d 509, 520 (Naegele); Middletown Rancheria v. Workers’ Compensation 

Appeals Board (1998) 60 Cal.App.4th 1340, 1348 (Middletown Rancheria)).

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Section 4 of Public Law 280, 28 U.S.C. § 1360, provides as follows

“(a) Each of the States listed in the following table shall have jurisdiction over 

civil causes of action between Indians or to which Indians are parties which arise in the 

areas of Indian country listed opposite the name of the State to the same extent that such 

State has jurisdiction over other civil causes of action, and those civil laws of such State 

that are of general application to private persons or private property shall have the same 

force and effect within such Indian country as they have elsewhere within the State:

“State of Indian country affected

[¶ . . . ¶]

California..............................All Indian country within the State.

[¶ . . . ¶]

“(b) Nothing in this section shall authorize the alienation, encumbrance, or 

taxation of any real or personal property, including water rights, belonging to any Indian 

or any Indian tribe, band, or community that is held in trust by the United States or is

subject to a restriction against alienation imposed by the United States; or shall authorize 

regulation of the use of such property in a manner inconsistent with any Federal treaty, 

agreement, or statute or with any regulation made pursuant thereto; or shall confer 

jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the 

ownership or right to possession of such property or any interest therein.

“(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian 

tribe, band, or community in the exercise of any authority which it may possess shall, if 

not inconsistent with any applicable civil law of the State, be given full force and effect 

in the determination of civil causes of action pursuant to this section.”
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“Although the federal government has plenary power over tribal affairs” under the 

doctrine of Indian sovereignty, “it began to delegate some of this authority to the states in 

the early 1950’s during an assimilationist period.” (Middletown Rancheria, supra, 

60 Cal.App.4th at p. 1348.) Public Law 280 is the principal statute under which that 

delegation took place. “The primary focus of the legislative history of Public Law 280 is 

on the grant of criminal jurisdiction set forth in section 2 (codified in 18 U.S.C. § 1162).”

(Middletown Rancheria, supra, at p. 1348.) The civil grant of jurisdiction, set forth in 

section 4 of Public Law 280 (codified in 28 U.S.C. § 1360), by contrast, received 

relatively little attention in the legislative process, which prompted “one commentator to 

conclude that such jurisdiction was ‘an afterthought . . . added because it comported with 

the pro-assimilationist drift of federal policy.’ ” (Boisclair, supra, 51 Cal.3d at p. 1150, 

quoting Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation 

Indians (1975) 22 U.C.L.A. L.Rev. 535, 543 (Goldberg).)

At the time Congress passed Public Law 280 in 1953, the policy of the federal 

government tended to favor assimilation of Indian tribes into the surrounding citizenry of 

their respective states. (See Cohen, supra, §§ 1.06-1.07, pp. 89-99.)5 Although there is 

nothing definitive in the legislative history to shed light on Congressional intent, “[w]hat 

is known is that Public Law number 280 passed despite considerable opposition from 

 

Besides California, the other listed Public Law 280 states, as the statute was 

originally enacted in 1953, were Minnesota, Nebraska, Oregon, and Wisconsin. Alaska 

was added by Act of August 8, 1958, Public Law No. 85-615, section 1, 72 Statutes 545

(codified at 18 U.S.C. § 1162(a), 28 U.S.C. § 1360(a)). These six states are sometimes 

known as “mandatory” Public Law 280 states. (See Cohen, supra, § 6.04[3][a], p. 538, 

fn. 50.) Public Law 280 offered the option to other states to accept the same jurisdiction, 

and eventually 10 additional states, sometimes known as “optional” Public Law 280 

states (Arizona, Idaho, Florida, Iowa, Montana, Nevada, North Dakota, South Dakota, 

Utah, and Washington), accepted jurisdiction under its terms, in whole or in part. (See 

Cohen, supra, § 6.04[3][a], pp. 537-538 & fn. 47.)

5 Up to that point in time, federal policy had oscillated between periods of 

promotion of tribal assimilation and promotion of tribal self-determination. (See

Organized Village of Kake v. Egan (1962) 369 U.S. 60, 74 (Village of Kake); Boisclair,

supra, 51 Cal.3d at p. 1150.)
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Indian organizations, which feared ‘state jurisdiction would in practice operate to the 

disadvantage of the Indians. The Indians in many instances preferred federal to state 

jurisdiction because the [Bureau of Indian Affairs], for all its faults, at least perceived the 

Indians as its special responsibility and concern.’ (Goldberg, supra, 22 U.C.L.A. L.Rev. 

at p. 545.) Perhaps because of this opposition, Public Law number 280, in its final form, 

represented ‘an attempt at compromise between wholly abandoning the Indians to the 

states and maintaining them as federally protected wards, subject only to federal or tribal 

jurisdiction.’ (Id. at p. 537.)” (Boisclair, supra, 51 Cal.3d at p. 1150.)

In line with this view of Public Law 280 as a compromise measure, Huber stakes 

her position on the premise that the United States Supreme Court has read the extension 

of civil jurisdiction under Public Law 280 narrowly, confining it to “private civil 

litigation involving reservation Indians in state court” (Bryan v. Itasca County (1976) 

426 U.S. 373, 385 (Bryan)) while withholding “general state civil regulatory control over 

Indian reservations.” (Id. at p. 384.) In California v. Cabazon Band of Mission Indians

(1987) 480 U.S. 202 (Cabazon), which applies and expounds upon the holding in Bryan, 

the high court drew a distinction between “ ‘criminal/prohibitory’ ” actions (which are 

authorized by Public Law 280), and “ ‘civil/regulatory’ ” actions (which are not 

authorized by Public Law 280), leaving to lower courts the task of fleshing out this 

distinction in case-by-case adjudication. (Cabazon, at p. 209.) According to Huber, a 

public enforcement action under Business and Professions Code section 17200—by 

definition not a private dispute and seeking to force a change in her business operations

through the coercion of an injunction and civil penalties—is an exercise of “general 

regulatory” power. We agree.

B. Public Law 280: Civil Jurisdiction

1. Public Law 280, Section 4, as Construed in Bryan

Because Bryan is pivotal to our analysis of subject matter jurisdiction, we begin 

with a close look at that case. Bryan, decided three years after McClanahan v. State Tax 

Commission of Arizona (1973) 411 U.S. 164 (McClanahan), “the ‘seminal case in the 

area of American Indian income taxation’ [citation]” (Mike v. Franchise Tax Bd. (2010) 
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182 Cal.App.4th 817, 822), addressed a “question reserved in [McClanahan]: whether 

the grant of civil jurisdiction to the states conferred by § 4 of Pub.L. 280 . . . is a 

congressional grant of power to the states to tax reservation Indians except insofar as 

taxation is expressly excluded by the terms of the statute.” (Bryan, supra, 426 U.S. at 

p. 375.) As summarized by the Bryan court, McClanahan established the baseline rule, 

restating and clarifying authority going back to the Marshall Trilogy, that states are 

“disabled in the absence of congressional consent from imposing a state income tax on 

the income of a reservation Indian earned solely on the reservation.” (Bryan, at p. 377.)6

At issue in Bryan was a $147.95 personal property tax imposed by a Minnesota 

county on a mobile home owned by an enrolled member of the Chippewa tribe and 

located on a reservation. (Bryan, supra, 426 U.S. at p. 375.) The Supreme Court of 

Minnesota sustained the tax, holding that section 4(a) of Public Law 280 (28 U.S.C. 

§ 1360(a)) grants a general power to tax. (Bryan, at pp. 375, 378.) Its analysis turned on 

section 4(b) of Public Law 280 (28 U.S.C. § 1360(b)), which lists a series of exceptions 

to the grant of power in section 4(a). (Bryan, at pp. 378-379.) “ ‘[U]nless paragraph (a) 

is interpreted as a general grant of the power to tax, then the exceptions contained in 

 

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“The McClanahan principle derives from a general preemption analysis 

[citation] that gives effect to the plenary and exclusive power of the Federal Government 

to deal with Indian tribes [citations] and ‘to regulate and protect the Indians and the 

property against interference even by a state,’ [citation]. This pre-emption analysis draws 

support from ‘the “backdrop” of the Indian sovereignty doctrine,’ [citation] ‘ “[t]he 

policy of leaving Indians free from state jurisdiction and control [which] is deeply rooted 

in the Nation’s history,” ’ [citation] and the extensive federal legislative and 

administrative regulation of Indian tribes and reservations, [citation]. ‘Congress has . . . 

acted consistently upon the assumption that the States have no power to regulate the 

affairs of Indians on a reservation,’ [citation], and therefore ‘ “State laws generally are 

not applicable to tribal Indians on an Indian reservation except where Congress has 

expressly provided that State laws shall apply.” ’ [Citation.] [¶] [T]his pre-emption 

model usually yields different conclusions as to the application of state laws to tribal 

Indians who have left or never inhabited federally established reservations, or Indians 

‘who do not possess the usual accoutrements of tribal self-government.’ [Citations.]” 

(Bryan, supra, 426 U.S. at p. 376, fn. 2.)
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paragraph (b) are limitations on a nonexistent power,’ ” the state high court held. (Bryan, 

at p. 378.) Reversing, the United States Supreme Court rejected the idea that section 4(b) 

confirms a generalized grant of taxing power; the court instead interpreted section 4(a) as 

having a wholly different purpose, one involving courts and civil justice. Section 4(a) 

must be read as a grant of judicial power over “civil causes of action” the court held. 

(Bryan, at pp. 383-385.)

Invoking the interpretive canon that “ ‘statutes passed for the benefit of dependent 

Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in 

favor of the Indians’ ” (Bryan, supra, 426 U.S. at p. 392), and reading the text of section 

4 in light of its “sparse” legislative history (id. at pp. 383-384), the court explained that 

“subsection (a) seems to have been primarily intended to redress the lack of adequate 

Indian forums for resolving private legal disputes between reservation Indians, and 

between Indians and other private citizens, by permitting the courts of the states to decide 

such disputes.” (Id. at p. 383.) “[T]he consistent and exclusive use of the terms ‘civil 

causes of action,’ ‘[arising] on,’ ‘civil laws . . . of general application to private persons 

or private property,’ and ‘[adjudication],’ in both the Act and its legislative history 

virtually compels our conclusion that the primary intent of § 4 was to grant jurisdiction 

over private civil litigation involving reservation Indians in state court.” (Id. at pp. 384-

385; see also Cabazon, supra, 480 U.S. at p. 208 [“when a State seeks to enforce a law 

within an Indian reservation under the authority of Pub.L. 280, it must be determined 

whether the law is . . . civil in nature, and applicable only as it may be relevant to private 

civil litigation in state court”].)

Under the holding in Bryan, the power Congress withheld from states in the civil 

arena (“general state civil regulatory control”) is just as important to bear in mind as the 

power it affirmatively granted (adjudicative authority over “private legal disputes” 

involving “reservation Indians”). (See Bryan, supra, 426 U.S. at pp. 383-384.) 

According to the Bryan court, Public Law 280 “was plainly not meant to effect [the] total 

assimilation” of tribes into the legal regimes in Public Law 280 states. (Bryan, at 

pp. 387-388.) The statute “was only one of many types of assimilationist legislation 
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under active consideration in 1953. [Citations.] And nothing in its legislative history 

remotely suggests that Congress meant the Act’s extension of civil jurisdiction to the 

States should result in the undermining or destruction of such tribal governments as did 

exist and a conversion of the affected tribes into little more than ‘ “private, voluntary 

organizations,” ’ [citation]—a possible result if tribal governments and reservation 

Indians were subordinated to the full panoply of civil regulatory powers . . . of state and 

local governments.” (Bryan, at p. 387.)

Turning to the application of Public Law 280 section 4(a) in this case, we have a 

lawsuit in which one party is a member of a federally recognized tribe, and each of the 

statutes at issue, the Directory Act, the Fire Safety Act, the Tax Stamp Act, and the UCL, 

is a law of “general application to private persons” in California. Accordingly, under one 

reading of the statutory language, the case would appear to fit easily within the statutory 

grant of civil jurisdiction for all three causes of action. But that is not the reading the 

United States Supreme Court has adopted; Bryan instructs us that what matters here is the 

absence of any private dispute. (See Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1058-

1059 (Doe) [under Cabazon and Bryan “the private nature of disputes is what places 

them within Public Law 280’s civil jurisdiction”].)

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 Because the Attorney General sues 

 

7

 The question of Public Law 280 jurisdiction arose in Doe, supra, 415 F.3d 1038 

in a procedural posture that differs significantly from this case, but the opinion there is 

nonetheless instructive. Doe was a federal action under the Indian Child Welfare Act 

(ICWA) in which an Indian mother whose parental rights had been terminated by the 

Lake County Superior Court sought declaratory and injunctive relief in an effort to 

invalidate the Lake County dependency judgment. (Doe, at pp. 1047-1049, 1058-1059.) 

The mother argued the dependency court lacked subject matter jurisdiction because she 

was a member of a federally recognized tribe, and her child had been removed from a 

home on the tribal reservation. (Id. at pp. 1040-1041.) In such a case, she argued, Indian 

tribes have exclusive jurisdiction under ICWA. (Id. at p. 1041.) A premise of that 

argument was that California dependency courts have no Public Law 280 jurisdiction 

because dependency proceedings, which are initiated and pursued by county social 

welfare agencies, do not involve “private disputes.” (Id. at pp. 1047-1049, 1058-1059.)

The Ninth Circuit panel opined that, even though the state is a party to dependency 

proceedings, those proceedings concern the “status” of “a private individual,” and thus 
14

with the manifest purpose of law enforcement on behalf of the public at large, and 

because this case is not one in which we may fairly say it is “private in substance” (see 

County of Inyo v. Jeff (1991) 227 Cal.App.3d 487, 494 [county’s action on behalf of 

Indian child to collect delinquent child support from tribe member mother deemed to be 

private in substance]), we agree with Huber that it falls outside the grant of civil 

jurisdiction in Public Law 280.

2. The Conflation of Preemption and Subject Matter Jurisdiction

The Attorney General argues that subject matter jurisdiction in this case is not, and 

need not be, founded upon Public Law 280. For this position, he relies heavily on a line 

of United States Supreme Court cases upholding state laws regulating cigarette sales by 

and to tribal members in the face of preemption challenges on grounds of Indian 

sovereignty. (See Moe v. Confederated Salish and Kootenai Tribes of Flathead 

Reservation (1976) 425 U.S. 463 (Moe); Washington v. Confederated Tribes of Colville 

Indian Reservation (1980) 447 U.S. 134 (Colville); Department of Taxation & Finance of 

New York v. Milhelm Attea & Bros., Inc. (1994) 512 U.S. 61 (Milhelm).) These cases, 

according to the Attorney General, recognize that “an express federal statutory grant, 

 

are “more analogous” to the private legal disputes falling within Public Law 280’s civil 

jurisdiction than to the taxation and gambling statutes at issue in Bryan and Cabazon, 

which “regulate the conduct of the public at large.” (Doe, 415 F.3d at p. 1059.) The 

panel in Doe, however, did not rest its conclusion as to the applicability of Public Law 

280 solely on the purported distinction between proceedings relating to status and broader 

regulatory regimes. (Doe, at p. 1061.) Instead, the court went on to conclude ICWA 

contemplates that, unless a tribe follows specified procedures to “reassume” jurisdiction, 

Public Law 280 states retain Public Law 280 jurisdiction (25 U.S.C. § 1918(a)) in “child 

custody proceedings” (25 U.S.C. § 1903(i)), thus bringing the case within an exception to 

ICWA’s reservation of exclusive tribal jurisdiction for situations in which “jurisdiction is 

otherwise vested in the State by existing federal law.” (25 U.S.C. § 1911(a).) (Doe, at 

pp. 1061-1062.) Obviously, this latter part of the holding in Doe is unique to ICWA law 

and has no applicability here, but what is significant about the case is that, having 

concluded that the underlying Lake County case did not involve a truly “private dispute”

falling clearly within the grant of Public Law 280 jurisdiction, the panel took on the 

difficult next step of the analysis, looking for and finding a basis for congressionally 

conferred jurisdiction elsewhere.
15

such as Public Law 280, is not the sole source of state regulatory authority over an Indian 

in Indian Country.”

Citing People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 

1561 (Black Hawk), which applied the Moe-Colville-Milhelm line of preemption cases in 

a Business and Professions Code section 17200 action brought by the State of California, 

the Attorney General, in essence, equates a finding of no preemption with the existence 

of subject matter jurisdiction. Black Hawk, like this case, involved tobacco smokeshops

operated on Indian trust land, there on allotments of the Agua Caliente Band of Cahuilla 

Indians (the Band) in Riverside County. (Black Hawk, at pp. 1564-1565.) We should 

follow Black Hawk, the Attorney General argues, since that case was a UCL proceeding 

in which, as here, the predicate “unlawful” acts included sales of cigarettes in violation of 

the Directory Act and the Fire Safety Act. (Black Hawk, at p. 1565.) It is true that, in 

Black Hawk, the Court of Appeal affirmed a preliminary injunction against the operators 

of the smokeshops, but Public Law 280 was never raised in that case and thus the court 

did not address it. (Black Hawk, at pp. 1564, 1566-1567, 1572.) While the smokeshop 

defendants in Black Hawk appear to have asserted some sort of jurisdictional challenges

in the trial court (id. at p. 1566), they did not appeal on that ground, instead mounting a 

“new argument that the State of California has no right to regulate tobacco sales on the 

Band’s reservation because the Band has the exclusive authority to regulate tobacco sales 

on the reservation.” (Id. at p. 1567.) The Court of Appeal panel rejected the argument, 

upholding the trial court’s ruling that the state could apply its laws to the smokeshops. 

(Id. at pp. 1569-1571.) The panel relied on Moe and Colville, as the trial court did, and 

never mentioned subject matter jurisdiction. (Black Hawk, at pp. 1566, 1569-1571.)

In her treatment of Black Hawk, Huber draws an analytical distinction that we 

think brings some clarity to the sometimes loose use of the term “jurisdiction” in the case 

law in this area. While the ultimate issue before the high court in Bryan, supra, 426 U.S. 

373 was the reach of state tax law into Indian country—a question of legislative 

jurisdiction—the effect of its construction of section 4(a) of Public Law 280 was to 

confine the civil adjudicative jurisdiction of state courts to the enforcement of state law 
16

in private disputes.8 What this means for our purposes is that, under the holding in 

Bryan, supra, 426 U.S. 373, we may proceed to apply California law unless it is 

preempted by federal law, but the antecedent question of adjudicative jurisdiction must 

be addressed first, at the threshold. As we read Bryan, if there is no adjudicative

jurisdiction, we have no need to proceed further to the question of preemption—indeed 

we have no power to do so. This, fundamentally, is the subject matter jurisdiction issue 

Huber raises here. It is a close and difficult question, but with a few exceptions we agree 

 

8

The difference between jurisdiction to adjudicate, on the one hand, and 

jurisdiction to legislate, on the other, is well recognized in California law (2 Witkin, Cal. 

Procedure (5th ed. 2008) Jurisdiction, § 5, pp. 578-579 (Witkin)) as it is in state and 

federal law generally (see generally Willis L.M. Reese, Legislative Jurisdiction,

78 Colum. L.Rev. 1587, 1587-1594 (1978)), and has often been noted by the high court 

in Indian law cases involving tribal courts (see Strate v. A-1 Contractors (1997) 520 U.S. 

438, 453; Cohen, supra, § 7.01, pp. 597-598). Adjudicative jurisdiction concerns “a 

court’s competency to decide the issue before it” (Witkin, supra, § 11, at p. 584), while 

legislative jurisdiction involves the prescriptive power of “ ‘a state to make its law 

applicable to persons or activities’ ” (Hartford Fire Ins. Co. v. State of California (1993) 

509 U.S. 764, 813 (dis. opn. of Scalia, J.)). To put it succinctly, legislative jurisdiction is 

“the power of a state to apply its laws to any given set of facts” (italics added), whereas 

adjudicative jurisdiction “is the power of a state to try a particular action in its courts.” 

(McCluney v. Jos. Schlitz Brewing Co. (8th Cir. 1981) 649 F.2d 578, 581, fn. 3, affd.

(1981) 454 U.S. 1071.)

Prior to Bryan, the few reported California decisions addressing Public Law 280 

read it as a grant of legislative jurisdiction (e.g., Acosta v. San Diego County (1954) 

126 Cal.App.2d 455, 460, 463-464 [Public Law 280 cited as one of a number of statutes 

conferring authority on the state to extend its civil and criminal laws to Indian 

reservations]; see Witkin, supra, § 5, p. 578 [citing Acosta as an example of a case 

addressing the issue of legislative jurisdiction]), and took as a given that, prior to the 

enactment of Public Law 280, civil regulatory statutes could not be applied to conduct by 

tribe members on Indian reservations (see Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 

454, 459, 461-462 [rejecting contention that Public Law 280 authorized application of 

statute regulating fishing rights on Klamath River Reservation]; Elser v. Gill Net No. One

(1966) 246 Cal.App.2d 30, 36-37 [same]).
17

with her that none of the cases on which the Attorney General relies squarely addresses 

it.9

The one exception in California law is the Third District’s recent decision in 

People ex rel. Becerra v. Rose (2017) 16 Cal.App.5th 317 (Rose), which was decided 

after the close of briefing. Rose, like Black Hawk and this case, was a UCL public 

enforcement action by the Attorney General against an Indian-owned retail tobacco 

business. (Rose, at pp. 321-323.) It, too, involved alleged violations of the Tax Stamp 

Act, the Directory Act, and the Fire Safety Act. (Id. at pp. 322-323.) The defendant, 

Rose, was a member of the Alturas Indian Rancheria, but his smokeshops were located 

more than 150 miles from the rancheria on allotments in which the Alturas had no 

interest. (Id. at p. 322.) Rose follows and adopts the no-preemption holding in Black 

Hawk, relying in part on Colville (Rose, at pp. 328-329), but goes further, expressly 

rejecting the Public Law 280 argument that is the centerpiece of Huber’s argument in this 

case. (Rose, at pp. 329-331.) In doing so, the Rose court addressed the issue of 

preemption first, resolved it in favor of applying state law (id. at pp. 328-329), and then 

saw no need to analyze jurisdiction under Public Law 280, explaining as follows: “Rose 

cites two cases—Bryan v. Itasca County . . . and Doe v. Mann . . . . But those cases 

addressed only whether Public Law 280 conferred subject matter jurisdiction on state

courts. They did not address the broader issue of whether California and its courts have 

 

9

In addition to Black Hawk, supra, 197 Cal.App.4th 1561, the Attorney General 

relies on out-of-state authority in which the enforceability of state statutes governing 

cigarette sales by Indian smokeshop businesses was at issue, including two federal cases 

(see King Mountain Tobacco Inc. v. McKenna (9th Cir. 2014) 768 F.3d 989; Muscogee 

(Creek) Nation v. Pruitt (10th Cir. 2012) 669 F.3d 1159) and two state cases (State ex rel.

Edmondson v. Native Wholesale Supply (Okla. 2010) 237 P.3d 199 (Native Wholesale 

Supply I); State ex rel. Pruitt v. Native Wholesale Supply (Okla. 2014) 338 P.3d 613

(Native Wholesale Supply II)). None of these cases addresses the issue of state court 

subject matter jurisdiction under Public Law 280, because each case arose either in 

federal court (King Mountain, Muscogee) or in a non-Public Law 280 state (Muscogee, 

Native Wholesale Supply I, Native Wholesale Supply II).
18

jurisdiction because such jurisdiction is not preempted by federal law and tribal 

sovereignty. This is not a Public Law 280 case.” (Rose, at p. 330.)

To us, it is not clear what “the broader issue” of preemption, the effect of which is 

a negation of power, not a grant of it, has to do with adjudicative jurisdiction. Every 

California case involving Indian litigants in Indian country is “a Public Law 280 case”—

in the sense that the statute must be applied, and if its terms are met (either by 

considering Public Law 280 alone or in the context of another statutory scheme such as 

ICWA, as it was in Doe, supra, 415 F.3d 1038, see ante, fn. 7), the case may proceed, 

while if they are not, the case must be dismissed—unless some other grant of 

congressional authority to adjudicate can be found. Ultimately, the concluding statement 

in Rose that “California courts have routinely exercised subject matter jurisdiction in 

cases in which the state’s civil/regulatory laws may be applied to Indian country” is most 

telling. (Rose, supra, 16 Cal.App.5th at p. 330.) Far from routine assumption of subject 

matter jurisdiction in cases involving assertion of civil/regulatory laws, the small sample 

of such cases we could find suggests that, following Bryan, California courts have 

dismissed for lack of subject matter jurisdiction where a jurisdictional objection was 

raised.

10 Two California cases are cited in Rose as counter examples, the first of which, 

People v. McCovey, supra, 36 Cal.3d 517, is a criminal case—an area in which it has 

never been doubted that Public Law 280 grants California plenary jurisdiction to 

adjudicate—and the second, Black Hawk, supra, 197 Cal.App.4th 1561, as we have 

 

10 E.g., Boisclair, supra, 51 Cal.3d at pp. 1153, 1156, 1158-1159 (holding trial 

court should have dismissed request for declaratory relief for lack of subject matter 

jurisdiction under section 4(b) of Public Law 280 (28 U.S.C. § 1360(b)) because alleged 

easement rights to road running through Indian trust land implicated “ ‘ownership or right 

to possession of [Indian] property’ ”); Middletown Rancheria, supra, 60 Cal.App.4th at 

pp. 1343, 1352 (granting writ of review and holding Workers’ Compensation Appeals 

Board lacked subject matter jurisdiction over tribal employee’s claim because 

proceedings deemed regulatory and thus not a private dispute within section 4(a) of 

Public Law 280 (28 U.S.C. § 1360(a))).
19

noted, does not address the issue of subject matter jurisdiction. (Rose, at p. 330.) Thus, 

we do not find Rose to be persuasive on this point.

What is problematic about the Rose court’s treatment of Public Law 280, in our 

view—a flaw also reflected in the position taken by the Attorney General in this case—is 

that it conflates adjudicative jurisdiction and legislative jurisdiction. He cites to a 

passage in Cabazon in which the high court stated it has “not established an inflexible per 

se rule precluding state jurisdiction over tribes and tribal members in the absence of 

express congressional consent” (Cabazon, supra, 480 U.S. at pp. 214-215), but the 

quoted passage is from a section of the Cabazon opinion specifically addressing 

preemption, not adjudicative jurisdiction. Although the Attorney General correctly points 

out Public Law 280 is not “the sole possible source for state authority in this area,” that 

seems to us beside the point. It is true, as we shall discuss below (see section III.D.1, 

post), that the modern doctrine of Indian preemption leaves room for implied state 

legislative authority over Indians in Indian country based on a weighing of competing 

policy interests, but judicial power is a separate and distinct matter and must rest on some 

express delegation of authority. We cannot confer jurisdiction on ourselves, based on a 

weighing of policy interests, or for any other reasons not grounded in a legislative grant 

from Congress.

When pressed on the issue of subject matter jurisdiction at oral argument, the 

Attorney General’s fallback position was that nothing in Public Law 280 withdrew any 

aspect of the California courts’ preexisting general jurisdiction. All Public Law 280 did, 

he suggested, was expand the adjudicative jurisdiction over Indians in Indian country that 

California courts already enjoyed. We see two basic problems with this point of view. 

First, taking the argument on its own terms, we have difficulty seeing what there was to 

expand if jurisdiction was general to begin with. The default rule that the courts of this 

state have subject matter jurisdiction to enforce California law in any case where there is 

personal jurisdiction over the parties does not supply an adequate answer to the question 

Huber raises, for if it did, Public Law 280 was an idle act by Congress. Second, the 

argument runs contrary to a fundamental premise of the Bryan opinion—that, as a 
20

compromise measure, Public Law 280 granted narrow civil adjudicative jurisdiction as a 

way to avoid the “devastating impact on tribal governments that might result from an 

interpretation of § 4 as conferring upon state and local governments general civil 

regulatory control over reservation Indians.” (Bryan, supra, 426 U.S. at p. 388, fn. 14.)

Supplanting section 4(a) with state court general jurisdiction effectively transforms 

Public Law 280 into the full and complete assimilationist measure the high court held it 

was never intended to be. (Bryan, at p. 390.)

This is not a case, to be sure, in which an alternative tribal or federal forum 

appears to be available for a civil enforcement action by the State of California. But in 

our view, that is an inevitable consequence of Bryan’s conclusion that section 4(a) of 

Public Law 280 does not extend “general state civil regulatory control over Indian 

reservations.” (Bryan, supra, 426 U.S. at p. 384.) Because, in the absence of such a 

grant, the exercise of state judicial power over on-reservation conduct by a Wiyot Tribe 

member impedes the tribe’s ability to foster and protect its own way of enforcing the rule 

of law, we cannot agree that, in the absence of express congressional authorization, the 

general jurisdiction of California courts supplies a basis to proceed in this case. In this 

specialized area, the California courts are more like courts of limited jurisdiction than 

courts of general jurisdiction when it comes to disputes involving the on-reservation 

conduct of tribe members, and as a result, the first and most fundamental question to ask 

before proceeding in such a case is whether we are empowered to act. Under the grant of 

civil adjudicative jurisdiction in Public Law 280, we hold that the answer to that question 

here is no.

C. Public Law 280: Criminal/Prohibitory Jurisdiction

Having concluded that this case falls outside the grant of civil adjudicative

jurisdiction in Public Law 280, we come to the next question posed by the holding in 

Bryan—whether subject matter jurisdiction exists over any of the claims alleged in this 

case because the statutes being asserted here may be deemed criminal/prohibitory in 
21

nature and thus within the grant of criminal jurisdiction in section 2 of Public Law 280 

(codified in 18 U.S.C. § 1162).11

Cabazon sets the frame of analysis. The Cabazon case involved two federally 

recognized bands of Mission Indians in Riverside County, the Morongo and the Cabazon, 

each of which operated bingo games on its reservation. (Cabazon, supra, 480 U.S. at 

pp. 204-205.) The State of California sought to enforce against these tribes Penal Code 

section 326.5, which, as the high court read it, “does not entirely prohibit the playing of 

bingo but permits it when the games are operated and staffed by members of designated 

charitable organizations who may not be paid for their services. Profits must be kept in 

special accounts and used only for charitable purposes; prizes may not exceed $ 250 per 

game.” (Cabazon, at p. 204.) The high court’s opinion reversing put to rest any notion 

that Bryan was a narrow decision, applicable only to assertions of state taxing power. 

Even though California, exercising its police powers, sought to invoke what was 

nominally a penal statute in Cabazon, the court held that “when a State seeks to enforce a 

law within an Indian reservation under the authority of Pub.L. 280, it must be determined 

whether the law is criminal in nature, and thus fully applicable to the reservation under § 

 

11 Section 2 of Public Law 280, 18 U.S.C. § 1162, provides as follows:

“(a) Each of the States . . . listed in the following table shall have jurisdiction over 

offenses committed by or against Indians in the areas of Indian country listed . . . to the

same extent that such State . . . has jurisdiction over offenses committed elsewhere within 

the State . . . and the criminal laws of such State . . . shall have the same force and effect 

within such Indian country as they have elsewhere within the State . . . :

 “State or Territory of Indian country affected

[¶ . . . ¶]

California..............................All Indian country within the State.”

[¶ . . . ¶]

Structurally, section 2 is laid out similarly to section 4, with a series of proviso clauses 

(none of which is relevant here) following section 2. The same states are listed for both 

section 2 and section 4.
22

2, or civil in nature, and applicable only as it may be relevant to private civil litigation in 

state court.” (Id. at p. 208.)

“[I]f the intent of a state law is generally to prohibit certain conduct,” the court 

explained, “it falls within Pub.L. 280’s grant of criminal jurisdiction, but if the state law 

generally permits the conduct at issue, subject to regulation, it must be classified as 

civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian 

reservation. The shorthand test is whether the conduct at issue violates the state’s public 

policy.” (Cabazon, supra, 480 U.S. at p. 209.) The remedies attached to a statute are not 

necessarily dispositive because that would allow states to avoid a regulatory classification 

simply by attaching some form of criminal sanction. (See id. at p. 211 [“[T]hat an 

otherwise regulatory law is enforceable by criminal as well as civil means does not 

necessarily convert it into a criminal law within the meaning of Pub.L. 280. Otherwise, 

the distinction between [Public Law 280’s criminal jurisdiction and civil jurisdiction] 

could easily be avoided”].) Ultimately, in Cabazon, the court determined that the bingo 

laws at issue were regulatory in nature, even though enforced with penal sanctions, 

because “California permits a substantial amount of gambling activity, including bingo, 

and actually promotes gambling through its state lottery,” demonstrating that “California 

regulates rather than prohibits gambling in general and bingo in particular.” (Cabazon, at 

p. 211.)

Applying this test to the three causes of action pleaded in this case, we think that 

two of the three claims, the first, for violation of the Directory Act, and the second, for 

violation of the Fire Safety Act, rest on statutes that are criminal/prohibitory in nature and

thus may be enforced under Public Law 280’s grant of criminal jurisdiction. The 

Directory Act establishes a categorical ban on the sale of cigarettes purchased from 

manufacturers who have not certified their compliance with the MSA or made escrow 

payments in lieu thereof. (Rev. & Tax. Code, § 30165.1, subd. (e)(2).) A useful analogy, 

in our view, is to statutory prohibitions on cigarette sales to minors or underage drinking, 
23

two examples of categorical bans which have been found to be criminal/prohibitory in 

nature.12 The Fire Safety Act presents a closer question, but we think it too is 

criminal/prohibitory in nature. Here again we have a statute that sets up a categorical 

ban, in the case of this statute on all products offered for sale that do not meet 

certification requirements for noncombustible packaging. (Health & Saf. Code, § 14951, 

subd. (a).) It is analogous, we think, to statutes prohibiting the general possession and/or 

sale of certain classes of fireworks subject to narrow exceptions.13 In assessing the 

proper classification of these two laws, we find it significant that both meet the Cabazon

shorthand test for statutes outlawing conduct in violation of public policy (Cabazon, 

supra, 480 U.S. at p. 209), since both involve transgressions more serious than violation 

of a statute per se, but also create hazards to public health and safety.

Unlike the Directory Act and the Fire Safety Act, we view the third cause of action 

for violation of the UCL as a claim founded on a civil/regulatory law and thus outside 

Public Law 280’s grant of criminal jurisdiction. The UCL is a trade regulation statute. 

California permits open business competition—indeed promotes it—and the UCL 

regulates competition by making illegal only a subset of business practices that are 

“unlawful, unfair or fraudulent,” as well as advertising that is “unfair, deceptive, untrue 

or misleading.” (Bus. & Prof. Code, § 17200.) A useful analogy here is to cases 

involving attempted enforcement under Public Law 280 of driving infraction laws on 

Indian reservations; these laws apply to all driving, which is, of course, generally

allowed, but they forbid only certain subsets of driving, such as driving over a certain 

speed limit14 or driving without proof of insurance.15 The Attorney General emphasizes 

 

12 State v. Lasley (Iowa 2005) 705 N.W.2d 481, 490-491 [cigarette sales to 

minors]; State v. Robinson (Minn. 1997) 572 N.W.2d 720, 722-724 [underage drinking].

13 Quechan Indian Tribe v. McMullen (9th Cir.1993) 984 F.2d 304, 307; United 

States v. Marcyes (9th Cir. 1977) 557 F.2d 1361, 1364.

14 Confederated Tribes of the Colville Reservation v. Washington (9th Cir.1991)

938 F.2d 146, 148-149.

15 State v. Johnson (Minn. 1999) 598 N.W.2d 680, 681, 683.
24

that the “unlawful” acts alleged in the third cause of action are based derivatively on 

alleged violations of the Directory Act, the Fire Safety Act, and the Tax Stamp Act, and 

we should look to the intent of the underlying statutes to determine whether they are 

criminal/prohibitory. But it is the intent of the UCL that counts. To the extent the UCL 

is being used here as an enforcement tool targeting unlawful acts under more specific 

statutes, that simply illustrates the dividing line we draw: The UCL applies to business 

competition generally, which is not only permitted but promoted in California, and 

outlaws only specific practices comprising a subset of competition.

Accordingly, we agree with Huber that the trial court lacked adjudicative

jurisdiction to proceed on the third cause of action seeking to enforce the Tax Stamp Act, 

the Directory Act, and the Fire Safety Act derivatively through the UCL, and thus we 

hold that the court erred by granting summary adjudication against her and issuing an 

injunction on that claim.

16

 But at the same time we agree with the Attorney General that 

the court had adjudicative jurisdiction to proceed on the first and second causes of action

seeking to enforce the Directory Act and the Fire Safety Act directly, which requires that 

we proceed to examine whether the Directory Act and the Fire Safety Act may be applied 

to the conduct at issue in this case. It is to that issue we now turn.

D. Preemption

1. Applicable Principles

“The relation between the Indians and the states has by no means remained 

constant since the days of John Marshall.” (Village of Kake, supra, 369 U.S. at p. 71.) 

Over the many years since that time, “Congress has to a substantial degree opened the 

doors of reservations to state laws” (id. at p. 74) to such a degree that “ ‘[o]rdinarily,’ . . .

 

16 In addition to her attack on subject matter jurisdiction, Huber makes a series of 

other statutory interpretation arguments directed at the UCL claim, all of which rest on 

the contention that the claimed violations of the Directory Act, the Fire Safety Act, and 

the Tax Stamp Act cannot be used as predicate unlawful acts to support the UCL claim. 

We need not address these contentions in light of the disposition we reach with respect to 

the third cause of action.
25

‘an Indian reservation is considered part of the territory of the State.’ ” (Nevada v. Hicks

(2001) 533 U.S. 353, 361-362; see also Village of Kake, supra, at p. 72; Acosta v. San 

Diego County, supra, 126 Cal.App.2d at p. 463.) Although as of the early 1960s, it was 

still true that the “[d]ecisions of [the United States Supreme Court were] few as to the 

power of the states when not granted Congressional authority to regulate matters 

affecting Indians” (Village of Kake, supra, at p. 74), a deep body of high court case law 

has now developed concerning when, in the absence of an express congressional grant of 

power, state law may be applied to reservation Indians.

The high court summarized the applicable principles in White Mountain Apache 

Tribe v. Bracker (1980) 448 U.S. 136 (Bracker) as follows: “Congress has broad power 

to regulate tribal affairs under the Indian Commerce Clause, Art. 1, § 8, cl. 3. [Citation.] 

This congressional authority and the ‘semi-independent position’ of Indian tribes have 

given rise to two independent but related barriers to the assertion of state regulatory 

authority over tribal reservations and members. First, the exercise of such authority may 

be pre-empted by federal law. [Citations.] Second, it may unlawfully infringe ‘on the 

right of reservation Indians to make their own laws and be ruled by them.’ [Citations.]

The two barriers are independent because either, standing alone, can be a sufficient basis 

for holding state law inapplicable to activity undertaken on the reservation or by tribal 

members. They are related, however, in two important ways. The right of tribal selfgovernment is ultimately dependent on and subject to the broad power of Congress. 

Even so, traditional notions of Indian self-government are so deeply engrained in our 

jurisprudence that they have provided an important ‘backdrop,’ [citation] against which 

vague or ambiguous federal enactments must always be measured.

“The unique historical origins of tribal sovereignty make it generally unhelpful to 

apply to federal enactments regulating Indian tribes those standards of pre-emption that 

have emerged in other areas of the law. Tribal reservations are not States, and the 

differences in the form and nature of their sovereignty make it treacherous to import to 

one notions of pre-emption that are properly applied to the other. The tradition of Indian 

sovereignty over the reservation and tribal members must inform the determination 
26

whether the exercise of state authority has been pre-empted by operation of federal law. 

[Citation.] . . . [T]his tradition is reflected and encouraged in a number of congressional 

enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and 

economic development. Ambiguities in federal law have been construed generously in 

order to comport with these traditional notions of sovereignty and with the federal policy 

of encouraging tribal independence. [Citation.] We have thus rejected the proposition 

that in order to find a particular state law to have been pre-empted by operation of federal 

law, an express congressional statement to that effect is required. [Citation.] At the same 

time any applicable regulatory interest of the State must be given weight [citation], and 

‘automatic exemptions “as a matter of constitutional law” ’ are unusual. [Citation.]

“When on-reservation conduct involving only Indians is at issue, state law is 

generally inapplicable, for the State’s regulatory interest is likely to be minimal and the 

federal interest in encouraging tribal self-government is at its strongest.[17] . . . More 

difficult questions arise where . . . a State asserts authority over the conduct of nonIndians engaging in activity on the reservation. In such cases we have examined the 

language of the relevant federal treaties and statutes in terms of both the broad policies 

that underlie them and the notions of sovereignty that have developed from historical 

traditions of tribal independence. This inquiry is not dependent on mechanical or 

absolute conceptions of state or tribal sovereignty but has called for a particularized 

inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry 

designed to determine whether, in the specific context, the exercise of state authority 

would violate federal law. [Citations.]” (Bracker, supra, 448 U.S. at pp. 142-145.)

 

17 New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324, 331-332 (New 

Mexico II) (only “in exceptional circumstances [may] a State . . . assert jurisdiction over 

the on-reservation activities of tribal members”).
27

2. Moe, Colville, and Milhelm

Bracker, supra, 448 U.S. 136 summed up an area of law in which Moe, supra, 

425 U.S. 463, Colville, supra, 447 U.S. 134, and Milhelm, supra, 512 U.S. 61—each 

involving cigarette sales on Indian reservations and the extent to which state taxation and 

regulation schemes may be applied to those sales—are leading decisions. Thus, the

parties rightly devote a great deal of attention to these three cases in their briefs. 

Although ultimately disagreeing about how the Moe-Colville-Milhelm line of precedent 

should be applied here, they largely agree about what each case held.

Moe, supra, 465 U.S. 463 involved consolidated appeals in two cases that arose on 

the Flathead reservation in Montana, where a member of the Confederated Salish and 

Kootenai Tribes operated retail smokeshops. (Moe, at pp. 465-466.) A Montana statute 

required all tobacco vendors to hold state-issued licenses, and all licensed vendors to 

collect an excise tax on retail sales of cigarettes by affixing tax stamps on cigarettes sold 

at retail. (Id. at p. 467.) When two tribe members were arrested by Montana authorities 

for the misdemeanor offenses of operating without a license and selling cigarettes without 

tax stamps affixed to them, they sued in federal district court to enjoin enforcement. (Id.

at pp. 467-468.) And in a second, related case, the tribe and some of its members sued to 

enjoin enforcement of a statute imposing a personal property tax on vehicles owned by 

tribe members living on the reservation. (Id. at pp. 468-469.)

Citing cases barring states from directly taxing Indian-owned property or income 

earned by Indians on a reservation, the district court held Montana could not apply its tax 

on vehicles, its vendor licensing scheme, or its cigarette taxing scheme, with one 

significant exception: Montana “may require a pre-collection of the tax imposed by law 

upon the non-Indian purchaser of the cigarettes.” (Moe, supra, 425 U.S. at pp. 468-469.)

The high court affirmed, and the last element of its opinion—upholding the requirement 

of pre-collection of excise tax owed by non-tribal purchasers of cigarettes (id. at pp. 481-

483)—is the anchor for the later decisions in Colville, supra, 447 U.S. 134 and Milhelm,

supra, 512 U.S. 61 building on it.
28

Essentially, what the court held is that, to prevent tax evasion by non-Indians who 

purchase cigarettes, Montana may enlist tribal sellers in an effort to collect tax owed by 

these shoppers. (Moe, supra, 425 U.S. at pp. 481-483.) The court explained, “Since 

nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive 

advantage which the Indian seller doing business on tribal land enjoys over all other 

cigarette retailers, within and without the reservation, is dependent on the extent to which 

the non-Indian purchaser is willing to flout his legal obligation to pay the tax.” (Id. at 

p. 482.) Noting that the burden imposed on Indian sellers “is not, strictly speaking, a tax 

at all” because the ultimate tax burden falls on purchasers—which is why cases 

invalidating direct taxation of reservation Indians did not apply—the court held that the 

precollection requirement was nothing more than an expedient “minimal burden designed 

to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller 

will avoid payment of a concededly lawful tax.” (Id. at p. 483.)

Colville expands the core holding in Moe in a number of ways. The appeal there 

was from a district court judgment in consolidated cases, both involving cigarette sales by 

Indian smokeshops on reservation land in the State of Washington. (Colville, supra, 

447 U.S. at p. 139.) One case involved the Colville, Lummi, and Makah reservations, 

and the other involved the Yakima reservation. (Id. at pp. 139, 143-144.) These tribes, 

like the Wiyots, had their own scheme of taxing sales of cigarettes under tribal law. (Id.

at pp. 144-145.) Washington had a tax stamp system that required precollection of an 

excise tax, similar to the one involved in Moe, but the Washington scheme went beyond 

Montana’s by imposing on sellers detailed recordkeeping requirements. (Colville, at 

pp. 143, 151.) Also presented for decision in Colville were enforcement issues 

concerning whether Washington had the power to seize unstamped cigarettes as 

contraband and whether Indians living on a reservation who were not members of the 

reservation tribe could be taxed directly. (Id. at pp. 160-161.)

The holdings in Colville on this complex array of issues are noteworthy in three

respects. First, Washington’s scheme of taxing nonmembers who make on-reservation 

purchases was found to be valid and not preempted. (Colville, supra, 447 U.S. at 
29

pp. 154-155.) Here, the court observed that “the value marketed by the smokeshops to 

persons coming from outside is not generated on the reservations by activities in which 

the Tribes have a significant interest.” (Id. at p. 155.) “What the smokeshops offer these 

customers,” the court said, “is solely an exemption from state taxation.” (Ibid.) The 

court rejected the proposition that “principles of federal Indian law, whether stated in 

terms of pre-emption, tribal self-government, or otherwise, . . . authorize Indian tribes to 

market an exemption from state taxation to persons who would normally do their 

business elsewhere.” (Ibid.)

The tribes’ reliance on their own local schemes of taxing and regulating cigarette 

sales failed. (Colville, supra, 447 U.S. at pp. 158-159.) “There is no direct conflict 

between the state and tribal schemes, since each government is free to impose its taxes 

without ousting the other,” the court concluded, and “the State does not interfere with the 

Tribes’ power to regulate tribal enterprises when it simply imposes its tax on sales to 

nonmembers.” (Ibid.) After weighing the federal, tribal, and state interests involved, the 

court found no preemption, pointing out that the “simple collection burden imposed by 

Washington’s cigarette tax on tribal smokeshops is legally indistinguishable from the 

collection burden upheld in Moe.” (Id. at p. 159.) For the most part, this portion of the 

opinion—comprising its primary holding—is a straightforward application of Moe; it 

plows new ground only to the extent it upholds Washington’s recordkeeping requirement, 

an added administrative burden on tribal sellers that was not present in Moe. (Colville, at 

pp. 151, 159-160.) The tribes had the burden of showing that the recordkeeping 

requirements were “not reasonably necessary as a means of preventing fraudulent 

transactions,” and they failed to meet it. (Id. at p. 160.)

Second, the court found that Washington was empowered “to apply its sales and 

cigarette taxes to Indians resident on the reservation but not enrolled in the governing 

Tribe.” (Colville, supra, 447 U.S. at p. 160.) The court held that, although such persons 

fell within the federal statutory definition of “Indian,” that fact did not demonstrate a 

congressional intent to exempt non-tribe members from taxation. (Id. at p. 161.) The 

court focused instead on whether taxing nonmembers “contravene[s] the principle of 
30

tribal self-government.” (Ibid.) It did not, the court explained, “for the simple reason 

that nonmembers are not constituents of the governing Tribe.” (Ibid.) Third, and finally, 

the court found Washington had “power to seize unstamped cigarettes” off-reservation,

where the “state power over Indian affairs is considerably more expansive than it is 

within reservation boundaries.” (Id. at pp. 161-162.) Having so held, however, the court

declined to reach the question whether Washington “may enter onto the reservations, 

seize stocks of cigarettes which are intended for sale to nonmembers, and sell these 

stocks in order to obtain payment of the taxes due.” (Id. at p. 162.)

Milhelm picked up where Moe and Colville left off, but specifically addressed the 

wholesale level of distribution. Historically, under federal legislation known as the 

Indian Trader Statutes, enacted pursuant to the Indian Commerce Clause and designed to 

protect against exploitation of tribes by Indian traders, and under prior Supreme Court 

case law, federally licensed trading agents have been exempt from state taxation, just as 

tribe members are exempt from state taxation. (Milhelm, supra, 512 U.S. at pp. 68, 70.) 

Responding to reports of huge quantities of unstamped cigarettes being shipped into 

Indian reservations at the wholesale level by Indian traders—volumes that were far in 

excess of the amounts tribe members would be expected to consume—New York 

attempted to cut off the supply of what appeared to be a black market in untaxed 

cigarettes on Indian reservations by adopting regulations that imposed strict 

recordkeeping requirements and quantity limitations on wholesalers. (Id. at pp. 64-67.) 

The question presented was whether federal statutes governing trade with Indians

preempted New York’s program. (Id. at p. 64.)

Reviewing a decision of the New York Court of Appeals that held New York’s 

regulations preempted by the Indian Trader Statutes, the high court framed the issue as 

follows. “Because New York lacks authority to tax cigarettes sold to tribal members for 

their own consumption, see Moe [, supra,] 425 U.S. 463, 475-481 . . . , cigarettes to be 

consumed on the reservation by enrolled tribal members are tax exempt and need not be 

stamped. On-reservation cigarette sales to persons other than reservation Indians, 

however, are legitimately subject to state taxation. See . . . Colville . . . 447 U.S. 134, 
31

160-161 . . . . [¶] To ensure that nonexempt purchasers do not likewise escape taxation, 

the regulations limit the quantity of untaxed cigarettes that wholesalers may sell to tribes 

and tribal retailers.” (Milhelm, supra, 512 U.S. at pp. 64-65, 68-69.)

The court reversed, extending Moe and Colville with the following explanation: 

“The specific kind of state tax obligation that New York’s regulations are designed to 

enforce—which falls on non-Indian purchasers of goods that are merely retailed on a 

reservation—stands on a markedly different footing from a tax imposed directly on 

Indian traders, on enrolled tribal members or tribal organizations, or on ‘value generated 

on the reservation by activities involving the Tribes,’ Colville, 447 U.S., at 156-157. Moe

[and] Colville . . . make clear that the States have a valid interest in ensuring compliance 

with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes 

on reservations; that interest outweighs tribes’ modest interest in offering a tax exemption 

to customers who would ordinarily shop elsewhere. The ‘balance of state, federal, and 

tribal interests,’ [citation], in this area thus leaves more room for state regulation than in 

others. In particular, these cases have decided that States may impose on reservation 

retailers minimal burdens reasonably tailored to the collection of valid taxes from nonIndians.

“Although Moe and Colville dealt most directly with claims of interference with 

tribal sovereignty, the reasoning of those decisions requires rejection of the submission 

that [a provision of the Indian Trader Statutes] bars any and all state-imposed burdens on 

Indian traders. . . . [¶] . . . [¶] . . . We are persuaded . . . that New York’s decision to 

stanch the illicit flow of tax-free cigarettes early in the distribution stream is a 

‘reasonably necessary’ method of ‘preventing fraudulent transactions,’ one that ‘polices 

against wholesale evasion of [New York’s] own valid taxes without unnecessarily 

intruding on core tribal interests.’ Colville, 447 U.S., at 160 []. The sole purpose and 

justification for the quotas on untaxed cigarettes is the state’s legitimate interest in 

avoiding tax evasion by non-Indian consumers. . . . [¶] . . . [¶] . . . [And b]y requiring 

wholesalers to precollect taxes on, and affix stamps to, cigarettes destined for nonexempt 

consumers, New York has simply imposed on the wholesaler the same precollection 
32

obligation that, under Moe and Colville, may be imposed on reservation retailers.”

(Milhelm, supra, 512 U.S. at pp. 73-76, fns. omitted.)

3. Preemption Analysis

Arguing for preemption, Huber emphasizes that this case involves solely onreservation conduct among Indians, and, to the extent her operations extended beyond the 

border of the Table Bluff Rancheria, her business was with other tribes on other 

reservations. In her account of the facts, all she did was make wholesale deliveries to 

other tribes on their reservations “as a courtesy,” while contractually taking and accepting 

every order at the only store location she had, in her house on the Table Bluff Rancheria. 

She insists the trial court made no finding that she conducted business off-reservation. 

What the trial court actually found, she says, is that her business involved extensive “offreservation contacts,” a concept she contends might be relevant to an issue of personal 

jurisdiction, but that has no legal significance here.

Huber relies heavily on our Supreme Court’s decision in Naegele, supra, 

38 Cal.3d 509, a case involving an attempt by the California Department of 

Transportation to use California’s Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et 

seq.) to regulate billboard signage on an Indian reservation that was visible from a state

highway running through the reservation. (Naegele, at pp. 513-514.) The Naegele court 

found this enforcement effort preempted. (Id. at p. 522.) If “off-reservation safety and 

aesthetic effects were insufficient to justify state regulation . . .” of on-reservation 

activities in Naegele, Huber argues, the off-reservation effects relied upon by the trial 

court are insufficient to avoid preemption here as well. This argument misses the thrust 

of the analysis in Naegele, where there was a detailed federal statutory scheme and the 

court found Congress did not intend to permit state regulation of billboards on Indian 

reservations. (Id. at pp. 515, 522.) The opinion thus turned on principles of federal 

obstacle preemption. (Id. at p. 522; see Viva! Internat. Voice for Animals v. Adidas 

Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [summarizing types 

of federal preemption; “obstacle preemption arises when ‘ “under the circumstances of 

[a] particular case, [the challenged state law] stands as an obstacle to the accomplishment 
33

and execution of the full purposes and objectives of Congress” ’ ”].) There is no 

pervasive federal statutory scheme here.

The Attorney General bases his argument against preemption on the general idea 

that Indian reservations are not legal islands unto themselves and that whatever vestiges 

of sovereignty they still enjoy must give way in matters of commerce affecting the 

welfare of state citizens outside their borders. “Absent express federal law to the 

contrary,” he points out, “Indians going beyond reservation boundaries have generally 

been held subject to nondiscriminatory state law otherwise applicable to all citizens of the 

State.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 (New Mexico 

I).) To the extent Huber operated on-reservation, the Attorney General contends, much 

of her business was with non-tribe members who were enticed onto the Table Bluff 

Rancheria by her promotions. He points out that Huber “maintained websites that 

advertised ‘tax free’ and ‘cheaper cigarette[s]’ and encouraged customers to ‘come see 

us!,’ sold cigarettes via mail order, and had a toll-free phone number. [She] did not 

check for tribal identification and admits she sold cigarettes to the general public.”

The Attorney General also draws our attention to the scale of Huber’s enterprise. 

What she portrays as a “small storefront” operation run out of her house is not, in fact, 

some tiny, exclusively on-reservation business, he points out. Huber “sold huge 

quantities of noncompliant cigarettes. Between November 23, 2009 and October 1, 2013, 

she sold, distributed, and transported at least 14,727,290 packs of Seneca, Opal, King

Mountain, Couture, and Sands brand cigarettes to other stores within the state but beyond 

her reservation. [She] invoiced over $30 million for these sales. Several days a week her 

employees delivered these cigarettes using her own vehicles on state roads and highways. 

Between March 8, 2007 and October 1, 2013, [Huber] also sold at least 1,969,279 packs 

of Seneca, Opal, King Mountain, Couture, and Sands brand cigarettes at her retail store. 

[Huber’s] tribe has about 600 members of all ages.” (Fns. omitted.)

All in all, we conclude that the Attorney General has the better of the argument on 

the issue of preemption. In circumstances involving conduct that is partially onreservation and partially off-reservation, “a State may validly assert authority over the 
34

activities of nonmembers on a reservation” if a balancing of interests under Bracker, 

supra, 448 U.S. 136 calls for it. (New Mexico II, supra, 462 U.S. at p. 331.) And in this 

balancing process, the “State’s regulatory interest will be particularly substantial if the 

State can point to off-reservation effects that necessitate State intervention.” (Id. at 

p. 336; see Rice v. Rehner (1983) 463 U.S. 713, 724 [“[Tribe member]’s distribution of 

liquor has a significant impact beyond the limits of the Pala Reservation. The state has 

an unquestionable interest in the liquor traffic that occurs within its borders, and this 

interest is independent of the authority conferred on the States by the Twenty-first 

Amendment”].)18 Here in particular, Moe, Colville, and Milhelm, as cigarette sales cases, 

provide the framework for the appropriate balancing analysis.

A key teaching of Moe, Colville, and Milhelm is that the high court views the issue 

of state regulation of cigarette sales on Indian reservations through an economic lens, 

looking not only at the cost advantages of selling noncomplying cigarettes, but to the 

incentives to lawbreaking that such sales create and the impact of upstream purchasing in 

the wholesale market for illicit cigarettes. (Moe, supra, 425 U.S. at pp. 481-483; 

Colville, supra, 447 U.S. at pp. 154-155; Milhelm, supra, 512 U.S. at pp. 73-76.) 

Looking at this case in the same way, Huber’s cigarette sales on the Table Bluff 

Rancheria in violation of the Directory Act and the Fire Safety Act were no different in 

kind from the sales of non-tax stamped cigarettes at issue in Moe, Colville, and Milhelm; 

by flouting those statutes, she gained a cost advantage over retail sellers who bought at 

wholesale from complying manufacturers. Indeed, that cost advantage appears to have 

been the foundation of her enterprise, serving as an inducement to nonmembers to visit 

the Table Bluff Rancheria to avail themselves of prices made possible by this cost 

 

18 See Cohen, supra, § 6.02[1], p. 504 (“Where activities occur partially within 

and partially outside Indian country, and a substantial part of the activity takes place 

outside, courts have generally upheld nondiscriminatory applications of state 

jurisdiction”).
35

advantage, and creating a downstream market for wholesalers who distribute 

noncompliant cigarettes.

Huber argues that Moe, Colville, and Milhelm are merely “tax” cases that have no 

application outside the “special area of State taxation.” (See Cabazon, supra, 480 U.S. at 

p. 215, fn. 17.) We are not persuaded. What the phrase “special area” of taxation refers 

to is the rule that enrolled members of Indian tribes are exempt from state taxation. 

(McClanahan, supra, 411 U.S. at p. 171.) Huber overlooks the fact that in Moe the court 

departs from this “special area,” and it does so because in that case the state law 

obligation the Indian smokeshops attacked (precollection of excise taxes) was not a tax at 

all, but rather was an incidental tax enforcement measure directed at ensuring collection 

from nonmembers (Moe, supra, 425 U.S. at pp. 481-483); the same was true in Colville

(precollection and recordkeeping requirements on retailers) (Colville, supra, 447 U.S. at 

pp. 159-160); and in Milhelm (recordkeeping requirements and quantity restrictions on 

wholesalers) (Milhelm, supra, 512 U.S. at pp. 64-67, 73-76). Thus, we reject Huber’s 

argument that Moe, Colville, and Milhelm may be cast aside as oddball tax cases having 

no significance outside the specialized arena of taxation. Indeed, we view this trio of 

cases as integral to the entire body of Indian preemption law that has evolved over the 

last 50 years.

The trial court correctly concluded that the balance of federal, tribal, and state 

interests weighs in favor of California. Huber points to no federal interest, expressed by 

statute or regulation, in promoting reservation sales of cigarettes, and makes no claim that 

Congress, by statute or regulation, delegated to the Wiyots some form of authority that 

might oust the authority of the state in this area. To the extent the Wiyot Tribe, 

independently, has an interest in carving out a domain for its members in the cigarette 

sales business—Ordinance No. 01-10 appears to evidence just such an interest—the 

holding in Colville tells us that does not matter, absent a direct conflict. The court there 

rejected an invitation to use tribal cigarette tax and marketing regulations as a 

consideration weighing in favor of preemption. (Colville, supra, 447 U.S. at pp. 158-

159.) Against a nonexistent federal interest and a limited tribal interest, California has a 
36

strong health and safety interest in policing cigarette sales. In the end, therefore, we 

arrive at the same conclusion the Black Hawk court did with respect to the Directory Act 

and the Fire Safety Act: “The California tobacco directory law promotes public health by 

increasing the costs of cigarettes and discouraging smoking. [Citations.] The California 

Cigarette Fire Safety and Firefighter Protection Act law—providing ignition-propensity 

requirements—serves the public interest in reducing fires caused by cigarettes. . . . [And 

n]o federal or tribal interest outweighs the state’s interest in . . . enforcing the California 

tobacco directory and cigarette fire safety laws.” (Black Hawk, supra, 197 Cal.App.4th at 

p. 1571; see also Rose, 16 Cal.App.5th at p. 328 [agreeing with Black Hawk’s preemption 

balancing analysis].)

Huber argues that, by obtaining an injunction, which carries with it the threat of 

contempt, the enforcement steps the Attorney General has taken here—causing the 

shutdown of her business—go far beyond the “minimal” burdens the Moe, Colville, and 

Milhelm courts approved. We cannot agree. The burden of complying with the Directory 

Act and the Fire Safety Act, as the Attorney General points out, falls on manufacturers. 

Huber’s only “burden,” if it can even be called that, is to choose product sourcing from 

manufacturers who comply with those statutes. Huber points out that the court’s 

injunction left her no choice but to shutter her business, but if that is the case the decision 

to close her business rather than offer cigarettes that comply with California law was her 

election, apparently looking at the economics of continued operation in compliance with 

state law. Colville is quite clear that the burden was on her to show that the Directory 

Act and the Fire Safety Act as enforced against her in the first and second causes of 

action are “not reasonably necessary as a means of preventing fraudulent transactions.” 

(Colville, supra, 447 U.S. at p. 160.) She failed to do so.

Huber’s complaint about the weight of the injunction does raise a further question 

under the ultimate test for Indian preemption—whether enjoining on-reservation conduct 

by an enrolled tribe member infringes on “the right of reservation Indians to make their 

own laws and be ruled by them.” (Williams, supra, 358 U.S. at p. 220.) Although we 

agree with the balancing of interests analysis adopted in Black Hawk and Rose, and 
37

although we reach the same conclusion those courts did with respect to the Directory Act 

and the Fire Safety Act, we note that Huber has a stronger argument for preemption than 

the defendants did there because, here, unlike in those cases, the trial court enjoined an 

enrolled tribe member’s business activities on her own reservation. That puts the issue of 

possible infringement of tribal self-government more sharply here than in Black Hawk or 

Rose. (See Black Hawk, supra, 197 U.S. at pp. 1564-1565, 1566-1567; Rose, supra, 

16 Cal.App.5th at p. 321.)

We are not persuaded this makes a difference, however. In Colville, the high court

upheld the State of Washington’s power to seize illegal cigarettes by off-reservation

interdiction but saw no need to address whether the state had power to “enter onto the 

reservations, seize stocks of cigarettes which are intended for sale to nonmembers, and 

sell those stocks in order to obtain payment of the taxes due.” (Colville, supra, 447 U.S. 

at p. 162.) This question, which the court described as “considerably different from” the 

issue of off-reservation seizure, was not properly presented for decision. (Ibid.) We, too,

see no need to address the question of on-reservation enforcement. At oral argument, the 

Attorney General stated the off-reservation seizure of goods would be a sufficient means 

of enforcing the prohibition against the sale of illicit cigarettes. Although Nevada v. 

Hicks, supra, 533 U.S. 353, which involved the on-reservation search of a tribe member’s 

residence in a criminal investigation for violation of a game conservation statute (id. at 

pp. 355-356), can be read to suggest that on-reservation enforcement might be 

permissible where the activity involved presents some risk of harm to state citizens off 

the reservation, we need not address that issue here in light of the Attorney General’s 

concession. To the extent enforcement occurs off-reservation, the Wiyot right to selfgovernance is not implicated.

IV. CONCLUSION

We reverse the order granting summary adjudication to the People on the third 

cause of action for violation of the UCL. We also reverse the order denying summary 

adjudication to Huber on the third cause of action for violation of the UCL. We thus 

vacate the permanent injunction in part, to the extent it relies on and is designed to enjoin 
38

violation of the UCL. In all other respects we affirm, and the case is remanded for 

further proceedings consistent with this opinion.

_________________________

Streeter, Acting P.J.

We concur:

_________________________

Reardon, J.

_________________________

Smith, J.*

 

*

Judge of the Superior Court of California, County of Alameda, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.

A144214/People ex rel. v. Huber
39

Trial Court: Humboldt County Superior Court.

Trial Judge: Honorable W. Bruce Watson.

Counsel for Appellant: Law Office of Dario Navarro, Dario F. Navarro; 

Fredericks Peebles & Morgan, Michael A. Robinson, 

James Joseph Oaqundah, for defendant and appellant.

Counsel for Respondent: Xavier Becerra, Attorney General, Karen Leaf, Senior 

Assistant Attorney General, Nicholas Martin 

Wellington and Erin Wallace Rosenberg, Deputy 

Attorneys General, for plaintiff and respondent.