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
(Humbol d t County Super. Ct. No. DR110232)

I. INTRODUCTION This appeal is from a summary adjudication order and permanent injunction
entered in a n enforcement action by the Attorney General on behalf of the People of the
State of California against Ardith Huber, a member of the W i yot Band of Indians

. H uber

o wn s and operate s 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
sale s 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 (He alth & Saf. Code, § 14951, su bd. (a) ). He also pleads, as separate claims, violations of the Director y2

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 re verse in part, agreeing the court lacked subject matter jurisdiction to proceed on the UCL claim, bu t in all other respects affirm.
I I

. BACKGROUND
A

. Huber Enterprises and the Table Bluff Rancheria
Huber r un s a sole proprietorship out of her home called Huber Enterprises, selling

c igarettes 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 manufactu red by Indians on Indian lands,

. . . shipped and sold through Indian
and triba lly

- owned distributors to Indian and tribally

- owned retail smoke shops located on Indian lands.” The retail component of Huber’s enterprise is onsite business. Custome rs include
tribe members and non members who co me 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 membe rs and
ope rated within [other]

. . . recognized Indian reservation[s].” Deliveries are made to
these “int er

- 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] the3

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 d oes
pay

— a quarterly excise tax administered through a tribal tax stamp system. Tax es collected in this manner are deposited into a dedi cated 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 cessatio n of smoking and tobacco use.” There is no dispute in this case that today the Wiyot B and 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
member s 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, wh ether restricted or held in trust by the United States” ]. ) 1

1 Federally protected territory in California falling within the federal definition of “Indian c ountry” 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 ) .) E arly in the 20th century, the United Sta t es sough t 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 h olds 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 195 8 known as th e 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

- 3 91) (the4

B. The Directory Act, the Fire Sa fety Act, and the Tax Stamp Act
At the center of th e 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, a long with many other states, has enacted legislation designed to implement the provisions of the 1998 Tobacco Master Settlement Agreement (the MSA). 2 Under th e pertinent California statutes, cigarettes sold in this sta te 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) i n lieu of signing the MSA, have agr ee d 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, t he Attorney General maintains a published list of all cigarette manufacturers who
have annually certifie d their compliance with the requirements of the MSA or the alternative escrow funding requirements. (Rev. & Tax. Code, § 30165.1, subd s . (c) & (d) .) I t 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 terminat ing 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, b ut 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 a nd Distribution of MSA Proceeds (2007) 25 A.L.R.6th 435, section 2 ( summarizing mechanics of MSA and state statutes implementing its provision s).5

compliance w ith 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 minimiz ing the fire hazards caused by cigarettes. ( Health & Saf. Code, §§ 14 9 51 , subd. (a) (1)

- (3), 14 9 52

- 14 9 54 .) T h is statute provides that all cigarettes sold in this state must, among other things, be packaged in a specified manner and certified with
the State F ire Marshal as compliant with these safety standards. ( Id. , § 14951, subd. (a )

. )
I t 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, t o reduce smoking and fund healthcare research related to disease s caused by smoking ( Rev. & Tax. Code, §§ 30131 & 30121 et seq.), California imposes excise taxes that “shall be paid by the user or consumer” ( i d., § 30107) but that must be collected by distri butors at the time of sale and remitted by them to the state ( i d., § 30108). C ompliance 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, § 3016 1 .) Subject to exceptions, i t 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 allege d violation of the Directory Act. The second allege d violation of the Fire Safety Act. And the third allege d 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 an d an award of civil penalties.6

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 (He alth & Saf. Code, § 14951, subd. (a) ). 3 On cross motions for summary adjudication, t he trial court denied Huber’s motion ; granted t he 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 non members of the Wiyot Tribe and permits Huber to continue operating so long as she compl ies with the D i rectory 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 prevai led on a cause of
action

. . . against a defendant and that equitable relief is appropri ate

. 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.4 th 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 denyin g it to Huber supplies the basis for the permanent injunction, we must in turn

3 There is no standalone cause of action for violation of the Tax Stamp Act.7

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 .” ’ ” ( Sw igart 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. T he 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 I ndian 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 Jus tice 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 th is 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 ( William s ) [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 P ublic L aw 2808

( Pub.L. No. 83

- 280 (Aug. 15, 1953) 67 Stat. 5 88

- 590 ) by which Congress granted six states, one of which is California, plenary criminal jurisdiction over “offenses committed by or against Indians” within Indian c ountry ( 1 8 U .S.C. § 1 162 (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 c ountry ( 28 U.S.C. § 1 36 0(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 ) )

. 4

4 Section 4 of Public Law 280, 28 U.S.C. § 1 360, provides as follows “(a) Each of the States listed in the following table shall have jurisdiction over civil cau ses 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 su ch 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 sh all 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 trib e, 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.”9

“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 c ivil grant of jurisdiction, set forth in section 4 of Public Law 280 ( codified in 28 U.S.C. § 1360) , by contrast, received
rel atively little attention in the legislative process, which prompt ed “ one commentator to conclude that such jurisdiction was ‘ an afterthought

. . . added because it comported with the pro

- assimilatio nist 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 ten ded 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

Bes ides 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 Aug ust 8, 1958, Public Law No. 85

- 615, section 1, 72 Stat utes 545 (codified at 18 U.S.C. § 1162(a), 28 U.S.C. § 1360(a) ). These six states are som etimes known as “mandatory” Public Law 280 states. ( See Cohen, supra, § 6 .0 4[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 Washingt on), accepted jurisdiction under its terms, in whole or in part. ( See Cohen, supra , § 6 .0 4[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 .)10

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 n umber 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 , supr a , 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, 3 85 ( Bryan ) ) while withholding “general state civil regulatory control over Indian reservations.” ( I

d. 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 h igh c ourt 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 “genera l 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)11

182 Cal.App.4th 817, 822 ) , addressed a “question reserved in [ McClanahan ]: whether the grant of civil jurisdiction to the state s conferred by § 4 of Pub.L. 280

. . . is a congressional grant of power to the state s to tax reservation Indians except insofar as taxation is expressly excluded by the terms of the statute.” ( B ryan , supra , 426 U.S. at
p. 375 .) As summarized by the Bryan court, McClanahan established the ba seline rule, restating and clarifying authority going back to the Marshall T rilogy, 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 Cou rt of
Minnesota s ustained the tax, holding that s ection 4 (a) of Public Law 280 ( 28 U. S.C. § 1360(a) ) grants a general power t o tax. ( Bryan, at pp. 375 , 378.) Its analysis turned on

s ection 4 (b) of Public Law 280 (28 U.S.C. § 1360(b)) , which lists a series of exceptions
to th e 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

6 “ The McClanahan princ iple derives from a general pre emption 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 “ba ckdrop” of the Indian sovereig nty 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 reg ulation 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 reservatio n,’ [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 a pply.” ’ [C itation .] [ ¶] [T]his pre

- emption model usually yields different conclusions as to the application of state laws to trib al Indians who have left or never inhabited federally established reservations, or Indians ‘who do not possess the usual accoutrements of tribal self

- government

. ’ [C itation s .] ” ( Bryan , supra, 426 U.S. at p. 376 , fn. 2. )12

paragraph (b) are limitations on a nonexistent power, ’ ” the state high court held. ( Bryan , at p . 378.) Reversing, the United States Supreme C ourt rejected the idea that section 4(b)
confirm s a generalized grant of tax ing 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 th e Indians ’ ” ( B ryan , supra , 426 U.S. at p. 392 ), and reading the text of s ection 4 in light of its “sparse” legislative history ( i d. at p p. 383

- 384), the c ourt 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 cour ts of the state s to decide such disputes

. ” ( Id. at p. 383. ) “[T]he consistent and exclusive use of the terms ‘civ il 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.” ( I d. at p p. 384

- 385 ; see also Cabazon , supr a , 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 litigatio n 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 p p. 383

- 384 .) According to the Bryan c ourt, Public Law 280 “was plainly not meant to effect [the] total assimilation” of tribes into the legal regim es in Public Law 280 states. ( Bryan , at
p p. 387

- 388.) The statute “was only one of many types of assimilationist legislation13

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
S tate s 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, volunta ry organizations,” ’ [citation]

— a possible result if tribal governments and reservation Indians were subordinated to the full pan oply 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 ha s adopted ; Bryan instructs us that what matters here is th e absence of any private dispute. (See Doe v. Mann (9th Cir. 2005 ) 415 F.3d 1038, 10 58

- 1059 ( Doe ) [under Cabazon and Bryan “the private nature of disput es is what places
them within Public Law 280’s civil jurisdiction” ]. ) 7 B ecau se 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, b ut 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 dependen cy 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 j urisdiction under ICWA. ( Id. at p. 1041.) A premise of that argument was t hat California dependency courts have no Public Law 280 jurisdiction because dependency proceedings, which are initiated and pursued by county social welfare agencies, do not invol ve “ 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 thus14

with the manifest purpose of law enforcement on behalf of the public at large, and
because th is 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 P ublic 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

o f 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 At torney General, recognize that “ an express federal statutor y grant,

are “more analogous” to t he 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 conte mplates 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 custo dy proceedings” (25 U.S.C. § 1903(i) ) , thus bringing the case within an exce ption 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 D oe is unique to ICWA law and has no applicability here, but w hat is significant about the case is that, having concluded that t he underlying Lake County case did not involve a truly “private dispute” falling clearly within the grant of Public Law 280 juris diction, 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 smokeshop s operated on Indian trust land, there on all otment s of the Agua Caliente Band of Cahui ll a 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 her e, the predicate “unlawfu l” 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 , t he Court of Appeal affirmed a preliminary injunction against the operators of the smokeshops , but P ublic Law 280 was neve r 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 challenge s 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 t he reservation.” ( Id . at p. 1567.) The Court of Appeal panel reject ed th e argument,
up holding the trial court’s ruling that the state could apply its laws to the smokeshops

. ( Id . at p p

. 156 9

- 1571 .) The panel relie d on Moe and Colville , as the trial cou rt did, and

never mention ed subject matter jurisdiction. ( Black Hawk , at pp

. 1566, 1569

- 1571.)
I n 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 c ourt in Bryan , supra, 426 U.S.
373 was the reach of state tax law into Indian c ountry

— a questi on of legislative jurisdiction

— the effect of its construction of s ection 4 (a) of Public Law 280 was to confine the civil adjudicative jurisdiction of state courts to the enforcement of state law16

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 th e 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 exception s we agree

8 The difference between jurisdiction to adjudicate , on the one hand, and jurisdiction to legislate, on the other , i s well recognized in California law ( 2 Witkin, Cal. Procedure ( 5th ed. 2008 ) Jurisdiction, § 5 , p p. 578

- 579 (Witkin)) as it is in state and federal law generally ( see generally Willis L.M. Reese, Legislative Jurisdiction, 78 Colum. L.Rev. 1 587, 1587

- 15 94 (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 .0 1 , p p . 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 C alifornia (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 , f n. 3, aff d

. (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 r egulat ing 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
Th e 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 violation s 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
H awk , relying in part on Colville ( Rose , at pp. 328

- 329) , but goes further, expressly rejecting t he 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

sa w 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 cigare tte sales by Indian smokeshop businesses was at issue, including two federal cases ( see King Mountain Tobacco Inc. v. McKenna (9 th 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. Edmon dson 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

su bject matter jurisdiction under P ublic 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 n ot preempted by federal law and tribal sovereignty. This is not a P ublic 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 Indi an litigants in Indian c ountry is “a Public Law 280 case”

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

con sidering Public Law 280 alone or in the context of another statutory scheme such as ICWA, as it w as 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

c ongressional authority to adjudicate can be found

. Ultimately, the concluding statement
in Rose that “California courts have routinely exercised subject m atter jurisdict ion 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 jurisdiction al objection was
raised

. 10 T wo Cal ifornia 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, 11 58

- 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 runn ing 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 mat ter 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, d oes 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 c ourt 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 , 4 80 U.S. at pp. 214

- 215 ) , but th e quoted passage is from a section of the Cabazon opinion specifically addressing preemption, not adjudicative jurisdiction

. Although the Attorney General correct ly 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 au thority over Indians in Indian c ount r y based on a weighing of competing policy interests, b ut 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 l egislative grant
fr om 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 juris diction over Indians in Indian c ountry that California courts already enjoyed

. We see t wo 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. T he default rule that the courts of this state have subject matter jurisdic tion 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 a20

compromise measure, Public Law 280 granted narrow civil adjudicative jurisdiction as a way to avoid the “ devastating impact on tribal governments that might res ult from an interpretation of § 4 as c onferring upon state and local governments general civil regulatory control over reservation Indians.” ( B ryan , supra , 426 U.S. at p. 3 88 , fn. 14 .) Supplanting s ection 4 (a) with state court general jurisdiction effectively transforms
Public Law 280 into the full and complete as similationist measure the high c ourt 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 th e State of California. But in
our view , that i s an inevitable consequence of Bryan ’s conclusion that s ection 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 T ribe
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 supp lies a basis to proceed in this case. In this specialized area, the California court s a re more like courts of limited jurisdicti on 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. U n der 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 juri sdiction in Public Law 280 , we come to the next question posed by the holding in Bryan

— whether subject matter jurisdiction exist s over any of the claims alleged in this

case because the statutes being asserted here may be deemed criminal /prohibitory i n21

nature and thus within the gra nt of criminal jurisdiction in s ection 2 of Public Law 280 (codified in 1 8 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 g ames on its reservation. ( Cabazon, supra, 480 U.S. at
pp. 204

- 205.) The State of California sought to enforce against these tribes Penal Cod e section 326.5, which, as the high c ourt 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 acco unts and used only for charitable purposes; prizes may not exceed $ 250 per game.” ( Cabazon , a t p. 204 .) The high c ourt’s opinion reversing put to rest any notion
that Bryan was a narrow decision, applicable only to assertions of state taxing power

. E ven though California, exercising its police powers, sought to invoke what was nominally a penal statute in Cabazon , the c ourt held that “when a State seeks to enforce a law within an Indian reservation under the authority of Pub.L. 280, it must be determi ned whether the law is criminal in nature, and thus fully applicable to the reservation under §

11 Section 2 of Public Law 280, 1 8 U.S.C. § 1 162, 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 ar eas of Indian country listed

. . . to the same extent that such State

. . . has jurisdiction over offenses committed elsew here within the State

. . . and the cri minal 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, s ect ion 2 is laid out similarly to s ection 4, with a series of proviso clauses (none of which is relevant here) following section 2. The s ame states are listed for both section 2 and s ection 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 c ourt 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.) T he 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 enforceab le 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 ”]

. ) Ult imately, in Cabazon , the c ourt 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 gambl ing 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 P ublic 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 thin k 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 non combustible packaging

. (Health & Saf. Code, § 14951,

s ubd. (a). ) It is analogous, we think, to statutes prohibi ting the general possession and/ or sale of certain classes of fireworks subject to narrow exceptions. 13 In assessing the proper classification of the se 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 h azar ds to public health and safety. Unlike the Directory Act and the Fire Safety Act, w e view the third cause of action
for violation of the UCL as a claim founded on a civil/regulatory law and thus outside
P ublic 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 advertisi ng that is “unfair, deceptive, untrue or misleading.” (Bus. & Prof. Code, § 17200.) A useful analogy here is to cases involving attempted enforcement under P ublic 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 sub sets of driving , such as driving over a certain speed limit 14 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 cau se 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 inten t 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, th at simply i llustrates 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 t he trial court lacked adjudicative jurisdiction to proceed on the third cause of action seeking t o enforce the Tax Stamp Act,
the Directory Act , and the Fire Safety Act derivative ly through the UCL , and thus we
hold that the court erred by granting summary adjudication against her and issuing an injunction on th at 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 state s 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. 4 63 .) Alt hough as of the early 1960 s , it was
still true that the “ [d]ecisions of [the United States Supreme Court were ] few as to the power of the state s when not granted C ongressional authority to regulate matters affecting Indians” ( Village of Kake , supra , a t p. 74), a deep body of high c ourt 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.
T he h igh c ourt summarized the applicable principles in White Mountain Apache
Tribe v. Bra cker (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 auth ority 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 self

government 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 mea sured. “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 S tate s, 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 th e determination26

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 promotin g 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.] W e 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 i nterest of the S tate must be given weight [citati on], 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 S t ate ’ 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 non

Indians 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 not ions 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 th e 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 ) (o nly “ 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 a n 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, t he parties rightly devote a great deal of attention to these three cases in their briefs

. Although ultimately disagree ing about how the Moe

- Colville

- Milhelm line of precedent should be applied here , the y 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 membe r of the Confederated Salish and Kootenai Tribes operated retail smokeshop s

. ( 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 cigaret te s 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, t hey 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 statu t e imposing a personal property tax on vehicles owned by

tr ibe members living on the reservation. ( Id. at pp. 468

- 469.)
C iting cases barring states from direct ly tax ing 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 h igh c ourt affirmed, and the last element of its opinion

—upholding the requirement
of pre

- collect i on of excise tax owed by non

- tribal pu r chasers of cigarette s ( 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

Essent i ally, what the c ourt held is that, to prevent tax evasion by non

- Indians w ho purchase cigarettes, Montana may enlist trib al sellers in an effort to collect tax owed by these shoppers. ( Moe , supra , 425 U.S. at pp . 481

- 483 .) The c ourt 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 re servation, 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 .) Noti n g 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 reserva tion Indians did not apply

— the c ourt held that the
pre collection requirement was nothing more than an expedient “minimal burden designed
to avoid the likeliho od 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 con solidated cases, both involving cigarette sales by Indian smokeshops on reservation land in the State of Washington. ( Colville, supra,
44 7 U.S. at p. 139.) One case involved the Colville, Lummi, and Makah reservation s , 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 pre collection of an excise tax, similar to the one involved in Moe , but the Washi ngton scheme went beyond Montana’s by imposing on sellers detailed record keeping requirement s. ( 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.)
T he h oldings in Colville on this complex array of issues are noteworthy in three respects . First, Washington’s scheme of taxing non members who mak e on

- reservation purchases was found to be valid and not preempted. ( Colville, supra, 44 7 U.S. at29

pp. 154

- 155.) Here, the c ourt 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 smokesho ps offer these

cu stomers,” the c ourt said, “is solely an exemption from state taxation.” ( Ibid. ) The

c ourt rejected the proposition t hat “p rinciples 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, 44 7 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.” ( I

bi d .) After weighing the federal, tribal , and state interests involved, the

court found no preemption, pointing out that the “simple collecti on burden imposed by Washington’ s cigarette tax on tribal smokeshops is legally indistinguishable from the collection burden up h eld in Moe

. ” ( Id. at p. 15 9 .) 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 seller s 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 . a t p. 1 60 .) 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, 44 7 U.S. at p. 160.) The c ourt held that, although such persons
fell within the federal statutory definition of “Indian
, ” that fact d id not demonstrate a congressional intent to exempt non

- tribe members from taxation. ( Id. at p. 161.) T he

c ourt focused instead on whether taxing n on members “contravene [ s ] the principle of30

tribal self

- government

. ” ( I bi d. ) It did not, the court explained, “ for the simple reason that nonmembers are not constituents of the governing Tribe. ” ( I bi d .) Third, and finally,
the court found Washington ha d “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 p p

. 161

- 1 62 .) 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 Colvil le left off, but specifically addressed the
wholesale level of dist ribution. 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 C ourt 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 h uge 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 attempt ed to cut off the supply of wha t appeared to be a black market in untaxed cigarettes on Indian reservations by adopting regulations that impos ed strict
record keeping requirements and quantity limitations on wholesalers. ( Id. at pp. 64

- 67.) The question presented was whether federal st atutes governing trade with Indians preempt ed 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

st amped. 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 p p. 64

- 65 , 68

- 69 .)
The c ourt reversed , extending Moe and Colville with the following expla nation :

“ The specific kind of sta te 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
Indi an 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 ens uring 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 ‘ b alance 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 de cided that States may impose on reservation retailers minimal burdens reasonably tailore d to the collection of valid taxes from non

Indians.

“ 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 necess ary ’ 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 precollection32

obligation that, under Moe and Colville, may be imposed on reservation re tailers .” ( Milhelm , supra , 512 U.S. at p p. 73

- 76 , fn s

. omitted. )
3. Preemption Analysis Arguing for preemption, Huber emphasizes that this case involves solely on

reservation 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 rese rvations “as a courtesy,” while contractually taking and acc epting 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 “off

reservation contacts,” a concept she contends might be relevant to an issue of personal jurisdiction, but that h as 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 O utdoor 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 , Hu ber 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; “ obs tacle preemption arises when ‘ “ under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment33

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. “ A bsent 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 ‘t ax 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 cig arettes to the general public.”
T he 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. Hu ber “sold huge quantities of non compliant 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 withi n 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.
Be tween March 8, 2007 and October 1, 2013, [Huber] also sold at least 1,969,279 packs
of Sen eca, Opal, King Mountain, Coutu r e , 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 bett er of the argument on
the issue of preemption. I n circumstances involving conduct that is partially on

reservation and partially off

- reservation, “a State may validly assert authority over the34

activities of nonmembers on a reservation ” if a balancing of i nterests under Bracke r , supra, 448 U.S. 136 calls for it

. ( New Mexico II , supra , 462 U.S. at p. 331.) And in th is balancing process , the “ State’ s regulatory interest will be particularly substantial if the
S tate 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 t he liquor traffic that occurs within its borders, and this interest is independent of the authority conferred on the State s by the Twenty

- first
Amendment ”].) 18 Here in particular, Moe , Colville
, and Milhelm , as cigarette sales cases, provide the framework for th e appropriate b alancing analysis

. A key teaching of Moe , Colville
, and Milhelm is that the high c ourt 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 non complying 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

- 4 83;
Colville , supra , 447 U.S. at pp. 154

- 155; Milhelm , supra , 512 U.S. at p p. 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 s tamped cigarettes at issue in Moe , Colville
, and Milhelm ; by flouting those statutes, she gained a cost advantage over retail sellers who b ought at wholesale from complying manufacturers

. Indeed, t hat cost advantage appears to have
been the foundation of her enterprise , serving as an inducement to non members to visit
the Table Bluff Rancheria to avail themselves of prices made possible by th is cost

18 See Cohen, supra, § 6 .0 2[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 app lications of state jurisdiction ”)

.35

advantage , and creating a downstream market for wholesalers who distribut e

non compliant cigarettes

. Huber arg ues 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 c ourt departs from this “special area,” and it does so because in th at case the state law obligation the I ndian smoke shops attacked (pre collection of excise taxes) was not a tax at all, but rather was an incidental tax enforcement measure directed at ensuring collection
from non members ( Moe, supra, 425 U.S. at pp. 481

- 483) ; t h e same was true in Colville (pre collection and record keeping requirements on retailers) ( Colville, supra, 447 U.S. at
pp. 159

- 160 ) ; and in Milhelm (record keeping 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 Milh e l m may be cast aside as odd ball 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 evo lved 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 i nterest , 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 T ribe , 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
ho lding in Colville tells us that does not matter , absent a direct conflict. T he c ourt there rejecte d 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 non existent federal interest and a limited tribal interest, California has a36

s trong health and safety interest in policing cigarette sales

. I n the end, therefore, we
arrive at the same conclusion the Black H awk court did with respect to the Directory Act and the Fire Safety Act : “ T he California tobacco directory law promotes public health by increasing the costs of cigar ettes 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 cau sed by cigarettes.

. . . [And n] o federal or tribal interest outweighs the state’s i nterest 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.5 th 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 busin ess

— 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 co mplaint 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 infringe s 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 , and37

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 s elf

- 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.)
W e are not persuaded this makes a difference , however

. In Colville , t he 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 o nto the reservations, seize stocks of cigarettes whic h are intended for sale to non members, and sell those stocks in order to obtain payment of the taxes due.” ( Colville , sup r a , 447 U.S. at p. 162.) Th is question, which the c ourt described as “considerably different from ” the
issue of off

- reservation seizure, was not properly presented for decision. ( Ibid .) W e , 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 enfor cing 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 t he Attorney General ’s
concession

. To the extent enforcement occurs off

- reservation, the Wiyot right to self

governance is not implicated.
I V

. 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. W e thus

vacate the permanent injunction in part, to the extent it relies on and is designed to enjoin38

violation of the UCL. In a ll other respects we affirm , and t he case is remanded for further proceeding s 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 t he Chief Justice pursuant to article VI, section 6 of the California Constitution.

A144214/ People ex rel. v. Huber39

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 d efendant and a ppellant

. 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 r espondent.