Opposition Brief — California Department of Transportation v. Naegele Outdoor Advertising Co.
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\ 3 Supreme Court, U.S.
a F I _ E, D
No. 85-639 ; Woy 9 1845
JOSEPH F. SPANIOL, IR,
CLERK |
—s 7
In The
Supreme Court of the Unived States
October Term, 1985
DESERT OUTDOOR ADVERTISING, INC.,
Petitioner,
Vs.
NAEGELE OUTDOOR ADVERTISING CO.
OF CALIFORNIA, INC.,
Respondent.
ra’
Vv
On Petition for a Writ of Certiorari to the
Supreme Court of California
ny
Vv
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
ty
Vv
Brest, Best & Kriecer
Attorneys at Law
By: RicHarp Cross, Esa.
4200 Orange Street
Post Office Box 1028
Riverside, CA 92502
Telephone: (714) 686-1459
Attorneys for Respondent
CCCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333
~ BFST AVAILABLE COPY #
Pages
yey Se ML aie bE bY.) | 1
ARGUMENT Ssiseaedi tad schisms ics isaac aoapueiaeasnceas 6
l. Bammary OF Opposition 6
2. The HBA Does Not net To Indian Reserva-
ee gaeiecaccips emedlatisdac aioe sabia 8
3. The HBA Did Not Delegate To The States
Authority To Enforce The HBA On Indian
i a 2h alee as aa 12
4. The California Supreme Court’s Preemption
Se MO Se a i reccrornsnicilanas 15
5. Desert’s Subsection D Fails To State Any
Reason Why Certiorari Should Be Granted ..... 17
6. The Morongo Band Of Indians Is An Indis-
pensable Party That Cannot Be Joined, And
Therefore This Action Should Be Dismissed 26
oS RINE A tiger etr thi nares ie Riedl odoin th. Siok ence an TOA 25
Appendix 1—Morongo Bank of Mission Indians v.
Area Director, Sacramento Office, 7
Interior Board of Indian Appeals,
86 Int. Dec. 680 (1979) oo... ue tipp. |
Appendix 2—February 2, 1984 Approval of the
March 30, 1978 Morongo-Naegele
Agreement ........................ eens cassnaneete App. 24
Appendix 3—Exhibit A to February 2, 1984 Ap-
proval of the March 30, 1978 Mor-
ongo-Naegele Agreement 0000... App. 25
Appendix 4—Fed. Hy. Ad. Memo Jan, 21, 1976 ...... App. 27
TABLE OF CONTENTS
il
TABLE OF AUTHORITIES
Pages
CASEs:
Bakia v. County of Los Angeles of State of Cal.,
687 F.2d 299 (9th Cir. 1982) assnnite Ly 20
Bryan v. Itasca County, 426 U.S. 373, 48 L.ld.2d
710, 96 S.Ct. 2208 (ISTE) 2. 10, 11, 15, 14
Conrad v. Unemployment Ins. Appeals ied., 47
Cal.App.8d 237, 120 Cal. Rptr. 808 (Ct. App.
| tf { ) em meM ETT TE Se Ew 22
Crow Tribe of Indians v. State of Mon/ana, 650
F.2d 1104 (9th Cir. 1981), modified, 65 F.2d
1390, cert. denied, 459 U.S. 916, 103 S.Ct. 280, 74
DeCoteau v. District County Court, 420 U.S. 425,
43 L.Ed.2d 300, 95 S.Ct. 1082 (1970) ........ SRatalae an 1 ce 13
E.P.A. v. State Water Resources Control Board,
426 U.S. 200, 48 L.Ed.2d 578, 96 S.Ct. 2022 (1976) 18
Hancock v. Train, 426 U.S. 167, 48 L.Ed.2d 555,
96 S.Ct. ZOU CHG) bocce cc Cogs ee
Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 68
L.Ed. 504, 39 S.Ct. 185 (1919) —.....___.... . a
Leavenworth, L. d G.R.R. v. United States, 92 U.S.
133, 28 L.Ed. G34 (2076) 2... eee ae
Lomayaktewa v. Hathaway, 520 F.2d 13824 (9th
Cir. 1975), cert. denied sub nom, Susenkewa v.
Kleppe, 425 U.S. 908, 47 L.Ed.2d 752, 96 S.Ct.
Manygoats v. Kleppe, 558 F.2d 556 (10th Cir, 1977 22
Markham Advertising Company v. State, 73 Wash.
2d 405, 439 P.2d 248 (1968) appeal dismissed,
393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512, reh’g
denied, 393 U.S. 112, 89 S.Ct. 854, 21 L.Ed.2d
GUS (ROG) asec cessienciccsdictecescuasesnee ee hasan 12
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130,
71 L.Ed.2d 21, 102 S.Ct. 894 (1982) ............ nates 14, 20
TABLE OF AUTHORITIES—Continued
Pages
Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650,
48 L.Ed. 954 (1902) Seeds ie acre note we a ee 8
Missouri, Kansas & Texas Railway Co. v. Roberts,
152 U.S. 114, 38 L.Ed. 377, 14 S.Ct. 496 (1894) 8
Morton v. Mancari, 417 U.S. 535, 41 L.Ed.2d 290,
ES Se 14
National Advertising Co, v. City of Ashland, Or.,
678 F.2d 106 (9th Cir. 1982) .............. Nae ae Pan de 12
National Indian Youth Council v. Andrus, 501 F.
Supp. 649 (D.N.M. 1980), aff’d sub nom., Na-
tional Indian Youth Council v. Watt, 644 F.2d
tL GS: nen APN Ae OT er OT 22, 23
New Mexico v. Mescalero Apache Tribe, 462 U.S.
342, 76 L.Ed.2d 611, 103 S.Ct. 2378 (1983) ou. 15
Newhall v. Sanger, 92 U.S. 761, 23 L.Ed. 769 (1876) ...
Northern Cheyenne, etc, v. Adsit, 668 F.2d 1080
(9th Cir, 1982), ree’d on other grounds, Arizona
v. San Carlos Apache Tribe, 403 U.S. 545, 77
L.Bd.2d 837, 108 S.Ct. 8201 (1985 Secale intel 22, 24
People ex rel. Dept. of Transportation v. Naegele
Outdoor Advertising Co,, 88 Cal. 8d 509 (1985) 2, 16,
18,19
People of the State of California, etc., Respond-
ent v. Naegele Outdoor Advertising Company of
California, etc., et al. Appellant, No. 4 Civ. 27494 ... 4,5
Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77
Se:
Ryan Outdoor Advertising, Inc. v. United States,
559 F.2d 554 (9th Cir, 1977) Pare earn mT! 13
Santa Clara Pueblo v. Martinez, 426 US. 49, 56
Gee EM, Ge PR, BORG CRED ocseecsccissteernneem 22
TABLE OF AUTHORITIES— Continued
Pages
Santa Rosa Band of Indtwans v. Kings County, 532
F.2d 655 (9th Cir. 1975) cert. denied, 429 U.S.
1038, 50 L.Ed.2d 748, 97 S.Ct. 731 (1977) 2. 11
Squire v. Capoeman, 351 U.S. 1, 100 L.Ed. 883, 76
S.Ct. Gill (1956) Sek <ckidiahalignaaneiloecaliiadtintlplaroaesotieaghe 14
State of South Dakota v. Adams, 506 F.Supp. 50
(C.D.S.D. 1980), aff’d sub nom., South Dakota v.
Gold-Schmidt, 835 F.2d 698 (Sth Cir. 1980), cert.
denied sub nom., South Dakota v. Lewis, 451
U.S. 984, 68 L.Ed.2d 841, 101 S.Ct. 2316 (1981) ......... 12,13
State of Vermont v. Brinegar, 379 F.Supp. 606 (D.
| RP RRIARR reer apr e mor crea ene Sa BNC oe aR 13
State of Wash., Dept. of Ecology v. U.S.E.P.A.,,
752 F.2d 1465 (9th Cir. 1985) wn... 11, 14, 17, 18, 20
Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir.
1974), cert. denied, 420 U.S. 862, 483 L.Ed.2d 440,
ee Se. Ee CITE oc octccmepcn nt bacee aie 22, 2:3
United States v. Blue, 722 F.2d 383 (Sth Cir. 1983)... 14
United States ex rel. Buxbom v. Naegele Qutdoor
Advertising Company ef Califorma, Inc., 739 F.
24 473 (9th Cir. 1984), cert. denied, 83 L.Rd.2d
779, 105 S.Ct. 785, 53 ULS.L.W. 3484 (1985) 5
United States v. Celestine, 215 U.S. 278, 54 L.Ed.
ek Ge a Oe CD en 9
United States v. Schwartz, 460 F.2d 1365 (7th Cir.
1972) 5 TL A I EN ETS SEIN A at EE | SOC TR 8
Vanoni v. County of Sonoma, 40 Cal. App. 3d 748,
135 Cal. Enter. 465 (Ct. App. 1974) 21
Yazzie v. Morton, 59 F.R.D. 377 (D. Ariz. 1973) 22, 23
§ v
TABLE OF SUTHORITIES—Continued
STATUTES:
Pages
Federal
Mission Indian Relief Act of 1891, 26 Stat. 712 0... 1
23 U.S.C.
23 U.S.C.
23 U.S.C.
23 U.S.C,
23 U.S.C.
23 U.S.C. §
25 U.S.C.
25 U.S.C,
23 U.S.C.
U.S.C,
U.S.C,
U.S.C,
Betis classed cose ee ee 212,13
a ih se Saar? 11
|) ae Pare 13
I ecsecs depen gee 2
Reeder nre A. yee eny PS 2
§ 1857(f) ...
Cat. Geode (iv: Pied: S$ Gee i ee 6, 21, 22
Cal. Code Civ. Proe. § 389(a) oo... ame 21, 22
Cal. Code Civ. Proe. § 389(b) 21, 23, 24, 25
Cal. Bus. & Prof. Code $§ 5200 et seq. «=D
REGULATIONS:
. §§ 750.301-308
ss
§ 750.110...
vi
TABLE OF AUTHORITIFS—Continued
25 C.FLR. § 2.19(a) 3
25 C.F.R. § 2.19(b) »
25 C.F.LR. § 131 ix
25 C.F.LR. § 162 2, 16
43 CLFLR. § 4.1 3
Rvuies or Evipence:
Federal Rules of Civil Procedure. Rule 19 21, 22, 23
ADMINISTRATIVE OPINIONS:
Med. Hy. Adm. Memo, Jan. 21, 1976 7 1]
Morongo Band of Mission Indians v. Area Direc-
tor, Sacramento Office, 7 Interior Board of In-
dian Appeals 299, 86 Int. Dee. GSO (1979) — % 2
9, 11, lo
] Opinions o} the Solu itor of thee Inte ror Relating
to Indian Affairs, 1972-1974, 1835 (May 31, 1945) 14
TREATISES:
R. Strickland, et al., eds. Felia S. Cohen’s Hand-
book of Federal Indian Law 1982 Edition (1982) 9, 14
LEGISLATIVE MATERIAL:
3 Committee Hearing on Floor Debates, Cong.
News, part 18, 89th Cong., Ist Sess., at 25874 9
STATEMENT OF THE CASE
The Morongo Band of Mission Indians is a sovereign,
federally recognized Indian tribe and beneficial owner of
the Morongo Reservation. See Morongo Band of Mission
Indians v. Area Director, Sacramento Office, 7 Interior
Board of Indian Appeals 299, 86 Int. Dee. 680, 681-82
(1979) (Morongo) (Appendix 1 hereto). The reservation
was created between 1876 and 1948 by a series of seven
executive orders, one presidential proclamation, one fed-
eral statute and one deed. Pursuant to the Mission In-
dian Relief Act of 1891, 26 Stat. 712, the federal govern-
ment holds it in trust ‘‘for the sole use and benefit of
the band or village .. .,"’ to be conveyed at the termina-
tion of the trust *‘free of all charge or incumbrance what-
’°
soever,
The reservation lies astride a pass between the San
Bernardino and San Jacinto Mountain Ranges. Its few
natural resources yield little income. Its economy is de-
pressed and many of its members are unemployed and
live in poverty. Less than one square mile of its 32,254
acres is suitable for economic development. Merongo,
supra, 86 Int. Dee. at 681. This smal! area is a strip of
land that flanks Interstate Highway 10, which passes
across the southern part of the Morongo Reservation and
is the major east-west artery for travel to and from
metropolitan Southern Califorma. /d.
The Band has long derived a major part of its in-
come from outdoor advertising. In 1963 the Band’s general
membership delegated to the Morongo Tribal Council
authority to negotiate outdoor advertismg agreements.
In a 1977 appraisal report the Southern Califormia Ap-
praisal Office of the Bureau of Indian Affairs (BLA)
identified outdoor advertising as ‘‘the highest and best
use of [the] reservation land along Interstate 10.’’ Mor-
ongo, supra, 86 Int. Dee. at 681 n. 3.
In 1977 the Band solicited proposals for further out-
door advertising from several outdoor advertising busi-
nesses. See People ex rel. Dept. of Transportation v.
Naegele Outdoor Advertising Co., 38 Cai. 8d 509, 513
(1985) (Naegele). On the basis of the more favorable
terms offered by the Naegele Outdoor Advertising Com-
pany of California, Inc., the Band negotiated a lease with
Naegele. Since 25 U.S.C. $415 and former 25 C.F.R.
§ 131 (now codified as 25 C.F.R. § 162) required the ap-
proval of the Department of Interior for such leases, the
Band and Naegele submitted the lease to the local Bureau
or Indian Affairs (BLA) office for approval. That office
disapproved the lease on the ground that it violated the
ederal Highway Beautification Act of 1965 (Pub. L.
89-285, codified as amended at 23 U.S.C. §$ 131, 1386 &
319) and the California Outdoor Advertising Act (1970
Cal. Stats., ch. 991 §2 at 1764, codified as amended at
Cal. Bus & Prof. Code §§ 5200 et seq.). On Mareh 14,
1978, the Area Director of the BIA upheld the disap-
proval. The Band appealed to the Commissioner of Indian
Affairs, who did not act on the appeal within the 30 days
required by 25 CLF.LR. §2.19(a), and the appeal was auto-
matically referred to the Interior Board of Indian Ap
peals. See 25 C.lLR. § 2.19(b).
>
On December 13, 1979, the Interior Board of Indian
Appeals reversed the decision of the Area Director and
remanded the case to the Acting Deputy Commissioner of
Indian Affairs, with instructions that the BLA ‘seek te
3
effectuate a business lease for outdoor advertising be-
tween the Morongo Band and the Naegele Company con-
sistent with this opinion.’’ Morongo, supra, 86 Int. Dee.
at 692. The Board's action was that of the highest author-
ity within the Department of the Interior and was final
for the Department. /d.; see 48 C.F.R. § 4.1.
Meanwhile, in March of 1978 the Band had enacted
a land use ordinance designating the Reservation land
along Interstate 10 as suitable for commercial develop-
ment, and on March 30, 1978, while the Band’s appeal of
the Area Director’s decision was still pending, the Band
and Naegele entered into a written agency agreement.
Pursuant to the agreement, Naegele installed and began
operating 15 outdoor advertising signs on the Morongo
Reservation.
Naegele paid the band $250,000 for the right to
operate the signs for 10 years. The Band has used this
money for fire protection, improved television reception,
development of new tribal enterprises, operation of the
Tribal Business Committee, and development of alterna-
tive energy sources.
On December 12, 1980. Desert Outdoor Advertising,
Ine. (‘*Deser.’*) filed a first amended complaint against
Naegele, alleging causes of action for nuisance, unfair
competition, and intentional and negligent interference
with prospective economic advantage. The Band was not
named as a defendant. Naegele’s demurrer was sustained
as to the first and overruled as to the remaining causes
of action.
Desert moved for summary judgment on the ground
that the failure of the Morongo signs to comply with the
requirements of the California Outdoor Advertising Act
constituted unfair competition. On September 11, 1981, +he
Riverside Superior Court entered summary judgment in
favor of Desert on its second cause of action for unfair
competition. On April 21, 1982, the Superior Court entered
an amended judgment nunc pro tune and decreed inter alia
(1) that Naegele could not erect outdoor advertising signs
on the Morongo Reservation unless it obtained outdoor ad-
vertising permits from the State Department of Transpor-
tation; and (2) that Naegele dismantle all of the structures
that it had erected on the reservation at the Band’s re-
quest. The Court stayed enforcement of its judgment pend-
ing resolution of the case on appeal.
The Fourth District Court of Appeal, Division Two,
consolidated Desert’s action with the parallel action by the
State of California Department of Transportation (the
‘‘Department’’).' Because resolution of the issues being
apvealed would significantly affect the Morongo Band, the
court granted the Band’s application for leave to file a
brief amicus curiae.
On February 3, 1984, after ali briefs had been filed
and oral argument heard, Naegele filed a motion for
judicial notice, by which it apprised the appellate court
that on February 2, 1984, the Acting Superintendent of the
Southern California Agency of the BIA had approved the
Morongo-Naegele agreement, retroactive to the date of its
execution on March 30, 1978. Appendices 2 & 3 hereto. Un-
1 People of the State of California, etc., Respondent, v. Nae-
gele Outdoor Advertising Company of Calitornia, etc., et al.,
Appellant, No. 4 Civ. 27494,
St eet ie a a enc Smetana we
deterred, the appellate court affirmed the trial court’s
granting of summary judgment in both actions.
Naegele filed its petition for hearing with the Cali-
fornia Supreme Court on April 9, 1984. The State and
Desert filed answering briefs, and the Supreme Court
again allowed the Morongo Band to file an amicus curiae
brief.
On May 2, 1985, the California Supreme Court issued
its opinion in the consolidated State and Desert actions. It
held (1) that whether or not Congress intended the outdoor
advertising standards of the Highway Beautification Act
to apply on Indian reservations, it did not intend that. these
standards be enforced through the assertion of state
power; (2) that the Act of August 15, 1953 (Publie Law
No. 83-280, 67 Stat. 589 (codified at 28 U.S.C. § 1360) (Pub-
lic Law 280)) did not constitute a grant by Congress to
the states of authority to regulate outdoor advertising on
Indian reservations; end (3) that California’s Outdoor
Advertising Act was fusther preempted because Congress
had, by the HBA, reserved to federal authorities responsi-
bility for enforcing the Act on federal lands and reserva-
tions, or, alternatively, because the assertion by California
of its outdoor advertising laws would impose inconsistent
state regulations in an area reserved for federal over-
sight. Naeagele, sippra, 38 Cal. 3d at 514-237
2 On August 3, 1984, the Ninth Circuit Court of Appeals is-
sued its opinion in United States ex rel. Buxbom v. Naegele
Outdoor Advertising Company of California, Inc., 739 F.2d 473
(9th Cir. 1984), cert. denied, 83 L.Ed.2d 779, 105 S.Ct. 785, 53
U.S.L.W. 3484 (1985), reversing the decision below and re-
(Continued on following page)
Because it had based its ruling on grounds of federal
preemption, the Court expressly refrained from deciding
the additional defense asserted by Naegele, to wit, that the
lawsuits asserted against Naegele should be dismissed pur-
suant to California Code of Civil Procedure Section 389 be-
cause the Morongo Band was a necessary party that could
not be joined. Jd. at 523 n. 12.
co)
ARGUMENT
1. Summary Of Opposition
Desert’s petition for writ of certiorari is based on four
contentions, the first three of which are links in a chain
and the last of which is a cateh-all.
First, Desert contends that the HBA applies to all
lands adjacent to the federal highway system. The Cali-
fornia Supreme Court expressly refrained from deciding
this question, preferring instead to base its decision on the
less intrusive ground that whether or not the HBA ap-
plies to Indian reservations, it does not delegate authority
to enforce its standards in Indian country. Desert has had
(Continued from previous page)
manding with directions to dismiss the relator’s action. In
Buxbom, Seymour Buxbom, the president of Desert Outdoor,
had alleged (by a complaint filed on December 3, 1982 in the
Centrai District of California) that the March 30, 1978 Morongo-
Naegele agency agreement violated 25 U.S.C. § 81. In revers-
ing the district court’s grant of summary judgment in favor of
Buxbom, the Ninth Circuit held that the BIA had the power
to approve the agency agreement retroactively and further
held that such approval precluded any judgment that the agree-
ment between the Band and Naegele was void.
i
to resurrect this issue, however, in order to argue, as it
does, that the HBA did delegate the states authority to
enforce its ‘‘standards”’ on Indian reservations.
Desert’s second contention is that the HBA bifurcated
responsibility for implementing its ‘‘standards’’ on all
federal lands, including Indian reservations. In support of
this contention, Desert has concocted the unlikely hypo-
thesis that although the HBA authorized federal agencies
to promulgate rules implementing the HBA, it left to the
states the business of enforcing these rules. The fact that
this epochal interpretation of the HBA has never occurred
to any of the affected federal agencies seems not to coneern
Desert.
This second contention in turn accounts for the third,
which is that the California Supreme Court improperly,
and unnecessarily, determined that the HBA preempted
whatever authority California otherwise enjoyed to regu-
late on-reservation outdoor advertising. Finally, Desert
argues somewhat mysteriously that there is no rational
relationship between the HBA and tribal sovereignty, and
that whatever else Congress might have intended in enact-
ing the HBA it could not have meant to leave Indian reser-
vations unregulated.
Naegele respectfully submits that this Court should
refuse certiorari if only because Desert’s line of argument,
if adopted, would require the Court to decide two complex
questions, both of which the California Court’s decision
wisely avoids, i.e., (1) whether the HBA applies to Indian
reservations and (2) what on-reservation enforcement
methods the State could resort to and the extent to which
such enforcement activities should be allowed to interfere
8
a
with the Interior Department’s management and oversight
of the leasing of Indian trust lands.
In any case, Naegele respectfully submits, none of
Desert’s four contentions is well taken.
KMinally, the fact remains that the Morongo Band is
aud has always been an indispensable party to this action.
This case should be dismissed for failure to join an indis-
pensable party who cannot be joined.
2. The HBA Does Not Apply To Indian Reservations
Desert bases its contention that the HBA was intended
to apply to Indian reservations on four grounds.
It first observes that Section 131(h) of the HBA pro-
vides that all ‘‘publie lands or reservations’? are to be
‘*controlled in accordance with the provisions of this see-
tion and the national standards promulgated by the Seere-
b]
tary.’’ However, the mere mention of ‘‘publie lands or
reservations’? cannot by itself be a basis for inferring
that Congress intended the HBA’s ‘‘standards’’ to apply
to Indian country. The unqualified phrase ‘‘publie lands”’
refers to the undifferentiated group of federal lands that
have not already been devoted to a specific public purpose
(such as being used for an Indian reservation). Missouri,
Nanusas & Texas Railway Co. v. Roberts, 152 U.S. 114, 119,
38 L.Ed. 377, 14 S.Ct. 496 (1894); Newhall v. Sanger, 92
U.S. 761, 28 L.Ed. 769 (1876). Indian reservations are not
‘“publie lands.’’ Minnesota v. Hitchcock, UE U.S. 373, 395-
402, 22 S.Ct. 650, 46 L.Ed. 954 (1902); Leavenworth, L. &
GRR. v. United States, 92 U.S. 733, 746-47, 23 L.Ed. 634
(1875); United States v. Schwartz, 460 F.2d 1365, 1372 (7th
Cir 1972). Rather, they are owned beneficially by the
Indians, and legal title is held in trust by the United States
9
Government. The Government’s trust respensibility for-
bids that Indian reservations be treated as if they were no
different than publie lands. The courts therefore will not
construe a federal statute applicable on its face to ‘public
lands’? as applicable to Indian reservations. Lane v. Pueblo
of Santa Rosa, 249 U.S. 110, 113, 63 Liked. 504, 39 S.Ct. 185
(1919). Thus, merely by use of the term ‘‘publie lands,”’
Congress could not have intended to make Indian reserva-
tions subject to the IBA.
?
Nor can the unqualified term ‘‘reservations’’ by
itself be construed as referring to Indian reservations.
The term ‘‘reservations’’ has been used broadly ‘‘to de-
scribe a body of land, large or small, which Congress has
reserved from sale for any purpose.’’? United States v.
Celestine, 215 U.S. 278, 54 L.Ed. 195, 30 S.Ct. 93 (1909). It
may include military reservations, national forests or
parks, or any other federally protected reserve. Indian
reservations, on the other hand, are unique, since vital
rights are vested in the resident Indians and_ tribes.
Morongo, supra, 86, LD. at 687; see R. Strickland, et al.,
eds. Felix S. Cohen’s Handbook of Federal Indian Law
1982 Edition, 220-28 (1982) (Cohen’s Handbook).
Desert next argues that because a pair of United
States senators grandiloquently traded assurances that
“the precise mileage of highways .. .’’ to be covered by the
HBA was 41,000 miles, and that ‘‘the whole of that mileage
[was] proposed to be covered. ..,’* this Court may take it
as established that Congress intended Indian reservations
to be subject to the HBA’s standards. See 3 Committee
Hearing on Floor Debates, Cong. News, part 18, 89th
Cong.. Ist Sess... at 23874 (emphasis added). It is re
10
spectfully submitted, however, that a mere numerical
reference (which had obviously been rounded off to the
nearest 1,000 miles), accompanied vy the rhetorical flourish
that this encompassed ‘‘all’’ of the federal highway system,
is an extremely insubstantial basis on which to conclude
that the HBA was intended to apply to all highways, even
those located on Indian reservations. Here, Desert is argu-
ing that a federal act transferred regulatory authority over
Indians to the states. It is fundamental that any federal
statute which would make such a jurisdictional transfer
must do so in express, unambiguous language. Bryan v.
Itasca County, 426 U.S. at 373, 392, 48 L.Ed.2d 710, 96 S.Ct.
2101 (1976).
Desert also refers to a statement of the Honorable
Wayne M. Aspinall, in which the congressman noted:
“Tf... [the IIBA] is intended to cover, for ex-
ample, Indian reservations, it should be kept in
mind that such reservations are not owned by the
United States ... .’’ Petition at 8 (emphasis
added).
Desert observes that the congressman’s suggestion of an
alternative phraseology, which would have expressly ex-
cluded Indian reservations, was not adopted — and from
this fact coneludes that Congress intended the ITBA to ap-
ply to Indian lands. Obviously, however, the mere faet that
Congress failed to adopt language which would have made
it clear that the HBA does not apply to Indian reservations
does not warrant the conclusion that Congress therefore
intended the Act to apply to Indian reservaiions. At best,
the legislative record, like the statute it underlies, remains
ambiguous. And it is fundamental that ambiguous language
11
in federal statutes should be construed in favor of Indians,
especially where it is claimed, as here, that the ambiguous
statute abolishes by implication important tribal rights.
Bryan v. Itasca County, supra, 426 U.S. at 392; Santa Rosa
Band of Indians v. Kings County, 532 F.2d 655, 660-61 (9th
Cir. 1975), cert. denied, 429 U.S. 1038, 50 L.Ed. 2d 748, 97
S.Ct. 731 (1977).
Finally, in support of its argument that the HBA was
intended to apply to Indian reservations, Desert makes
reference to an associate solicitor’s April 17, 1967 opinion,
which concluded that the HBA was intended to apply to
Indian reservations. However, as has already been pointed
out, the Interior Department has since rejected that con-
clusion — in a final administrative decision dealing with
the very signs which are the subject of this action. Wo-
rongo, supra. in fact, both the Department of the Interior
and the Department of Transportation, the two federal
agencies charged with responsibility for implementing the
HBA on federal lands, have concluded that the HBA was
not intended to apply to Indian reservations. /d., 86 L.D. at
685-89; Fed. Hy. Ad. Memo. Jan. 21, 1976 (Appendix 4
hereto). In so concluding, both agencies placed special
emphasis on the fact that the Highway Beautification Act
relies on state action to enforee its standards. Morongo,
supra, 86 1.D. at 686; Fed. Hy. Adm. Memo., supra, at 8
ff.; see 23 U.S.C. § 1381(b)-(k); 28 C.F.R. §§ 750.301-308,
790.110 & 750.115. This Court should not substitute its
judgment for that of these agencies if their conclusion is
the result of a reasonable construction of the statute in
question. State of Wash., Dept. of Ecology v. U.S.E.P.A.,
792 F.2d 1465, 1469 (9th Cir. 1985) (Wash. v. U.S.E.P.A.).
12
For all of these reasons, it is respectfully submitted
that Desert’s first contention, i.e., that Congress intended
the HBA to apply to Indian reservations, is without
merit.
3. The HBA Did Not Delegate To The States
Authority To Enforce The HBA On Tidian
Reservations
Desert’s second contention is that the HBA bifureated
responsibility for implementing its “standards” on fed-
eral lands, including Indian reservations, and specificially
that it gave the states authority to enforce the HBA’s
standards on Indian reservatious. This contention is with-
out support for a variety of reasons.
First, the Act does not delegate any regulatory author-
itv, whether rule-making or enforcement, over federal
lands. See 23 U.S.C. § 131; Nattonal Advertising Co. v.
City of Ashland, Or., 678 F.2d 106, 108 (9th Cir. 1982) ;
State of South Dakota v. Adams, 506 F.Supp. 50, 58-59
(C.D.S.D. 1980), aff'd sub nom., South Dakota v. Gold-
schmidt, 835 F.2d 698 (Sth Cir. 1980), cert. dented sub nom.,
South Dakota v. Lewis, 451 U.S. 084, 68 Liked.2d 841, 101
S.Ct. 2316 (1981). Rather, the purpose of the statute is to
induce the states to regulate outdoor advertising in a man-
ner consistent with certain federal standards. Markhan
Advertising Company v. State, 73 Wash. 2d 405, 489 P.2d
248, 257 (19608), appeal dismissed, 393 U.S. 316, 89 S.Ct.
do8, 21 L.Ed.2d 512, reh’g denied, 393 U.S. 1112, 89 S.Ct.
854, 21 L.ked.2d 813 (1969) (“the purpose of the federal
statute is obviously to induce the states to act, not to re-
quire them to do so”); National Advertising Co. v. City of
Ashland, Or., supra, 678 F.2d at 108-9. The Act achieves
—
Ce
this goal by allowing the states to choose between compli-
ance or foregoing ten per cent of their allotment of federal
aid highway funds. 28 U.S.C. § 131(j) and (1); see State of
Vermont v. Brinegar, 379 F.Supp. 606, 609 (D.Vt. 1974).
Neither subsection (h) of Section 131, nor any other part
of the HBA, constitutes a grant of jurisdiction to the states.
To the contrary, the Act assumes that the states already
have the authority needed to regulate outdoor advertising
in the manner recommended. State of South Dakota v.
Adams, supra, 506 F.Supp. at 59.
Desert’s. unlikely hypothesis that the HBA gave states
enforcement jurisdiction over Indian reservations is also
contradicted by the Ninth Cireuit’s holding in Ryan Out-
door Advertising, Inc. v. United States, 559 F.2d 554, 556-57
(9th Cir. 1977) (per curiam). There the appellate court
held that the source of the Interior Secretary’s independent
authority to deviate from HBA standards was the general
congressional grant of authority to the Interior Secretary
to administer laws dealing with publie lands. Jd. at 556.
The Secretary is the federal official charged with ultimate
responsibility for administering Indian affairs; @ fortior?,
he has authority to deviate from the HBA where Indian
lands are concerned; and if he has such authority, then the
states do not.
Desert’s theory of bifureated jurisdiction is also con-
trary to the established rule of statutory interpretation that
state laws will not be held applicable to on-reservation ae-
tivities except where Congress has expressly provided that
state laws shall apply. Bryan v. Itasca County, supra, 426
U.S. at 376 n. 2; DeCoteau v. District County Court, 420
i4
U.S, 425, 427-28 n. 2, 43 L.Ed.2d 300, 95 S.Ct. 1082 (1970) ;
see Wash. v. U.S.E.P.A,, supra, 752 F.2d at 1469-70, Where
as here a general federal law would, if applied to Indians
or their reservations, infringe upon a particular Indian
right or policy, that law will be held not to apply to Indians
on reservations unless Congress has expressly provided to
the contrary. Bryan v. Itasca County, supra, 426 U.S. at
392; Morton v. Mancari, 417 U.S. 535, 41 L.Bd.2d 290, 94
S.Ct. 2474 (1974); Squire v. Capoeman, 351 U.S. 1, 100
L.Ed. 883, 76 S.Ct. 611 (1956); 1 Opinions of the Solicator
of the Interior Relating to Indian Affatrs 1917-1974, 1335
(May 31, 1945) (despite its declared applicability to “pub-
lic and reserved lands of the United States ..., the Boulder
Canyon Project Act did not apply to the Morongo Indian
reservation): see United States v. Blue, 722 F.2d 383, 385
(Sth Cir. 1983); Cohen’s Handbook, supra, at 285.
Desert’s theory is also contrary to the established rule
that federal legislation is not to be construed in a manner
that would limit or extinguish any of the traditional pre-
rogatives of tribal sovereignty, absent a clear expression
of intent by Congress. Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 149-150, 71 L.ed.2d 21, 102 S.Ct. 894 (1982).
This Court may presume that Congress intended to ex
ercise its power in a manner consistent with the federal
trust obligation. Wash. v. U.S.E.P.A., supra, 752 F.2d at
1470.
In support of its argument that the HBA delegated
enforcement authority to the states, Desert makes much
of the fact that the HBA of 1965 did not repeat word-for-
word certain language in the Federal Aid Highway Act of
1958, which had directed the Secretary of Commerce to
a ——
15
make whatever agreements were necessary with the federal
agencies having jurisdiction over public lands or reserva-
tions, to ensure that that 1958 Act’s purpose was realized.
From the failure of the 1965 HBA to reiterate this lang-
uage, Desert would have this Court believe that Congress
had “changed its entire philosophy ...” and “|drawn] the
distinction between the applicable standards governing bill-
board advertisement on Interstate and primary highways
on the one hand and enforcement of those standards on the
other hand.” Petition at 10-11 (emphasis added). This
argument assumes as its premise that Congress had an al-
most neolithic grasp of our mother tongue, i.e., that Con-
gress was incapable of saying plainly what Desert was quite
able to say in the above-quoted passage. It also announces
as a fe/t accompli a shocking and unprecedented shift in the
balance of power between state and federal governments.
Henceforth, according to Desert, the states shall have un-
fettered authority to enter all federal reservations, military
and Indian alike, in pursuit of deviant billboards.
Naegele respectfully submits that Desert’s argument
that the HBA impliedly granted the states enforcement
jurisdiction over all on-reservation outdoor advertising ac-
tivities is without merit.
4. The California Supreme Court’s Preemption
Holding Was Correct
The State Supreme Court held that California’s
claimed authority to regulate on-reservation outdoor ad-
vertising was preempted on two grounds, both of which fell
under the rubric of those “familiar principles of pre-emp-
tion” referred to by this Court in its opinion in New Mexico
v. Mescalero Apache Tribe, supra, 462 U.S. at 333-34. The
16
State Court first held that the HBA clearly manifested
Congress’s intent to design a comprehensive scheme for
regulation of outavor advertising, and then found that the
Act expressly “reserved to federal authorities the responsi-
bility for enforcing the [A]ets provisions upon federal
lands and reservations.” It is this conclusion that Desert
has attempted to discredit by its far-fetched theory of bi-
fureated jurisdiction. For the reasons already set forth
above, that contention is unsupportable.
However, even assuming for the sake of argument that
Desert’s theory of bifureated jurisdiction is correct, the
California Supreme Court adduced an additional reason
why state jurisdiction over on-reservation outdoor adver-
tising would in any case be preempted, namely, the fact that
Congress and the executive branch have by numerous enact
ments and regulations indicated unambiguously that regula
tion of tribal enterprises like this one is within the exclusive
jurisdiction of the Interior Department. Vaegele, supra, 38
Cal.3d at 522 & n.9. In support of this conclusion, the Court
referred briefly to the fact that *‘Interior’s authority to su
pervise the enterprise at issue here cannot be doubted,”’ cit
ing 25 U.S.C. § 415(a) and 25 C.F.R. § 162. To this list, the
Court could have added, had it wanted to, the actual ap-
proval by the Secretary of the Interior of the Morongo-
Naegele lease agreement (Appendices 2 & 3 hereto), 25
U.S.C. (81 (which governs all contracts between Indians
and non-Indians), the decision of the Interior Department
in Morongc, and the numerous congressional and executive
pronouncements establishing the firm federal policy of
encouraging tribal sovereignty and economic self-develop-
ment.
17
Desert has not even addressed, much less attempted to
discredit, this additional ground for holding that state
authority to regulate vn-reservation outdoor advertising
is preempted by federal law.
5. Desert’s Subsection D Fails To State Any Rea-
son Why Certiorari Should Be Granted
An examination of the argument contained within sub-
section |) of the Petition reveals that it in fact consists of
several unrelated arguments.
First, Desert has posed for itself and the Court the
nonsensical question whether a rational relationship exists
between the HBA and the right of reservation Indians to
make their own laws. As has already been explained,
whether a federal statute of general application is also ap-
plicable to the on-reservation activities of Indians has
nothing to do with whether there was a rational basis for
the enactment of the statute. In fact, the test is consider-
ably more stringent. Cf. Wash. v. U.S.E.P.A., supra, 752
F.2d at 1469-72.
Second, Desert suggests that this case poses a unique
question not previously addressed by this Court, namely,
whether and under what cireumstances federal legisla-
tion designed to encourage state adoption of certain na-
tional standards will be deemed a cession of regulatory
and enforcement jurisdiction by the federal government to
the states, and in particular, whether and under what cir-
eumstances such legislation will be deemed to inelude a
grant of state jurisdiction over Indian country. See Pe-
tition at 18-19. In faet. this and other courts have ad-
dressed both questions on several occasions.
18
The general rule is that federal legislation designed
to encourage adoption of certain national standards does
not constitute a cession of regulatory and enforcement
jurisdiction by the federal government to the states, unless
Congress has indicated, by ‘‘clear and unambignous’’
language, that it intends this result. See Hancock v. Train,
496 U.S. 167, 179, 48 L.Ed.2d 555, 96 S.Ct. 2006 (1976)
(interpreting § 118 of the Clean Air Act, 42 U.S.C. § 1857.
(f)); E.P.A. v. State Water Resources Control Board,
426 U.S. 200, 220-21, 48 L.Ed.2d 578, 96 S.Ct. 2022 (1976)
(interepreting §313 of the Federal Water Pollution Con-
trol Act Amendments of 1972. 33 U.S.C. §1323). It is clear
from the face of the HBA that it contains no ‘‘clear and
unambiguous’’ grant of regulatory authority to the states.
As the California Supreme Court pointed out in
Naegele, the Ninth Cireuit Court of Appeals recently had
occasion to address this question in the context of a claimed
delegation of state enforcement jurisdiction over Indian
lands. Naegele, supra, 38 Cal.3d at 519 n.5. In Wash. v.
U.S.E.P.A., supra, 752 F.2d 1465, the Ninth Cireuit upheld
the EPA’s conclusion that the federal Resource Conserva-
tion and Recovery Act (RCRA) “does not give the state jur-
isdiction over Indian lands, and that states could possess
such jurisdiction only through an express act of Congress
>]
or by treaty,” even though Indian tribes are clearly regu-
lated entities under RCRA and the Act authorizes state reg-
ulation in lieu of the federal program. Naegele, supra, 38
Cal.3d at 519 n. 5. This by itself is sufficient to dispense
with Desert’s second argument under subsection D of its
Petition.
19
Desert’s third argument under subsection D is, ap-
parently, that the only conduct to be regulated here is the
on-reservation conduct of non-Indians. This statement is
simply incorrect. The preceding statement of facts makes
it abundantly clear that the signs at issue are owned by
the Morongo Band and located on the reservation. The
on-reservation conduct of Indians is therefore in issue.
Desert’s fourth argument in subsection D of its Pe-
tition is, in effect, that in light of the HBA’s salutary
purpose, it is difficult to imagine that Congress intended
to leave Indian reservations in their ‘‘distressed condi-
tion,’’ that is, without the benefit of regulation by the
State of California. Petition at 20. The simplest and
most direct answer to this argument is that it is irrelevant
(because the language of the HBA does not expressly and
unambiguously confer regulatory jurisdiction on the State
of California), although one might equally well respond that
Congress clearly has left to the Interior Department re-
sponsibility for implementing the HBA’s standards on In-
dian reservations.
Desert next argues that the off-reservation ‘‘spill-
over’”’ effect of billboards is ‘‘total.’’ However, as is
pointed out above, the stretch of Interstate 10 involved in
this case is located entirely on the Morongo Reser-
vation. Desert’s citation of Rice v. Rehner, 463 U.S. 713,
103 S.Ct. 3291, 77 L.Ed.2d 961 (1983) is inapposite because,
as the California Supreme Court noted, Rice involved a
situation where the federal statute in question expressly
provided for the application of state law. Nuegele, supra,
38 Cal. 3d at 521.
Finally, Desert argues that Mere is no tradition of
tribal immunity that would be threatened by allowing state
jurisdiction over on-reservation outdoor advertising. Bas-
ically, this is a misplaced preemptior-balancing argu-
ment. It is wrong for two reasons. First, as the pre-
ceding discussion shows, the right of Indian tribes to con-
trol reservation land use is a fundamental and vital attri-
bute of tribal sovereignty. Further, as the Ninth Circuit
recently noted, there is also a strong ‘‘ federal commitment
to tribal self-regulation in environmental matters.’’ Wash.
v. U.S.EP.A., supra, 752 F.2d at 1471. Second, the fact
that outdoor advertising is not an ancient custom simply
is not and cannot be a basis for concluding that the Band
does not have a protectible sovereign interest in engaging
in this enterprise. Desert’s argument utterly fails to take
account of the direction of ali federal Indian policy since
the Indian Reorganization Act of 1934 — which has been
to encourage development of reservation-based business
enterprises. If Desert’s argument holds water, then by
the same token the Jicarilla and Crow tribes have no pro-
tectible sovereign interest in mining coal, since, obviously,
there has never been a tribal tradition of coal mining. See
Merrion v. Jicarilla Apache Tribe, supra, 455 U.S. at 138-
152; Crow Tribe of Indians v. State of Montana, 650 F.2d
1104, 1115-17 (9th Cir. 1981), modified, 665 F.2d 1390, cert.
denied, 459 U.S. 916, 103 S Ct. 230, 74 L.Ed.2d 182 (1982).
6. The Morongo Band Of Indians Is An Indis-
pensable Party That Cannot Be Joined, And
Therefore This Action Should Be Dismissed
As already indicated. the California Supreme Court
refrained from ruling on Naegele’s claim that the Morongo
21
Band is an indispensable party that cannot be joined.
Naegele again respectfully submits, however, that this
action should now be dismissed for this reason.
California’s Code of Civil Procedure Section 389
deals with joinder of parties and indispensable parties. In
1971 it was revised to conform substantially to Rule 19 of
the Federal Rules of Civil Procedure. Code Civ. Proc.
§ 389, Law Revision Commission Comment, 1971 amend-
ment. Like Rule 19, Section 389 sets forth a two-ste) pro-
cedure for determining (1) whether a party or entity not
named as a defendant is a ‘‘necessary party,’’ that is, one
which should be ‘‘joined if feasible,’’ and (2) if so, whether
the action should be dismissed because the person not
joined is an ‘‘indispensable party.’’? C.C.P. §389(a) &
(b); Vanoni v. County of Sonoma, 40 Cal. App. 3d 743,
746-47, 115 Cal. Rptr. 485 (Ct. App. 1974); cf. Bakia v.
County of Los Angeles of State of Cal., 687 F.2d 299, 301
(9th Cir. 1982) (per curiam). Obviously, Desert is request-
ing relief which, if granted, would entail serious adverse
consequences to the Band, to wit, (1) the invalidation of
the Morongo-Naegele lease agreement insofar as it pur-
ports to authorize signs that violate the California Out-
door Advertising Act, and (2) displacement of tribal regu-
latory jurisdiction.
Federal decisions construing Rule 19 of the Fed-
eral Rules of Civil Procedure have found the mere possi-
bility of such adverse consequences sufficient to make an
9
Indian tribe a ‘‘necessary party’’ within the meaning of
Rule 19(a). In the following cases. the courts held that
an unjoined Indian tribe was a necessary party because the
action would have had the effect of invalidating a lease or
22
other agreement to which the tribe was a party. Many-
goats v. Kleppe, 558 F.2d 556, 558 (10th Cir. 1977); Lo-
mayaktewa v. Hathaway, 520 F.2d 1324, 1326 (9th Cir.
1975), cert. denied sub nom, Susenkewa v. Kleppe, 425 U.S.
903, 47 L.Ed.2d 752, 96 S.Ct. 1492 (1976); Tewa Tesuque
vu. Morton, 498 F.2d 240, 242 (10th Cir. 1974), cert. denied,
420 U.S. 962, 43 L.Ed.2d 440, 95 S.Ct. 1353 (1975); Na-
tional Indian Youth Council v. Andrus, 501 F.Supp. 649,
681-82 (D.N.M. 1980), aff’d sub nom, Natwonal Indian
Youth Council v. Watt, 644 F.2d 220 (10th Cir. 1981) ;
Yazzie v. Morton, 59 F.R.D. 377, 383 (D.Ariz. 1973). An
Indian tribe is also a necessary party to any action which
would limit the scope of its sovereign rights (Northern
Cheyenne, etc. v. Adsit, 668 F.2d 1080, 1089-90 (9th Cir.
1982), rev’d on other grounds, Arizona v. San Carlos
Apache Tribe, 463 U.S. 545, 77 L.Ed.2d 837, 103 S.Ct. 3201
(1983) ), including the tribe’s right to control its own reser-
vation lands (Yazzie v. Morton, supra, 59 F.R.D. at 383).
Because the language and intent of Rule 19 and Sec-
tion 389 are virtually the same, federal decisions con-
struing the proper application of Rule 19 may appropriate-
ly be consulted in determining the proper application of
Section 389. Conrad v. Unempoyment Ins, Appeals Bd.,
47 Cal. App. 3d 237, 241, 120 Cal. Rptr. 803 (Ct. App. 1975).
The Band must therefore be regarded as a person who,
yursuant to Section 389(a), ‘‘shall be joined as a party
] d ] 7
99
The Morongo Band cannot be joined, however. It is
a fundamental tenet of American Indian Law that Indian
tribes enjoy sovereign immunity from suit. They cannot
be sued in either federal or state court unless Congress or
23
the tribe consents to such suit. Santa Clara Pueblo v. Mar-
tinez, 436 U.S. 49, 58, 56 L.Ed.2d 106, 98 S.Ct. 1670 (1978).
The question remaining, therefore, is whether this
action should have heen allowed to proceed, in spite of the
fact that the Band eould not be joined. Like Subsection (b)
of Rule 19, Section 389(b) sets forth four criteria to be con-
sidered in determining whether ‘‘in equity and good con-
science the action should proceed among the parties be-
fore it, or should be dismissed without prejudice, the ab-
sent person being thus regarded as indispensable.’ Cf.
Bakia v. County of Los Angeles of State of Cal., supra,
687 F.2d at 301. The four considerations are:
(1) The extent to which a judgment rendered with-
out the absentee would prejudice it or the exist-
ing party;
(2) The extent to which prejudice can be alleviated
or avoided by other measures;
(3) The adequacy of a judgment rendered without
the absentee; and
(4) The adequacy of plaintiff’s :emedies if an action
is dismissed for nonjoinder. Cal. Code Civ. Proce.
§ 389(b).
Here, the trial and appellate courts allowed a signifi-
eant infringement of the Morongo Band’s inherent sov-
ereign rights, even though the Band was not a party to
the action and could not be joined. This was error. Where,
as here, the validity of an important tribal agreement with
a non-Indian has been attacked, the courts have not hesi-
tated to hold that the tribe was indispensable and, there-
fore, that the action had to be dismissed. Each of Lomayak-
tewa, Tewa Tesuque, National Indian Youth Council and
24
Yazzie, was an action to invalidate a lease between a tribe
and a non-Indian, and in each the court held that the tribe
yas an indispensable party because, among other things,
cancellation of the lease would severely prejudice the inter-
ests of the tribe. Validation of a lease is not, of course, the
only kind of harm which requires that a tribe be deemed in-
dispensable. See Northern Cheyenne, ete. v. Adsit, supra,
668 F.2d 1080 (action involving tribal water rights).
The first of the four factors enumerated in Subsec-
tion (b) of Section 389 therefore is clearly satisfied.
The second factor under Section 389(b) is the extent
to which, by protective provisions in the judgment, preju-
dice to the absent party can be lessened or avoided. Here,
that is not possible. As the decisions below illustrate,
granting relief to Desert deprives the Band of the
right to determine the circumstances under which it will
allow outdoor advertising on its reservation lands. The
possibility of such prejudice cannot be eliminated. There-
fore, dismissal is required. See Lomayaktewa v. Hatha-
way, supra, 920 F.2d at 1326.
The third factor under Section 389(b) is whether the
judgment rendered in the person’s absence will be ade-
quate. Here, any judgment in the tribe’s absence is for all
intents and purposes unenforceable: Naegele neither owns
the signs nor has authority to remove them without the
consent of the Band. Further, the Band is not a party to
the judgment in this action. The situation is exactly like
that in Lomayaktewa v. Hathaway, supra, where the plain-
tiffs sued to invalidate a lease between the Hopi Tribe, as
lessor, and a non-Indian corporation, as lessee, but did not
25
name the tribe as a defendant. The Ninth Cireuit consid-
ered it ‘‘perfectly apparent that any judgment rendered in
the Tribe’s absence would not be adequate.’’ 7d. at 1326.
The fourth factor is the adequacy of the plaintiff's
remedies if the action is dismissed. Code Civ. Proe. § 389
(b). The plain fact of the matter is that Desert has
mounted an action which ought properly to have been
brought against the Band, not Naegele. However, the
plaintiffs are barred absolutely from suing the Band; they
can no more sue the Band here than they could anywhere
else. Therefore, there is no underlying enforceable right
of action; dismissal effects no deprivation of a right.
Desert’s entire action must be dismissed, because the
Morongo Band is an indispensable party that cannot be
joined.
ray
Vv
CONCLUSION
For the reasons stated above, Naegele respectfully
submits that Desert’s petition for certiorari is without
merit and should be rejected, or alternatively, that the ac-
tion should be dismissed for failure to join an indispensable
party who cannot be joined.
Dated: November 7, 1985
Respectfully submitted,
Best, Best & Kriecer
Attorneys at Law
By: RicHarp Cross, Esa.
4200 Orange Street
Post Office Box 1028
_ Riverside, CA 92502
Telephone: (714) 686-1450
Attorneys for Respondent
App. 1
APPENDIX 1
ADMINISTRATIVE APPEAL OF THE MORONGO
BAND OF MISSION INDIANS
Vv.
AREA DIRECTOR, SACRAMENTO AREA OFFICE
7 IBIA 299
Decided December 13, 1979
Appeal from Area Director’s decision disapproving a pro-
posed lease of trust land for outdoor advertising purposes.
Reversed.
i. Aet of Oct. 22, 1965—Bureau of Indian Affairs: Gener-
aily—Indian Tribes: Generally
Title I of the Highway Beautification Act, 79 Stat. 1028,
which applies to ali ‘‘public lands or reservations of the
United States,” does not apply to Indian Reservations.
2. Act of Aug. 15, 1953—Indian Tribes: Generally
Public Law 280, 67 Stat. 588-590, did not grant to states
general civil regulatory powers over Indian reservations.
Nor could this be accomplished by Departmental regula-
tion, Secretarial Order or other directive.
3. Act of Oct. 22, 1965—Bureau of Indian Affairs: Gen-
erally—Indian Tribes: Generally
California’s Outdoor Advertising Act, implementing the
Highway Beautification Act, 79 Stat. 1028, may not be ap-
plied to non-Indian lessees on the Morongo Indian Reser-
vation.
4. Act of Oct. 22, 1965—Bureau of Indian Affairs: Gener-
ally—Indian Tribes: Generally
App. 2
The Department’s policy established in 1965 of requiring
lessees of Indian lands in California to comply with State
standards regulating land use and development can be
achieved without subjecting developing tribal governments
to the full enforcement powers of the State, viz., through
adding appropriate State standards to the provisions of
any lease.
APPEARANCES: Stephen V. Quesenberry, Esq., Califor-
nia Indian Legal Services, for appellant; James E. Good-
hue, Esq., Office of the Field Solicitor, U. S. Department
of the Interior, Riverside, California, for respondent.
OPINION BY CHIEF ADMINISTRATIVE
JUDGE HORTON
INTERIOR BOARD OF INDIAN APPEALS
The appeal decided here involves a claim by the Mor-
ongo Band of Mission Indians (appellant) that the Area
Director, Bureau of Indian Affairs, Sacramento Area Of-
fice (respondent), erred in refusing to approve a lease
agreement between the Band and the Naegele Outdoor Ad-
vertising Co., Ine. of California, for the purpose of erect-
ing and maintaining outdoor advertising structures on the
Morongo Indian Reservation.
The Area Director’s decision at issue was rendered
Mar. 14, 1978." A notice of appeal was timely filed from
this decision by California Indian Legal Services on behalf
of appellant on Apr. 17, 1978, pursuant to 25 CFR Part 2.
By memorandum dated Mar. 27, 1979, Acting Deputy Com-
'The Area Director's decision affirmed a determination made
by the Superintendent, Southern California Agency, BIA, dated
Aug. 29, 1977.
App. 3
missioner of Indian Affairs Martin E. Seneca, Jr., referred
this appeal to the Board of Indian Appeals for resolution
in accordance with the provisions of 25 CFR 2.19.?
In reviewing the decision appealed from and the briefs
submitted by the parties, it is clear that resolution of this
appeal depends primarily on the answer to the following
question: To what extent, if any, does the Highway Beauti-
fication Act of 1965, 79 Stat. 1028, 23 U.S.C. § 131 (1976),
apply to Indian reservations?
BACKGROUND
Th: genesis of this appeal can be traced to the strug-
gle of the Morongo Band of Mission Indians to develop
econotically. This background is detailed in appellant’s
brief dated July 1, 1978, from which the following summary
is adduced:
The Morongo Indian Reservation occupies approxi-
mately 32,800 acres of land in Riverside County, Califor-
nia, and is inhabited by nearly 300 members of the Mor-
ongo Band of Mission Indians. Because the reservation
lies astride a narrow pass between the San Bernardino and
This regulation provides in relevant part:
“(a) Within 30 days after all time for pleadings (including
extension — has expired, the Commissioner of Indian
Affairs shall:
“(1) Render a written decision on the appeal or
“(2) Refer the appeal to the Board of Indian Appeals for
decision.
“(b) If no action is taken by the Commissioner within the
30-day time limit, the Board of Indian Appeals shall review and
render the final decision.”
App. 4
San Jacinto Mountain Ranges, only the few relatively flat
acres located in the plain are suitable for economie devel-
opment. A planning study conducted for the Band in 1972
identified a total of less than 1 square mile of reservation
land as suitable for economic development. All of that
land lies adjacent to Interstate Highway 10, which is a
major east-west artery for travel to and from the metro-
politan areas of southern California.
In addition to the Interstate Highway, the reservation
is crossed by a main line of the Southern Pacific Railroad,
the Colorado River Aqueduct, major oil tranmission [sic]
pipelines, natural gas pipelines, and numerous electrical
transmission lines, all of which serve the metropolitan Los
Angeles area without any significant benefit to the reserva
tion or its residents.
Despite the reservation’s seemingly advantageous lo-
cation for economic development, its economy is depressed
and its population poor. The unemployment rate on the
reservation is approximately 50 percent.
For many years a major source of income for the Mor-
ongo Band has been derived from outdoor advertising
activities on tribal lands adjacent to Interstate Highway
10.4. Beeause the foregoing lands consist of property held
in trust by the United States for the benefit of the Moron-
go Band, any tribal lease of the property for business pur-
poses requires approval by the Secretary of the Interior
3In an appraisal report dated Oct. 13, 1977, the Southern
California Appraisal Office, BIA, identified outdoor advertising
as ‘the highest and best use oi reservation lands along Inter-
state 10.”
App. 5
pursuant to the provisions of 25 U.S.C. § 415 (1976), and
regulations found in 25 CFR Part 131. The Bureau has
refused to approve the Morongo Band’s advertising leese
with the Naegele company on grounds that the outdoor
advertising proposed in the lease violates requirements of
the Highway Beautification Act and California State law
promulgated thereunder.‘
DISCUSSION, FINDINGS AND CONCLUSIONS
Certain preliminary questions are answered before we
address the main issue. First, the Field Solicitor (who
represents the Area Director on appeal) asserts that it is
inappropriate for the Board to entertain this appeal be-
‘ause the issues involved are the subject of litigation in
State of California v. Naegele Outdoor Advertising Co. of
California, Inc., No. 126069, Superior Court of the State
of California, County of Riverside. This is an action
brought by the State of California, through its Department
of Transportation, against the Naegele company for viola-
tions of California’s Outdoor Advertising Act, Bus. & Prof.
Code §§ 5200-5486, allegediy committed by the company in
advertising activities on the Morongo Reservation.
There are indeed questions of law at issue in the fore-
going case which also urise in this administrative proceed-
‘The Area Director's decision does not recite specific find-
ings of fact or conclusions of law. In lieu thereof, the Area Di-
rector states:
“In view of the Riverside Field Solicitor’s Opinion: Sec-
retarial Order of July 9, 1965. 30 F.R. 8722; Solicitor’s Opinion
dated April 7, 1967, and circumstances surrounding the lease
proposal of Naegele Outdoor Advertising Company, | hereby
affirm the Superintendent's decision of Aug. 29, 1977.”
App. 6
ing, such as whether the Congress intended the Highway
Beautification Act to apply to Indian reservations. ‘lhe
precise issue in the State Court proceeding, however, does
not involve the lease dispute now before the Board. In this
regard, neither the Morongo Band nor the Department of
tle Interior is a party to the action. In the absence of any
court injunction or Secretarial directive precluding the
Board from deciding the subject appeal, there is no legal
reason why the Board cannot do so. Further, considera-
tions of policy do not favor the continuation of disputes
which are ripe for decision. Here, appellant has been pur-
suing a final administrative determination from the De-
partment for over 114 years. For the above reasons, the
Board rejects respondent’s contention that consideration
of this appeal should be deferred or denied.®
Subsequent to the Area Director’s disapproval of the
lease at issue, the Morongo Band entered into an “agency
agreement” with the Naegele Company in March 1978.
This agency agreement is explained by appellant in its brief
dated July 1, 1978, as follows:
During the pendency of these various appeals, the Business
Committee of the Morongo Band, pursuant to the authority
vested in it through the Band’s enactment of Proposition 4
at its General Election of December 14, 1963, continued to
consider the possibility of establishing an outdoor advertis-
ing industry on the Morongo Indian Reservation because
of its potential for creating employment for Band members
and for creating an income for the Morongo Band. After
‘The Field Solicitor refers to another California suit. State of
California v. Hadley Fruit Co., Civ. No. 106415. Superior Court
of California, County of Riverside, as one with a direct bearing
on the issues before the Board. Appellant disagrees. The Board
is informed that the above case has been settled.
App. 7
lengthy deliberations, it was decided that the most advan-
tageous and expeditious way for the Band to do so would be
for the Band to establish its own outdoor advertising enter-
prise immediately. Because the Band lacked the necessary
technical expertise to do so immediately, the Band engaged
an agent to commence and to operate certain aspects of this
enterprise for the Band during a period when the Band
would acquire its own expertise in the business. The Band
has entered into an Agency Agreement with its agent [ Nae-
gele Outdoor Advertising Company of California, Inc.] for
this purpose.
The Field Solicitor submits that appellant is “attempt-
ing to convert the appeal from the refusal to approve the
lease into an Interior Board of Indian Appeals’ ratifica-
tion of an agency agreement [summarized above] and the
Band’s operation of an outdoor advertising sign business.’’
Answer Brief filed June 1, 1979, at 2. Appellant denies
this charge and maintains that Departmental ratification
of the Band’s agency agreement with the company is not
required. Appellant’s Reply Brief filed June 22, 1979, at
1-2.
It is neither necessary nor appropriate for the Board
to render an opinion regarding the March 1978 “agency
agreement.” The Board’s jurisdiction in administrative
appeals is limited to a review of specific action taken by
BIA officials in the performance of their duties under
Chapter I of Title 25 of the Code of Federal Regulations.
43 CFR 4.350-4.353. To our knowledge, no BIA action
has been taken regarding the agency agreement.® If some
According to the Field Solicitor, “at no time was the so-
called agency agreement ever presented to the Superintendent,
Southern California Agency, or the Area Director, for approval.”
Answer Brief at 2.
App. 8
BIA action has occurred regarding the agreement, it is not
reviewable by this forum in the absence of a proper appeal
therefrom.
Thus, the sole question to be decided here is whether
it was error for the Area Director to disapprove the pro-
posed lease of trust land on the Morongo Indian Reserva-
tion to the Naegele company’
7The terms of the proposed lease are set forth in a letter to
the Morong® Band Tribal Council from the Naegele Company,
dated Aug. 10, 1977, which reads as follows:
“Gentlemen:
“Confirming our meeting and proposal to the Morongo
Tribal Council on Aug. 8, 1977, we would like to propose the
following for your approval.
“1. We would like to lease the North side of sections 10
and 12 and the South side of section 8 located on Freeway In-
terstate 10. We will only lease enough ground space to erect
single pole signs. Each advertising structure will only have one
pole with the ground base approximately thirty six inches in
diameter.
‘2. At this time, our plans call for fifteen different single
pole structures, spaced approximately 1000 ft. apart. As we
understand, your sections are one mile long on the freeway
side. This will allow us to build five on each of the proposed
sections.
‘3. In order for Naegele to lease the above mentioned
property, the Morongo Indians will have to own the poles for
each advertising structure. Naegele will furnish and erect each
pole and sell them to the Morongos for one dollar each. We
can then lease the top of the pole for a total of $6,500 per year
plus the annual increase as outlined on the attached page.
At the end of our lease agreement we will buy back the poles
for one dollar each or enter into a new lease at the agreement
of both parties.
“4. The annual payment of $6,500 plus, will be made in
annual installments in advance beginning Jan. 1, 1978. The
payment schedule above will be established by the fact that
(Continued on following page)
App. 9
The statutory authority which permits the leasing of
Indian trust land for such business purposes as outdoor
advertising is the Act of Aug. 9, 1955, 69 Stat. 539, as
(Continued from previous page)
we will have approval to start construction on the locations
by October 1, 1977.
“5. In the event of future development of Morongo prop-
erty, we will move our structure, including the pole fifty or
one hundred feet or wherever it will not interfere with the de-
velopment. This will be done at no cost to the Morcngo
Indians.
“6. The Hadley outdoor advertising signs can remain as
far as we are concerned. But all other advertising signs will
be removed by us as their leases expire with you. The reason
for this is, we do not want to create outdoor advertising clutter.
We would like to have an exclusive right to lease any and all
property that you want to lease for advertising on any road
or freeway. This will also allow you to expect and get prompt
payment from one advertising company, the 3rd largest out-
door advertising company in the United States.
“7. In the event the state finds a way or passes a law to
prevent Naegele from leasing the top of each of your single
poles through condemnation or whatever, we will pay you the
lease money owed through the day we are forced to take down
our signs and poles.
“8. Naegele will maintain all advertising structures, in-
cluding the poles at no cost to the Morongos. We will also as-
sume all cost for illumination and service for the signs. Naegele
will also carry all insurance for liability. We will at all times
protect the interest of the Morongo Indians.
“9. We will only build standardized outdoor structures,
14’ x 48’ with space for extensions, please see photo, or we will
not exceed 1,200 sq. ft. which will meet state approval.
“10. We will also need the right of ingress and egress of
the premises to erect, place and maintain all advertising signs
and structures and any equipment therefore and post, paint or
illuminate and maintain advertisements or such structures.
Very Truly Yours
Leon E. Howell
President’’
App. 10
amended, 25 U.S.C. § 415 (1976). The Act provides that
restricted Indian lands, whether tribally ov individually
owned, may be leased only with the approval of the Secre-
tary of the Interior. In addition to prescribing the term of
years for leases consummated under the Act, the statute
provides:
Prior to approval of any lease... the Secretary of the In-
terior shall first satisfy himself that adequate considera-
tion has been given to the relationship between the use of
the leased iands and the use of neighboring lands; the
height, quality, and safety of any structures or other fa-
cilities to be constructed on such lands; the availability of
police and fire protection and other services; the avail-
ability of judicial forums for all criminal and civil causes
arising on the leased lands; and the effect on the environ-
ment of the uses to which the leased lands will be subject.
[Act of June 2, 1970, § 2, 84 Stat. 303.]
The Department’s regulations governing the leasing of
Indian land are set forth in 25 CFR Part 131. These reg-
ulations are primarily aimed at insuring proper economic
return: to Indian lessors. See 25 CFR 131.5.
Based on the authorities incorpor ited by reference in
the Area Director’s decision (see n.4), it appears that the
Area Director disapproved the proposed lease on grounds
that California and Federal] laws controlling outdoor adver-
tising along Interstate Highways were not satisfied by the
provisions of the lease.
On appeal the Morongo Band has presented a compre-
hensive attack on the validity of the Area Director’s action,
Among other things, the Band alleges the following:
1. The Highway Beautification Act does not apply
to Indian reservation lands.
App. 11
2. Neither the Highway Beautification Act, Public
Law 280, or any other proper legal authority confers on
California power to implement its Outdoor Advertising Act
on Indian reservations.
3. The Highway Beautification Act and the Cali-
fornia Outdoor Advertising Act do not apply to non-Indian
lessees of Indian trust lands.
4. The policy of the Secretary of the Interior to ap-
ply state land use standards to leases of Indian trust lands
ean be accomplished without subjecting the Band to state
jurisdiction and enforcement measures.
DOES THE HIGHWAY BEAUTIFICATION ACT
APPLY TO INDIAN RESERVATION LANDS?
The Highway Beautification Act of 1965, as amended,
was enacted by Congress to provide for scenic develop-
ment and road beautification of the Federal-aid highway
systems. Title I of the Act (23 U.S.C. §131 (1976)) con-
tains requirements for the control of outdoor advertising.
At 23 U.S.C. §181(h), the Act provides:
(h) All publie lands or reservations of the United
States which are adjacent to any portion of the Interstate
System and the primary system shall be controlled in ac-
cordance with the provisions of this section and the national
standards promulgated by the Secretary [in 1965, the See-
retary of Commerce; now the Secretary of Transporta-
tion].
[1] In a memorandum opinion to the Commissioner
of Indian Affairs dated Apr. 7, 1967, the Associate Solici-
tor for Indian Affairs concluded that “reservations of the
United States” as used in subsee. (h) of 23 U.S.C. § 131 in-
App. 12
cludes Indian reservation.® Upon eareful review, we con-
clude that the Associate Solicitor’s opinion does not reflect
the state of the law on this subject.
The 1967 opinion relies primarily on the Department’s
disposition of three cases rendered over 65 years ago con-
cerning rights-of-way across “reservations” for canal and
ditch purposes? At issue was whether the term “reserva-
tions” as used in the Act of Mar. 3, 1891, § 18, 26 Stat. 1101,
43 U.S.C. § 946 (1976), includes Indian reservations. The
Department ruled in the affirmative and this position was
followed by a Federal court in 1914. United States v.
Portneuf-Marsh Valley Irr. Co., 205 F.416 (E.D. Ida. 1912),
aff'd, 213 F.60i (9th Cir. 1914).
As appellant argues on appeal, the Act of Mar. 3, 1891,
vests power in the Secretary of the Interior to disapprove a
right-of-way grant whenever he determines that approval
thereof would be injurious to an Indian reservation.!° On
‘In his concluding paragraph, the Associate Solicitor states
that outdoor advertising on Indian reservation lands is subject
“to regulations under the act.’” The opinion does not address
whether outdoor advertising on Indian reservations is subject
to both Federal and state regulation.
927 L.D. 421 (1898), overruling 14 L.D. 265 (1892); 33 L.D.
363 (1905); and 42 L.D. 595 (1913).
The statutory proviso reads in pertinent part: “Provided.
That no such right of way shall be so located as to interfere
with the proper occupation by the Government of any such
reservation.” 43 U.S.C. § 946 (1976). With respect thereto, see
27 L.D. 421, 423-424, 33 L.D. 563, 565 and 42 L.D. 595, 600,
supra. In U.S. v. Portneuf-Marsh Valley Irr. Co., supra, the Fed-
eral district court stated:
“It is pointed out that there is no apparent reason why an
Indian reservation should not be subject to the grant of a right
of way the same as any other reservation, especially in view
App. 13
the other hand, the Highway Beautification Act of 1965,
which relies on state action to enforce its standards, see
23 U.S.C. § 181(b)-(k) (1976), contains no special! protee-
tion for Indian interests.
One indication that the Department has not considered
the Highway Beautification Act applicable to Indian lands
is its own regulatory response to the statute. In December
1970, the Secretary issued regulations inyoking and ex-
panding the outdoor advertising standards of the Highway
Beautification Act with respect to public lands managed by
the Bureau of Land Management. 483 CFR 2921.0-6. No
such regulations have been issued by the Seeretary with re-
spect to Indian lands.
That the Highway Beautification Act was not intended
to apply to Indian reservations is apparent from the en-
forcement provisions of the law. Under the Act, states
are subject to a 10 pereent reduction in Federal highway
funds if they fail to regulate outdoor advertising in ac-
cordance with national standards. 23 U.S.C. §131(b).
States are authorized to employ their zoning or condenma-
tion powers to achieve compliance with the Act. See. 131
(d)-131(g¢); 23 CFR 750.301-308. States may even im-
pose stricter limitations than are found in the Act in con-
trolling outdoor advertising. See. 131(k) ; 23 CFR 750.110,
750.155.
For the above measures to be taken by states on In-
dian reservations two well-established legal principles are
necessarily forsaken: first, that tribally owned Indian res-
ervation land is not subject to state powers of eminent do-
main. Minnesota v. United States, 305 U.S. 382 (1939):
United States v. 10.69 Acres of Land, 425 F.2d 317 (9th
App. 14
Cir. 1970)," and second, that states are not authorized to
enforce their land use regulations on Indian reservations.
Santa Rosa Band of Indians v. K ings County, 532 F.2d 655
(9th Cir, 1975. cert. denied, 429 U.S. 1038 (1977).
Unquestionably, the Congress, which has plenary au-
thority over Indian affairs, United States v. Kagama, 118
U.S. 375 (1886), has the power to subject Indian reserva-
tions to the type of state regulation generally authorized
in the Highway Beautification Act. However, based on
principles enunicated by the Supreme Court in Williams
v. Lee, 358 U.S. 217 (1959), regarding the limits of state
power over Indian affairs, it is the Board’s position that
absent clear Congressional license to the states to control
outdoor advertising on Indian reservations, such an in-
trusion by the states into ‘‘the right of reservation Indians
to make their own laws and be ruled by them’’ is without
sanction.
The term ‘‘reservations’’ is one broadly used ‘‘to de-
scribe any body of land, large or small, which Congress
has reserved from sale for any purpose.’’? United States
v. Celestine, 215 U.S. 278 (1909). It may include military
reservations, national forests, national parks, or any other
Federally protected reserve. Indian reservations are
"Allotted lands are subject to state condemnation. Act of
Mar. 3, 1901. 31 Stat. 1084, 25 U.S.C. §257 (1976).
"In concluding that the phrase “public lands and reservations
of the United States” as found in the Act of Mar. 3, 1891, in-
cluded Indian reservations, the Appeals Court noted in United
States v. Portneuf-Marsh Valley Irr. Co., supra, that “Tat the
date of that act the Indian reservations were the only consid-
erable reservations of the United States.”’ 213 F. 601, 603.
i a a a
App. 15
unique, however, since vital rights are vested in the In-
dians and tribes located thereon. Appellant refers to the
Buck Act’? as a clear example of Congressional recogni-
tion that Indian reservations are distinguishable from
all other Federal reservations. As originally proposed,
this Act would have allowed a state to impose its sales
tax, use tax or income tax within ‘‘Federal areas,’’ al-
ternatively described as Federal ‘‘reservations’’ in the title
of the bill. A series of inquiries from the Department of
the Interior eventually led to a clarifying provision in the
hill excepting reservation Indians from the coverage of
the Buck Act.'4
In the case before us, absence of statutory language
expressly including or excluding Indian reservations as
territory subject to the Highway Beautification Act ren-
ders the term ‘‘reservations’’ as used in see. 131(h), am-
biguous. This ambiguity has been recognized by the De-
partment of Transportation, the Federal ageney primari-
ly responsible for national enforcement of the Act. By
memorandum dated Dee. 19, 1977, an assitant [sic] chief
counsel of the Federal Tiighway Administration furnished
the Department of the Interior with a draft proposed
amendment to 23 U.S.C. § 131(h) aimed at bringing Indian
reservation areas within certain coverages of the Highway
Beautification Act.%
'3Act of July 30, 1947, 61 Stat. 641, 4 U.S.C. §§ 104-110 (1976).
144 U.S.C. § 109 (1976). See Appellant’s opening brief filed
July 5, 1978, at 4-7.
SSee pp. 41-46, Appellant’s Attachments to Brief on Appeal,
fiied July 5, 1978. Among other things, the draft amendment
called for a voluntary removal program on Indian reservation
lands of nonconforming outdoor advertising signs.
App. 16
To our knowledge, the legislative history of 25 U.S.C.
§ 131 (1976) reveals no reference to Indian reservations
whatsoever. However, implicit in statements of the House
Public Works Committee regarding the legislation is the
recurring theme that enforcement of the Act could effec-
tively be achieved through the zoning and condemnation
powers enjoyed by states. House Report No. 1084, 89th
Congress, Ist Sess., found in 1965 U.S. Code Cong. & Adm.
News, pp. 3710-3736."6 As previously stated, however, we
believe these powers may be exercised by states on Indian
reservations only when Congress expressly so authorizes.
Under the circumstances, we find that the legislative his-
tory of the Highway Beautification Act supports the con-
clusion that Congress did not intend to include Indian
reservations within the class of reservations affected
thereby.
In ascertaining this intent of Congress, it is instruc-
tive that Indian lands are specifically identified in other
Acts relating to the Federal-aid highway systems as ap-
propriate. See 23 U.S.C. §§101(a), 103(b)(1), 120(a),
120(f), 120(g), 125(e), 203, 208, and 217(e). Congress ob-
viously knew when and how to inelude language relating
to Indian reservations in its Federal highway plan.
Appellant submits that in accordance with recognized
canons of construction. doubtful satutory language must
be interpreted in favor of the Indians. This is undoubtedly
'6The regulations of the Federal Highway Administration con-
cerning condemnation under the Act specify that they “should
not be construed to authorize any additional rights in eminent
domain not already existing under State law or under 23 U.S.C.
131(g).”. 23 CFR 750.301.
—
App. 17
true with respect to Federal statutes dealing with Indians.
Worcester v. Georgia, 31 U.S. (6 Peters) 214, 261 (1832) ;
Santa Rosa Rand of Indians v. Kings County, supre; State
of Washington v. Confederated Bands and Tribes of the
Yakima Indian Nation, — U.S. —, 58 L.Ed.2d 740, 758
(1979). Where the Federal statute involved is one of gen-
eral applicability, such as the Highway Beautification
Act, some courts are prone to apply normal rules of con-
struction instead of rules which favor Indians. See United
States v. Allard, 397 F. Supp. 429 (D. Mont. 1975); ef.
United States v. White, 508 F.2d 453 (Sth Cir. 1974).
In this case, it cannot be said that Indians are sim-
ilarly affected as the general publie if see. 151(h) is
deemed applicable to Indian reservations. Such a ruling
would significantly alter the tribal sovereignty possessed
by Indian nations. Since states have the authority under
the Act to impose standards stricter than in the Act itself,
such a ruling could mean economic termination of a tribe
such as the Morongo Band whose primary source of in-
come is derived from outdoor advertising. Because of the
unique tribal interests at stake here, it is not inappropriate
to apply the rules of construction urged by appellant, not-
withstanding the general nature of the Act in question.
So doing, we are all the more satisfied that Congress did
not intend the Highway Beautification Act to apply to
Indian reservations.
PUBLIC LAW 280 AND
DEPARTMENTAL STANDARDS
[2] The Field Solicitor submits that the California
Outdoor Advertising Act may be enforced on Indian reser-
vations by virtue of a Secretarial Order of July 2, 1965,
App. 18
published at 30 FR 8722. This directive (signed by Under
Secretary John A. Carver) provides in part:
Pursuant to §1.4(b), Title 25, Code of Federal
Regulations (30 F.R. 7520), the Secretary of the In-
terior does hereby adopt and make applicable subject
to the conditions hereinafter provided, all of the laws,
ordinances, codes, resolutions, rules or other regula-
tions of the State of California. now existing or as
they may be amended or enacted in the future, limit-
ing, zoning, or otherwise governing, regulating, or con-
trolling the use or development of any real or per-
sonal property, including water rights, leased from or
held or used under agreement with and belonging to
any Indian or 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 and located within the State of California.
The Field Solicitor points out that the above Sccre-
tarial directive has been construed by a California court
as vesting the State with authority to apply its laws to
lessees of Indian lands. County of San Bernardino v. La-
Mar, 76 Cal. Rptr. 547 (1969).
In a March 1970 opinion, former Secretary of the In-
terior Walter J. Hickel clarified the Department’s position
with respect to the 1965 Secretarial directive and expressly
stated that the Department had no intention of following
the ruling in Ceunty of San Bernardino, supra, noting that
the United States was not a party to the litigation and had
no notice of its pendeney,"’ Secretary Hickel stated that,
"Mr. Hickel’s opinion appears as appendix A to Appellants’
Supplemental Statement in Support of Appeal, filed May 3,
1979. it is an unpublished opinion directed to interested par-
ties in the zoning of lands of the Agua Caliente Indian Reserva-
tion in Palm Springs.
App. 19
at most, California laws were noticed by the Department
as standards for the agency to follow in approving leases
of Indian land.
The Secretarial directive of 1965 and 25 CFR 1.4(b)
are apparent attempts of the Department to apply or in-
terpret the aims of Congress in its eractment of the Act of
Aug. 15, 1953, 67 Stat. 588-590, as amended, commonly
known as Public Law 280.'8 In 1976, the Supreme Court
rendered the definitive decision that Public Law 280 did
not grant to states general civil regulatory powers over
Indian reservations. Bryan v. Itasca County, 426 U.S. 373,
390 (1976). The Court’s decision in Bryan is consistent
with Mr. Hickel’s 1970 opinion that the Secretarial direc-
tive of 1965 was not a general jurisdictional grant to Cabhi-
fornia to apply its regulatory laws in Indian country.
Clearly, only Congress may accomplish such a result.
The Field Solicitor further contends that the Cali-
fornia Outdoor Advertising Act is a prohibitory statute
and thus comes within the purview of the criminal juris-
diction provisions of Public Law 280. It is the case that
California has made any violation of its Act a misde-
meanor. Bus. and Prof. Code, § 5464.
\8The 1965 order contains the following proviso: “Nothing
contained in this notice shall be construed in any way to alter
or limit the provisions of sections 2(b) and 4(b) and (c) of the
Act of August 15, 1953 (67 Stat. 589).’” Several commentators
have questioned the validity of 25 CFR 1.4 (see Public Law 280:
The Limits of State Jurisdiction Over Reservation Indians, 22
U.C.L.A. L. Rev. 535, 586 (1975), by Goldberg. Regulating Sov-
ereignty: Secretarial Discretion and the Leasing of Indian Lands,
26 Stan. L. Rev. 1061, 1091 (1974), by Chambers. In Norviil
v. Sangre de Cristo Dev. Co., 372 F. Supp. 348 (D.N.M. 1974),
25 CFR 1.4 was declared unconstitutional for lack of congres-
sional authorization.
App. 20
Appellant submits that under the above theory vir-
tually any state licensing or regulatory law could be con-
verted to a ‘‘criminal’’ law by merely providing that viola-
tion thereof constitutes a criminnal offense. We agree with
appellant that Indian reservations would obviously be sub-
ject to wholesale regulation by state legislatures under the
above interpretation. Dictum in the Ninth Cireuit’s de-
cision in United States v. Marcyes, 557 F.2d 1361, 1364,
(9th Cir. 1977) indicates that such a procedure cannot be
countenanced. We so hold here on the basis that the Cali-
fornia Outdoor Advertising Act is clearly a regulatory law
and does not fall within the criminal jurisdiction pro-
visions of Public Law 280.
REGULATION OF
NON-INDIAN LESSEES
[3] The most difficult question in this appeal is
whether the proposed lease with the Naegele company
would be subject. to state vegulation if approved by the De-
partment because of the non-Indian character of the enter-
prise. If so, the Bureau of Indian Affairs should possibly
not be faulted for disapproving the lease if it fails to sat-
isfy certain requirements of California’s Outdoor Adver-
tising Act.
In Fort Mojave Tribe v. County of San Bernardino,
543 F.2d 1253 (9th Cir. 1976), the Appea's Court reaf-
firmed its earlier holding in Agua Caliente Band of Mis-
sion Indians v. County of Riverside, 442 F.2d 1184 (9th
Cir. 1971), cert. denied, 405 U.S. 933 (1972), that a state
possessory interest tax could be imposed on non-Indian
lessees of Indian trust land. The Board has carefully eval-
uated the foregoing decisions and related cases. In our
App. 21
opinion, appellant has correctly distinguished the case at
hand from those where courts have permitted state regula-
tion of non-Indian lessees on Indian reservations:
However, Fort Mojave and Agua Caliente are dis-
tinguishable from the situation of the Morongo Band
on at least two basic points. First, different state stat-
utes are involved which, if enforced against the non-
Indian lessee, will have varying degrees of impact on
tribal self-government. Assessment of a possessory
interest tax on the leasehold interest of a non-Indian
lessee is qualitatively different from enforcement of a
land use statute (California Outdoor Advertising Act)
against the same lessee. Second, a corollary of the
first point, is the fact that assessment of a possessory
interest tax is not an attempt by the State to exercise
‘‘general civil regulatory powers’’ [bryan, supra, 426
U.S. at 390] over reservation lands.
State laws regulating outdoor advertising, like
other state zoning and land use laws, fall within bry
an’s prohibition against the exercise of general state
civil regulatory authority on Indian reservations, ab-
sent an express grant of such authority from Congress.
Moreover, the assessment of a possessory interest tax
on the non-Indian lessee, unlike the regulation of out-
door advertising, is not a regulation of the use of the
land and results in less of an intrusion into the areas
of retained tribal sovereignty and tribal self-govern-
ment. [Footnote omitted. ]
Appellant’s Reply Brief, filed June 20, 1979, at 18.
That the effect of state regulation on tribal sover-
eignty bears on the validity of a state’s jurisdiction is
explained in Williams v. Lee, supra, and Moe v. Con-
federated Salish and Kootenai Tribes, 425 U.S. 463 (1976).
App. 22
Here, we find the Morongo Band has made a per-
suasive showing, one which by proper accounts should
have been attempted by its trustee,’® that its self-govern-
ment would be adversely affected by application of Cali-
fornia’s Outdoor Advertising Act to its non-Indian lessee.”
EXERCISE OF SECRETARY’S AUTHORITY
[4] Appellant observes that the Department’s policy
‘*‘to require lessees of Indian lands to comply with state
standards regulating land use and development’’ as ex-
pressed in Secretary Hickel’s 1970 opinion, ‘‘ean be imple-
mented without taking the drastic step of subjecting de-
veloping tribal governments to the full enforcement pow-
ers of the state.’’ Appellant’s Reply Brief at 20. The
Band suggests that a reasonable approach would be to
include State standards regarding placement, illumina-
tion, maintenance, ete., of outdoor advertising structures
as provisions of any lease. The Board believes this to be
a sound proposal. In undertaking this approach, however,
the Bureau of Indian Affairs must insure that its own
19Under the authority of the Mission Indian Relief Act of
Jan. 12, 1891, 26 Stat. 712, the United States issued a patent on
Dec. 14, 1908, declaring that it would hold the lands of the
Morongo Indian Reservation “in trust for the sole use and bene-
fit of the said Morongo Band or Village of Indians.”
20” T|ribal use and development of tribal property presently
is one of the main vehicles for the economic se!f-development
necessary to equal Indian participation in American life.” Santa
Rosa Band of Indians v. Kings County, supra at 664; see also,
Bryan, supra, 426 U.S. 388, n. 14.
App. 23
actions serve to protect tribal sovereignty.?! This can be
party [sic] accomplished by initially acquiring the Band’s
consent to the use of State standards.”
DISPOSITION
In aceerdance with the above discussion, findings and
conclusions, the decision of the Sacramento Area Director
dated Mar. 14, 1978, disapproving the picrosed lease be-
tween the Morongo Band and the Naegele Company is va-
eated. This matter is remanded to the Acting Deputy
Commissioner of Indian Affairs with instructions that the
Bureau of Indian Affairs seek to effectuate a business
lease for outdoor ad‘ ertising between the Morongo Band
and the Naegele Company consistent with this opinion.
In accordance with the authority delegated the Board
under 43 CFR 4.1, this decision is final for the Depart-
ment.
Wm. Philip Horton,
Chief Administrative Judge.
We Concur:
Franklin Arness,
Administrative Judge.
Mitchell J. Sabagh,
Administrative Judge.
21That this duty is incumbent on the Bureau of Indian Affairs
in acting on proposed leases of Indian lands is addressed in
Mr. Chambers’ article cited in n. 18.
22This procedure is desirable to bring the Secretarial directive
of 1965 into compliance with the 1968 amendments of Public
Law 280 regarding tribal consent. Act of Apr. 11, 1968, 82 Stat.
78-80, 25 U.S.C. §§ 1321-22 (1976). Tribal consent should not
be a problem in this case. The Morongo Band has suggested
the use of State law as a standard for regulating outdoor ad-
vertising on its reservation, and, in addition, the Band has re-
peatedly expressed its commitment to the general purposes of
the Highway Beautification Act. See Appellant’s Brief filed
May 3, 1979, at 4; Appellant’s Brief filed June 24, 1979, at 18-19.
App. 24
APPENDIX 2
Approved for a period of 10 years retroactive to the execu-
tion of the Agency Agreement on March 30, 1978 as entered
into by Thomas Lyons, Chairman, Morongo Band of Mis-
sion Indians and Leon EK. Howell, President, Naegele Out-
door Advertising Company of California, Ine.
This document is executed pursuant to Sacramento Area
Office Redelegation of Authority Order No. 1, July 3, 1978,
which specifies under Section 2.3, that the Superintendent
may exercise the authority of the Area Director in relation
to the following: (f) all those matters set forth in 25 CFR
131 (now 162), except for leases and permits with terms in
excess of ten (10) years. Therefore, the Acting Superin-
tendent, Southern California Agency, herein exercises the
redelegated authority. If the original agreement is un-
available, the Southern California Ageney will prepare an
approval page for attachment to the copy, with appropri-
ate references to that certain agreement, entered into by
the parties on March 30, 1978.
Where references are made to the Band as to approvals,
consents and authorizations, the words ‘‘and the Seere-
tary’’ will be added after Band.
Approved in accordance with the letter of the Area Diree-
tor, Sacramento Area Office, dated November 15, 1983, a
copy of which by this reference is made a part hereof. See
Exhibit ‘‘A’’.
Approved February 2, 1984 reactive [sic] to March 30,
1978.
/s/ William H. Gianelli
Acting Superintendent
Pursuant to the authority delegated by
209 DM 8, 10 BIAM 3.1, and Sacramento
Area Office Redelegation Order No. 1
(43 F.R. 30131).
App. 25
APPENDIX 3
EXHIBIT ‘‘A”’
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
Sacramento Area Office
2800 Cottage Way
Sacramento, Caliifornia 95825
(SEAL)
November 15, 1983
Barbara KE. Karshmer, Esq.
Attorney at Law
925 N Street, Suite 150
Fresno, California 93721-2256
Dear Ms. Karshmer:
This refers to your letter of October 27, 1983, concerning
an Agency agreement between the Morongo Band of Mis-
sion Indians and Naegele Outdoor Advertising Company.
‘The matter was the subject of a decision from the Interior
Board of Indian Appeals which held that a contemplated
lease of certain lands on the Morongo Indian Reservation
for outdoor advertising purposes would not be regulated
by State law or the Highway Beautification Act.
Your letter requests that the Bureau of Indian Affairs seek
to ‘‘effectuate a business lease for outdoor advertising be-
tween the Morongo Band and the Naegele Company,’’ as
directed by the Interior Beard of Indian Appeals, in the
approval of the agency agreement executed between the
Band and Naegele, on March 30, 1978. You further re-
quested that said approval be issued retroactively to
)
March 30, 1978, in view of the Interior Board of Indian
App. 26
Appeals’ decision and in order that the Band may attempt
to persuade the Ninth Cireuit Court of Appeals to remand
the case of U.S. ex rel Buxbom v. Naegele, to the District
Court for a new decision in light of the changed facts.
Sacramento Area Office Redelegation of Authority Order
No. 1, July 3, 1978, specifies under See. 2.3, that the Super-
intendents and the Director, Palm Springs Office, may
exercise the authority of the Area Director in relation to
the following: (f) all those matters set forth in 25 CFR
131 (now 162), except for leases and permits with terms
in excess of ten (10) years. Therefore, the Superinten-
dent, Southern California Agency, by copy of this letter, is
requested to exercise his redelegated authority with re-
spect to your request. You are requested to provide the
Superintendent, with the original agreement, if at all pos-
sible. If the original agreement is unavailable, the South-
ern California Agency will prepare an approval page for
attachment to the copy, with appropriate references to that
certain agreement entered into by the parties on March
30, 1978.
It is suggested that where references are made to the Band
as to approvals, consents and authorizations, that ‘‘and the
Secretary’’ be added after Band.
Sincerely,
/s/ Jess T. Town
Area Director
ce: Superintendent, SCA, w/copy of incoming for action.
App. 27
APPENDIX 4
Synopsis of Legal Opinion
Attorney: Marguerite L. Price
Date: Prepared Jan. 21, 1976
Signed Jan. 21, 1976
Issue: Whether §131(h) of Title 23, United States Code,
is applicable to Indian reservations, thereby providing :
basis for jurisdiction to the States to enforce their respec-
tive laws, regulations, and rules promulgated pursuant to
§ 131, et seq., on Indian reservations.
Conclusion: Although statutory construction leads us to
the conclusion that Indian reservations are technically
within the meaning of the phrase ‘‘reservations of the
United States’”’ as used in P.L. 89-285, Highway Beautifi-
vation Act of 1965, 79 Stat. 1028, failure of the Act to dele-
gate either to the Federal Highway Administration, De-
partment of Transportation, or to the Department of the
Interior, the explicit authority to implement the Act on
Indian reservations results in nonapplicability to Indian
reservations due to: a. Lack of uniform civil jurisdiction
of the States over Indian reservations, thereby resulting
in irregular exercise of the States’ police power through
their zoning ordinances; b. Lack of authority of the
States to condemn Indian reservation land; and ec. Lack
specific delegation by Congress to any Federal agency or
department the necessary authority and jurisdiction to
implement the Act on Indian reservations. The most logi-
‘al and practical solution to this dilemma is for Congress
to amend the Act to delegate specific jurisdiction and au-
thority to an appropriate governmental agency to achieve
uniform implementation of the Beautification Act on In-
dian reservations.
App. 28
Applicable Statutes:
23 U.S.C. $131, et seq.
25 U.S.C. $§ 311. 357, 1321-1326
28 U.S.C. § 1560 [Civil jurisdictions of States over In-
dians |
18 U.S.C. § 1162 [Criminal jurisdiction of States over In-
dians ]
»
United States Constitution, Art I, see. 8, el. 3
Applicable Regulations:
23 CFR 750 Subpart D (1975)
Administrative Directives:
None
Precedent Opinions and Decisions:
Worcester v. Georgia, 31 U.S. 515 (1832)
United States v. Kagama, 118 U.S. 375 (1886)
Stone v. United States, 506 IF. 2d 561 (C.A. 8, 1974), cert.
den., 95 S. Ct. 1405 (1975)
Hamilton v. MacDonald, 503 F. 2d 1138 (C.A. 9, 1974)
Ortiz - Barraza v. United States, 512 F. 2d 1176 (C.A. 9,
1975)
Pyramid Lake Pawte Tribe of Indians v. Morton, 499 F. 2d
L095 (C.A.D.C. 1974), cert. den., 95 S. Ct. 1351 (1975)
Littell v. Nakai, 344 F. 2d 486 (C.A. 9, 1965), cert. den., 382
U.S. 986 (1966)
Iron Crow v. Oglala Sioux Tribes of Pine Ridge, Res., 231
F. 2d 89 (C.A. 8, 1956)
United States v. Blackfeet Tribe of Blackfeet Ind. Res.,
364 F. Supp. 192 (D. Mont. 1973)
United States v. Forty-Three Gallons of Whiskey, 93 U.S.
188 (1876)
Dick v. United States, 208 U.S. 340 (1908)
Shoshone Tribe of Indians v. United States, 294 U.S. 476
(1937)
Choate v. Trapp, 224 U.S. 665 (1912)
Matter of Huff, 197 U.S. 488 (1905)
Groundhog v. Keeler, 442 F. 2d 674 (C.A. 10, 1971)
Confed. Salish € Koatenai Tribes v. State of Montana, 392
F. Supp. 1325 (D. Mont. 1975), U.S. App. Pndg., 44 L.W.
3005
Confed. Salish & Koatenai Tribes v. Mamen, 380 F. Supp.
402 (D. Mont. 1974)
McClanahan v. State Tax Commission of Arizona, 411 U:S.
164 (1973)
Aqua Caliente Band of Mission Ind. v. County of River-
side, 306 F. Supp. 279 (C.D. Calif. 1971), aff’d., 442 F. 2d
1184 (C.A. 9, 1971), cert. den., 405 U.S. 933, reh. den., 405
U.S. 1033 (1972)
Hallowell v. United States, 221 U.S. 317 (1911)
Nadeau v. Union Pacific R.R. Co., 253 U.S. 442 (1920)
United States v. Osage County, 251 U.S. 128 (1919)
Exparte Webb, 225 U.S. 663 (1912)
Blackfeather v. United States, 190 U.S. 368 (1903)
Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902)
Lone Wolfe v. Hitchcock, 187 U.S. 553 (1903)
United States v. Creek Nation, 295 U.S. 103 (1935)
United States v. 2,005.32 Acres of Land, 160 F. Supp. 193
(D. S.D. 1958), dism., 259 F. 2d 271 (C_A. 8, 1958)
United States v. 10.69 Acres of Land, Yakima County, 425
PF’, 2d 317 (C.A. 9, 1970)
F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99 (1960)
Seneca Nation of Indians v. Uniied States, 338 F. 2d 55
(C.A. 2, 1964)
App. 30
United States v. 687.30 Acres of Land, State of Neb., 319
F. Supp. 128 (D. Neb. 1970)
Bennett County, South Dakota v. United States, 394 F. 2d
8 (C.A. 8, 1968)
Oneida Indian Nation of N.Y. St. v. County of Oneida, N.Y.,
414 U.S. 661 (1974)
Snohomish County v. Seattle Disposal Co., 425 P. 2d
(1967), cert. den., 389 U.S. 1016 (1967)
Aqua Caliente Band of Mission Ind. v. City of Palm
Springs, 347 F. Supp. 42 (C. Calif. 1972)
Rincon Band of Mission Indians v. County of San Diego,
324 F. Supp. 371 (S.D. Calif. 1971), dism’d., 491 EF. 2d
9 (C. A. 9, 1974)
Reference Book:
Federal Indian Law, (1958), compiled by the United States
Department of the Interior; United States Printing Office,
Washington, D.C.
Legal Articles:
“Judicial Review of Indian Treaty Abrogation, Ete.,” 63
California Law Review 601 (May, 1975)
“Indian Title: The Rights of American Natives in Lands
They Have Oceupied Sinee Time Immemorial,” 75 Colwm-
bia Law Review 654 (April, 1975)
“Judicial Enforcement of the Federal Responsibility In-
dians,” 27 Stanford Law Review 1213 (May, 1975)
“Public Law 280: The Limits of State Jurisdiction Over
Reservation Indians,’’ 22 U.C.L.A. Law Review 535 (Feb..
1975)
“Federal Courts - Indian Jurisdiction, Ete.,” 63 George-
town YDSO (Mareh, 1975)
“The Extension of County Jurisdiction over Indian Reser-
vations in California: Public Law 280 and the Ninth Cir-
cuit,” 25 Hastings Law Review 1451 (May, 1975)
ath
App. 31
‘*The New York Indians’ Right to Self-Determination,’’ 22
Buffalo Law Review 985 (1972 - 1973)
‘State Taxation-Federal Preemption of Taxation against
the Backdrop of Indian Sovereignty,’’ 49 Washington Law
Review 191 (1973)
“Tribal Self-Government and the Reorganization Act of
1934” 70 Michigan Law Review 955 (1971 - 1972)
“The Indian Battle for Self-Determination,” 58 California
Law Review 445 (March, 1970)
“The Indian Bill of Rights and the Constitutional Status of
Tribal Governments,” 82 Harvard Law Review 1344 (i969)
“The Constitutional Rights of the Ameriean Tribal In-
dian,” 51 Virginia Law Review 122 (1965)
Discussion: Indian reservations, that is, those lands held
in trust by the United States for the beneficial use of the
Indians, are interpreted to be within the meaning of the
term “public lands and reservations” of 23 U.S.C. § 131(h).
Section 131(h) provides for the application of control of
outdoor advertising to:
(h) All publie lands or reservations of the
United States which are adjacent to any portion of
the Interstate System and the primary system shall
be controlled in accordance with the provisions of
this section and the national standards promulgated
by the Secretary.
Support for this interpretation is lent from 23 U.S.C.
§$101(a) which defines ‘*Indian reservation roads and
bridges” as:
The term “Indian reservation roads and bridges”
means roads and bridges, including roads and bridges
on the Federal-aid systems, that are located within or
provide access to an Indian reservation or Indian trust
land or restricted Indian land which is not subject to
App. 32
fee title alienation without the approval of the Fed-
eral Government, or Indian and Alaska Native vil-
lages, groups, or communities in which Indians and
Alaskan Natives reside, whom the Secretary of the
Interior has determined are eligible for services gen-
erally available to Indians under Federal laws speci-
fieally applicable to Indians.
An Indian reservation has been deseribed as iand set aside
from the public domain which the Indians have the right
to use while the fee title is in the Federal Government:
*** An Indian reservation is simply a part of the
public domain set aside by proper authority for use
and occupation by a group of Indians***.*** [Federal
Indian Law, p. 20]
Similarly, the Department of the Interior also interprets
that the term ‘‘reservation’’ includes by definition Indian
reservations. (See attached memorandum by Richard F.
Allan, Associate Solicitor, Indian Affairs, April 7, 1967.)
However, we do not believe that inclusion of the term
thereby delegates adequate jurisdiction and authority to
any Federal governmental agency to implement the Beauti-
fication Act on Indian reservations. This is true despite
our agreement with the statement (memorandum, p. 1):
‘*Manifestly, these goals will be frustrated if some areas
adjacem, io highways, viz., Indian reservations, are exempt
from the provisions of the act.’’ But endorsement of the
Act by the Department of the Interior is insufficient to
confer the necessary jurisdiction to implement the Act on
Indian reservations. A review of the legislative history
reveals an absence of pertinent and specifie discussion by
either the House or the Senate on § 131(h).
Nature and origin of Federal jurisdiction: However, the
mere interpretation that § 131(h) includes Indian reserva-
App. 33
tions within its provisions is an inadequate basis to answer
the issue of whether or not § 131(h) empowers the States
to enforce their respective laws, regulations, and rules reg-
ulating outdoor advertising over Indian reservations pur-
suant to 23 U.S.C. $131. Due to the quasi-sovereign na-
ture of Indian tribes and the *‘plenary’’ power of Con-
gress over the Indians is is concluded that §131(h) does
not confer the necessary jurisdiction over Indian reserva-
tions to enable the States to regulate outdoor advertisinig
on Indian reservations. Consideration of the origin of
Congressional power over American Indians is helpful in
understanding the semi-independent nature of Indian tribes
and the comprehensive jurisdiction of Congress over In-
dian tribes.
A federally recognized Indian tribe has all the inherent
rights of sovereignty as a quasi-sovereign nation except
when limited by the United States. Worcester v. Georgia,
3L U.S. 515 (1832); MeClanahan v. State Tax Commission
of Arizona, 411 U.S. 164 (1973); United States v. Kagama,
118 U.S. 375, 381 (1886); Stone v. United States, 506 F.2d
561, 563-564 (CLA. 8, 1974), cert den., 95 S.Ct. 1405 (1975) ;
Ortiz-Barraza v. United States, 512 F. 2d 1176, 1179 (C.A.
9, 1975); Pyramid Lake Paiuée Tribe of Indians v. Morton,
499 F. 2d 1095, L097 (C.A.D.C.,1974), cert. den., 95 S. Ct.
1351 (1975); Littell v. Makati 344 F. 2d 486, 488 (C.A. 9,
1965), cert den., 382 U.S. 986 (1966); Zron Crow v. Oglala
Sioux Tribes of Pine Ridge Res., 231 F. 2d 89, 91-94 (C.A.
8, 1956) ; United States v. Blackfeet Tribe of Blackfeet Ind.
Res., 364 F.Supp. 192, 195 (D. Mont. 1973). Only one pro-
vision of the United States Constitution specifically grants
Federal authority over Indian tribes, that is, the regulation
of commerce. U.S. Const., Art. I. See. 8, el. 3. See United
App. 34
States v. Forty-Three Gallons of Whiskey, 93 U.S. 188
(1876) ; Dick v. United States, 208 U.S. 340 (1908).
While Federal authority as exercised by Congress is sub-
ject to the limitations of the Constitution, such authority
is generally described as “plenary.” Shoshone Tribe of
Indian v. United States, 294 U.S. 476 (1937); Choate v.
Trapp, 224 U.S. 665 (1912); Matter of Huff, 197 U.S. 488
(1905); Groundhog v. Keeler, 442 F. 2d 674, 678 (C.A. 10,
1971); Confed. Salish & Kootenai Tribes v. State of Mon-
tana, 392 F. Supp. 1325, 13828 (D. Mont. 1975), U.S. App.
Pndg. 44 L.W. 3005; Confed. Salish and Kootenai Tribes v.
Mamen, 380 F. Supp. 452, 463. (D. Mont. 1974); Agua
Cahente Band of Mission Ind. v. County of Riverside, 306
F. Supp. 279, 282-283 (C.D. Calif. 1971), aff’d., 442 F. 2d
1184 (C.A. 9, 1971), cert. den., 405 U.S. 933, reh. den., 405
U.S. 1033 (1972); United States v. Blackfeet Tribe of
Blackfeet Ind. Res., 369 F. Supp. 562 (D. Mont. 1973).
Regulation by the Federal Government does not require
the consent of Indian tribes. Federal Indian Law, pp. 26-27.
Furthermore, Congress has exclusive control over public
domain and other property belonging to the United States
unless it specifically delegates the sharing of such juris-
diction to the States. See Hallowell v. United States, 221
U.S. 317, 323-324 (1911) ; Federal Indian Law, p. 32; Hamil-
ton v. MacDonald, 503 F.2d 1138 (C.A.9, 1974).
Necessity for the Exercise of Eminent Domain Power: In
order to enforce the policies of the Federal Highway Ad-
ministration regarding the regulations on outdoor adver-
tising sigus, a state is to exercise its power of eminent do-
main as necessary pursuant to 23 CFR Subpart D Section
750.301, et seq.:
App. 35
Section 750.301 To prescribe the Federal Highway Ad-
ministration (FHWA) policies relating to Federal
participation in the costs of acquiring the property
interests necessary for removal of non- conforming ad-
vertising signs, displays and devices on the Federal-
aid primary and Interstate Systems, including tool
sections on such systems, regardless of whether Fed-
eral funds participated in the construction thereof.
This regulation should not be construed to authorize
any additional rights in eminent domain not tegeed
existing under State law or under 23 U.S.C. 13 131(g).
But only the Federal Government can exercise power of
eminent domain over Indian reservations or otherwise dis-
pose of tribal property. States do not have such power over
Indian reservation lands in their own right. Traditionally,
Congress has not hesitated to exercise its plenary power
over tribal property. See Nadeau v. Union Pacific R.R. Co.,
293 U.S. 442 (1920); United States v. Osage County, 251
U.S. 128 (1919): Exparte Webb, 225 U.S. 663 (1912);
Choate v. Trapp, 224 U.S. 665 (1912): Blackfeather v.
United States, 190 U.S. 368 (1903); Cherokee Nation v.
Hitchcock, 187 U.S. 294 (1902).
A corrollary to the principle of Congress’ plenary power
over tribal land is that such control over Indian land is
political in nature and may not be exercised by the courts.
See Lone Wolfe v. Hitchcock, 187 U.S. O08, 965 (1903).
However, the term “plenary authority” has been inter-
preted to be something less than absolute control without
compensation to the Indians for land aequired according
to the Supreme Court in United Statecs v. Creek Nation,
299 U.S. 103, 110 (1935)
It [plenary power does] not enable the United States
to give the tribal lands to others, or to appropriate
them to its own purposes, without rendering or as
suming an obligation to render, just compensation for
App. 36
them; for that “would not be an exercise of guardian-
ship, but an act of confiseation.”***
In the construction of public highways by the State through
Indian reservation lands or allotted land over which the
allottee does not have full power of alienation, Federal
jurisdiction still prevails and the State must seek permis-
sion to build the highways from the Secretary of the In-
terior, 25 U.S.C. 311:
The Secretary of the Interior is authorized to
grant permission, upon compliance with such require-
ments as he may deem necessary, to the proper State
or local authorities for the opening and establishment
of public highway, in accordance with the laws of the
State or Territory in which the lands are situated,
through any Indian reservation or through any lands
which have been allotted in severalty to any individual
Indian under any laws or treaties but which have not
been conveyed to the allottee with full power of aliena-
tion.
While the authority per se of the Federal Government. to
exercise its power of eminent domain for public purposes
over Indian reservations is widely recognized, there have
been diverse opinions rendered as to whether or not the
Federal authorizing statutes mus: specifically include In-
dian reservations. In United States v. 2,005.32 Acres of
Land, 160 F. Supp. 193, 196 (D. S.D. 1958), dism., 259 F. 2d
271 (C.A. 8, 1958). The district court granted the Tribe’s
motion to dismiss the Federal condemnation suit for the
acquisition of a portion of the Standing Rock Indian Res-
ervation for the Oahe Dam and Reservoir Project in the
absence of specifie authorizing legislation. However, on
appeal by the United States, the appellate court vacated
the judgment and remanded the case to the district court
with directions to dismiss it as moot.
ee tee
Artem. vite elem, =
oh ae
WA VORS ae eet eet ated
ti
App. 37
The Ninth Circuit has held that Indian lands may be ae-
quired by a general authorization statute without making
a specifie reference to Indian lands in United States v.
10.69 Acres of Land, Yakima County, 425 F. 2d 317, 320
(C.A. 9, 1970). In so ruling the appellate court relied on
F.P.C. v. Tuscarora Indian Nation, 362 U.S. 99, 116-120,
(1960) ; Seneca Nation of Indians v. United States, 338 F.
2d 55, 56-57 (C.A. 2, 1964).
***Congress need not itself specifically and expressly
authorize by ‘‘special enactment’’ each particular
taking of Indian land. but can choose to delegate some
of its authority to admiinstrative offices and agencies.
*** Seneca Nation of Indians, supra, pp. 56-57.
In the Yakima County case, supra, the appellate court held
that only the Secretary of the Department of Transporta-
tion may acquire Indian trust lands for public highway
purposes and only after complying with certain adminis-
trative procedures as provided for in 23 U.S.C. Section
107(d) and 317. Clearly, by inference the Court believes
acquisition of land held in trust by the United States for
the benefit of the Confederated Tribes and Bands of the
Yakima Indian Nation to have been beyond the jurisdiction
aud authority of the State of Washington. 10.69 Acres of
“Land, Yakima County, supra, pp. 18-19. See United
States. 687.130 Acres of Land, State of Neb. 319 F.Supp.
128, 113 (D. Neb. 1970). In Bennett County, South Dakota
v. United States, 394 F. 2d 8, 15-16 (C.A. 8, 1968), the
court admonished the County for not seeking the required
permission of the Secretary of the Interior pursuant to 25
U.S.C. Section 311 and 357 rather than attempting to ac-
quire land within and Indian reservation strictly on its
own authority. The Supreme Court ruled that certain land
A pp. 38
owned in fee simple by the Tuscarora Indian Nation could
be acquired and flooded for a storage reservoir needed in
conjunction with a hydraulic power project by the Power
Authority of the State of New York pursuant to a license
granted it by the 'ederal Power Commission in accordance
with 16 U.S.C. §836a. It held that the term ‘‘reserva-
tion’’ in the Iederal Power Act, §3(2), as amended, 16
U.S.C. § 796(2) includes only these lands owned by the
United States. Tuscarora Indian Nation, supra. While it
should be distinguished that the reference was to those in-
terests held in fee simple by the Indians, the Federal Pow-
er Act specially provided for the use of property owned
by the United States. When such property was needed
‘‘reasonable annual charges’’ were to be paia to the United
States pursuant to 16 U.S.C. § 803(e). The Supreme Court
inferred that the Act did not authorize the condemnation
of avy lands or interests owned by the United States, but
only because of the provision for the annual charges.
However, 23 U.S.C. § 131; et seq., neither authorizes the
States to aequire any Indian reservation land nor dele-
gates such authority to any Iederal ageney. Certainly,
the statement of Federal participation tm the cost of pay
ing just compensation for the removal of signs by the
States, 23 U.S.C. § 131(g) cannot be interpreted as either
expanding the States’ power of eminent domain or author-
izing acquisition of signs on federally owned land.
Lack of Uniform Civil Jurisdiction 0} the States over In-
dian Law Reservations: Traditionally, the seope of civil
jurisdiction and authority of the States over Indian res-
ervation lands has been quite limited. This restrictive
interpretation of the State’s jurisdiction is based on two
theories: 1. The concept that the existence of jurisdie-
tion over Indian reservation lands in the Federal Govern-
j
App. 39
ment precluded the States from having such jurisdiction ;
and 2. Indian tribes were considered to be semi-sovereign
nations. The following explanation of the origin of the
preemption theory was given in Federal Indian Lax, p. 3:
y
The fact that Indian tribes are largely exempt
from the operation of local law derives from the fact
that the Constitution of the United States rests in the
National Government rather than in the States he
three powers upon which the law pertaining to Indian
affairs is primarily based—the warmaking power
(Constitution, art. I, see. 8, el. 11], the treaty making
power [Constitution, art. Il, see. 2, el. 2], and the
power to regulate commerce | Constitution, art. I, see.
8, el. 3] with Indian tribes.*** [Footnote omitted. |
Kleven States initially disclaimed jurisdiction over Indian
lands, including Indian reservation land, in their State
constitutions at the time they received statehood. This
disclaimer, however, is not to be interpreted as a total
disclaimer of jurisdiction over the actions of Indians.
These States are:
1) Alaska: Ala. Const., Art. 12 §12; Enabling Aet, 72
Stat. 339 § 4, as amended, 73 Stat. 141.
3 >]
Arizona: Ariz. Const., Art 20; Enabling Act, 36 Stat.
268; §19; Joint Resol., 37 Stat. 39: Pres. Procl. 37
Stat. 1728.
Idaho: Ida. Const., Art 21 $19; Enabling Act, 26
Stat. 215.
Montana: Mont. Const., Ord. I § 2, Enabling Act, 25
Stat. 676 §$ 4 and 10; Pres. Proel. 26 Stat. 1551.
New Mexico: N. Mex. Const., Art 21 §§2 and 10; En-
abling Act, 36 Stat. 557; Joint Resol., 37 Stat. 39;
Pres. Proel., 37 Stat. 1723.
North Dakota: N. Dak. Const., Art. 16; Enabling Act,
25 Stat. 676 §§ 4 and 10; Pres. Proel., 26 Stat. 1548.
App. 40
7) Oklahoma: Okla. Const., Art. 1. §3; Enabling Aet, 34
Stat. 267 §§ 1, 2, and 3; Pres. Proel., 35 Stat. 2160.
v3
8) South Dakota: S. Dak. Const., Art. 22 § 2; Enabling
Act, 25 Stat. 676 $$ 4 and 10; Pres. Proel., 26 Stat.
1549.
9) Utah: Utah Const., Art. 3; Enabling Act, 28 Stat. 107
93; Pres. Procl., 29 Stat. 876.
10) Washington: Wash. Const. Art. 26; Enabling Act, 25
Stat. 676; Pres. Proel., 26 Stat. 1552.
11) Wyoming: Wyo. Const., Art. 21 § 26; Enabling Act,
26 Stat. 222.
Specific subsections (d) and (1) of 23 U.S.C. 131 refers to
‘zoned commercial and industrial areas’’ and ‘‘unzoned
commercial and industrial areas’’ in regard to the control
of outdoor advertising. Regulation of land use through
zoning ordinances is a function of the States’ police power.
By the terms of § 151, it is intended that its provisions be
applied in conjunction with certain designated zoned and
unzoned areas adjacent to the Interstate and primary
systems as further specified. In order for States to en-
force effectively their respective laws, regulations, and
rules controlling outdoor advertising on Indian reserva-
tions, they must first have and exercise jurisdiction over
Indian reservation lands. Obviousiy, a serious problem of
uniform implementation of the provisions of § 131, et seq.,
arises in view of the States which specifically disclaimed
such jurisdiction.
In 1953, Congre enacted Public Law 280, 67 Stat. 588,
(see 28 U.S.C. 1360 and 18 U.S.C. 1162) conferring civil
and criminal jurisdiction respectively upon those States
which were willing to assumed [sic] responsibility for the
Indians in place of the Federal Government. Originally,
bee
App. 41
consent of the affected Indian tribes was not required. The
Jurisdictional was [sic] grant was limited. though, to the
extent that its exercise was to be subordinate to and com-
patible with Federal treaties, agreements, statutes, or regu-
lations concerning Indians ‘‘in areas of Indian country.’’ 28
U.S.C. 1360(b) specifically prohibits ‘alienation, eneum-
brance, or taxation of any real or personal property includ-
ing 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 im-
posed by the United States***."’ See 18 U.S.C. § 1162 (b).
There are differing judicial decisions as to whether the
civil jurisdiction granted in 28 U.S.C. 1360 includes the
police power of a State to impose its zoning ordinances on
Indian reservations. The Washington Supreme Court did
not believe that such police power was granted. Snohom-
ish County v. Seattle Disposal Co., 425 F. 2d 22 (1967),
cert. den. 389 U.S. 1016 (1967).
The State of California assumed civil and criminal juris-
diction pursuant to Public Law 280 and maintained that
counties have the right to impose their zoning ordinances
over Indian reservations. Thus, in Aqua Caliente Band v.
City of Palm Springs, 347 F. Supp. 42 (C. Calif. 1972), the
district court held that the City of Palm Springs legally
incorporated certain Indian reservation land into the city
and that the City’s zoning ordinances were applicable to
Indian lands. However, one of the eases which the court
relies on heavily was later dismissed for lack of a true
case or controversy. See Rincon Band of Mission Indians
v. County of San Diego, 324 ¥. Supp. 371, 376 (S.D. Calif.
1971), dism’d., 491 F. 2d 9 (C.A. 9, 1974). However, in
this later case, the appellate court did not directly address
App. 42
itself to the issue of the legality of the scope of the State
assertion of jurisdiction over Indian reservations. In-
stead, the three consolidated cases were reversed and the
complaints dimissed for lack of proper jurisdiction either
by the district court or the appellate court.
To date, only six states have assumed civil and criminal
jurisdiction over Indians on Indian reservations pursuant
to 28 U.S.C. § 1360; 18 U.S.C. § 1162. They are: Alaska,
California, Minnesota, Nebraska, Oregon, and Wisconsin.
Alaska had previously disclaimed jurisdiction over Indian
lands, however. Whether Public Law 280 was intended
to extend the States’ jurisdiction land was discussed in
Agua Caliente Band, supra, p. 51 and the district court
held that such jurisdiction was properly exercised by the
State of California since the particular zoning ordinance in
question did ‘‘not constitute any illegal interference with
tribal sovereignty.’’ However, the general rule remains
well established that in the absence of Federal statutory
guidance, only Federal statutory and judicial law applies
to Indian reservations. McClanahan v. State Tax Com-
mission of Arizona, 411 U.S. 164, 170-171, (1973). This
rule is applicable to the original thirteen States, even these
States in some instanees executed treaties with Indian
tribes prior to the United States doing so. Oneida Indian
Nation of N.Y. St. v. County of Oneida, | ae 414 U.S. 661,
674 (1974).
On the contrary, ‘‘[t]he policy of leaving Indians free
from state jurisdiction and control is deeply rooted in
the Nation’s history.’’ Rice v. Olson, 324 U.S. 786,
789 65 S. Ct. 989, 991, 89 L.Ed. 136, (1945). This
policy was first articulated by this Court 141 vears ago
when Mr. Chief Marshall held that Indian nations
were ‘‘distinet political communities, having terri-
rer hts Sele
torial boundaries, within which their authority is ex-
clusive, and having a right to all the lands within those
boundaries, which is not only acknowledged, but guar-
anteed by the United States. Worcester v. Georgia,
6 Pet. 575, 557, 8 L.Ed. 483 (1832). It followed from
this concept of Indian reservations as separate, al-
though dependent nations, that State law could have
no role to play within the reservation boundaries.***
McClanahan v. State Tax Commission of Arizona, 411
U.S. 164, 168, 93 S. Ct. 1257, 1260 (1973).
It is noted that in 1968, Congress repealed §7 of Public
Law 280 providing for the consent of Indian tribes to the
assumption of criminal and civil jurisdiction over them, 25
U.S.C. § 1323(b), Public Law 90-284, 82 Stat. 79. Specific
Federal deposition of certain Indian trust lands, allotted
lands, and trust funds and the scope of Federal jurisdic-
tion over various Indian tribes are set forth in 25 U.S.C.
§§ 541-998.
In consideration of the aforementioned problems connected
with the lack of uniform jurisdictinon, and specific rejee-
tion of jurisdiction in some instances, over Federal indian
reservation lands, we conclude that the penalty for noneom-
pliance with the provisions of the Highway Beautification
Act, 23 U.S.C. $131(b), of a 10 per centum reduction of
Federal-aid highway funds cannot be applied against those
States which are otherwise in compliance with the Act.
However, the States should be encouraged to the greatest
extent practicable to seek and coordinate voluntary com-
pliance by Indian tribes with the provisions of the Act.
We further suggest that the States explore the possibility
of obtaining Federal funding for such voluntary com-
plianee.
In summary, we believe that the complexity of the prob-
lem of implementing the Federal provisions controlling
outdoor advertising, 23 U.S.C. § 131, et seq., can best be
solved by an act of Congress specifically making these
provisions applicable to Indian reservations, Therein, jur-
isdiction could be designated to a Federal agency enabling
it to designate land use analoguous to zoning ordinances,
if necessary, and to acquire signs as needed through the
exercise of eminent domain power. Separate approprations
could be inciuded for the costs to be incurred, especially for
the just compensation of sign owners siice it is unlikely
that the various Indian tribes residing on reservation are
either capable or willing to participate in the costs.
Prepared by:
/s/ Margarite L. Price
Date: January 21, 1976
Coneur:
Date: -_
Adopted by:
Chief Counsel
a a nae nae a enn =s
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