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Court of Appeal, Fourth District, Division 2, California.


DESERT OUTDOOR ADVERTISING, INC., etc., Plaintiff and Respondent, v. NAEGELE OUTDOOR ADVERTISING COMPANY OF CALIFORNIA, INC., etc., Defendant and Appellant.

Civ. 27494, Civ. 27937.

Decided: February 28, 1984

Robert F. Carlson, Chief Counsel, Gordon S. Baca, Deputy Chief Counsel, William M. McMillan, Sacramento, and Ruby A. Theophile, Los Angeles, for plaintiff and respondent People ex rel. Dept. of Transp. Maxwell, Wright & Wheeler and Sprague Wheeler, Pasadena, for plaintiff and respondent Desert Outdoor Advertising, Inc. Best, Best & Krieger, Barton C. Gaut, Ronald J. Kohut and Richard Cross, Los Angeles, for defendant and appellant Naegele Outdoor Advertising Co. of California. Arthur Bunce, Escondido, as amicus curiae of the Morongo Band of Mission Indians on behalf of defendant and appellant.


This consolidated appeal stems from two separate judgments entered after the trial court granted each plaintiff's motion for summary judgment.   Both cases, tried separately below, raise substantially the same issues and involve the same defendant.   Because a resolution of these issues will have a significant effect on the Morongo Band of Mission Indians, we granted its request to file a brief amicus curiae.


The Morongo Band of Mission Indians (Band) is a federally-recognized Indian tribe, and is the beneficial owner of the Morongo Indian Reservation, consisting of approximately 32,300 acres of land located in Riverside County, California.   The Morongo Indian Reservation was created by a series of seven executive orders of various Presidents of the United States, one presidential proclamation, one federal statute, and one deed, beginning in 1876 and ending in 1948.   Under Patent Number 172786, the United States declared it will hold the said tracts of land “․ in trust for the sole use and benefit of the said Morongo Band or Village of Indians, according to the laws of California ․”

The reservation lies astride a narrow pass between the San Bernardino and San Jacinto Mountain Ranges.   As a result only a small portion of the land is located on the plain suitable for economic development.   These relatively few acres lie adjacent to Interstate Highway 10, connecting Los Angeles to popular Southern California desert communities.   Upon determining that the highest and best use of this land was outdoor billboard advertising, the Band's general membership delegated to its Tribal Council authority to negotiate agreements for an outdoor advertising business.

According to the brief of Amicus Curiae, the Band leased some of this reservation land to non-Indian firms who operated billboards there until 1977.   In 1977 the Band solicited proposals for further leases from several non-Indian firms including Naegele Outdoor Advertising Company of California, Inc. (Naegele) and Desert Outdoor Advertising, Inc. (Desert).  Naegele's bid was selected and a lease agreement followed.

Pursuant to title 25 of the United States Code, the Department of the Interior must approve such leases before they become effective.  (25 U.S.C., § 415.)   Upon submission, approval was denied because the designed purpose, in the department's opinion, would violate the Highway Beautification Act (23 U.S.C., § 131 et seq.) and California's Outdoor Advertising Act (Bus. & Prof.Code, § 5200 et seq.).   Appeal was taken to the Interior Board of Indian Appeals, which resulted in the Interior Department's reversing its opinion concerning the applicability of the Highway Beautification Act.   (Administrative Appeal of the Morongo Band of Mission Indians v. Area Director, Sacramento Area Office (1979) 86 I.D. 680.)

During the pendency of the Interior appeal, on March 30, 1978, the Band entered into an agency 1 agreement with Naegele.   It provided for the installation, construction, operation and maintenance of 15 outdoor advertising structures located on reservation land.   On June 27, 1978, the Department of Transportation (department) notified Naegele of its intention to apply and enforce California's Outdoor Advertising Act.   In its brief the department expresses its philosophy of enforcement:  “to control outdoor advertising consistent with state and federal law concern with environmental and aesthetic and safety purposes.”

Despite the department's warning and implication that the displays would violate the Outdoor Advertising Act, 16 billboards were erected on reservation land.   The state outdoor advertising inspector ultimately issued citations for all 16 displays.

On July 10, 1978, the People of the State of California, acting by and through the Department of Transportation filed a complaint and motion for preliminary and permanent injunction against Naegele.   The complaint alleged Naegele was in control of 16 outdoor advertising structures located adjacent to Interstate Route 10 in Riverside County.   These structures were in violation of section 5350 of the Business and Professions Code, requiring display permits.   Additionally these displays have been illegally situated in violation of various provisions of the Outdoor Advertising Act.   The department identified these displays as a public nuisance within the meaning of Business and Professions Code section 5461.

The preliminary injunction was granted on August 1, 1978.   And, on November 6, 1981, in accordance with the department's motion, summary judgment resulted.

The action consolidated with that of the Department of Transportation's was initially filed by Desert on June 26, 1980.   In its first amended complaint of December 12, 1980, Desert alleged causes of action for nuisance, unfair competition, intentional interference with prospective economic benefit and negligent interference with prospective economic benefit.   Naegele's demurrer was sustained as to the nuisance cause of action.   The court dismissed both causes of actions for interference and granted Desert's motion for summary judgment on the unfair competition cause of action.   In its order the court enjoined Naegele from maintaining advertising structures on the reservation without complying with the Outdoor Advertising Act.   Naegele was ordered to remove all non-complying structures.   The enforcement of this judgment was stayed pending appeal to this court.


The Highway Beautification Act contains a particular section dedicated to the control of outdoor advertising.  (23 U.S.C., § 131.)   Congress has exhibited an intention of controlling outdoor advertising devices adjacent to the interstate highway system “in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.”  (23 U.S.C., § 131, subd. (a).)

Congress has limited the content of outdoor advertising devices located adjacent to interstate highways.   Five acceptable categories have been identified.   Loosely defined, they are:  (1) Scenic attractions;  (2) sale or lease of property;  (3) activities conducted on the property on which displays are located;  (4) landmarks;  and (5) offers of free coffee to travelers.   (23 U.S.C., § 131, subd. (c).)  The implementation of these limits has been left to the individual states by way of an incentive/punishment system concerning federal-aid highway funds.   In 23 United States Code section 131, subdivision (b), Congress provides a state's allotment of federal highway funds shall be reduced by 10 percent for failure to implement “effective control” over outdoor advertising devices.  “Effective control” is then defined in the following subdivision to mean the five limits as described above.

California complies with the Highway Beautification Act by its Outdoor Advertising Act, Business and Professions Code section 5200 et seq.   The Outdoor Advertising Act's policy behind highway advertising display regulation is “to promote the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in such highways, to preserve the scenic beauty of lands bordering on such highways, and to insure that information in the specific interest of the traveling public is presented safely and effectively․”  (Bus. & Prof.Code, § 5226.)

Although outdoor advertising is recognized as a legitimate commercial use of property adjacent to highways (id.), several restrictions are imposed.   First the advertiser must secure a permit prior to displaying the ad.   (Bus. & Prof.Code, § 5350.)   The code then limits the content of the displays to “(1) [d]irectional or other official signs or notices that are required or authorized by law, including, but not limited to, signs pertaining to natural wonders, scenic and historical attractions ․ (2) ․ advertising the sale or lease of the property upon which [the displays] are located ․ (3) [those] which advertise the business conducted or services rendered or the goods produced or sold upon the property upon which the advertising display is placed․  (4) [m]essage center displays, provided they advertise the business conducted or services rendered or goods produced or sold upon the property upon which the display is placed․  (5) [those] erected or maintained pursuant to regulations of the director, and not inconsistent with the national policy set forth in subdivision (f) [2 ] of Section 131 of Title 23 of the United States Code and the standards promulgated thereunder by the Secretary of Transportation, and designed to give information in the specific interest of the traveling public.”  (Bus. & Prof.Code, § 5405.)   Finally certain safety measures involving size, spacing and location are imposed.  (Bus. & Prof.Code, §§ 5403, 5404, and 5408.)


The lower court in both cases concluded the Outdoor Advertising Act was applicable in its summary judgment rulings.   This appeal therefore raises the issue of whether the Outdoor Advertising Act applies to a non-Indian company acting pursuant to an agency agreement providing for the construction and maintenance of advertising display devices on reservation land held in trust by the United States for the beneficial use of the Morongo Band Mission Indians.


 The applicability of a statute is unquestionably an issue of law.   (Killian v. City and County of San Francisco (1978) 77 Cal.App.3d 1, 7, 143 Cal.Rptr. 430;  6 Witkin, Cal.Procedure (2d ed.) §§ 209–210, pp. 4200–4201.)   As such the trial court properly resolved this question by way of summary judgment.   Where there is no material issue of fact to be tried and the sole question remaining is one of law, it is the duty of the court to determine the issue of law.  (Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1000, 171 Cal.Rptr. 801;  Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 512, 129 Cal.Rptr. 286;  Vincent v. State of California (1971) 22 Cal.App.3d 566, 570, 99 Cal.Rptr. 410.)   As indicated below, the Outdoor Advertising Act's applicability hinges on a federal pre-emption approach.   To complicate matters, that approach, as it applies to Indians, calls for a balancing of interests.   Nevertheless, the main issue here is the applicability of a statute, which is a question of law—properly determined by the lower court.


A review of American history reveals the inconsistency with which the Indians have been treated.   As the American pioneers forged westward, they in turn pushed the Indians into unexplored lands where they were free to govern themselves.   However, continued American westward movement made it evident that the Indians could not be isolated forever.  “[T]he United States [therefore] began to consider the Indians less as foreign nations and more as a part of our country.”  (Organized Village of Kake v. Egan (1962) 369 U.S. 60, 72, 82 S.Ct. 562, 569, 7 L.Ed.2d 573, 581.)   Nevertheless, the Supreme Court committed the United States to a policy of leaving the Indians free from state jurisdiction.   The Indian nations were “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries which is not only acknowledged but guaranteed by the United States.”  (Worcester v. The State of Georgia (1832) 6 Pet. 515, 557, 8 L.Ed. 483, 499 overruled on other grounds in Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114.)

Worcester indicated the United States intended to deal with the Indians as sovereigns, however, since that time the Indian sovereignty doctrine has “undergone considerable evolution in response to changed circumstances.”   (McClanahan v. Arizona Tax Commission (1973) 411 U.S. 164, 171, 93 S.Ct. 1257, 1261, 36 L.Ed.2d 129, 135 overruled on other grounds in Bryan v. Itasca County (1976) 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710.)   For example where Indians have left the reservation, state laws have been held applicable to such individuals.  (Oklahoma Tax Com. v. United States (1943) 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612.)   And, under certain circumstances, a state may validly assert authority over the affairs of non-Indians on a reservation.  (Washington v. Confederated Tribes (1980) 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10.)   The continuing development of this doctrine proves “the relation of the Indian Tribes living within the borders of the United States ․ is an anomalous one and of a complex character․”  (United States v. Kagama (1886) 118 U.S. 375, 381, 6 S.Ct. 1109, 1112, 30 L.Ed. 228, 230.)

The recent Supreme Court trend, at least insofar as the applicability of state laws to Indians is concerned, has been away from the idea of inherent Indian sovereignty and toward reliance on federal pre-emption.  (Rice v. Rehner (1983) ––– U.S. ––––, ––––, 103 S.Ct. 3291, 3295, 77 L.Ed.2d 961.)  “The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power.”  (McClanahan v. Arizona Tax Commission, supra, 411 U.S. 169, 172, 93 S.Ct. 1260, 1262.)

The question of whether federal law pre-empts the state's exercise of its regulatory authority is not answered by a traditional pre-emption approach.   (Ramah Navajo Sch. Bd. v. Bureau of Revenue (1982) 458 U.S. 832, 838, 102 S.Ct. 3394, 3399, 73 L.Ed.2d 1174, 1180.)   Indian sovereignty, as it has developed now manifests itself in this pre-emption analysis in such a way to “provide a backdrop against which the applicable treaties and federal statutes must be read.”  (McClanahan, supra, 411 U.S. at 172, 93 S.Ct. at 1262;  Rice, supra, 463 U.S. at ––––, 103 S.Ct. at 3295.)   The Supreme Court has articulated this unique pre-emption approach in a variety of ways.   “Individualized treatment [is now given to] particular treaties and specific federal statutes, including statehood enabling legislation, as they, taken together, affect the respective rights of States, Indians and the Federal Government.”  (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119.)   State law may unlawfully “infringe on the right of reservation Indians to make their own laws and be ruled by them.”  (Williams v. Lee (1959) 358 U.S. 217, 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251, 254.)  “The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law.”  (White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672.)   Pre-emption “calls for a particularized inquiry into the nature of the state, federal and tribal interests at stake․  State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law unless the state interests at stake are sufficient to justify assertion of state authority.”  (New Mexico v. Mescalero Apache Tribe (1983) –––U.S. ––––, –––– – ––––, 103 S.Ct. 2378, 2385–2386, 76 L.Ed.2d 611.)  “The role of tribal sovereignty in pre-emption analysis varies in accordance with the particular ‘notions of sovereignty that have developed from historical traditions of tribal independence.’  [Citation.]  These traditions themselves reflect the ‘accommodation between the interests of the tribes and the federal government, on the one hand, and those of the state, on the other.   [Citation.]”  (Rice, supra, 463 U.S. at ––––, 103 S.Ct. at 3295.)

We read from these cases an ad hoc balancing approach 3 concerning pre-emption of state laws as they affect Indians.  “When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the state's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.”   (Bracker, supra, 448 U.S. at 144, 100 S.Ct. at 2584.)   Therefore, Indians retain powerful control and authority to regulate their internal and social relations on the reservation.   Congress' goal of encouraging tribal self-sufficiency and economic development presents a nearly insurmountable barrier to the states should they attempt to regulate in these particular areas.   (Mescalara Apache Tribe, supra, ––– U.S. at –––– – ––––, 103 S.Ct. at 2385–2386.)   However, this is not the case with respect to the Outdoor Advertising Act.

In fact, the general context in which this case comes to us is quite different from nearly all the cases to which we are cited.   Primarily in these cases no particular federal statute is in issue.   Rather the issue is whether a particular state statute can be applied to the Indians in light of the strong federal interest of encouraging Indian self-sufficiency and Congress' control over the Indians.  (U.S. Const., art. I, § 8, cl. 3.)   For example, in White Mountain Apache Tribe v. Bracker, supra, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665, the issue was the applicability of a state license and fuel use tax (not particularly authorized by Congress) to activities of non-Indians engaged in commerce on Indian lands.   The court found the state laws pre-empted by applying the balancing approach as discussed above.  Ramah Navajo Sch. Bd. v. Bureau of Revenue, supra, 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174, and Santa Rosa Band of Indians v. Kings County (9th Cir.1975) 532 F.2d 655, cert. den., Kings County v. Santa Rosa Band of Indians (1977) 429 U.S. 1038, 97 S.Ct. 731, 50 L.Ed.2d 748 required the respective courts to determine if certain congressional procedures were so pervasive that they pre-empted the effect of particular state statutes on the Indians.   Again, no federal statute was applicable.

Contrast Leavenworth, etc. R.R. Co. v. United States (1875) 92 U.S. 733, 23 L.Ed. 634, which presents a similar format to the case at bar.   In Leavenworth, Congress passed a particular statute allowing the states to acquire certain lands to aid in the construction of railroads.   The issue before the court was whether the state could properly acquire Indian reserved lands.   The statute was in general terms which neither included nor excluded any particular lands.   The court concluded that absent an express declaration, the Indian lands were excluded from this statute.  (92 U.S. at 741, 744.)   Further the Indian lands were expressly excluded from the act's reach:  “That any and all lands heretofore reserved to the United States, by any Act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby reserved to the United States from the operation of this Act․”  (92 U.S. at 746.)

The instant case involves a federal statute (Highway Beautification Act) which authorizes the state to act.   Unlike the Leavenworth statute, the Highway Beautification Act provides:

“All public 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.”  (23 U.S.C., § 131, subd. (h);  emphasis supplied.)

We are thus confronted with the issue of whether, in light of the balancing approach discussed above, section 131, subdivision (h), authorizes the state to reach Indian land.   In effect, we are dealing with the flip side of pre-emption analysis.

Both sides present strong arguments on whether the Highway Beautification Act authorizes states to control Indian lands particularly in light of section 131, subdivision (h).   Plaintiffs point out the House Report summarizing the legislative intent of the Highway Beautification Act supports their interpretation that the Outdoor Advertising Act reaches Indian land:  “This section simply extends to all public lands and reservations of the United States which are adjacent to any portion of the Interstate System or the primary system the same control, covering other roads which are subject to this legislation.”  (2 U.S.Code Cong. & Admin.News (1965) 89th Cong., 1st Sess., p. 3717.)

Regarding this same section, plaintiffs assert the term “reservation” had to include Indian reservation because the House discussed Indian Reservations in their debates on this legislation:  “․ A great many tourists who travel through South Dakota like to stop and visit our Sioux Indian Reservations․  South Dakota has at least five great Indian Reservations.   Some of the highways pass through some of the reservations․  Our fine Indian citizens encourage the people ․ to stop and get acquainted with Indian ways ․  [¶] But there is no way in the world that tourists who desire to take advantage of such opportunities can do so unless it is by signs directing them off a highway to a reservation․”  (III Committee Hearing on Floor Debates, Cong.News, part 18, 89th Cong., 1st Sess., at p. 24123.)

Desert also points out the legislators were informed that this country contained some 41,000 miles of Interstate Highway.   They also knew the Interstate paralleled Indian land;  so by specifying “forty-one thousand miles” in the Act (see 23 U.S.C., § 103, subd. (e)(1)) they must necessarily have intended it to apply to the adjacent Indian land.

Further, plaintiffs cite us to United States v. Portneuf-Marsh Valley R.R. Co. (1913) 205 F. 416, where at page 419, the court states:  “That an Indian reservation is a ‘reservation of the United States' admits of little doubt.”

Conversely, defendant and amicus curiae argue that the Federal Highway Administration's interpretation of the Highway Beautification Act should be given deference.   It concluded the “failure of the Act to delegate either to the Federal Highway Administration, Department 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․”

We are also urged to give deference to the Department of the Interior's interpretation that the Highway Beautification Act does not apply to Indian reservations.   The Interior department stated that “absence of statutory language expressly including or excluding Indian reservations as territory subject to the [Highway Beautification Act] renders the term ‘reservations' as used in section 131(h), ambiguous.” 4  And “doubtful statutory language must be interpreted in favor of the Indians.”   (Administrative Appeal of the Morongo Band of Mission Indians v. Area Director, supra, 86 I.D. 680, 687–688.)

Having thus far set out the standards, the law, and the arguments, we must now apply the balancing approach to determine if the Outdoor Advertising Act has been pre-empted.   As stated, this is not a traditional pre-emption analysis because (1) the Outdoor Advertising Act affects Indians and (2) there is a Congressional Act which purportedly authorized state regulation.   There is no question that the Outdoor Advertising Act affects the Morongo Indian Tribe.   Clearly any regulatory scheme limiting economic pursuits will have an effect.   However, outdoor advertising can hardly be deemed a traditional Indian custom affecting tribal relations on the reservation.

 More importantly, we find the Highway Beautification Act specifically contemplated and authorized states to regulate outdoor advertising on Indian lands adjacent to Interstate Highways.   Congress no doubt intended its Highway Beautification Act policies to be applied over all interstate highways.   A checkerboard effect would defeat this intent, and such effect is precisely what would result should we find the Outdoor Advertising Act inapplicable in this case.   Regarding the displays in this case, we conclude the Outdoor Advertising Act does apply.

Having concluded the Highway Beautification Act authorizes state regulation, we need not and do not reach the issue of whether 28 United States Code section 1360 (Public Law 280) would independently authorize the application of the Outdoor Advertising Act.


Defendant also mounts a procedural attack based on Code of Civil Procedure section 389,5 joinder of indispensable party.   The argument is made that the Band, as an Indian tribe enjoys immunity from suit.6  Because the Band is an indispensable party concerning the two actions below, defendant asserts section 389 mandates dismissal.

 The failure to join an indispensable party is not a jurisdictional defect mandating dismissal.  “[T]he court still has power to render a decision as to the parties before it which will stand.”   (Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364, 140 Cal.Rptr. 744.)   The court must determine whether in “equity and good conscience” the action will proceed.   We believe it should and did proceed because there was no pre-emption in this case.  “While under some circumstances a state may exercise concurrent jurisdiction over non-Indians acting on tribal reservations, [citations] such authority may be asserted only if not pre-empted by operation of federal law.”  (Mescalero Apache Tribe, supra, 462 U.S. at p. ––––, 103 S.Ct. at p. 2385.)   In this instance, the state courts must necessarily have the power to enforce state laws.   The Band may not hide behind this procedural camouflage in order to escape the Outdoor Advertising Act.


The judgment as to both actions is affirmed.


1.   We take judicial notice of the fact that this agency agreement was approved on or about February 2, 1984, by the Bureau of Indian Affairs.

2.   23 United States Code section 131, subdivision (f), provides:“The Secretary shall, in consultation with the States, provide within the rights-of-way for areas at appropriate distances from interchanges on the Interstate System, on which signs, displays, and devices giving specific information in the interest of the traveling public may be erected and maintained.   The Secretary may also, in consultation with the States, provide within the rights-of-way of the primary system for areas in which signs, displays, and devices giving specific information in the interest of the traveling public may be erected and maintained.   Such signs shall conform to national standards to be promulgated by the Secretary.”

3.   We are mindful that in applying this balancing approach “[a]mbiguities in the federal law have been construed generously [in the Indian's favor] in order to comport with ․ traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence.”  (White Mountain Apache Tribe v. Bracker, supra, 448 U.S. 136, 143–144, 100 S.Ct. 2578, 2583–2584, 65 L.Ed.2d 665.)

4.   See also United States v. Celestine (1909) 215 U.S. 278, 283, 285, 30 S.Ct. 93, 94, 54 L.Ed. 195, 197] for a discussion of inherent problems of interpreting “reservation” always to include Indian country.

5.   Code of Civil Procedure section 389, subdivisions (a) and (b) provide:“(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.   If he has not been so joined, the court shall order that he be made a party.“(b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.   The factors to be considered by the court include:  (1) to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties;  (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;  (3) whether a judgment rendered in the person's absence will be adequate;  (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

6.   Indian immunity from the governing arm of the state courts is not a foregone conclusion in every case.   As indicated in the recent Southwest Forest Industries v. Hupa (Hoopa) Timber Corporation (1984) 151 Cal.App.3d 239, 198 Cal.Rptr. 690, local tribunals in each instance can and will determine if Congress has authorized state court action.   In the present case, however, Indian immunity need not be addressed because the Morongo Indian Tribe is not a party.

RICKLES, Associate Justice.

KAUFMAN, Acting P.J., and McDANIEL, J., concur.