California tribe fights ruling on campaign contributions

Monday, January 8, 2007  

A wealthy California tribe that pours millions of dollars into political campaigns asked the state's highest court on Friday to reconsider a controversial sovereign immunity decision.

The Agua Caliente Band of Cahuilla Indians, known for its successful Palm Springs-area casinos and its well-connected chairman, lost a major ruling last month. The California Supreme Court, by a 4-3 vote, said tribes can be sued for failing to report their contributions under the state's campaign finance laws.

Normally, tribes can't be sued without their consent or without an explicit waiver from Congress. The Fair Political Practices Commission, a state agency that brought the action against the Agua Caliente Band, has neither in this case.

But the court said state sovereignty trumped tribal sovereignty. The opinion by the four justices called the tribe a "major donor to political campaigns," with over $10 million in donations and fines at issue in the dispute.

"Although concepts of tribal immunity have long-standing application under federal law, the state's exercise of state sovereignty in the form of regulating its electoral process is protected under the Tenth Amendment and the guarantee clause [of the U.S. Constitution]," Justice Ming W. Chin wrote on December 21.

The majority was careful to note that its abrogation of tribal immunity was limited to violations of the reporting requirements in the Political Reform Act. "The inability to enforce the PRA against the tribe, a major donor to political campaigns, has the effect of substantially weakening the PRA," Chin wrote.

The ruling has come under fire nonetheless in a state where tribes have become major political players thanks to gaming revenues. Just before last November's elections, the Agua Caliente Band and five other tribes formed a committee and pledged to spend $9 million to influence how people vote.

"This decision flies in the face of federal law guaranteeing tribes immunity from lawsuits without their consent, as well as language in the U.S. Constitution committing Indian affairs to the federal government, not the states," Carole Goldberg, a law professor at University of California in Los Angeles, wrote in Indian Country Today.

Donations to federal campaigns aren't at issue. Tribes have to comply with the reporting requirements set out by the Federal Election Commission.

But in the wake of the Jack Abramoff lobbying scandal, tribes have been scrutinized for their political spending. The Agua Caliente Band, one of Abramoff's former clients, has consistently ranked in the top 10 among tribal donors, according to the Center for Responsive Politics.

Just last Thursday, Sen. David Vitter (R-Louisiana) introduced legislation to restrict tribal donations. "Indian tribes should have to adhere to the same rules as all other organizations that participate in the political process," he said in a statement.

The Agua Caliente Band has always followed the rules, its leaders have said. The tribe posts a record of its political donations online and offered to enter into an agreement with the state to comply with the reporting requirements.

Another tribe, the Santa Rosa Rancheria, also made its donations public but was sued by the FPPC. The December ruling applies to the tribe as well.

If the Agua Caliente Band fails to win a rehearing, or if it loses again, the tribe could appeal to the U.S. Supreme Court.

California Supreme Court Decision:
Agua Caliente Band etc. v. Super. Ct (December 21, 2006)

Lower Court Decisions:
FPPC V. Santa Rosa Indian Community (October 27, 2004) | Agua Caliente Band v. FPPC (March 3, 2004)

Relevant Links:
Agua Caliente Band of Cahuilla Indians - http://www.aguacaliente.org
Fair Political Practices Commission - http://www.fppc.ca.gov