Tribe, Calif. agency argue campaign donations case

Erica Werner

Thursday, Jan. 9, 2003 | 9:31 a.m.

SACRAMENTO -- One of California's wealthiest and most influential Indian tribes tried to convince a judge Wednesday to dismiss a lawsuit by the state's political watchdog agency accusing it of campaign finance violations.

"Until and unless Congress acts, certainly this court should not" act to make the Agua Caliente Band of Cahuilla Indians submit to the state's campaign finance regulations, said Art Bunce, an attorney for the tribe.

"The right of a state government to protect its election system is at issue," responded Charity Kenyon, attorney for the state Fair Political Practices Commission. "... California does not have to go to Congress to get that protection for its government."

The case is apparently the first test in the nation of whether Indian tribes, whose unique sovereignty exempts them from much state government control, are bound by the same rules that govern other political contributors to state governments.

The case is viewed by experts as potentially precedent-setting and is being closely tracked by political watchdog groups. Those groups worry that a victory by the tribes, who are increasingly among the state's top political contributors, would upend the state's campaign finance laws.

The FPPC alleges that the Agua Caliente band was late in disclosing more than $8 million in donations to candidates and causes between 1998 and 2002.

The Agua Caliente band, which has about 300 members and operates two casinos in and near Palm Springs, has argued that because of its tribal sovereignty it is not bound by the state's campaign rules and the state does not have the right to sue it to enforce them.

The Fair Political Practices Commission argues that the state has its own sovereign right to uphold its election systems.

Sacramento Superior Court Judge Loren McMaster questioned both sides in detail during about 1 1/2 hours of arguments and said he would take the matter under advisement and issue a ruling at a later date.

During the hearing Bunce said that although the tribe refused to submit to regulation by the Fair Political Practices Commission, it was open to reporting its donations under alternative methods. He proposed a government-to-government agreement with the FPPC similar to the tribal-state compacts that regulate gaming.

"The tribe is willing to negotiate an agreement to give the state perhaps everything it asks for, but not in the context of direct regulation, in the context of government-to-government negotiation," he said.

Bunce explained after the hearing that the Agua Calientes do not object to reporting their political activity but believe it's "unseemly" for the tribe, as a sovereign entity, to submit to the state.

Kenyon rejected that idea, along with Bunce's suggestion that the FPPC ask Congress for a federal statute commanding tribes to comply with state political reporting rules.

"Those are alternatives that undo our form of government, that undo power given to the state of California," she told the judge.

Bunce's suggestion led to a heated exchange later with Fair Political Practices Commission Chairwoman Karen Getman, who approached him after the hearing and said, "Let's go negotiate a compact ... I have no problem whatsoever taking you up on you offer ... We'll do it today."

"And you'll drop the lawsuit?" tribal attorney Dana Reed asked.

Getman replied that if the tribe guaranteed in writing that it would meet conditions including paying the fines the FPPC contends it owes, "We'll talk, absolutely."

She also complained that the tribe had not made the offer earlier, a point Bunce disputed.

Before 1998, when Indian gambling was first on the ballot in California, Indian tribes donated little money to political campaigns in the state. That year they catapulted to the top of donor lists. They spent millions, mostly to promote Proposition 5 to legalize gambling. The Agua Calientes alone donated more than $5 million to the campaign.

Proposition 5 passed overwhelmingly but was thrown out by the courts as unconstitutional. Two years later, voters passed Proposition 1A, which amended the California Constitution to allow Indian tribes to conduct Nevada-style gambling. It too was promoted by millions in tribal donations.

Since then Indian gambling has grown into a multibillion-dollar industry in the state. While tribes don't have to report their profits, revenue from tribal casinos in California was an estimated $5 billion last year.

Also Wednesday, the FPPC announced it had reached agreement with the Morongo Band of Mission Indians for the Riverside County tribe to pay a $25,000 civil settlement for reporting a donation to the Proposition 1A campaign late.