Court allows California’s suit on Indian campaign donations

Don Thompson

Thursday, March 4, 2004 | 9:33 a.m.

SACRAMENTO, Calif. -- California can sue an Indian tribe over its failure to properly report campaign donations, a state appeals court ruled Wednesday, rejecting the tribe's claim of sovereign immunity.

In a 2-1 decision, the 3rd District Court of Appeals ruled that "the constitutional right of the state to sue to preserve its republican form of government trumps the common law doctrine of tribal immunity."

The ruling has national importance in the evolving debate over tribal sovereignty, said California Common Cause, which filed the contribution disclosure complaints with the state and filed a friend of the court brief on the state's behalf.

Jim Knox, the group's executive director, called the decision "a victory for an informed electorate and the fundamental principle that campaign disclosure laws should apply equally to everyone."

The ruling against the Agua Caliente Band of Cahuilla Indians is even more significant because tribes have become one of California's and the nation's largest campaign contributors since the rise of tribal casinos, giving more than $130 million to California candidate and ballot measure campaigns since 1998.

Agua Caliente, the only California tribe with two casinos, both in the Palm Springs area, has given more than $12 million to California political campaigns over the past six years.

But the appeals court's legal theory differs from previous rulings going back 180 years that tribes can be sued only when they agree to waive their immunity, or by an act of Congress, said Art Bunce, attorney for the Agua Caliente.

"We're pleased that one of the three judges recognizes federal law, but we're disappointed that the other two don't," said Bunce. The tribal council will now decide whether to appeal.

At issue was whether the state's Fair Political Practices Commission could sue to force the tribe to abide by state campaign finance laws. Wednesday's decision upheld a Sacramento County Superior Court ruling that the tribe's political activities are not protected by tribal immunity.

Liane Randolph, the commission's head, called the ruling "a clear victory for the voters of California, including voters who are members of the tribes."

The state Supreme Court last year ordered the appeals court to sort between the Agua Caliente ruling and a conflicting ruling handed down by a different Sacramento County judge on a similar campaign contribution complaint against a different tribe, the Santa Rosa Indian Community and Palace Indian Gaming Center, in Kings County.

The commission alleged the Agua Caliente tribe was late in disclosing more than $8 million in donations to candidates and causes between 1998 and 2002. The tribe posts campaign finance reports on its Website and contends it discloses its political activity -- just not according to the state's rules.

It argued its status as a sovereign nation means it was not bound by the state's campaign rules and the commission can't sue to enforce them.

The tribe offered to enter into a government-to-government agreement to voluntarily observe the FPPC rules, but that was rejected.

"This case is not about disclosure; the tribe makes more than full disclosure. It's about power," Bunce said.

The commission similarly sued the Santa Rosa tribe, which offered a similar immunity defense. The Santa Rosa tribe did not file campaign reports on $525,000 in contributions over about four years, including $250,000 to support Proposition 5 to legalize Indian gambling in California in 1998.