Tribe Seeking Exemption From Disclosure Laws

Lawyers for an Indian tribe that has spent $14 million on California campaigns in recent years urged a state appellate court Wednesday to rule that the tribe’s status as a sovereign government exempts it from campaign donation disclosure laws.

The dispute involves tribes’ long-held right to remain immune from most state laws and California’s right to enforce its election laws.

The California Fair Political Practices Commission has accused the Agua Caliente Band of Cahuilla Indians, owners of two casinos in and near Palm Springs, of failing to meet deadlines and other requirements in public reports disclosing its political donations and lobbying activity dating to 1998 and continuing through 2002.

In 2002, for example, the tribe failed to disclose a $125,000 donation to support Proposition 51, the FPPC alleged. If voters had approved that measure, the state would have been required to sell $120 million in bonds to finance passenger rail service from Los Angeles to Palm Springs, including a stop at one of Agua Caliente’s casinos.

When the commission tried to settle the matter by imposing a fine, the tribe balked, contending it was not subject to the California Political Reform Act, a law approved by voters in 1974 in the wake of the Watergate scandal. The FPPC sued the tribe, seeking as much as $8 million -- the amount that the FPPC said was misreported.

Court of Appeal Justice Richard M. Sims, citing the untested legal issue, said “probably more than any case I’ve seen in my 20 years,” the matter could end up being decided by the U.S. Supreme Court.

The tribe discloses its donations in a variety of ways, including on its website and in filings with the state, albeit sometimes late or incomplete. And politicians are obligated to report donations from tribes.

But the state contends that tribes, like all other campaign donors, should make separate disclosures. The multiple disclosures are intended to ensure that donors and recipients are complying with the law.

The tribe is appealing a ruling last year by Superior Court Judge Loren McMaster, who sided with the FPPC.

In his argument Wednesday, Agua Caliente attorney James C. Martin contended that Congress and federal courts repeatedly have affirmed tribes’ rights to assert their immunity against lawsuits.

Martin also said the right of tribes to make political contributions “hits at the heart of self-government.”

Justice Coleman A. Blease, one of three justices hearing the case, described the conflict as “a case of two sovereigns, and one sovereign is attempting to influence the nature of the other sovereign....Why else would they contribute?”

Tribes that own casinos have been the largest block of campaign donors in California since 1998. They have spent at least $149.3 million on state elections since then, including $18.28 million in 2003.

Agua Caliente has spent $14.1 million of that sum, including $7.51 million in 1998, largely to back Proposition 5, an initiative that would have legalized gambling on Indian reservations but was struck down by the state Supreme Court. Agua has proposed a new initiative this year to allow tribes unlimited expansion of their casinos in exchange for their paying the state 8.84% of net gambling profits.

Sims, taking up the FPPC’s argument, said states’ 10th Amendment right to govern their own affairs, as long as their laws do not conflict with the U.S. Constitution, would appear to “trump” tribes’ rights to be exempt from many state laws.

Like most tribes, Agua Caliente generally complies with requirements of the Political Reform Act. But the group also contends it is not required to comply. Specifically, the tribe argues, the FPPC has no power to impose fines or sue to force it to comply. Charity Kenyon, a private lawyer representing the FPPC, acknowledged that there is no constitutional provision granting states the right to bring lawsuits to enforce their laws.

“What we do find,” Kenyon said, “is a right to have a republican form of government.” And the state has the “power to protect elections.” Additionally, as U.S. citizens, Native Americans “share in this form of government.”

The Court of Appeal has 90 days to decide the matter.