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The California Supreme Court took a controversial stand Thursday by ruling that the state can sue Indian tribes for failing to disclose campaign contributions and lobbying activities. The 4-3 decision (.pdf) is unprecedented nationally and all but guarantees review by the U.S. Supreme Court. Representatives of the Agua Caliente Band of Cahuilla Indians had argued that federally recognized Indian tribes � which are essentially independent nations � are exempt from suits unless they waive their immunity or Congress limits it. But the majority led by Justice Ming Chin held that tribal immunity is trumped by states’ authority granted under the federal Constitution in both the Tenth Amendment and a clause in Article 4 that guarantees states a republican form of government. “Allowing tribal members to participate in our state electoral process while leaving the state powerless to effectively guard against political corruption,” he wrote, “puts the state in an untenable and indefensible position without recourse.” Chief Justice Ronald George and Justices Marvin Baxter and Carol Corrigan � who, along with Chin, often make up the court’s conservative bloc � concurred. In a dissent, Justice Carlos Moreno said the majority’s ruling “unjustifiably circumvents well-established Indian sovereignty principles and cannot be reconciled with controlling federal precedent.” “Whatever problems arise from the conflict between Indian and state sovereignty,” he added, “are matters for Congress, exercising its plenary power over Indian affairs, to solve.” Moreno was joined by Justices Joyce Kennard and Kathryn Mickle Werdegar.
‘Preserving the integrity of our democratic system of governance is too important to compromise with weak alternative measures that the state may not be able to enforce.’

JUSTICE MING CHIN California Supreme Court


The case goes back four years, when the state’s Fair Political Practices Commission sued the Agua Caliente Band for failing to disclose about $9 million in campaign contributions in 1998, 2001 and 2002. The state considered the Palm Springs-based tribe a major donor subject to the state’s Political Reform Act, which was enacted by initiative in 1974 to combat political corruption. The tribe’s immunity argument was rejected by Sacramento County Superior Court Judge Loren McMaster. The Third District Court of Appeal affirmed McMaster in 2004, holding 2-1 that tribal immunity doesn’t protect tribes from suits that go to the core of the state’s governing powers. On Thursday, Chin’s ruling thoroughly examined U.S. Supreme Court history which, while upholding tribal immunity in most cases, has restricted it in limited situations. Chin also noted that the nation’s highest court has “grown increasingly critical” of tribal immunity “in light of the changed status of Indian tribes as viable economic and political nations.” He was referring to some tribes’ increasing wealth through gaming casinos. The tribe had argued that the state could have accomplished its goals without resorting to litigation, suggesting the FPPC could have pursued a government-to-government agreement, petitioned Congress for an exception to immunity, or gotten the missing information from the recipients of campaign contributions. Chin wasn’t persuaded. “Preserving the integrity of our democratic system of governance,” he wrote, “is too important to compromise with weak alternative measures that the state may not be able to enforce.” James Martin, a partner in Reed Smith’s Los Angeles office who represented the Agua Caliente Band, referred calls to his clients. So did Charity Kenyon, a partner in Sacramento’s Riegels Campos & Kenyon who represented the FPPC. In an e-mailed statement, tribal Chairman Richard Milanovich expressed disappointment in a ruling that “fails to follow established federal law.” He said the tribal council “will decide what further actions it may take.” In a prepared statement, FPPC Chairwoman Liane Randolph declared victory. “Every other participant in our political system must follow the rules of the Political Reform Act,” she said. “[On Thursday], the Supreme Court affirmed that the tribes must also follow those rules.” The full text of Agua Caliente Band of Cahuilla Indians v. Superior Court ( Fair Political Practices Commission), S123832, will appear in Tuesday’s California Daily Opinion Service.

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