State Can Sue Tribes, Court Rules

SACRAMENTO —  An appellate court ruled Wednesday that the state can sue Indian tribes to force disclosure of their political donations.

In a 2-1 decision, the state 3rd District Court of Appeal rejected the claim of the Agua Caliente band of Cahuilla Indians that, as a sovereign entity, it is exempt from such suits.

The judicial panel ruled that the state’s “constitutional right to sue to preserve its republican form of government trumps the common law doctrine of tribal immunity.”

Art Bunce, an attorney for the Agua Caliente, said tribal leaders probably would decide at their next meeting -- March 16 -- whether to appeal the case to the state Supreme Court. Wednesday’s decision upheld a ruling by Superior Court Judge Loren McMaster of Sacramento.

“Every other participant in our political system must follow the rules of the Political Reform Act. Today, the court agreed that the tribes must as well,” said Liane Randolph, chairwoman of the state Fair Political Practices Commission, the watchdog agency that brought the suit. “This is a clear victory.”

The Agua Caliente band, which operates two casinos in the Palm Springs area, is one of the biggest political donors in California, having spent $14 million in state elections since 1998.

The case had been watched as a test of whether the wealthy tribe could continue its efforts to influence elections with contributions without being required to report the size and recipients of its donations.

“That the largest players are immune is fundamentally unjust,” said Jim Knox, executive director of California Common Cause, which acted as a friend of the court in the case.

The ruling could resonate nationwide, Knox suggested, saying that issues of tribal immunity “are playing out all over the state and nation.”

Howard Dickstein, a Sacramento attorney who represents seven tribes that run casinos, said the ruling would have “no practical effect” on other tribes because virtually all of them comply voluntarily with the state’s disclosure laws.

Dickstein said every tribe he knows of does so as a “matter of policy and good government,” though it is unclear whether they are legally required to do so.

Justices Richard Sims and Coleman Blease signed Wednesday’s majority opinion. They said the “doctrine of tribal immunity” has no foundation in the U.S. Constitution or in federal statutes, but is derived from rulings by the U.S. Supreme Court.

On the other hand, they said, the state’s right to sue the tribe is contained in the U.S. Constitution and in the 10th Amendment, the one addressing states’ rights.

In a dissent, Justice Rod Davis agreed that California had the right to run its own elections, including a requirement for disclosure of campaign finances. But he said the issue boiled down to the narrow matter of whether the state had the right to sue to enforce its laws.

In this case, Davis said, use of a lawsuit as an enforcement tool against the tribe was inappropriate. He suggested the issue could be settled out of court, perhaps with the two sides negotiating a reporting agreement.

Bunce said that Davis “recognized” the federal law but that the other two judges did not. He said a state court could try an Indian issue only with the consent of the tribe or Congress. “In this case, neither of these two was present,” Bunce said.

The Agua Caliente band argued that it had made its campaign donations public in filings with the state and on its website. However, the state political practices panel said some of the tribe’s filings had been made late, which can deny voters timely access to information.

Recipients of political donations must disclose their receipts under the state Political Reform Act.