By a closely divided 4 - 3 vote, the California Supreme Court has allowed the state's Fair Political Practices Commission to sue tribes in state court for violating state election campaign reporting laws. This decision flies in the face of federal law guaranteeing tribes immunity from lawsuits without their consent, as well as language in the U.S. Constitution committing Indian affairs to the federal government, not the states. It also fits a pattern of California carving out exceptions for itself from federal Indian law. As early as the first years of statehood, when California's governor was literally calling for the extermination of Indian people, the state defied U.S. Supreme Court precedent in extending state authority over tribal groups still living on their ancestral lands. In more recent times, California has refused to recognize tribal jurisdiction in the wake of Public Law 280, a position it reversed less than 10 years ago.
What may be most distwurbing about the California Supreme Court's decision, however, is its treatment of the sovereign gestures that the tribe involved, the Agua Caliente Band of Cahuilla Indians, made to the state to resolve the dispute without litigation. The Agua Caliente offered to make voluntary compliance with the state's campaign reporting laws, and to enter into a government-to-government agreement with the state binding them to adhere to state requirements. As the tribe pointed out, this arrangement would satisfy all of the state's needs for election monitoring while respecting tribal sovereignty. Yet the California Supreme Court dismissed the tribe's proffered alternative as inadequate and ''uncertain.'' ''Absent the threat of a lawsuit,'' said the court, ''we see no incentive for the tribe to agree to comply with the [state 's] reporting requirements.''
That assertion could not be further from the truth, as one look at the area of tribal/state tax agreements reveals. If it were true that Indian nations refuse to make agreements unless they are subject to suit, one would expect to see no such tax agreements. Although the U.S. Supreme Court has said that states can apply their sales taxes to on-reservation cigarette or gasoline purchases by non-Indians, and tribal sellers can even be required to collect these taxes on behalf of the state, there is no way for states to sue tribes that refuse to turn over the tax money. Tribal sovereign immunity - the same sovereign immunity that the California Supreme Court should have recognized - protects Indian nations from such suits. Nevertheless, tribes regularly make tax agreements with states regarding collection of such taxes. In fact, as the National Conference of State Legislatures recently noted, ''Nearly every state that has Indian lands within its borders has reached some type of tax agreement with the tribes.'' Thirty-four such agreements exist with the state of Oklahoma alone.
Why do tribes make such agreements, even without the threat of litigation? They do so for the same reason that governments make agreements in the international realm - to achieve gains through cooperation, avoid conflict and curry favor with powerful actors. For example, the tribal/state tax agreements provide creative ways to improve the economic situation of both tribes and states, often facilitating economic development and developing revenue streams that would not otherwise exist. In the case of Indian nations, the additional incentive to make agreements is the plenary power that Congress claims in the realm of Indian affairs, a power that Congress has often used to the detriment of tribes.
Given the greater representation and influence that states have in the Congress, Indian nations must always be mindful of the possibility that Congress will act to strip tribes of their jurisdiction or sovereign immunity if they appear to be too uncooperative. Even apart from such threats, however, tribes have reason to make agreements because they must coexist in the United States with states, counties, municipalities and other units of government. All of these governments are interdependent. For example, no one unit can effectively regulate in areas such as zoning and the environment, which transcend political boundaries.
Elections and initiative campaigns perfectly illustrate the reasons why tribes would want to make compacts with states. The whole purpose of campaign contributions is to influence outcomes in the donor's favor. But if Indian nations acquire a reputation for flouting state campaign-reporting requirements that the general public views as necessary for fair elections, tribally favored candidates and causes will be rejected. Indian nations in California, as elsewhere, depend on state government support to achieve important goals, such as beneficial gaming compacts, adherence to the Indian Child Welfare Act, and retrocession of Public Law 280 jurisdiction. A state government that views tribes as undermining state elections will be less favorably disposed on such matters.
The California Supreme Court could only imagine Indian nations responding to a show of force through lawsuits against them in state court; it could not envision California tribes as responsible actors making agreements with the state on a government-to-government basis. The state needs to break out of its old pattern, and join the modern era of federal Indian law.
Carole Goldberg directs the Joint Degree Program in Law and American Indian Studies at UCLA, and is the Faculty Advisory Committee Chair of the UCLA Law School's Native Nations Law and Policy Center.