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Question of tribal sovereignty raised in California decision

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SACRAMENTO, Calif. - The California Fair Political Practices Commission (FPPC) has come out victorious in an early round of a precedent setting lawsuit against two tribes for violations of state campaign finance disclosure laws.

However, tribes are questioning whether the judgment represents a blatant violation of tribal sovereignty.

In his Feb. 28 ruling, Sacramento County Superior Court Judge Loren McMaster ruled that the Palm Springs-based Agua Caliente Band of Cahuilla Indians were not immune from the lawsuit initiated by the FPPC. The other suit involving the Santa Rosa Rancheria of Tachi Yokut Indians will be decided soon.

"We consider this to be a very courageous ruling by the judge," said Sigrid Bothen, the media director for the FPPC.

In a press release the FPPC contends that Agua Caliente's donations totaling a little over half a million dollars and Santa Rosa Rancheria's $360,000 in donations were not disclosed in a timely manner, meaning that they failed to file semi-annual major donor reports as stipulated by state law. Both figures were contributions made over a period lasting from 1998 to 2002.

The largest recipients of the contributions in question were Lt. Gov. Cruz Bustamante's re-election campaign last year and for the Proposition 5 campaign in 1998 that first attempted to legalize Indian gaming in California.

What the ruling means for tribes is unclear. In the past it has been broadly understood that tribal jurisdictions only have to adhere to federal law and thus could only be sued in federal court. The ruling is significant because this is the first time ever that a state court has been given jurisdiction over the activities of an American Indian tribe.

This case is seen as a landmark decision. Since being defined as "domestic dependent nations" in early federal documents and later reaffirmed in the U.S. Constitution and centuries of case and treaty law, no state has yet successfully tried to exercise state court jurisdiction over American Indian tribes.

However, the FPPC has grown increasingly uneasy in the last few years over the amount of money that newly wealthy gaming tribes have been giving to political candidates and referendums without public disclosure. While the fact that the actual amount of money donated by tribes is not in dispute as they fell within state guidelines, tribes question the ability of the state to regulate their political donations.

When the FPPC launched the lawsuits the tribes countered that as public governments they had sovereign immunity from state court lawsuits much in the way that an equally sovereign jurisdiction such as a city or county would.

Interestingly Judge McMaster tried to guard against this decision being seen as a precedent setting decision near the end of the 17-page decision.

"This decision is not intended to and does not effect tribal immunity as it has developed," wrote McMaster.

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Not everyone is buying it. Harold Monteau, a lawyer from the well known law firm Monteau and Peebles who is representing the Santa Rosa Rancheria questions how a decision can go against the grain of nearly two centuries of legal precedent and say that it does not.

"This case is a watershed, I mean it's a duck if it walks and talks like a duck ?" said Monteau.

Monteau claims that his clients told the FPPC that they would be willing to file full disclosure of their donations to future campaigns. The FPPC, claims Monteau, still went ahead with the suit even after that offer was made. Monteau says that his clients do not believe they violated any laws because they believed they had solid sovereign status.

"Of all the federally recognized tribes in California, only two are being held to scrutiny for campaign finance laws," says Monteau. "There are better ways to handle it than a lawsuit."

Additionally, Monteau says that the FPPC and the state of California could pursue other legal remedies, such as forbidding certain funding sources from tribes much in the same way that foreign governments and other source are forbidden to contribute to domestic campaigns.

This case has caused controversy from the beginning. California State Attorney General Bill Lockyer declined to represent the FPPC in the case and they were forced to hire a private attorney at a cost of $100,000. Justice Department sources now say that Lockyer's office will intercede in the case on the side of the FPPC.

Steve Russo, chief enforcement officer for the FPPC counters the tribal sovereignty argument by arguing that California's status as a sovereign entity is also placed under duress by the non-disclosure of tribal donations in that it undermines the integrity of state campaign finance laws.

Russo disagrees with Monteau in that there are other legal remedies such as handling tribal donations as foreign contributions

"I quite doubt that Mr. Monteau would really want to see tribal donations banned, the FPPC doesn't," says Russo. "All we're asking is that the tribes follow state laws when they donate, not prevent them from donating in the first place.

In regard to a possible conflict with federal law, Russo says that there is no established precedent that allows Indian tribes to exercise sovereign immunity in the case of campaign contribution disclosure. He cites the 10th Amendment to the U.S. Constitution where certain rights are remanded to the states and specifically Article IV which guarantees the rights of each state to a republican form of government.

Not surprisingly the lead attorney, Art Bunce, in the Agua Caliente case counters Russo by saying that the federal laws state that tribal sovereign immunity can be revoked only by an act of the U.S. Congress or by waiver from the tribes themselves.

Bunce reports that Agua Caliente has authorized him to issue a writ of mandate, an expedited form of appeal, on the sovereign immunity ruling. He says the writ will be entered into the court within the next month.

"We're hoping that this matter is settled by the writ."