State justices grill Agua Caliente Band

By Matt Krasnowski
Copley News Service

SANTA BARBARA – The California Supreme Court took up a landmark legal case yesterday, with justices asking sharp questions about whether the rights of Indian tribes could undermine the state's campaign finance laws.

The dispute stems from a 2002 lawsuit that the state Fair Political Practices Commission filed against the Agua Caliente Band of Cahuilla Indians for failing to report $7.5 million in campaign contributions until long after deadlines set by California's strict disclosure law.

The powerful Palm Springs tribe, one of California's biggest campaign contributors, contends it is a sovereign entity immune from legal attack under long-standing federal law.

After the state filed a similar lawsuit against a second big gaming tribe, the Santa Rosa Tachi band of Lemoore, trial courts issued conflicting decisions. An appellate court later ruled in a 2-1 decision that the state's need to protect the integrity of its elections outweighed the tribe's sovereign immunity.

Many expect the legal clash to wind up before the U.S. Supreme Court. The outcome could have profound, long-term implications for a state in which gaming tribes have become a political force, pouring more than $200 million into campaigns during the past decade.

Most tribes comply with the state's campaign finance laws, which limit contributions and require them to be reported in a timely fashion. That could change if Agua Caliente prevails.

During an hourlong debate yesterday in a special session of the court in Santa Barbara, lawyers for the state and the Agua Caliente tribe argued that the Constitution and case law are on their side.

Agua Caliente attorney James Martin told justices that courts long have maintained that federally recognized tribes are immune from lawsuits. Tribes can be sued only if Congress authorizes it or a tribe consents, Martin said.

Martin received the sharpest grilling from the court, starting with Chief Justice Ronald George, who asked why the state should rely on “the good will” of Congress to authorize a lawsuit.

Martin said states have turned to Congress to authorize legal complaints to deal with “pervasive” problems involving tribes.

Justice Carol Corrigan noted it is illegal for foreign governments to participate in U.S. elections. Corrigan said Agua Caliente “is trying to have its cake and eat it, too” by claiming immunity as a sovereign government while contributing to campaigns.

“They don't get to have it both ways,” she said.

Justice Ming Chin asked how the state could “effectively guard against political corruption if it cannot enforce the Political Reform Act?”

Charity Kenyon, a private attorney representing the Fair Political Practices Commission, argued that constitutional protections for tribes were supposed to serve as a “shield” and not a “sword” to undercut state laws.

Kenyon told justices that if the state's argument fails, tribes could launder campaign donations from people trying to secretly influence elections.

Justice Joyce Kennard challenged Kenyon, saying that while she instinctively agreed with the state, she did not see how the seven justices could overcome numerous U.S Supreme Court rulings that protect tribes from lawsuits.

“Deciding a case by instinct is not something (the court) should do,” Kennard said.

The state says Agua Caliente didn't disclose late contributions to a 1998 Indian gaming proposition and a $125,000 contribution to a 2002 initiative that would have provided $120 million for a Los Angeles-to-Palm Springs rail line with a terminal near the tribe's casino.

That information was not disclosed until after state officials opened an investigation into the tribe's political activities, officials have said.

The Supreme Court has 90 days to issue an opinion in the case.