Tribal Immunity from California's Campaign Contribution Disclosure Requirements

Brigham Young University Law Review, 2004 by Reese, Cameron A

I. INTRODUCTION

Elections, on both a federal and state level, play a seminal role in America's representative system of government. Elected officials are charged by their constituents with the responsibilities of identifying and correcting perceived and apparent social, economic, and political problems. Because of the powers vested in these representatives, millions of dollars from candidates' personal fortunes and from the wallets of campaign supporters are invested each election.1

Native American tribes and their tribal gaming interests are playing an increasing role in America's political process. On both a federal and state level, tribes and their affiliate gaming interests have made large contributions to political candidates to influence the debate on issues ranging from gambling licenses to tribal lands.2 As with other campaign contributors, as the size of tribal contributions increases, so too does the concern over the influence tribes may be exerting on the electoral process.

This concern has reached a crescendo in California, which is home to more Indians3 than any other state and more Indian tribes than any state other than Alaska.4 Over the last few years, tribal contributions to candidates for California office have seen a dramatic increase.5 Most recently, California tribes provided significant contributions to two candidates in the recall election of California's governor.6 It is clear that California tribes will continue to make large campaign contributions to candidates they support and thereby have an impact on California's electoral process.

It is unclear, however, whether tribes must make public disclosure of those contributions. California, like many states, has enacted campaign disclosure requirements to protect the integrity of the state's electoral process.7 In 1974, California adopted the Political Reform Act of 1974 (the "PRA") to ensure that "receipts and expenditures in election campaigns [are] fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited."8 California's legislation, passed in the wake of Watergate when campaign finance reform became a major issue, is typical of disclosure requirements and reflects the political climate favoring disclosure. However, application of California's disclosure requirements to donations from federally recognized Indian tribes was recently tested in two superior court cases brought by the California Fair Political Practices Commission (FPPC) against two Indian tribes for violation of the State's campaign disclosure requirements.9 In each case, the tribes filed motions to quash service of summons and dismiss the suits on the ground that the doctrine of tribal sovereign immunity from suit relieves the tribes from compliance with the campaign disclosure requirements.10

The superior court decisions delivered contradictory holdings on the question of "whether a state court has the power to exercise jurisdiction over a sovereign, federally recognized Indian tribe in an action brought by a state agency seeking to enforce state law concerning election campaign disclosures."11 In Fair Political Practices Commission v. Agua Caliente Band of Cahuilla Indians, the court concluded "that the tribe is not immune from . . . the PRA reporting requirements for its political contributions and legislative lobbying activities" because case law does not support the position "that a tribe is immune from suit for activities that . . . are intended to influence a sovereign State's electoral and legislative processes."12 Two months later, a different superior court in Fair Political Practices Commission v. Santa Rosa Indian Community of the Santa Rosa Rancheria granted the tribe's motion to quash, finding that case law supports a general tribal immunity "whenever Congress has not expressly abrogated the immunity or the tribe has not expressly waived its immunity from suit with respect to those activities."13 The California Supreme Court has ordered an appeals court to consider whether Indian tribes must abide by the state campaign disclosure requirements.14 But while this question is being addressed in California state court, the impact of the court's ultimate decision is not isolated to California's campaign disclosure requirements. Representatives from the election enforcement committees of several states joined the FPPC in its argument, recognizing that the impact of this question in California will likely impact similar questions in their own states.15

This Comment argues that proper application of the United States Supreme Court's tribal immunity doctrine indicates that registered tribes are immune from suit by state election officials seeking to enforce campaign disclosure requirements unless or until the federal government expressly removes the immunity or the tribes expressly waive it. While states may have a substantial interest in ensuring that their elections are free from the influence of anonymous donors,16 that interest does not overcome the federally recognized doctrine of tribal immunity that was recognized as inherent in the tribes in early Supreme Court jurisprudence.17