Metropolitan News-Enterprise


Friday, October 29, 2004


Page 1


Divided Appellate Panel Rejects Claim of Tribal Sovereign Immunity From Political Reform Act


By Kenneth Ofgang, Staff Writer/Appellate Courts


Indian tribes are not immune from having to report campaign contributions under the state Political Reform Act, the Third District Court of Appeal ruled yesterday.

It was the second time a panel of the Sacramento-based court has rejected a tribe’s claim of immunity from the act, also known as Proposition 9. Yesterday’s case involved the Santa Rosa Indian Community of Kings County, while the previous decision rejected an immunity claim by the Agua Caliente tribe, which runs two casinos in Palm Springs

That case, Agua Caliente Band of Cahuilla Indians v. Superior Court (2004) 116 Cal. App. 4th 545, is awaiting review by the California Supreme Court.

 In the Santa Rosa case, Sacramento Superior Court Judge Joe S. Gray quashed service of the Fair Political Practices Commission’s suit against the tribe for failing to file semi-annual campaign contribution reports from 1998 through 2001 and other violations.

The tribe is accused of contributing $110,000 to Lt. Gov. Cruz Bustamante and $250,000 to one of the Indian gaming initiatives on the 1998 ballot after the last pre-election reporting period. Any such contribution in excess of $1,000 must be reported within 24 hours, and the tribe allegedly failed to make the required report.

Gray ruled that as a federal recognized tribe, the Santa Rosa community was immune from state civil process.

But Justice Richard Sims III, writing for a divided panel yesterday, said the immunity was solely a creature of the common law and that, under some circumstances, it must yield to public policy.

The justice cited the constitutional guarantee of a “Republican Form of Government,” explaining:

“The right and duty of the state to maintain a republican form of government necessarily includes the right to elect representatives and to protect against corruption of the political process.”

The immunity, he added, has generally been applied as a protection against private actions, not against the state, Sims said, absent a relevant statute or treaty.

Presiding Justice Arthur Scotland concurred, but Justice Ronald Robie dissented.

Robie expressed sympathy for the majority’s desire to have tribes participate in the political process on the same terms as everyone else. But the decision lacks support in the Constitution, the dissenting justice insisted.

“Whatever power the state has to sue an Indian tribe for campaign contribution disclosure violations is an inherent power that derives from the state’s sovereignty,” Robie wrote. “As the Tenth Amendment makes clear, however, the state retains that sovereign power +only+  to the extent the exercise of that power is not prohibited by the federal Constitution or inconsistent with the federal government’s exercise of powers delegated to it by the Constitution.”

Even if the immunity is only a matter of common law, Robie argued, it still takes precedence over state law because of the Supremacy Clause.

The case is Fair Political Practices Commission v. Santa Rosa Indian Community of the Santa Rosa Rancheria, 04 S.O.S. 5762.


Copyright 2004, Metropolitan News Company