FEC Issues a Decision

May 15, 2000
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2000-05

Markham C. Erickson
McGuiness & Holch
400 North Capitol Street, N.W.
Suite 585
Washington, D.C. 20001

Dear Mr. Erickson:

This responds to your letter dated March 30, 2000, on
behalf of the Oneida Nation of New York (“the Nation”),
requesting an advisory opinion concerning the application of
the Federal Election Campaign Act of 1971, as amended (“the
Act”), and Commission regulations to contributions by the
Nation totaling more than $25,000 annually.

The Nation is a Federally-recognized Indian tribe
located in central New York State. It is a non-corporate
entity which has been recognized by the United States on a
government-to-government basis. See 65 FR 13298, 13300
(March 13, 2000).1 The Nation has previously contributed to
Federal candidates, following the $1,000 limit at
2 U.S.C. 441a(a)(1)(A) for contributions by a person to the
authorized committees of a Federal candidate. The Nation
has also voluntarily limited the total of its contributions
to Federal political committees during a calendar year to
$25,000, which is the limit prescribed at 2 U.S.C.
441a(a)(3).

You state that, because 2 U.S.C. 441a(a)(3) applies
only to “individuals,” the Nation is considering making
contributions this year that would total in excess of
$25,000. You ask the Commission to confirm that this
$25,000 limitation does not apply to the Nation.

The Act defines the term “person” as including an
“individual, partnership, committee, association,
corporation, labor organization, or any other organization
or group of persons, but such term does not include the
Federal Government or any authority of the Federal
Government.” 2 U.S.C. 431(11); see also 11 CFR 100.10.
The Act also provides that no “person” may contribute in
excess of $1,000 to any Federal candidate and his authorized
political committees with respect to any election. 2 U.S.C.
5441a(a)(1)(A). In addressing annual contribution totals,
however, the Act and Commission regulations provide that no
“individual” may make contributions aggregating more than
$25,000 per calendar year. 2 U.S.C. 441a(a)(3); 11 CFR
110.5(b).2

As you indicate, the Commission has long interpreted
the Act’s definition of “person” to include unincorporated
Indian tribes, and thus their contributions to Federal
candidates were subject to the $1,000 per election, per
candidate limits.3 Advisory Opinion 1978-51; see also
Advisory Opinions 1999-32 and 1993-12 (where the Commission
stated that, as “persons,” unincorporated Indian tribes were
subject to the prohibition on contributions by persons with
Federal contracts if they are engaged in such contracts).
Although the Nation is a person under the Act, it is not an
individual and is therefore not subject to the $25,000 limit
on its annual total of contributions.4 The Nation may make
contributions that are otherwise lawful under the Act and
Commission regulations.

The Commission notes your letter of April 26, 2000,
commenting on the General Counsel’s proposed draft of this
opinion, Agenda Document No. 00-48. Your April 26 letter
explains that “the Nation’s political contributions are made
from its general treasury funds . . .[and] are not made,
either directly or indirectly, from any incorporated
entity.” The letter further states: “While the Nation does
own several incorporated businesses, it has sufficient funds
in its general treasury to make all of its political
contributions, subject, of course, to the limitations and
prohibitions of the Act.” Since you have not requested an
advisory opinion on the sources of funds that may be
lawfully used by the Nation in making its contributions in
Federal elections, the Commission does not issue an opinion
at this time on that issue.

The Commission does not express any views concerning
the possible application of other statutes, including the
Indian Gaming Regulatory Act, to political contributions
made by the Nation, since those issues, if any, are not
within the Commission’s jurisdiction.

This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f.

Sincerely,

(signed)

Darryl R. Wold
Chairman

Enclosures (AOs 1999-32, 1999-7, 1993-12, 1982-26, 1978-51,
and 1977-32)
_______________________________
1 This Federal Register document is from the U.S. Bureau of
Indian Affairs (“BIA”) and lists the Nation, along with
numerous other Indian entities, that are “recognized and
eligible for funding and services from [BIA] by virtue of
their status as Indian tribes.” 65 FR at 13298. The
“listed entities are acknowledged to have the immunities and
privileges available to other federally acknowledged Indian
tribes by virtue of their government-to-government
relationship with the United States as well as the
responsibilities, powers, limitations and obligations of
such tribes.” 65 FR at 13299.
2 The Act and Commission regulations clarify this
restriction by adding that, for the purposes of this limit,
any contribution made in a non-election year to a candidate
or his authorized committee with respect to a particular
election shall be considered as made during the calendar
year in which such election is held.
2 U.S.C. 441a(a)(3); 11 CFR 110.5(c)(2); see also 11 CFR
110.5(c) (3) and (d).
3 The status of an Indian tribe or community as a
“government” making a contribution has not been explicitly
addressed in previous advisory opinions. As indicated by
the language of 2 U.S.C. 431(11), the only government that
is specifically construed not to be a person, and therefore
not subject to the limitations and prohibitions of the Act,
is the Federal Government. For example, the Commission has
made clear that State governments and municipal corporations
are persons under the Act and are subject to its
contribution provisions. Advisory Opinions 1999-7, 1982-26,
and 1977-32.
4 As indicated in Advisory Opinion 1999-32, the Nation
would more precisely fall into the category of “any other
organization or group of persons.”