State, Tribe in Fight Over Election Laws

By Steve Wiegand,  Sacramento Bee Staff Writer
November 24, 2002

It has all the ingredients of a prime time soap opera: The state’s political watchdog agency squared off against a powerful special interest. The state’s top cop caught between client — the watchdog — and campaign contributor — the special interest.

And hanging in the balance: legal issues that could help determine which state campaign laws California Indian tribes have to obey, and which they can ignore.

At the heart of the drama is a first-of-its-kind lawsuit that pits the state’s Fair Political Practices Commission against the Agua Caliente Band of Cahuilla Indians, a Palm Springs-based tribe that operates two thriving casinos and is one of the wealthiest and most politically influential tribes in the state.

The facts are deceptively simple: The commission contends the tribe failed to comply with state campaign-finance and lobbying laws when it was months late reporting nearly $8 million in contributions to various causes and candidates over the past four years.

Included in that amount are substantial contributions to state Attorney General Bill Lockyer, who last month declined to represent the FPPC in the suit, recommending instead that the commission hire outside counsel.

Lockyer has declined to say why he bowed out, citing attorney-client restrictions. But a spokesman for Lockyer vehemently denied it had anything to do with campaign contributions from the tribe.

The suit also alleges the tribe failed to specify which legislation it hired lobbyists to support or oppose.

The tribe, which faces maximum fines equal to the amount of contributions its leaders failed to report, contends it hasn’t complied with the rules because, as a sovereign entity, it doesn’t have to.

“This case is totally different than any case that has been in front of the courts,” said FPPC Chairwoman Karen Getman.

If it is different in its particulars, legal scholars say, the suit shares the same roots as other disputes springing up with increasing frequency between local and state governments and Indian tribes as the tribes gain economic and political clout through their gambling enterprises.

“I think there is sort of a stunned response on the part of many local and state officials to these tribal activities, because they are used to having their own way” when it comes to issues involving Indians, said Carole Goldberg, a law professor and director of the American Indian Studies Center at UCLA.

“The tribes haven’t always been in as strong a position to make use of it, but the law has always been there.”

The law to which Goldberg refers is a 49-year-old federal statute that was designed primarily to save the U.S. government money and give state governments more legal oversight of Indian tribes.

Prior to 1953, state and local governments had virtually no role in enforcing laws on Indian land, with the responsibility falling on federal law enforcement agencies.

Tired of footing the bill, Congress passed Public Law 280 (the 280th law passed that year). The law basically transferred jurisdiction for criminal cases on Indian land to six states, including California, where tribes were judged to have weak or nonexistent legal systems of their own.

Jurisdiction over civil matters, such as lawsuits against the tribe, and regulatory matters, such as zoning issues, remained with the federal government or with the tribes themselves in most cases.

But determining which cases might be exceptions has become a focal point for local governments striving to stem the impact of Indian casinos in their midst, or in this case, for a state trying to enforce its campaign laws with a special interest group that has become one of the largest sources of campaign money in California.

Under Public Law 280, state and local governments traditionally have had jurisdiction when the case involved individual criminal acts, such as murder or rape, said Joseph Wiseman, an attorney who teaches American Indian law at Empire State Law School in Sonoma.

“In regulatory cases, noncriminal cases, under 280, the state or county doesn’t have jurisdiction,” Wiseman said. “At least that’s the way prior courts have generally ruled … but if you ask four lawyers, you’ll get 14 opinions.”

In the opinion of the Agua Caliente band’s attorney, the FPPC is wasting its time, since the alleged offenses don’t involve criminal acts.

“As a general matter, Indian tribes are not subject to the sovereignty of any state, period,” said tribal attorney Art Bunce. “They are subject only to the sovereignty of the United States.”

In an interview, Bunce argued that public disclosure of the contributions wasn’t an issue because the tribe eventually supplied the information to the FPPC and also posted it on the tribe’s Web site.

“I believe that everything the FPPC ever wanted, it has received,” he said. “Some of it came in according to the FPPC’s timetable, some did not.”

In addition, he said, the issue became moot in 1994, when a suit brought by then-Attorney General Dan Lungren against the tribe over a land transfer was dismissed because a state Superior Court judge ruled that the state lacked the authority to sue, and the case was not appealed.

Under a legal doctrine known as preclusion, “that case settled the issue of whether any state agency can sue a tribe,” Bunce said.

But FPPC officials argue that California’s sovereign rights are at stake, not the tribe’s.

“The people of California have the right to structure their political rules the way they see fit,” said Getman, the FPPC chairwoman, “and the tribe does not have the right to assert its sovereignty over that.”

The commission also contends the tribe waived its sovereignty when it decided to make contributions and lobby legislators.

“The tribe voluntarily injected itself into the political process of the state of California,” said Steve Russo, the FPPC’s chief of enforcement. “By doing so, they need to comply with the same rules that everyone else does.”

To help with the case, the commission has hired Sacramento attorney Charity Kenyon, one of the state’s leading lawyers when it comes to First Amendment issues.

But Getman acknowledged that when it comes to sovereignty issues, “there are very few people in this state with a background in tribal sovereignty who aren’t working for the tribes.”

“We would love to have the attorney general represent us,” she said. “It’s hard to find a group of individuals that know more about tribal sovereignty than (his office). That being said … we’re confident we’re going to win.”

Lockyer, who has been criticized in the past for not being more aggressive in disputes between local governments and casino tribes, has received hundreds of thousands of dollars in campaign contributions from tribes over the years, including at least $25,000 from the Agua Caliente Band this year.

But Nathan Barankin, a spokesman for Lockyer, said the contributions have nothing to do with the attorney general’s decision to stay out of the case.

“Our position has been, as has been the position of every AG, that campaign contributions don’t serve as a conflict of interest for this office,” he said.

Barankin said Lockyer has prosecuted campaign contributors in the past, including the Agua Caliente tribe in a case last year on behalf of the state Board of Equalization. The board eventually dropped the suit, he said, “but that wasn’t our decision, it was theirs.”

Several sources close to the case said Lockyer ultimately refused to take the FPPC case because he didn’t consider it winnable. Barankin declined to comment directly.

But he did say that disagreements with state agencies or departments over legal strategy are one reason an attorney general would turn down a case.

“Where you might have more options, and there is a disagreement on where to go,” he said, “we’re not interested in tilting at windmills.”

FPPC officials said they could not discuss what Lockyer told them in turning them down because it would jeopardize their case against the tribe.

Getman said that even if the commission loses, she doesn’t anticipate that other tribes will stop complying.

“I think most of the tribes out there understand the need to disclose their campaign contributions and lobbying activities,” she said.

But UCLA’s Goldberg isn’t so sure.

“If it comes out in favor of the tribe,” she said, “in my estimation, it will be affirming the law as people have understood it. The state is pushing the envelope here.”