Are Indian tribes immune from California election law? |

Are Indian tribes immune from California election law?

Jim Porter
Lighter Side of the Law

Who is more powerful: the giant State of California or the little Agua Caliente Band of Cahuilla Indians?

The Supreme Court of California issued its ruling in this David and Goliath story.

In 1974, California adopted the Political Reform Act, which established the Fair Political Practices Commission (FPPC) to govern and enforce California elections on a state and local level. Jerry Brown rode the Political Reform Act to the governorship.

Yours truly served a three-and-a-half year term as Governor Pete Wilson’s appointee to the FPPC. About all I can say is I gained more knowledge than I imparted during my tenure.

Part of the purpose of the Political Reform Act is “to prevent corruption of the political process.” In order that voters are informed of who makes political contributions to candidates, campaign contributions must be reported. Large contributors are required to report their political campaign contributions.

The Agua Caliente Band of Cahuilla Indians (the Tribe) are huge contributors to political campaigns. In 1998 alone, the Tribe contributed $7.5 million to various political campaigns. In 2002 the Tribe made substantial political contributions supporting Proposition 51, which would have financed a passenger rail line from Los Angeles to Palm Springs, where the Tribe operates a casino. If it is the casino I saw, it ranks as one of the ugliest buildings ever built. Not unlike the tribe casino in Colusa.

The FPPC sued the Tribe for failure to comply with California’s political campaign reporting requirements.

The Tribe did not dispute the power of the state to regulate political campaigns nor that it is generally subject to campaign laws. However, the Tribe defended claiming that the state may not sue to enforce those regulations because as a federally recognized Indian tribe, it is immune from suit under the doctrine of tribal sovereign immunity.

The great State of California claimed that to apply the tribal sovereign immunity doctrine would interfere with the state’s electoral and legislative processes and republican form of government guaranteed to the states under the United States Constitution. The trial court and Court of Appeal ruled for the FPPC. Goliath won rounds one and two.

The California Supreme Court recited the general rule that although Indian tribes are not immune from lawsuits filed against them by the United States, Indian tribes’ sovereign status affords them immunity from state jurisdiction.

While the Court confirmed that states may not interfere with a tribe’s contracts or commercial ventures or its courts or have anything to do with tribal lands, the justices concluded that because maintaining the integrity of elections is vitally important to California’s republican form of government, the tribal sovereign immunity doctrine must yield.

In a 4-3 decision, the California Supreme Court granted California a “narrow exception” to the tribal sovereign immunity doctrine, allowing the state’s FPPC to sue the Agua Caliente Band of Cahuilla Indians for violation of state election laws.

The three dissenting justices explained the unique historical circumstances under which the doctrine of tribal immunity arose. The tribes were not at the Constitutional Convention where the states allowed one state to sue another, thus unlike the states, tribes may be sued by states only when Congress authorizes. And Congress has not authorized a state to sue an Indian tribe ” even for something as important as violating a state election law. The Tribe should prevail.

In his dissent Justice Moreno concluded: “The ideal of Indian tribal sovereign immunity and federal protection has existed side-by-side with the reality of Indians massacred and dispossessed from their land by state and private interests, or more recently, of Indians living in poverty as second-class citizens … if the doctrine of tribal sovereign immunity needs to be modified … federal law teaches that it is Congress, not the states, that is constitutionally delegated and historically assigned the task of making that modification … “

Goliath triumphs over the little but quite powerful Tribe. The U.S. Supreme Court may be the final decider.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at or at the firm’s Web site,

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