Brigham Young University Law Review: Tribal Immunity from California's Campaign Contribution Disclos

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

Part II of this Comment introduces the doctrines of tribal sovereignty and tribal immunity from suit, providing an explanation of their origins and their current status. Part II also provides an introduction to the PRA and its subsequent disclosure requirements.18 Part III discusses the cases recently reviewed in California superior court and their holdings. Part IV addresses the question of whether a federally recognized Indian tribe is immune from suits brought by state agencies to enforce campaign disclosure requirements. Specifically, Part IV analyzes whether the lack of a specific federal law providing immunity from suit to tribes for their activities in state electoral processes forecloses the doctrine of tribal immunity, and whether the Tenth Amendment and Guarantee Clause serve as an explicit waiver by the federal government to tribal immunity from suit for participation in state elections. While concluding that tribal immunity precludes suit against tribes for their failure to comply with disclosure requirements, Part IV also identifies how the purposes of the disclosure requirements can still be met while recognizing tribal immunity. Part V provides a brief conclusion.

II. BACKGROUND

A. The Doctrine of Tribal Sovereignty

1. The development of tribal sovereignty

Traditional notions of tribal sovereignty in the United States date to early decisions of the Supreme Court concerning whether tribes possessed the ability to transfer title to property after the establishment of authority and laws in the United States.19 In Johnson v. McIntosh, Chief Justice Marshall noted that while the tribes retained some rights to sovereignty after discovery, the establishment of law and exercise of authority in the Americas led to a necessary impairment of the historic tribal rights in land.20 Thus, while Marshall characterized the tribes as sovereigns in Johnson v. McIntosh, that characterization was left unclear by his suggestion that the tribes' sovereignty was incomplete.21

The Court added definition to its characterization of the tribes as sovereigns ten years later in Cherokee Nation v. Georgia,22 in which the Court examined the "condition of the Indians in relation to the United States."23 In defining their relationship to the United States, the tribes characterized themselves as foreign nations owing no allegiance to the United States.24 The Court, however, rejected this characterization for several reasons. First, because the tribes were "within the jurisdictional limits of the United States," the Court held it would not be proper to characterize them as foreign.25 Second, the treaties between the tribes and the United States placed the tribes under the protection of the United States.26 Finally, the tribes admitted that "the United States [has] the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper."27 Thus, instead of characterizing the tribes as foreign nations, the Court instead characterized the tribes as "domestic dependent nations."28 This characterization enforced the notion of tribes as "distinct political societ[ies], separated from others, capable of managing [their] own affairs and governing [themselves]," while still recognizing that the tribes were not nations independent from the United States and its laws.29

In a further explanation of the relationship between the tribes and the United States, Chief Justice Marshall noted in Worcester v. Georgia30 that the combined acts of the United States government "consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States."31 This explanation expanded the notion of tribes as domestic dependent nations by providing that tribes possess some level of exclusive authority within their tribal boundaries.32

This recognition of exclusive authority included a separation between tribes and the states. Marshall noted that "[t]he treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the Union."33 This separation of tribes from the states was grounded largely in the language of Article I of the Constitution, which gives Congress authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."34 The Court reasoned that this language "comprehend[s] all that is required for the regulation"35 of the tribes, and therefore "[t]he whole intercourse between the United States and [Indian tribes], is, by our constitution and laws, vested in the government of the United States."36 This separation of tribes from the states was used by the Court to shield tribes from attempts by state legislatures to regulate conduct within tribal boundaries.37

2. The modern doctrine of tribal sovereignty as it relates to nonmembers on Indian land

Since Worcester, federal case law has chipped away at the notion that tribal sovereign immunity serves as a complete prohibition to the exercise of jurisdiction by states over tribes and conduct on tribal land.38 In 1973, the Court recognized that "the doctrine [of tribal sovereignty] has undergone considerable evolution in response to changed circumstances."39 The Court explained this evolution by suggesting that "notions of Indian sovereignty have been adjusted to take account of the State's legitimate [business] interests in regulating the affairs of non-Indians."40 This adjustment resulted in the Court granting states some rights over the nonmembers on Indian land so long as the state did not "infringe[] on the right of reservation Indians to make their own laws and be ruled by them."41

Instead of treating tribal sovereignty as an absolute bar to state jurisdiction over any conduct occurring on the reservation and any conduct of Indians off the reservation, Justice Thurgood Marshall noted that the "trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption."42 The trend towards preemption allowed the doctrine of tribal sovereignty to remain a "relevant" doctrine so long as it was used to "provide[] a backdrop against which the applicable treaties and federal statutes must be read."43 Preemption analysis, however, meant that the doctrine was not relevant to provide "definitive resolution" on questions of state jurisdiction.44 The Court's characterization of tribal sovereignty as merely a backdrop against which treaties are considered has "alter[ed] the presumption that the tribe has governmental power over all matters affecting the tribe on the reservation, and that the state does not."45

The doctrine of federal preemption, as currently recognized by the Court, indicates that "State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority."46 Thus, under a preemption analysis, state law may preempt tribal interest in self-government if the state can demonstrate that its interest outweighs the tribe's interest in self-government.47 Even with respect to nonmembers on Indian land, this is not an easy balancing test for states to win.48 The preemption analysis, then, operates to provide states with jurisdiction over nonmembers on Indian land only when the state can demonstrate a substantial interest in regulating conduct on Indian land and only if that interest outweighs the tribe's interest in self-government.49

3. Determining when states are authorized to regulate tribes and tribal members

The federal preemption analysis, which the Supreme Court has used to determine those situations in which states are authorized to regulate non-Indians on Indian land, has not been used to determine when states are authorized to regulate tribes themselves and tribal members. Indeed, the Supreme Court has been reluctant to minimize tribal authority to regulate its own conduct and the conduct of its members, particularly when that conduct occurs on the tribe's land.50

Unlike situations involving the state's ability to regulate nonIndians on Indian land, the Court has not adopted a balancing test to determine those situations in which states are empowered to regulate tribes and tribal members. Instead, the Court reviews state attempts to regulate tribal conduct under more traditional notions of tribal sovereignty.51 With these traditional notions serving as the measuring stick, those situations in which states have been granted authority to regulate tribes themselves are rare, especially when states are attempting to regulate tribes and their members on reservation land. Indeed, the Court has stated that only under "exceptional circumstances [may] a State . . . assert jurisdiction over the on-reservation activities of tribal members."52 And while noting that exceptional circumstances exist in which states may regulate conduct of tribes or tribal members on reservations, the Court has provided no suggestion of the circumstances which would allow states to satisfy this test.53

Thus, under the doctrine of tribal sovereignty, tribes and tribal members enjoy a general immunity from state regulation for on-reservation conduct, unless a state can satisfy the "exceptional circumstances" test.54 For example, with respect to state attempts to tax reservation land or Indian income generated from activities carried on within the reservation, the Court has held that "Indian tribes, like the Federal Government itself, are exempt from direct state taxation and that this exemption is 'lifted only when Congress has made its intention to do so unmistakably clear.'"55 As a result, tribes are immune from state attempts to regulate income from on-reservation property or income-generating activities.56

While the Court has been unwilling to grant a general presumption that all "on-reservation activities involving a resident tribe are . . . beyond the reach of state law"57 the Court has "consistently admonished that federal statutes and regulations must be 'construed generously in order to comport with . . . traditional notions of [Indian] sovereignty and with the federal policy of encouraging tribal independence.'"58 The Court, however, has been more willing to grant to states the right to regulate the conduct of tribes or their members when that conduct occurs off the reservation.59 For example, the Court in Mescalero Apache Tribe v. Jones held that the State of New Mexico was authorized to impose a tax on sales receipts the Tribe earned from its operation of a ski-resort on off-reservation land leased from the federal government.60 In reaching its decision, the Court noted that "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State."61 As a result, traditional notions of tribal sovereignty as a bar to immunity from state regulation have been weakened when the conduct at question takes place off-reservation.

Supreme Court jurisprudence, then, suggests that for the PRA to apply to California tribes, the court must determine whether the tribal conduct (campaign donations) occurred on or off the reservation. If the conduct occurred off-reservation, the state will likely be required to demonstrate that the requirements are applicable to all state citizens. If the conduct occurred on-reservation, the state will likely be required to satisfy the "exceptional circumstances" test.

B. Tribal Immunity from Suit

Even if a court were to determine under either a preemption analysis or under the "exceptional circumstances" test that states are authorized to regulate tribal conduct, states may still be helpless to enforce their applicable regulations. Under the doctrine of tribal immunity, tribes enjoy common law immunity from suit by states.62 This protection was recognized by the courts as a natural extension of the powers vested in a sovereign and "necessary to protect nascent tribal governments from encroachments by States."63

Unlike immunity from regulation, tribal immunity from suit extends to tribal activities taking place both on and off the reservation.64 Additionally, the scope of conduct covered by the immunity has been extended to areas not relating directly to tribal self-government, such as off-reservation commercial conduct or noncompliance with state and local laws.65

In fact, the Court recently recognized tribal immunity from suit where state laws were validly imposed against tribes. In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., Manufacturing Technologies sought damages for the Tribe's default on a contract entered into off-reservation.66 Because the contract was entered into outside the reservation, the Tribe was not immune from application of the state contract laws under the canon of cases that provides for the application of state substantive law to a tribe's commercial activities occurring off-reservation.67 But while the Tribe was subject to the requirements of the state substantive law, the Court recognized that the Tribe was immune from enforcement actions under the doctrine of tribal immunity from suit.68 The Court held that "[t]ribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Congress has not abrogated this immunity, nor has petitioner waived it, so the immunity governs this case."69 Thus, while the Court has refused to extend tribal immunity from regulation in many situations to tribal conduct occurring off-reservation,70 tribal immunity from suit extends to cover conduct occurring both on- and off-reservation.

Under the doctrine of tribal immunity, "a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."71 Thus, unless Congress has abrogated immunity, or the tribe has waived it, the doctrine of tribal immunity prevents state enforcement actions against tribes, even if the state is authorized to regulate the tribe. Moreover, courts require that any tribal waiver be explicit, and will not imply any waiver from a tribe's conduct.72 For example, the Supreme Court recently determined that a tribe that filed a civil action had not waived its immunity from counterclaims arising out of the same scenario.73

Similarly, congressional abrogation must also be explicit.74 In Santa Clara Pueblo v. Martinez, a female member of the Santa Clara Pueblo Tribe brought an action claiming that an ordinance denying tribal membership to children of female members who do not many within the Tribe, while at the same time extending tribal membership to children of male members who many outside the Tribe, violated the Indian Civil Rights Act of 1986 (ICRA).75 Martinez claimed that the ordinance violated a provision in the ICRA which made it unlawful for tribes to "deny to any person within its jurisdiction the equal protection of its laws."76 The Tribe asserted immunity from suit. Though the Court recognized that Congress theoretically had the power to abrogate tribal immunity in cases arising under the ICRA, because the Court found no explicit language to that effect, it concluded that tribal immunity from suit still existed in these cases.77

While a tribe's ability to both file suit and rely on the doctrine of immunity to protect itself against suits arising out of the same scenario may seem inequitable, Congress and the courts have been unwilling to provide many loopholes to the broad purview of tribal immunity from suit. Though the Court has recognized "reasons to doubt the wisdom of perpetuating the doctrine," and has hinted that it might "need to abrogate tribal immunity, at least as an overarching rule,"78 it has yet to provide any general exceptions to the traditional understanding of tribal immunity from suit and has continued with its general application of the doctrine.79 The Court has been unwilling to base decisions on competing policy considerations, preferring instead to leave that debate to Congress.80

Thus, even if tribal immunity from regulation does not shield tribes from compliance with the requirements of the PRA, California will be unable to enforce those requirements in state court unless either the tribe or Congress has expressly abrogated tribal immunity from suit in this situation.

C. The Political Reform Act of 1974

The Political Reform Act of 1974 was adopted to ensure that public officials serve in an "impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them."81 Because the legislature determined that the then-existing disclosure requirements increased the influence of large campaign contributors, new disclosure requirements were adopted.82 The Act identifies the following as its purposes:

(a) Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited.

(b) The activities of lobbyists should be regulated and their finances disclosed in order that improper influences will not be directed at public officials.

(c) Assets and income of public officials which may be materially affected by their official actions should be disclosed . . . .83

The Act is essentially a reporting act, requiring both candidates and contributors to report contributions made and received. With respect to contributors, the Act requires that "committees" make disclosures of their campaign contributions.84 Committees are defined by statute as "any person or combination of persons who directly . . . makes contributions totaling ten thousand dollars ($10,000) or more in a calendar year to or at the behest of candidates or committees."85 Each committee is required semiannually to submit reports called campaign statements if they have made contributions or independent expenditures during the six-month period before the date on which the report must be filed.86

On the campaign statement, committees are required to disclose every contribution or independent expenditure made during the period equaling one hundred dollars ($100) or more.87 This report must provide the name of the candidate, the candidate's address, the amount of the contribution, the date on which the contribution was provided, the cumulative amount of contributions made to the candidate, and the office and district for which the candidate seeks nomination or election.88

The Act also imposes reporting requirements for lobbying expenses. Any person who makes direct or indirect payments of $5,000 or more in a calendar quarter "to influence legislative or administrative action" must file periodic reports.89 This report must contain the name of the lobbyist employed by the filer, the total amount paid to each lobbying firm, the total amount of all payments to lobbyists employed by the filer, and a description of the specific lobbying interests of the filer.90

Regulation of the Act falls to the FPPC, which has "primary responsibility for the impartial, effective administration and implementation of this title."91 The FPPC's broad mandate includes the power to investigate possible violations of the Act and to hold hearings to determine if violations have occurred.92 It is under this authority that the Agua Caliente and Santa Rosa Community cases arose.

III. CALIFORNIA CASES TESTING THE APPLICABILITY OF TRIBAL IMMUNITY FROM SUIT UNDER THE PRA

A. Fair Political Practices Commission v. Agua Caliente Band of Cahuilla Indians93

1. The facts

In October of 2002, the FPPC brought suit against the Agua Caliente Band of Cahuilla Indians (hereinafter "Agua Caliente")94 for violation of the Political Reform Act's campaign disclosure and lobbying disclosure requirements. The FPPC claimed that the Tribe made sizable contributions in 1998, 2001, and 2002 without disclosing the contributions.95 The size of the contributions qualified the Tribe as a major donor committee required to file semiannual reports detailing all political contributions.96 The Tribe, however, filed no reports with the FPPC and furthermore, according to the FPPC, did not report funds paid to a lobbying firm contracted to influence legislative actions.97 Representatives from the election enforcement committees of several states joined with the FPPC in arguing that states possess the ability to both regulate and enforce campaign disclosure requirements on tribes living within the state's jurisdiction.98

The Tribe responded by bringing a motion to quash service of summons on the grounds that the court lacked personal jurisdiction as a result of tribal immunity.99 The ensuing lawsuit tested "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."100

2. The case in support of removing tribut immunity from suit under the PRA

The superior court ultimately concluded that the doctrine of tribal immunity does not shield tribes from suits for failure to disclose campaign contributions under the PRA.101 Accordingly, the court determined that it had the power to determine whether the Tribe was in violation of the Act.

In reaching its conclusion, the court recognized that neither the Tribe nor Congress had expressly abrogated immunity in this situation.102 Indeed, the court reaffirmed the Supreme Court's explicit statement that "an effective waiver of tribal immunity from suit must be clearly and unequivocally expressed."103 The court relied on this rule to conclude that the Tribe's voluntary participation in the state's political contests did not serve as an effective waiver of tribal immunity from suit.104 The court also rejected the FPPC's contention that tribal immunity from suit has been absolved in any situation in which a state seeks to regulate its political processes.105

But while the court recognized the Supreme Court's holdings allowing immunity to be abrogated only upon express waiver, and after finding that the Tribe provided no express waiver, the court nevertheless concluded that Agua Caliente was "not immune from the FPPC's action to enforce the PRA reporting requirements for its political contributions and legislative lobbying activities."106 Relying on the implications in Kiowa that the doctrine should not exist as a general rule,107 the court determined that the rule should not apply in this situation because "[n]o case has held that a tribe is immune from suit for activities that, instead of promoting tribal selfgovernance and development, are intended to influence a sovereign State's electoral and legislative processes."108 The court noted further that "[no] case suggests] that the federal common law of tribal immunity was meant to apply to a suit by the State to enforce its laws regulating all persons who seek to influence the State's political processes."109 Based on these perceived gaps in Supreme Court jurisprudence, the court chose to identify conduct affecting a sovereign state's electoral processes as a situation in which the doctrine of immunity from suit does not exist.

The court supported its conclusion on two grounds. First, the court cited the Supreme Court's holding in Mescalero Apache Tribe v. Jones that off-reservation Indians are, like other citizens, subject to all nondiscriminatory laws of the states.110 Under this doctrine the court reasoned that the Tribe would be subject to the nondiscriminatory PRA because the impact of the regulation reached beyond the reservation and did not relate specifically to tribal self-government.111

Second, the court concluded that tribal immunity from suit in this situation would violate rights reserved to the State by the Constitution. Specifically, the court found that recognizing tribal immunity in this situation would "intrude upon the State's exercise of its reserved power under the Tenth Amendment to regulate its electoral and legislative processes and would interfere with the republican form of government guaranteed to the State."112 The court contended that among the powers reserved to states under the Tenth Amendment and the Guarantee Clause was that of controlling the influence of wealthy interests in state elections.113 This reasoning was supported by reference to Buckley v. Valeo,114 in which the Supreme Court upheld federal campaign disclosure laws as an important tool in protecting the political process. The court applied the same reasoning to the PBA and concluded that the Act "must apply equally to all with no exceptions."115

Based on this reasoning, the court held that it was "empowered to exercise jurisdiction over the Tribe to decide the important issues raised in this case."116 In July of 2003, however, the California Supreme Court ordered an appeals court to reconsider the issue of whether tribes are protected by common law immunity.117

B. Fair Political Process Comm'n v. Santa Rosa Community of the Santa Rosa Rancheria118

1. The facts

The FPPC also brought a claim in October 2002 against the Santa Rosa Community of the Santa Rosa Rancheria Tribe (hereinafter "Santa Rosa")119 for violations of the PRA. The claim alleged that the Tribe contributed at least $125,000 in 1998 and $35,000 in 2000 to California political candidates and committees.120 As in Agua, Caliente, the FPPC argued that the size of the contribution qualified Santa Rosa as a committee under the PRA and subjected the Tribe to semiannual reporting requirements.121

Santa Rosa filed a motion to quash "on the ground that [the] court lacks jurisdiction over the Tribe pursuant to the federal common law of tribal immunity from suit."122 The Tribe's motion was heard by the superior court in early 2003.

2. The case against removing tribal immunity under the PRA

In March of 2003, a superior court judge ruled that, in contrast with the ruling in Agua Caliente, the Santa Rosa Tribe was immune from any suit brought under the Political Reform Act.123 Instead of focusing on whether the State's interest in protecting its political processes outweighs the Tribe's interest in tribal immunity from suit, the court focused exclusively on the doctrine of waiver. Like the court in Agua Caliente, the court refused to recognize the Tribe's participation in the State's political processes as an express waiver of tribal immunity.124

With respect to congressional waiver, the court reaffirmed the Supreme Court's position in Kiowa that any congressional waiver must be explicit.125 As a corollary, the court reasoned,

[Congressional silence regarding the immunity of Indian tribes from suits to enforce state law requirements for electoral campaign contributions cannot be construed as congressional acknowledgment of the States' right to bring such suits against the tribes in the exercise of the States' powers under the Tenth Amendment and the Guaranty [sic] Clause of the United States Constitution.126

The court concluded that tribal immunity from suit is available to tribes even in situations in which rights granted to a state might be minimized, unless Congress expressly abrogates the immunity.127 According to the court, "Congress . . . may exercise its plenary power over Indian affairs to approve, either by express enactment or by silence, common law tribal immunity from suits by the States . . . even though the immunity may hamper the States' exercise of its reserved powers under the Tenth Amendment."128

In reaching its conclusion, the court was "not unmindful" of the State's interest in protecting its political processes.129 Rather, the court recognized that California has a fundamental interest in protecting the State's political processes and that the PRA serves as an effective means of protecting those interests.130 In spite of these concessions, however, the court concluded that it must recognize the immunity from suit traditionally granted to tribes.

IV. A STATE'S INTEREST IN ITS ELECTORAL PROCESSES Is INSUFFICIENT TO ABROGATE TRIBAL IMMUNITY FROM SUIT

Continued from page 4.

The court in Santa Rosa reached the correct result. Tribal immunity protects tribes from suit under the Political Reform Act. Ague, Caliente incorrectly focused on a preemption analysis, which is appropriate only when deciding whether a state is authorized to regulate individual activity, and not when deciding whether a state has the right to enforce a regulation against a tribe or its members. Further, the Tenth Amendment and Guarantee Clause of the United States Constitution do not act as an explicit waiver of tribal immunity and, therefore, are not grounds for abrogating immunity. Finally, recognizing tribal immunity from suit does not lead to an undesirable result because recipients of campaign donations must also file disclosure statements that identify donors, including tribal donors.

A. The Court Reached the Wrong Conclusion in Agua Caliente by Incorrectly Relying on a Preemption Analysis to Abrogate Tribal Immunity from Suit

The court in Agua Caliente concluded that tribal immunity did not protect the Tribe from suit under the Political Reform Act because no case has applied the doctrine of tribal immunity to instances in which tribal conduct is designed to influence a state's political processes rather than promoting self-government.131 This reasoning suggests a balancing of interests by the court and a belief that states may properly regulate tribes when tribes are acting to influence a sovereign's political processes. While this assertion may be correct, it incorrectly focuses the question on regulation rather than enforcement.

The test for determining when states are authorized to regulate tribal conduct on Indian land132 is different from the test used to determine when tribal immunity from suit may be abrogated to allow states to enforce their regulations in state court.133 In determining those situations in which states are authorized to regulate tribal conduct on Indian land, the Supreme Court has recognized that tribal sovereignty must "take account of the State's legitimate interests in regulating the affairs of non-Indians."134 Courts, therefore, engage in balancing the competing interests of tribes in promoting self-government against state interests in regulating conduct within its borders to determine those situations in which states are entitled to regulate non-Indians on reservations. This balancing of interests, however, does not answer the question of whether tribes are immune from suit.

Rather than addressing the question of whether the state has authority to enforce tribal violations of the PRA, the court in Agua Caliente focused on the issue of whether the state has authority to regulate tribal campaign contributions.135 Under the Supreme Court's decision in Euckley v. Valeo, which concluded that states have a significant interest in protecting their political processes and ensuring that wealthy contributions do not influence political candidates, it is possible that California has authority to regulate tribal contributions from tribes intended to influence the state's political processes.136

But no matter how large the state interest, the question of tribal immunity has traditionally been one of waiver.137 While the court in Agua Caliente was correct that "[n]o case has held that a tribe is immune from suit for activities that, instead of promoting tribal self-governance and development, are intended to influence a sovereign State's electoral and legislative processes,"138 it is also correct that no court case (prior to Agua Caliente) has abrogated tribal immunity on the basis that a state has a significant interest in enforcing its regulations. Rather, as the court in Santa Rosa correctly noted, "the issue is resolved by federal case law recognizing tribal immunity from suits arising from particular tribal activities whenever Congress has not expressly abrogated the immunity or the tribe has not expressly waived its immunity from suit with respect to those activities."139

Tribal immunity cannot be abrogated by invoking a compelling governmental interest; it can only be abrogated by express congressional actions or waived by express tribal actions.140 While requiring express waiver may serve as an "unjustifiable impediment[] to the State's achievement of its sovereign interest in the integrity of its electoral processes . . . [,] [a]ny perceived inequity resulting from the application of tribal immunity to bar this action must be accepted."141 The Supreme Court has been unwilling to provide exceptions to its waiver requirements, choosing instead to leave competing policy concerns in the hands of Congress.142 Until Congress chooses to abrogate this immunity or until tribes provide express waiver of their immunity, courts should not engage in a balancing of competing interests to determine when tribal immunity from suit may be abrogated.

B. Neither the Tenth Amendment nor the Guarantee Clause Constitute an Express Waiver

The court in Agua Caliente also relied on the rights guaranteed to states by the Tenth Amendment and the Guarantee Clause of the Constitution in concluding that tribes are not immune from suit brought under the PRA.143 While the Tenth Amendment reserves to a state the power to regulate its legislative processes,144 and the Guarantee Clause grants to every state the right to a republican form of government,145 neither, as the court correctly noted in Santa, Rosa, serves as an explicit waiver of tribal immunity from suit.

The FPPC argued, and the A0ua Caliente court agreed, that "[w]cre the Tribe immune under federal law from judicial relief for violations of the PRA requirements, the State's exercise of its reserved power to regulate and preserve the integrity of its electoral . . . processes would be seriously compromised."146 Indeed, were immunity available to tribes for violating state campaign disclosure laws, states would lose the right to control completely their electoral processes. If such were the case, tribes would be allowed to make campaign contributions as they saw fit without having to report such contributions. Under the Supreme Court's Buckley analysis, failure to make tribes comply with these disclosure requirements would potentially interfere with a state's interest to inform its voters and ensure the integrity of its electoral processes.147

But while an inability to compel compliance with state campaign disclosure requirements might interfere with a state's compelling interest, that interference does not remove a tribe's immunity under the Supreme Court's requirement that removal of immunity must be explicit.148 No court has identified the Tenth Amendment or the Guarantee Clause as an explicit waiver of tribal immunity. Tribal immunity from suit has its roots in the Constitution, which grants to Congress "plenary power to control and define the sovereign activities and interests of Indian tribes."149 Congress has exercised this plenary power to grant to tribes a general immunity from suits by states. Consequently, "[s]tates have jurisdiction over tribal activities only as permitted by federal law even when tribal activities affect state sovereign powers, rights, and interest."150 While this immunity may conflict with powers vested in states by the Tenth Amendment and the Guarantee Clause, "the Supremacy Clause of the United States Constitution permits Congress to legislate even in areas traditionally regulated by the States as long as it is acting within the powers granted it under the Constitution."151 Consequently, some of the powers granted to the states by the Constitution may be diminished by congressional action. It is clear from the Court's recent recognition of tribal immunity that it does not see the Tenth Amendment as providing explicit waiver of tribal immunity in suits between tribes and states.152

As a result, neither the Tenth Amendment nor the Guarantee Clause serves as an exception to the general requirements of tribal immunity from suit. Instead, an acknowledgement of tribal immunity in cases brought under the PRA does not "impermissibly intrude upon the States' reserved powers under the Tenth Amendment and Guaranty [sic] Clause."153 While neither includes an explicit exception for tribal immunity from a state's reserved powers, this silence cannot serve as "congressional acknowledgment of the States' right to bring such suits against the tribes in the exercise of the States' powers under the Tenth Amendment and the Guaranty [sic] Clause of the United States Constitution."154 Because of the time and resources which would be required for Congress to explicitly identify every situation in which tribal immunity is applicable, such a requirement for determining whether tribal immunity is available would be unreasonable. Because of these congressional limitations, the Supreme Court's requirement that immunity be abrogated only upon express waiver is a more appropriate standard for determining when states may bring suit against tribes.

C. Immunity Does Not Prevent the Disclosure of Tribal Contributions

While removal of tribal immunity is unfounded when the FPPC is trying to enforce disclosure requirements against Indian tribes, such removal does not destroy the purpose of the Act, which is to provide California voters with a clear picture of a candidate's financial supporters.155

In addition to requiring that donor committees report contributions made to political candidates, the Act also requires that candidates or other recipients of tribal contributions report the contribution.156 Under section 84211 of the Act, candidates and others who receive contributions must report "[t]he total amount of contributions received during the period covered by the campaign statement and the total cumulative amount of contributions received."157 In addition to disclosing the amounts of any contribution, the Act requires that the candidate disclose the donor's name, address, and occupation.158 The Act makes no explicit exception for donations by Indian tribes.159

Thus, while the tribe is immune from prosecution to enforce the requirements of the Political Reform Act, disclosure of the extent of tribal influence on political candidates and processes is made available through mandatory disclosure requirements enforceable against candidates. The dual reporting requirements imposed upon both donor and donee achieve the same result, though in a different manner, as if the tribe were not immune from suit and were responsible for complying with the state's reporting requirements.160

If the purpose of the PRA is to ensure that voters are not misled in the election process by the hidden interests of a candidate or the invisible supporters of legislation, the source of the disclosure, whether tribe or candidate, is irrelevant. That the tribes themselves are not required to provide disclosures does not destroy these purposes; the dual disclosure requirements provide that all financial contributors to a candidate's campaign are disclosed by the candidate.161

With respect to tribal contributions, the real effect of tribal immunity from enforcement of the Political Reform Act is that a snapshot of all tribal contributions will only be available if the tribe chooses to voluntarily comply with the state disclosure requirements. Without this snapshot, voters will be required to look at individual disclosure requirements to determine which candidates and which causes individual tribes support. But because the information is available, albeit in a less manageable form through candidate disclosures, the purposes of the Act are still satisfied.

V. CONCLUSION

Protecting a state's interests in its own political processes by requiring individuals and organizations who donate to political candidates or causes to disclose their donations (rightfully) has been held to be an important governmental interest. The right to regulate these processes is entrusted to the states through the Constitution. This authority to regulate may serve as a limit to traditional notions of tribal sovereignty that the Supreme Court has recognized as inhering in Indian tribes.

But while states may have compelling interests in protecting their political processes, and while those interests may preempt tribal sovereignty and allow states to regulate tribal contributions, those interests do not allow states to enforce the regulations in state court. The doctrine of tribal immunity provides Indian tribes with a general shield against prosecution in state or federal court. This immunity is removed only when it is expressly waived either by Congress or the tribes. As the court in Santa Rosa correctly held, neither a state's compelling interests in protecting its political processes nor the Tenth Amendment nor the Guarantee Clause serve as an express waiver of tribal immunity for cases brought under the PRA.162

The policies of the Act, however, are not frustrated by recognizing tribal immunity. Because the state requires recipients of campaign contributions to disclose the names of donors and the amounts of any donations made, any influence that tribes may attempt to exert on California's political processes will be disclosed.163 Thus a tribe's interests in avoiding suit and the state's interest in protecting its processes are both protected by recognizing tribal immunity under the Political Reform Act.

Cameron A. Reese