Download PDF

Relying upon the Tenth Amendment and the Guarantee Clause of the U.S. Constitution, the California Supreme Court has found that tribal sovereign immunity does not bar a suit brought in state court against an American Indian tribe for violations of the state’s Political Reform Act (“PRA”).1 In Agua Caliente Band of Cahuilla Indians v. Superior Court,2 a 4-3 decision authored by Associate Justice Ming Chin,3 the court upheld the ability of the state’s Fair Political Practices Commission to pursue the Agua Caliente Band of Cahuilla Indians in state court for alleged violations of the state’s campaign contribution disclosure laws. As a matter of first impression, and one with few precedents to draw on, the court concluded that the exercise of state sovereignty in the form of regulating its electoral process is protected under the Tenth Amendment and the Guarantee Clause, trumping the tribe’s federal common law immunity from suit.

Settlement of Case Before Petition of Certiorari in U. S. Supreme Court

On July 12, 2007, the Fair Political Practices Commission and the tribe announced a settlement of the case,4 wherein the tribe will not seek a petition for certiorari in the U.S. Supreme Court, leaving the California Supreme Court decision intact. Additionally, while not admitting any intentional violations of the Political Reform Act, the tribe will now be legally considered a “person” subject to the provisions of the Act, and waives its sovereign immunity with respect to the enforcement of any future violations of the Act. 

Background of PRA and Tribal Political Activity in State Elections

Seeking to prevent corruption of the political process, California voters in 1974 adopted by initiative the Political Reform Act (PRA), which, among other things, designated the Fair Political Practices Commission (FPPC) to enforce its provisions.5 Citing in its findings the increased influence attributable from large contributions from wealthy sources,6 the PRA requires, among other things, that “[r]eceipts and expenditures in election campaigns... be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited.”7  

In October 2002, the FPPC sued the Agua Caliente Band of Cahuilla Indians, a federally-recognized Indian tribe,8 alleging the tribe made substantial campaign contributions to California political campaigns without reporting them under the requirements of the PRA.9 The complaint alleged that the tribe failed to report political campaign contributions totaling more than $7,500,000 in 1998, $175,250 in the first half of 2001, and $426,000 in the first half of 2002.10 The complaint also alleged other violations of the PRA, including the tribe’s failure to report lobbying interests, late contributions of more than $1 million, and failure to file required semiannual campaign statements.11 The complaint sought monetary penalties and an injunction ordering the tribe to file the PRA’s required disclosure statements.

The tribe moved to quash the service of summons for lack of personal jurisdiction, relying upon tribal sovereign immunity from suit.12 The trial judge denied the motion, believing that to apply sovereign immunity would intrude upon the state’s exercise of its reserved power under the federal Constitution’s Tenth Amendment to regulate its electoral and legislative processes, and would interfere with the republican form of government guaranteed to the state under article IV, section 4 of the U.S. Constitution.13

Following the trial court’s decision, the tribe sought in the state court of appeal a peremptory writ of mandate directing the trial court to vacate its ruling denying its motion to quash service.  Ultimately, following an initial denial in the court of appeal, subsequent writ to the California Supreme Court and transfer back to the court of appeal, the latter court decided on the merits against the tribe’s motion for a writ of mandate on the merits.14 It agreed with the trial court that the state’s efforts to preserve its republican form of government from corruption implicated both the Guarantee Clause and its reserved rights under the Tenth Amendment, and that those interests outweighed the tribe’s claim to sovereign immunity from suit. The court also agreed with the FPPC that resort to a judicial remedy is necessary to enforce the PRA, and that rules or procedures required to protect constitutional rights may themselves be given “constitutional stature.”15 The California Supreme Court granted the tribe’s petition for review on the tribal sovereign immunity question and issued the opinion discussed here, affirming the court of appeal’s decision.

Before the California Supreme Court, the tribe did not dispute the power of the state to regulate political campaigns under the PRA, or that it is generally subject to those regulations. Instead, the tribe simply asserted that the state was barred from suing the tribe without its consent to enforce those regulations.16 It relied heavily upon the U.S. Supreme Court’s decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies17 (“Kiowa Tribe”), where the High Court upheld tribal immunity from suit where it related to an off-reservation activity. The tribe also disputed the applicability of the FPPC’s Tenth Amendment and Guarantee Clause arguments, relying on City of Roseville v. Norton18 and Carcieri v. Norton,19 in which the federal district courts held that the federal Department of the Interior’s placing a parcel of land into a trust for an Indian tribe did not violate the Tenth Amendment. The FPPC, in turn, contended that the doctrine of tribal sovereign immunity is a federal common law doctrine, not constitutionally compelled, that does not give the tribe the power to interfere with state sovereign power over state elections.20

The Basis of Tribal Sovereign Immunity

The California Supreme Court analyzed in depth the origin and scope of the doctrine of tribal sovereign immunity, acknowledging the historical and juridical foundation of the doctrine.21 As is done in most analysis of federal Indian law, the court looked to key principles of Indian sovereignty, first articulated by U.S. Chief Justice John Marshall in, among others, Cherokee Nation v. Georgia22 and Worcester v. Georgia,23 two of the wellknown early “trilogy” of Indian cases that also includes Johnson v. M’Intosh.24 In Cherokee Nation, Chief Justice Marshall recognized that, while Indian tribes were not foreign countries within the meaning of the Constitution, they possess sovereignty as a state, but are subject to the dominion of the United States.25 The Chief Justice described tribes as “domestic dependent nations,” rather than “foreign states,” and consequently denied the Cherokee’s motion for an injunction to prevent the State of Georgia from executing certain acts in the territory of the Cherokee Nation.26 In Worcester, the State of Georgia sought to extend its law to the Cherokee Nation. There, the Chief Justice recognized the tribes had been treated as distinct political communities under the protection and dominion of the United States, with territorial and governance rights with which no state could interfere.27

The California Supreme Court observed that in Kiowa Tribe28 tribal sovereign immunity from suit was a concept developed “almost by accident” in Turner v. United States.29 The court noted that tribal immunity was then elevated from dictum in Turner to holding in United States v. United States Fidelity & Guaranty Co.,30 where the High Court held that, as sovereigns or quasi-sovereigns, a suit against an Indian tribe must fail absent the tribe’s consent to be sued.31 The court further explained and acknowledged the accepted rules of tribal sovereign immunity.32 In looking to cases concerning the enforceability of a state statute regulating Indian affairs, the court noted that the modern approach is a preemption analysis, involving a balancing of “state, federal and tribal interests.”33 As a practical matter, listing in the Federal Register as a federally-recognized tribe grants a tribe immunity from unconsented suit, by virtue of the federaltribal relationship.34

The court next examined and rejected the arguments of the tribe that sovereign immunity has a constitutional basis simply because the federal constitution provides Congress with plenary power over Indian affairs.35 First, the court rejected the notion that the “Indian Commerce Clause” of article I, section 8 of the Constitution provides a basis for tribal sovereign immunity, noting that the power there is granted to Congress, and Congress has not granted the tribe immunity from this suit. The court also noted that the PRA involves no interference with activity, commercial or otherwise, or sovereign functions on or near the tribe’s reservation.

The court also rejected the Treaty and Supremacy Clauses of the Constitution as a basis for tribal sovereign immunity, noting Congress has not had the power to negotiate treaties under the constitutional provision since 1871, and that there is no treaty with this tribe.36 The court acknowledged that the Supremacy Clause may serve as a basis for preemption of state law where it conflicts with federal common law in the realm of Indian affairs, but agreed with the court of appeal that the Supremacy Clause tells us that federal law trumps state law. According to the court, “it does not provide textual support for the adoption of that law [meaning tribal sovereign immunity] in the first place.”37

Finally, in discussing tribal sovereign immunity, the court treats at length the U.S. Supreme Court’s decision in Kiowa Tribe. In that case, the High Court addressed the issue whether recognized Indian tribes enjoy immunity from suit on contracts, regardless of whether those contracts were made on or off a reservation, or involved governmental or commercial activities.38 The High Court stated as “a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit of the tribe has waived its immunity.”39 While doubting the wisdom of the policy, the Court in an opinion authored by Justice Anthony Kennedy observed that the Court has sustained sovereign immunity, without drawing a distinction based on where the tribal activities occurred,40 and upheld the bar against suit to enforce an “off-reservation” debt. The Court also made clear the doctrine was one of federal, not constitutional, law.41  

The California Supreme Court placed considerable stock in the U.S. Supreme Court’s declarations of doubt about the continued viability of the doctrine (which is one reason why the tribe may have settled this case before petitioning for certiorari). The court quoted Kiowa Tribe for the notion that the doctrine “extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians.”42 Nonetheless, Kiowa Tribe upheld the doctrine, stating that Congress is in a “position to weigh and accommodate the competing policy concerns and reliance interests.”43 In the Kiowa Tribe dissent, Justice Stevens, joined by Justices Thomas and Ginsburg, noted that the rule is anomalous in that it allows the tribes to enjoy “broader immunity than the States, the Federal Government, and foreign nations.”44

The States’ Reserved Power under the Tenth Amendment and the Guarantee Clause

Addressing the FPPC’s contentions, the California Supreme Court next developed how the federal Constitution’s article IV, section 4 guarantee to the states45 and the reserved powers granted to the states under the Tenth Amendment46 serve as constitutional limitations on Congress’ plenary powers under the Commerce Clause of article I, section 8, clause 3 of the federal constitution. The court noted that in the past the High Court had read the Tenth Amendment less as a cap on congressional power and more as a “truism.”47 The revitalization of the Tenth Amendment briefly came with National League of Cities v. Usery,48 where the High Court concluded the Amendment served as an affirmative limit on congressional power and sheltered “the States’ freedom to structure integral operations in areas of traditional governmental functions.”49 However, less than ten years later the high court overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority,50 holding that the protection of state sovereignty “lies instead in the structure of the Federal Government,” rather than in the Tenth Amendment.51 Garcia looked to the Constitution’s giving states equal representation in the Senate and allowing states to choose Senators and electors.52

The California court observed that the trend after Garcia changed again with the decisions in Gregory v. Ashcroft53 and New York v. United States.54 Relevant here, Gregory upheld the state’s right to prescribe a mandatory retirement age for the appointed judges, relying on the states’ power to determine the qualifications of their governmental officials derived from both the Tenth Amendment and the Guarantee Clause of article IV, section 4. The Supreme Court noted the state action reflected the “unique nature of state decisions that ‘go to the heart of representative government.’”55 As such, the California court noted Gregory stands for the notion that the Tenth Amendment and the Guarantee Clause provide an important check on Congress’ ability to interfere with the states’ “substantial sovereign powers under our constitutional scheme.”56

Finally, the California Supreme Court observed that the “Supreme Court may be poised to recognize a new meaning of the guarantee clause: a promise by the national government to avoid interfering with state governments in ways that would compromise a republican form of government.”57 In responding to the tribe’s assertion that the Tenth Amendment and Guarantee Clause have never been applied to uphold a state’s enforcement of a state election provision against a sovereign tribe, the California court found that to date no court has held that the federal common law doctrine of tribal sovereign immunity trumps state authority when a state acts in political matters firmly within its constitutional prerogatives. In fact, allowing the tribe immunity from suit in this context, the court said, would allow the tribes to participate in elections and make campaign contributions unfettered by regulations designed to ensure the system’s integrity, “leaving the state powerless to effectively guard against political corruption and putting the state in an untenable and indefensible position without recourse.” Accordingly, the court concluded that the Guarantee Clause, together with the rights reserved under the Tenth Amendment, provide the state and the FPPC authority under the federal constitution to bring suit against the tribe in its enforcement of the PRA. The court came to this conclusion in light of “evolving United State Supreme Court precedent” and the constitutionally significant importance of the state’s ability to “provide a transparent election process with rules that apply equally to all parties who enter the electoral fray.”

The court rejected the tribe’s arguments that alternatives to suit, such as examining recipient disclosure reports, pursuing a state-tribal agreement, or petitioning Congress for a change, would have any efficacy. Recipient disclosure reports, for example, may not reveal independent expenditures made on behalf of a candidate or ballot measures. The court concluded that preserving the integrity of the state’s democratic system of governance is too important to compromise with weak alternative measures.

A dissenting opinion authored by Justice Carlos Moreno, joined by Justices Kennard and Werdegar, opined that Congress is aware of, and has failed to weaken, the bounds of tribal sovereign immunity. The dissenters also argued that the only recognized limitations on federal power over the states with any basis in the Tenth Amendment has been the restriction of congressional legislation what would compel a state to enact or administer a federal regulatory program. The dissenters argued no such commandeering is at issue here, and that the majority goes too far with the scope of Gregory v. Ashcroft. The dissenters also suggested that the reporting of political campaign contributions presents no more a significant state interest than collecting taxes, an area where tribal sovereign interests have prevailed against the states. Finally, the dissenters appealed to the ideal of tribal economic and political power protected by the ideal of tribal sovereignty, to be adjusted only by Congress and not the states.

 

Endnotes

1 Calif. Gov. Code (“GC”), § 81000 et seq.

2 40 Cal.4th 239, 148 P.3d 1126 (2006).

3 Justice Chin was joined by Chief Justice George, and Justices Baxter and Corrigan.

4 See FPPC announcement, at http://www.fppc.ca.gov/index.html?id=48&show=detail&prid=653.

5 GC § 81000.

6 GC § 81001; see 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law § 272, pp. 432-433.

7 GC § 81002, subd. (a); see also, Fair Political Practices Com. v. Suitt (1979) 90 Cal.App.3d 125, 132.

8 25 U.S.C. § 479a-1.

 9 40 Cal.4th at 244.

10 Id.

11 Id. The Court noted that one of the unreported contributions alleged to have been made by the tribe in March 2002 went to a committee supporting Proposition 51, a statewide ballot initiative that failed at the ballot. It would have authorized $15 million per fiscal year for eight years to fund several projects, including a passenger rail line from Los Angeles to Palm Springs, where the tribe operates a casino.

12 40 Cal. 4th at 244-245.

13 Id. at 245.

14 Id. at 245-246.

15 Id.

16 Id. at 246.

17 523 U.S. 751 (1998).

18 219 F.Supp.2d 130 (D.D.C. 2002).

19 290 F.Supp.2d 167 (D.R.I. 2003).

20 40 Cal.4th at 246.

21 Id. at 246-250.

22 30 U.S. 1 (1831).

23 31 U.S. 515 (1832).

24 21 U.S. 543 (1823).

25 30 U.S. at 19.

26 Id. at 17, 20.

27 31 U.S. at 549-561.

28 523 U.S. at 756 (standing for notion that Indian nations are exempt from suit without congressional authorization).

29 248 U.S. 354 (1919); the California Supreme Court observed that Turner involved a suit for damages by a non-Indian who had purchased tribal members’ grazing rights. There, “for the sake of argument,” the high court made a “passing reference to immunity.” (Kiowa, 523 U.S. at 757.)

30 309 U.S. 506 (1940).

31 The court cited also Kiowa Tribe, supra note 28, at 757; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); Puyallup Tribe, Inc. v. Dept. of Game of Washington, 433 U.S. 165, 167, 173-173 (1977).

32 See, e.g., Cohen, Handbook of Federal Indian Law (2005 ed.) § 7.05 [1][a], 636.

33 White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980); see also, Three Affiliated Tribes v. Wold Engineering, P.C., 476 U.S. 877, 884 (1986).

34 67 Fed.Reg. 46, 328 (July 12, 2002).

35 40 Cal.4th at 249.

36 Id. at 249-250.

37 Id. at 250.

38 523 U.S. at 755-754.

39 Id. at 754.

40 Id.

41 Id. at 758.

42 Id. at 758, citing Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973).

43 Id. at 759.

44 Id. at 764 (Stevens, J., dissenting)

45 Article IV, section 4 of the United States Constitution states that “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”

46 The Tenth Amendment to the United States Constitution reserves: “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states....”

47 Citing United States v. Darby, 312 U.S. 100, 124 (1941).

48 426 U.S. 833 (1976).

49 Id. at 852.

50 469 U.S. 528 (1985).

51 Id. at 550.

52 Id. at 579 (Rehnquist, J., dissenting).

53 501 U.S. 452 (1991).

54 505 U.S. 144 (1992).

55 501 U.S. at 461, citing Sugarman v. Dougall, 413 U.S. 634, 647 (1973).

56 Id. at 461.

57 Citing analysis from several scholars, including Professor Deborah J. Merritt, in Republican Governments and Autonomous States: A New Role for the Guarantee Clause, 65 U. Colo. L.Rev. 815, 821-822 (1994).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.