e-Bulletin: California Indian Tribes Subject to Limits on Political Contributions, a Sign of Reduced Deference to Tribal Sovereign Immunity

Indian tribes in California, many flush with cash from their casinos, are now subject to the same limits on political contributions as everyone else, said the California Supreme Court on December 21, 2006.

By a four to three vote, the Court rejected an appeal by the Agua Caliente Band of Cahuilla Indians, a major political donor, and ruled that tribes can be sued for failing to report their contributions under the state's campaign finance laws.  This is a significant erosion of Indian claims to sovereign immunity, which normally prevents suits against tribes unless they consent or Congress has created an explicit exception.

The court said that state sovereignty trumped tribal sovereignty because the Tenth Amendment and the “guarantee clause” of the U.S. Constitution give the state an overwhelming interest in regulating its electoral process.

The Agua Caliente Band has asked the Court to reconsider its decision.  If it fails to win a rehearing, or if it loses again, it could appeal to the U.S. Supreme Court.

The U.S. Supreme Court, meanwhile, has itself chipped away at Indian sovereignty in the last few years.  In County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation (1992) 502 U.S. 251; Cass County, Minnesota, et al., v. Leech Lake Band of Chippewa Indians (1998) 524 U.S. 103; and City of Sherrill v. Oneida Indian Nation of New York (2005) 544 U.S. 197), the Supreme Court has emphasized that, for example, a local public entity may tax property owned by a Tribe.

Tribal sovereign immunity is not part of the United States Constitution, and has never been enacted into law by Congress, but is purely judge-made law.  So these recent decisions make a big difference in how Indian tribes are treated.