Post by Okwes on Mar 27, 2007 14:27:43 GMT -5
Court decreed no tribal sovereign immunity
By Debra Gruszecki
The Desert Sun
January 6, 2007
As Gov. Arnold Schwarzenegger's inaugural festivities picked up steam Friday
in Sacramento, a California Supreme Court clerk in San Francisco quietly
stamped a petition to reconsider a 4-3 ruling that Indian tribes are bound by
state campaign finance disclosure rules.
The petition, filed shortly before 5 p.m. by the Agua Caliente Band of
Cahuilla Indians, as first reported on TheDesertSun.com, means the Palm Springs
tribe is not standing pat on the state's high court decision.
It also protects its right to take its case to the U.S. Supreme Court.
Tribal leaders and lawyers declined to comment on Friday's action.
The Agua Caliente tribe was told in the California Supreme Court ruling on
Dec. 21 that the state's Fair Political Practices Commission had the right to
sue the tribe in July 2002 under the Political Campaign Reform Act for
delaying or never filing state-mandated reports on $8.5 million in campaign
contributions and lobbying activities.
The contributions were made between 1998 and 2002.
In doing so, the court held its ruling that the doctrine of tribal sovereign
immunity from lawsuit did not apply in this realm.
The Agua Caliente, which posts contributions on its Web site, and contributed
at least $2.8 million in the last election to the Team 2006 political action
group, has said in the past that the decision impinges on its rights as a
sovereign nation.
Because it is a sovereign nation, the state of California requires the
approval of Congress to file a lawsuit against the tribe, the Agua Caliente tribe
has contended.
A California Supreme Court clerk said the tribe had 15 days from the date of
the ruling - until Friday - to file its petition for rehearing.
The decision is likely to be deemed final as of Jan. 20, unless the state
high court decides to reconsider its opinion. If the petition is granted,
another briefing stage is typically allowed.
If not, the next stop would be the U.S. Supreme Court, if the tribe chooses
to take that route.
Whitney Barazoto, a spokeswoman with the Fair Political Practices Commission,
said it was too late in the day to reach anyone to comment on the case but
expected a statement would be issued on Monday.
Michelle LaPena, a Sacramento-based attorney who handles tribal law, said she
would like to see the case overturned.
"It is a major departure from the body of law regarding tribal sovereign
immunity,'' she said. "The (California) Supreme Court finding that the election
laws are some unique category that is somehow supreme to the law of tribal
sovereign immunity is a major obstacle for tribes."
The ruling that says the state can bring suit to force a tribe to do
something it was voluntarily willing to do is the intrusion, she said. Reaching
agreement on a government-to-government basis is the preferred outcome.
"It's a major turning point in the tribal-federal-state relationship, and the
balance of powers between the three sovereigns,'' LaPena said, referring to
the federal, state and tribal governments.
"There is no other law or decision that says a state can waive a tribe's
sovereign immunity and sue because it thinks it's an important casethat's the
fundamental problem."
John G. Appel Jr., a San Diego lawyer who has handled tribal law litigation,
said there's a risk sovereign immunity could erode if an appeal at the U.S.
Supreme Court is unsuccessful.
"I think they ought to think about it twice,'' he said.
As the ruling stands now, Appel said the decision was narrowly drawn in that
it applies only to non-commercial interests of the tribe. At the same time,
he said it preserves the state's constitutional right to protect its own
political processes from interference or corruption.
"The majority decision held that this right trumped the tribe's sovereign
immunity and any Congressional law to the contrary is unconstitutional,'' Appel
said. "It is no secret that many Indian tribes have prospered from gaming,
and have become major campaign donors. The court felt they should be regulated,
just like any other donors.
By Debra Gruszecki
The Desert Sun
January 6, 2007
As Gov. Arnold Schwarzenegger's inaugural festivities picked up steam Friday
in Sacramento, a California Supreme Court clerk in San Francisco quietly
stamped a petition to reconsider a 4-3 ruling that Indian tribes are bound by
state campaign finance disclosure rules.
The petition, filed shortly before 5 p.m. by the Agua Caliente Band of
Cahuilla Indians, as first reported on TheDesertSun.com, means the Palm Springs
tribe is not standing pat on the state's high court decision.
It also protects its right to take its case to the U.S. Supreme Court.
Tribal leaders and lawyers declined to comment on Friday's action.
The Agua Caliente tribe was told in the California Supreme Court ruling on
Dec. 21 that the state's Fair Political Practices Commission had the right to
sue the tribe in July 2002 under the Political Campaign Reform Act for
delaying or never filing state-mandated reports on $8.5 million in campaign
contributions and lobbying activities.
The contributions were made between 1998 and 2002.
In doing so, the court held its ruling that the doctrine of tribal sovereign
immunity from lawsuit did not apply in this realm.
The Agua Caliente, which posts contributions on its Web site, and contributed
at least $2.8 million in the last election to the Team 2006 political action
group, has said in the past that the decision impinges on its rights as a
sovereign nation.
Because it is a sovereign nation, the state of California requires the
approval of Congress to file a lawsuit against the tribe, the Agua Caliente tribe
has contended.
A California Supreme Court clerk said the tribe had 15 days from the date of
the ruling - until Friday - to file its petition for rehearing.
The decision is likely to be deemed final as of Jan. 20, unless the state
high court decides to reconsider its opinion. If the petition is granted,
another briefing stage is typically allowed.
If not, the next stop would be the U.S. Supreme Court, if the tribe chooses
to take that route.
Whitney Barazoto, a spokeswoman with the Fair Political Practices Commission,
said it was too late in the day to reach anyone to comment on the case but
expected a statement would be issued on Monday.
Michelle LaPena, a Sacramento-based attorney who handles tribal law, said she
would like to see the case overturned.
"It is a major departure from the body of law regarding tribal sovereign
immunity,'' she said. "The (California) Supreme Court finding that the election
laws are some unique category that is somehow supreme to the law of tribal
sovereign immunity is a major obstacle for tribes."
The ruling that says the state can bring suit to force a tribe to do
something it was voluntarily willing to do is the intrusion, she said. Reaching
agreement on a government-to-government basis is the preferred outcome.
"It's a major turning point in the tribal-federal-state relationship, and the
balance of powers between the three sovereigns,'' LaPena said, referring to
the federal, state and tribal governments.
"There is no other law or decision that says a state can waive a tribe's
sovereign immunity and sue because it thinks it's an important casethat's the
fundamental problem."
John G. Appel Jr., a San Diego lawyer who has handled tribal law litigation,
said there's a risk sovereign immunity could erode if an appeal at the U.S.
Supreme Court is unsuccessful.
"I think they ought to think about it twice,'' he said.
As the ruling stands now, Appel said the decision was narrowly drawn in that
it applies only to non-commercial interests of the tribe. At the same time,
he said it preserves the state's constitutional right to protect its own
political processes from interference or corruption.
"The majority decision held that this right trumped the tribe's sovereign
immunity and any Congressional law to the contrary is unconstitutional,'' Appel
said. "It is no secret that many Indian tribes have prospered from gaming,
and have become major campaign donors. The court felt they should be regulated,
just like any other donors.