The Recorder, San Francisco

3/4/04

State Can Force Tribes to Reveal Lobbying Activity

By Mike McKee

In a ruling that could shake up California politics, a Sacramento appeal court ruled Wednesday that the state could sue Indian tribes to force disclosure of lobbying activities and campaign contributions.

The 2-1 ruling by the Third District Court of Appeal held that the state's right to preserve its political process trumps tribal immunity.

"The state's resort to the judicial process is a procedure essential to enforce its reserved right and duty to maintain a republican form of government," Justice Richard Sims III wrote. "What else is it to do, call out its 'well-regulated militia'? We daresay no one would sanction such a remedy."

Justice Coleman Blease concurred, but Justice Rodney Davis dissented, saying tribal immunity should have prevailed.

"The majority fails to recognize that while the doctrine of tribal sovereign immunity began as a judicially created doctrine, it is anchored in the United States Constitution," he wrote. "The United States Constitution delegates to Congress and the federal government the exclusive power to regulate Indian affairs."

Vigo "Chip" Nielsen Jr., a partner in the Mill Valley office of Sacramento's Nielsen, Merksamer, Parrinello, Mueller & Naylor, a lobbying powerhouse, called the ruling important.

"The whole question of Indian sovereignty is still being worked out," he said, noting that the state's Fair Political Practices Commission currently faces a situation where some tribes file campaign disclosures voluntarily and others don't.

"We have to have them all do it," he added, pointing out that even foreign countries file disclosure reports if they lobby in California.

"It's like going to a ballgame," Nielsen said. "If you go into the stadium, you abide by the rules."

Ironically, the ruling came down on the same day that powerful Washington, D.C., lobbyist Jack Abramoff resigned from Greenberg Traurig as the U.S. Senate prepares to investigate him for the more than $45 million in fees he got from four Indian gaming tribes.

The California case began when the FPPC sued the Agua Caliente Band of Cahuilla Indians, saying it was a major donor subject to the state's Political Reform Act. Among its allegations, the agency accused the tribe of failing to file semi-annual disclosure statements for more than $8.1 million in campaign contributions for 1998 and the first halves of 2001 and 2002.

The complaint also said the tribe failed to report contributions toward Proposition 51, a 2002 ballot measure that authorized $15 million per year for eight years for projects that included a passenger rail line from Los Angeles to Palm Springs, where the tribe operates a casino.

The tribe conceded that the state could require disclosure, but argued that sovereign tribes could not be sued to compel release of the reports. It also argued that the information sought by the FPPC was readily available through the reports filed by campaign recipients or through its own Web site, and that the state could seek federal legislation for the power to sue.

"These alternatives are uncertain; they do not persuade us to apply tribal immunity to bar this action to enforce the PRA," Justice Sims wrote. "Moreover, absent the threat of a lawsuit, we see no incentive for the tribe to agree to comply with FPPC reporting requirements."

Former FPPC Chairwoman Karen Getman, now of counsel to Remcho, Johansen & Purcell in San Leandro, said the court's ruling heralds "a great day for campaign finance disclosure."

The tribe's "refusal to disclose was really driving an enormous hole through the law," she said, "and with this decision that hole is closed, and now everybody who plays in politics in California has to get the same disclosure out there to the public."

Escondido lawyer Arthur Bunce, who represented the tribe, said he was disappointed that only one judge sided with him. "But," he said, "we are confident that if the tribal council authorizes review, a higher court will recognize federal law."

Bunce reiterated the tribe's stance that there are alternatives to a suit.

"The tribe has already offered to provide full compliance on a government-to-government basis," he said, "and already posts all of the information on its Web site, and voluntarily provides all this information on paper. The tribe makes greater disclosure than any other participant in the political process."