California Supreme Court Rules Tribes Subject to Campaign Finance Law

In a narrow 4-3 ruling, the California Supreme Court last week held that Indian tribes are subject to the state’s campaign finance disclosure law. The ruling affirmed the ability of the state’s Fair Political Practices Commission to sue the Agua Caliente Band of Cahuilla Indians for failing to comply with the law’s reporting requirements.

The Political Reform Act (PRA) was enacted in 1974 with the intent of preventing electoral corruption and informing California voters about receipts and expenditures. The state argued that a failure to hold that the law applied to tribal governments would allow tribes to influence state electoral and legislative processes while undercutting the state’s fundamental interest in electoral accountability.

The tribe responded that without an express congressional abrogation or a tribal waiver of its sovereign immunity from suit, the state shouldn’t be able to sue it for non-compliance with state law. The tribe also argued that under state law, the recipients of campaign donations from anyone or any group, including tribes, are required to file disclosure requirements. In other words, the information was available for those who would seek it.

The decision will be appealed to the U.S. Supreme Court.

The case is Agua Caliente Band of Cahuilla Indians v. Superior Court, S123832.

We’ll discuss a couple of implications in the next post.

Another Meskwaki?

Thread: Indian Gaming in the News

In 2003, the NIGC closed the Meskwaki casino in Iowa during an intra-tribal dispute over a tribal election. Now, a similar dispute in South Dakota may threaten the Oglala Sioux Tribe's Prairie Wind Casino.

Because IGRA allows only federally recognized tribes to operate gaming establishments, "should it develop that the folks who control the tribe and control the tribal gaming facility aren't the recognized tribal government, then we would probably have to take some enforcement action," explained NIGC Chair Phil Hogen.

For the Meskwaki, that enforcement action was to close the casino for more than seven months, forcing the tribe to forgo gaming revenue and to put some 1,300 employees out of work.

Off-Reservation Gaming Off the Table?

Thread: Off-Reservation Gaming in the News

Reps. Pombo and Hastert gave up on limiting off-reservation gaming in the 109th Congress. Rep. Tom Cole (R-Okla.), the only member of Congress who is an enrolled member of a tribe, commented: ''I am very pleased that the Indian Gaming Regulatory Amendment Act, proposed by Chairman Pombo and the Resources Committee, seems to be effectively dead for the 109th Congress. While this bill had good intentions, I was very concerned that if enacted it would violate tribal sovereignty and erode the rights of Native American tribes granted to them in the Constitution of the United States."

The quiet demise of Rep. Pombo’s and Senator McCain’s attempts to curtail off-reservation gaming belies the enormity of the controversy over what they were trying to do, and how it would impact the Indian gaming industry. Pombo's bill may have been pronounced dead, but it was hardly DOA, and it is likely to be resurrected.

We predict that we'll continue to hear more about efforts to amend IGRA and reform Indian gaming law, including the issue of off-reservation gaming, in the coming year.

Indian Gaming and the Courts: A Lot Going on Last Week

Thread: Indian Gaming in the News

There are some intriguing issues in the courts right now; a little less visible to those who aren't practitioners in the area, but important nonetheless.

The NIGC petitioned the U.S. Court of Appeals for the D.C. Circuit to reconsider its October decision in the Colorado River Tribes case, which held that the NIGC did not have regulatory authority over Class III gaming.

The U.S. Supreme Court declined to hear the Oneida Nation's challenge to New York state court decisions invalidating compacts for lack of state legislative approval.

Reservation Shopping in Richmond, CA?

The Richmond, CA city council approved a contract for a tribal casino project with the Scotts Valley Band of Pomo Indians that would pay the city $335 million over 20 years. The Scotts Valley Band is landless, and is seeking BIA approval for reservation land in the East Bay area.

But critics question the tribe's historical ties to the land, and accuse the tribe of "reservation shopping." "A lot of people are crying wolf about reservation shopping (by tribes)," Heidi McNeil Staudenmaier, a Phoenix attorney who specializes in Indian gaming law, has said. "It just hasn't happened."

Fallout from D.C. Circuit's Ruling

In October, the U.S. Court of Appeals for the D.C. Circuit ruled that under IGRA, the National Indian Gaming Commission did not have authority to regulate Class III or casino-style gaming. Instead, IGRA envisioned tribal-state compacts as the sole vehicle for regulation of Class III gaming. There are more than 250 tribal-state compacts in place, each tailored to the specific concerns and needs of the particular state and tribe. But the NIGC and other federal officials have expressed concern that many, if not all, tribal-state compacts were drafted under the assumption that the NIGC had regulatory authority, and thus may not provide an adequate regulatory structure or sufficient standards for the operation of tribal gaming.

As discussed in a November 30 front-section story in USA Today, tribal leaders, including the National Indian Gaming Association, have lauded the D.C. Circuit's decision as appropriately recognizing both tribal sovereignty and tribes' track record of effective regulation of Class III gaming. Federal officials, though, are not convinced. Said Randy Jackson, director of the FBI's Indian Country unit, "If Indian gaming operations are not regulated, the integrity of the . . . industry is at risk." Thomas Heffelfinger, a former U.S. Attorney, predicted that the ruling would increase the risk of corruption and crime, calling tribes the "real losers" as a result of the court's decision.

We have argued, both in our April 2005 testimony before the Senate Indian Affairs Committee and in our most recent article, "How Congress Can and Should 'Fix' the Indian Gaming Regulatory Act" (in the current issue of the Virginia Journal of Social Policy and the Law), that Congress should take into account tribes' ability to regulate casinos effectively. There seems to be a great reluctance to acknowledge the good work of tribal gaming commissions, and instead of assisting tribal governments in building even more effective regulatory agencies, the federal government's approach tends toward paternalism. In our article, we set out specific policy solutions for regulatory reform that provides for effective regulation while respecting tribal governments and tribal sovereignty.