Agua Caliente Band of Cahuilla Indians v. Superior Court, Cal. S.Ct. (Dec. 21, 2006)

by Brad Jolly, Partner
Dec 22, 2006

In a 4-3 split decision, the California Supreme Court upheld the California Court of Appeals decision that Indian tribes do not have sovereign immunity against suits seeking to enforce state campaign contribution laws. Like the Court of Appeals, the State Supreme Court took an extremely odd and constitutionally questionable approach to attempt to bypass federally mandated and protected sovereign immunity. In short, the Court felt that the state's rights under the Tenth Amendment of the U.S. Constitution outweigh tribes' federally guaranteed sovereign immunity in the context of political contributions.

While acknowledging that tribal sovereign immunity and tribal sovereignty are not synonymous and that tribal sovereign immunity is simply an aspect of tribal sovereignty, the Court seemed to seriously confuse the idea of sovereign immunity from suit and immunity from the exercise of state regulatory jurisdiction, arguing that a "preemption analysis" is preferred. The Court may not have understood that the preemption analysis applies to instances where states attempt to assert jurisdiction within Indian country or over Indian tribes and has nothing to do with whether a tribe is immune from suit. Even the United States Supreme Court has recognized that there are instances where state laws apply on-reservation, but that does not mean those laws can be enforced via suit against the tribe. Oklahoma Tax Comm'n. v. Citizen Band of Potawatomi, 498 U.S. 505 (1991). Applicability of the state's campaign finance laws to the tribes' conduct in this case, admittedly off-reservation, was not at issue. However, the decision would seem suggest that California is not subject to federal law.

The Court did pay lip service to the notion that application of the law and enforcement of the law are two different things and engaged in a lengthy discussion of the Supreme Court's decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751 (1998). However, the Court noticeably omitted the U.S. Supreme Court's admonition that tribal sovereign immunity "is not subject to diminution by

the States." Manufacturing Tech., 523 U.S. at 756. California is essentially attempting to do precisely what Oklahoma attempted in that case while relying on dicta in Manufacturing Technologies that the Supreme Court did not necessarily personally approve of tribal sovereign immunity. Unlike Oklahoma, however, California seems to think that invoking the Tenth Amendment will somehow protect it from the application of federal law.

The California Supreme Court's opinion smacks of a vein attempt to further elevate states' rights, in particular as it relates to Indian tribes. This battle has been waging since the State of Georgia sought to force the removal of the Cherokee and the Supreme Court had to admonish that state it has no business in Indian affairs. However, we must always remember that only evil has ever been done under the banner of states' rights: illegal removal of Indian peoples from their homes, slavery, and Jim Crow, to name a few. Today's states' rights battles have been fought more in the context of state sovereign immunity and the Eleventh Amendment, providing states with freedom to steal patents and copyrights, deny overtime pay to state employees, and discriminate in employment based on age - all with the blessing of the U.S. Supreme Court. Perhaps that is the largest irony of the California Supreme Court's decision - forcing a tribe to comply with a reporting requirement outweighs the rights of its people to intellectual property rights, protection from discrimination in employment, and its government's own employees to federally-mandated overtime. One has to question if the four justices in the majority would rule the same if faced with state immunity against discrimination, individual property rights, and overtime pay or whether it is simply a matter of not liking immunity when the state is on the other side of it.

The California Supreme Court's opinion that the Tenth Amendment permits it to ignore federal law governing tribal sovereign immunity is a scary notion. The Court spends a lot of time urging that tribal sovereign immunity is federal common law and not a matter of federal constitutional law. But, the Supremacy Clause makes it clear that not only treaties and the Constitution, but also "the Laws of the United States" are supreme and that the "Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. There is nothing to suggest that federal common law is any less supreme or that the Justices of the California Supreme Court are bound any less to it. Nor is there anything in the Supremacy Clause to suggest that the Tenth Amendment is not subject to the exclusion of anything else in the Constitution to the contrary, even when placed against federal common law.

The California Supreme Court has perhaps initiated a new constitutional battle - one between the Supremacy Clause and the Indian Commerce Clause on one side and the Tenth Amendment on the other. The California Supreme Court has conveniently forgotten that the Tenth Amendment only reserves to the state powers that are not granted to the federal government and that the Supreme Court has unequivocally reminded states that they "have been divested of virtually all authority over Indian commerce and Indian tribes." Seminole Tribe v. Florida, 517 U.S. 44, 62 (1996). Notably, it was the most conservative, pro-states' rights Justices that provided that reminder. Ultimately, the notion that states could begin to choose which federal laws they will abide under the feigned protection of the Tenth Amendment could have disastrous consequences not only for Indian nations and in the area of Indian law, but for every person in the United States.

Read the court's opinion here.

© 2006 Brad S. Jolly & Associates, LLC