SACRAMENTO, Calif. – If this were a physics question it would defy the law of possibility. However, when the question is in the state courts in California it becomes the law of probability. In two Superior Court rooms, side by side, two different judges, presented with almost identical cases made two contradictory decisions.
Confused? So is the Agua Caliente tribe, which came out on the losing end of a court battle with Fair Political Practices Commission (FPPC), whose case was heard in Department 53 of the California Superior Court in Sacramento, while at nearly the same time, next door in Department 54 the judge ruled in favor of the Santa Rosa Rancheria in a case with almost identical circumstances.
“They were both argued on the same federal law and on the same basis, the only difference was the name of the tribe,” says attorney Art Bunce who argued the case for Agua Caliente.
Needless to say the reaction from Santa Rosa was a little more buoyant.
“We’re very pleased that the court acknowledged our Tribe’s right as a sovereign nation to determine our future,” says Dena Baga, treasurer for Santa Rosa Rancheria Tribal Council. “This is a decision that respects not only the long-term rights of the Tachi-Yokut, but also the sovereign rights of all California tribes and even the nation.”
The heart of the issue are two lawsuits launched by the FPPC claiming that the two tribes had violated state campaign finance disclosure laws over a four-year period between 1998 and 2002.
The FPPC contends that Agua Caliente failed to disclose in a timely manner nearly a half million dollars in various campaign donations, while Santa Rosa was allegedly negligent in reporting $360,000 also earmarked for political campaigns. The most notable recipients were Lt. Gov. Cruz Bustamante’s reelection campaign in 2002 and Proposition 5, which first attempted to legalize Indian Gaming in California in 1998.
Though the actual dollar amount of the donations has never been in dispute, the tribes see this as an infringement, if not outright attack on their tribal sovereignty.
Agua Caliente had originally claimed sovereign immunity from a lawsuit claiming that such a lawsuit would violate the tribe’s right as a sovereign government. However, in February a Sacramento Superior Court Judge ruled that Agua Caliente was not immune from a lawsuit and allowed the suit to proceed.
Initially the case was notable before the parties even appeared before a judge. California Attorney General and presumed gubernatorial candidate in 2006, Bill Lockyer refused to handle the case for the FPPC and only intervened when the judge allowed the lawsuit to proceed.
Santa Rosa was then also forced to proceed with the lawsuit after making a similar claim.
Since there are two conflicting decisions on the same level of court there is obviously some confusion as to which decision can take supremacy. Since there seems to be a strong possibility that either Agua Caliente or the FPPC will appeal the decision, Bunce hinted at a possible joint appeal along with the Santa Rosa Rancheria during the appeals process since any negative decision would probably effect their case’s status as well.
Attorney Harold Monteau, who represented Santa Rosa in their case says that this is yet another case of the state of California trying to erode tribal sovereignty. He feels that the FPPC could have settled this matter in an entirely different manner.
“Essentially what we have here is, I hate to say this, but a more experienced judge in our case that recognized 170 years of legal precedent in regard to tribal sovereignty,” said Monteau.
Monteau, who was highly critical of the first round of judgements that forced the tribes into court in the first place says the FPPC could have arranged government to government meetings to solve the problem of disclosure instead of forcing the tribes as sovereign governments to go to court.
Candidates and campaigns themselves, contends Monteau, should also be responsible for disclosing the dollar amounts and the sole burden should not be placed on tribes.
In regard to the central issue of disclosure, Monteau points out that both tribes have agreed to voluntarily disclose the amount of money they donate to political campaigns and have now disclosed the amount for the campaigns in question though he concedes they did so a little late.
The FPPC contends that it is the tardiness of the disclosure that is the very problem. Steve Russo, chief enforcement officer for the FPPC, reports that though Santa Rosa Rancheria did ultimately disclose their donations, in some cases it was not until a full four years after the fact. He says that Agua Caliente also did not make their disclosure until several months after last year’s elections.
“The problem with this is that donations reported after an election don’t really serve the voting public who should be informed of where their candidates are getting their donations before the election,” says Russo.
Russo also disputes the idea of relying solely on candidate and campaign reports for political donations and says that money is often distributed through local committees which he says number into the hundreds thus providing difficulty for the FPPC in tracking the funds.
For now Russo says that the FPPC is weighing their options and have 60 days in which to file an appeal. Both Bunce and Monteau say they are also weighing their options and will make a final decision in a similar timeframe.
