Campaign Finance Disclosure vs. Tribal Sovereign Immunity

ARTICLES SOVEREIGN RULES OF ТНЕ GAME: REQUIRING CAМPAIGN FINANCE DISCLOSURE IN ТНЕ FACE OF TRIBAL SOVEREIGN IMМUNITY 1. II. III. INTRODUCTION ............................................. SovEREIGNTY .............................................. А. Tribal Sovereignty and Tribal Sovereign lmmunity ........ 1. History of Tribal Sovereignty ....................... 2. Jurisprudence Conceming Tribal Sovereign Immunity .......................................... В. State Sovereignty and Guaranteed Powers ................ DEVELOPMENTS IN СдмРдЮN D1sCLOSURE Lл ws ............. IV. ТнЕ INTERSECTION oF TRIBAL, FEDERAL, AND SтлтЕ SovEREIGNTY wпн СлмРдЮN FINANCE Lл w ............... . А. The California Example ................................. В. Tribal Regulation in the Federal System ................ . С. Tribal-State Relations and Regulation in the State System ................................................. V. ALLOWING СлмРдЮN F1NANCE ENFORCEMENT AcтIONS AND LEGISLAпvЕ SoLuтюNs .................................... VI. CoNcLusюN 1. 1 5 6 6 11 14 15 22 22 25 27 30 32 INTRODUCTION Do states' sovereign interests in electoral integrity trump tribal sovereign interests in immunity from state Iawsuits? The answer lies in the delicately balanced relationship between states, tribes, and the federal govemment. This relationship has been defined and redefined throughout the history of the Unit­ ed States. А new moment of redefinition may Ье upon us. Tribes have newly accumulated wealth and political power, which have made them а strong force in state and federal elections. This paper examines the history, constitutional Iaw, and common law and statutory doctrines implicated when tribal sovereign­ ty and sovereign immunity clash with state sovereign interests in electoral in- 1 tegrity. The paper concludes that а federal legislative solution is the optimal path to set forth а clear policy for tribes and states to follow when а tribe seeks to participate in а state's political processes. Writing about Indian triЬes, 1 money, and politics is а risky endeavor. То date, the debate conceming tribal-state relations, tribal-federal relations, and Indian tribes' political participation has been divisive.2 The historica\ mistreat­ ment of American Indian tribes Ьу European settlers and Ьу the early founders of the United States is not easily forgotten, nor should it Ье. The history, cou­ pled with а \egacy of failed federal po\icies and attempts at cultura\ oЬ\itera­ tion, has divided most commentators into а "for Indians or against them" di­ chotomy.3 Anti-gamЬ\ing groups, cities, and counties campaign against tribal gaming to prevent the adverse impacts of gamЬ\ing on communities and indi­ viduals within them.4 Tribes and their advocates tout the expansion of tribal gaming as an essential step to tribal economic development and self-sufficien­ cy.s This paper examines the history and current state of affairs conceming tribal political participation. Additionally, this paper suggests legislative action to create а sensiЬ\e structure in which Indian tribes сап responsiЬ\y participate in the political process at both а tederal and state level. Given the complicated history and present realities of federa1 Indian policies, the tensions between tribes and state and local governments as tribes exercise their right to build gamЫing centers under the Indian Gaming Regulatory Act, and the still ex­ isting poverty and isolation experienced Ьу many American Indian people, the 1 This paper uses the term "American Indian," rather than "Native American," when re­ ferring to present-day tribes and tribal members because it appears that this is the primary term lndians use to refer to themselves. RoвERT Ql)лWJ PoRTER, SovEREIONTY, Со1_0N1л1_1sм ANI) тнЕ INJ)IGENOus NлтюNs xxi (2005). When discussing tribes at the time of Euro­ pean contact, this paper will sometimes refer to "indigenous peoples." In an attempt to Ье respectful to the power of language in the context of colonization, this paper will not use the term "Native American." See id. 2 See, e.g., John LaVel\e, Strengthening Tribal Sovereignty Through Indian Participation in American Politics, lO КлN. J.L. & Рuв. Ро,_'у 533, 535 (2001) (describing an "us or them" attitude in the discussion of Indian affairs, even within communities of Indian law scholars and people with indigenous backgrounds); Robert Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forc­ ing American Citizenship Upon lndigenous Peoples, 15 HлRv. 81_лскшТТЕR L.J. 107, 107 (1999); Me\issa Tatum, А Jurisdictional Quandry: Challenges Facing Tribal Governments in lmplementing the Full Faith and Credit Provisions of the Violence Against Women Acts, 20 Kv. L. J. 123, 158 п.2 (2001-2002). 3 See, e.g., LaVelle, supra note 2, at 535. 4 SтлN1) UP IOR СлиюRNIЛ, www.standupca.org (last visited July 23, 2010); Сл, .. SтлтЕ Ass'N о,, CNТYS., SuRVEY О!' ТRшл,_ Gлм1Nо lмРлстs ON CouNTY GovERNMENTS (2002), availaЫe at http://www.csac.counties.org/legis\ation/indian_gaming/fact_sheet2.pdf. 5 Alan Р. Meister et al., Indian Gaming and Beyond: Tribal Economic Developmenl and Diversification, 54 S.D. L. REv. 375, 383 (2009). need for tribal participation in the political process is great. 6 Balanced against this need, however, is the need for а uniform set of rules that govems all cam­ paign donors, not just those that have been historically represented in national and local political processes. This paper explains the Iegal implications of the balance between federal, state, and tribal interests, and offers suggestions that would draw federal and Iocal tribal campaign spending into the arena of other campaign finance reforms. In recent years, the national spotlight has been оп the influence of money in politics. The Federal Election Commission ("FEC"), the agency charged with enforcing federal campaign finance laws, has recently brought enforcement ac­ tions against а number of organizations and major political parties for skirting federal election laws. 7 Candidates have increasingly realized the power of at­ tracting small donor contributions: candidates appear autonomous and not be­ holden to special interests, but are still financially viaЫe, which attracts larger donors. 8 PuЫic pressure and power, through the use of the initiative process, have led to the passage of "clean money" statutes in several states. 9 Senators John McCain and Russell Feingold worked together to produce and pass the Bipartisan Campaign Reform Act of 2002 ("BCRA"). 10 The BCRA reaches more dramatically into state and local political processes than any fed­ eral legislation before it. However, the Supreme Court has recently imposed limitations on the BCRA. 11 Simultaneous with the rise in awareness of the power of money in politics and the interre\atedness of federal, state, and local campaigning, some tribes have made enormous economic strides with the ad­ vent of wide-spread tribal gamЫing monopolies in states such as California, 6 Professor Robert Porter disputes the conclusion that political participation is needed in his article, The Demise of the Ongwehoweh and the Rise of the Native Americans. Porter, supra note 2. For more оп the debate between Professor Porter and Professor LaVel\e, see LaVel\e's article, Strengthening Tribal Sovereignty, and Porter's article. LaVelle, supra note 2; Porter, supra note 2. Professor LaVelle's arguments tend to Ье more persuasive. 7 FEC v. Toledano, 317 F.3d 939 (9th Cir. 2002); FEC v. Nat'I Rifle Ass'n of America, 254 F.3d 173 (О.С. Cir. 2001); FEC v. Pub. Citizen, 268 F.3d 1283 (11th Cir. 2001); FEC v. Club for Growth, 432 F. Supp. 2d 87 (О.О.С. 2006). 8 Richard L. Hasen, More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (Loyola-LA. Legal Studies Paper No. 200826, 2008), availahle at http://ssrn.com/abstract=l 2673l 2; see also El\en Weintraub & Jason К. Levine, Campaign Finance and the 2008 Elections: How Small Change(s) Сап Really Add Ир, 24 Sт. JoнN's J. LEGAC СоммЕNТ. 461 (2009). 9 Citizens Clean Elections Act, Аюz. REv. Sтлт. ANN. §§ 16-940-16-961 (2009); Maine Clean Election Act, МЕ. REv. Sтлт. ANN. tit. 21-А, §§ 1121-28 (2008). IO 2 u.s.c. §§ 431-45 (2006). 11 Citizens United v. FEC, 130 S.Ct. 876 (201О) (invalidating corporate contribution pro­ hiЬition); Oavis v. FEC, 128 S.Ct. 2759, 2762 (2008) (invalidating the "Millionaires' Amendment," which al\owed candidates facing self-financed candidates to accept larger contributions). Connecticut, Mississippi, and Wisconsin. 12 Armed with resources and а much greater understanding of the political process than their impoverished forbear­ ers, tribal leaders have engaged in the politica\ process eagerly and with great success at both the state and federal \evel. 13 Huge sums of tribal contributions and expenditures have been reported in election cycles this decade. 14 Most states and the federal government have assumed that American Indian tribes should Ье treated just like any other campaign donor, and in most juris­ dictions, tribes are considered individual donors rather than corporations, even though their contributions come from treasuries filled with casino proceeds. 15 The issue of applying campaign finance \aws to tribes arose in Ca\ifomia, and is likely to arise in other states.16 Whi\e treated as individuals for the purpose 12 lndian Tribes Exempt From New Limits оп Campaign Gifts, N.Y. Т1мЕs, Маг. 18, 2003, at А22. 13 ld. This article describes the federal contributions in the 2001-2002 election cycle Ьу the Mississippi Band of Choctaw Indians ($615,000), the Ho-Chunk Nation from Black Riv­ er Falls, Wisconsin ($512,000), the Agua Ca\iente Band of Cahuilla Indians ($429,500), and the Mashantucket Pequot Tribal Nation from Foxwoods, Connecticut ($419,895). ld. Also, the article quotes the Mashantucket Pequot Chief Operating Officer, John Guevremont, as indicating that the tribe gives to both Democrats and RepuЫicans and that they encourage all fundraising invitations "because that gives us an opportunity to participate and network." Id. 14 The Sacramento Вее indicated that "[f]rom 2000-2008 [Ca\ifornia] tribes gave а total of $47 million to state officials, $211 million to propositions, more than $6 mil\ion to party political action committees, and another $60.9 million on local races and statewide initia­ tives." Cheryl Schmidt, The Oh Decade: Decade Reveals Unintended Results of Law Ex­ panding Tribal Casino Games, SлсRлмЕNто ВЕЕ, Dec. 24, 2009, at I IA . The Agua Calien­ te tribe reported total expenditures of $2,210,750 in 2006. Cal-Access, Сл. SEc'y SтлтЕ, http://www.cal-access.ss.ca.gov/Campaign/Committees (last visited June 16, 2007). This amount paled compared to the tribe's expenditures in 2003-2004, which totaled over $16 million. ld. (last visited Nov. 29, 2010). Also, note that Agua Caliente was one of the tribes identified in the Jack Abramoff lobbying scandal-the tribe reportedly paid Abramoff and associates $1О million for lobbying efforts that allegedly included the briblng of puЫic offi­ cials and other federal crimes. Todd Milbourn, Tribe, State Sign Big Deal, SлcRAMENTO ВЕЕ, Aug. 9, 2006, at AI. 15 Most state campaign finance laws define "individual" or "person" as а group of people, as well. See, e.g., АRк. С01)Е ANN. § 7-6-201(14) (West 2007) ("person" includes "any other organization or group of persons acting in concert"); 1О l1,1" СомР. Sтлт. ANN. 5/9-1.6 (West 2005) ("person" includes "organization[s] or group[s] of persons"); ОкtА Sтлт. ANN. tit. 21, § 187 (West 2002) ("person" includes "organization[s], committee[s], or club[s], or а group of persons who are voluntarily acting in concert"). At least one state specifical\y prohiblts contributions from tribes and defines а tribe as а puЫic entity, rather than а person, for the purpose of campaign finance law. S.D. Co1)ll'IEI) LлwS § 12-27-21 (2004) ("No candidate, political committee, or political party may accept any contribution from any state, state agency, political subdivision of the state, foreign government, lndian tribal entity as defined in the Federal Register Vol. 72, No. 55 as of March 22, 2007, federa\ agency, or the federal government."). 16 See Agua Ca\iente Band of Cahuil\a Indians v. Superior Court, 148 P.3d 1126 (Cal. of giving and spending, tribes are not the same as individuals for the purpose of enforcement and lawsuits.17 The question of how а tribal entity fits into the system of state and federal campaign finance laws requires an understanding of а tribe's legal status, its sovereign powers, and its subjugation to federal law. Tribes are now major political participants; and, therefore, states must under­ stand whether they have the power to enforce electoral processes and campaign finance Iaws against tribes. If states cannot preserve the integrity of their elec­ toral processes Ьу enforcing campaign finance laws against all participants, а federal solution to the proЫem may Ье necessary. As legislators and administrative bodies draft and contemplate campaign fi­ nance laws and regulations, they must understand the history of tribal sover­ eignty in the United States, the principles of state sovereignty at play, and the practical implications of this history and these principles on their aЬility to enforce laws against Indian tribes. Developments in campaign finance juris­ prudence in the Iast thirty-five years bear оп the relationship between federal, state, and tribal governments. States must carefully navigate through these trip­ le sovereign interests when crafting solutions to harmonize the need for cam­ paign finance disclosure laws and the unique position of American Indian tribes in our system of govemment. II. SOVEREIGNTY Tribal and state sovereignty are concepts that seem to have similar historical beginnings, but are quite distinct and in many instances incompatiЫe. Tribal sovereignty, including immunity to suit, is rooted in а tribe's historical exis­ tence preceding the formation of the United States.18 The state's power to gov­ ern its electoral process and impose campaign finance regulations similarly has its roots in the colonial era, and is recognized in the United States Constitu­ tion.19 The application of both forms of sovereignty to the question of whether а state may sue а tribe cloaked with sovereign immunity to ent·orce the state's sovereign interests creates а conundrum. This is the precise issue that twelve judges in California examined in the Agua Caliente Band of Cahuilla lndians v. Superior Court and Fair Political Practices Commission v. Santa Rosa Indian Community of the Santa Rosa Rancheria cases.20 Of the twelve, seven decided one way, five another-not an overwhelmingly clear answer from the judiciary 2006). А companion case, Fair Political Practices Commission v. Santa Rosa Indian Com­ munity of the Santa Rosa Rancheria, 20 Са\. Rptr. 3d 292 (2004), was merged with the Agua Caliente case for review Ьу the Califomia Supreme Court. The cases rose through two separate Superior Court proceedings. 17 Кiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998). 18 GEТCHES ЕТ л1_., FE!)ERлc INDIЛN Lлw 46-52 (5th ed. 2005). 19 U.S. Const. art 1, sec. 4, cl. 1. 20 Agua Caliente, 138 P.3d at 1126. in Califomia. 21 Since no other state or federal court has addressed this issue, the time is right for creative solutions from both state and tederal legislatures. Any solution, though, must start with an examination of the proЬ\em's histori­ cal origins. Without understanding the roots of both forms of sovereignty and the purposes of immunity from suit, lawmakers cannot make responsiЫe inter­ pretations or modifications. Lawmakers must understand the history and pur­ poses of triba\ sovereignty and sovereign immunity before legislating limita­ tions or expansions of these doctrines. А. Tribal Sovereignty and Tribal Sovereign Immunity 1. History of Tribal Sovereignty As early as the 1400s, Spanish explorers developed notions of tribal sover­ eignty and rights to land. 22 At the time, religious thinkers like Franciscus de Victoria advocated an emerging Humanist legal philosophy.23 Victoria was one of the first to write about the Law of Nations and the natural rights of а\\ rational people. 24 His definition of sovereignty tor American Indian реор\е was qualified, however, Ьу а pro-European set of presumptions. 25 Victoria be­ lieved that the Law ot' Nations required а set ot' rights and duties.26 Не thought that if Indian people breached their duties, other nations could disregard Indian rights.27 Hence, under Victoria's philosophy, the right ot' American Indians to peaceful and loving co-existence with Spaniards would Ье foпeited if Ameri­ can Indians attempted to prec1ude Spaniards t'rom travel, discovery, and profit on the American continent. 28 Victoria advocated t'or а civi\ized nation guardi­ anship over American Indians because he believed that American Indians might not understand the duties they owed under the Law ot' Nations. 29 This protector role continues to intluence modern-day federal law. Next, English co\onists intluenced the development of tribal sovereignty law. 30 English settlers were mainly concerned with property rights, and be­ lieved that they had а right to the newly discovered land. They justified this 21 The Superior Court judge in Agua Caliente decided in favor of the State. 148 Р.Зd at 1126. The Superior Court judge in Santa Rosa Rancheria decided for the Tribe. 20 Cal. Rptr. 3d at 292. The Appellate Court split 2 to I in favor of the State and the Califomia Supreme Court divided 4 to 3 in favor of the State. ld. 22 GETCHES ЕТ А\,., supra note 18. 23 ld. at 48. 24 ld. at 49-50. 25 ld. 26 ld . 21 ld. 28 ld at 50-51. . 29 ld at 51. . 30 ld. at 52 belief with religious ideas and civil rules such as vacuum domicilium. 31 None­ theless, in the 1600s, English and Dutch settlers entered into both purchase agreements and treaties with many tribes in the area that is now New En­ gland. 32 The British govemment was the dominant European power in the 1600s and much of the 1700s, and set policy concerning American Indian affairs through­ out those centuries. However, it delegated the implementation and manage­ ment of tribal relations within each jurisdiction to the individual colonies. 33 The Proclamation of 1763 asserted British control over all Indian land. 34 The Proclamation was the result of increasingly inconsistent relations between the British colonies and various American Indian tribes, particularly as the tribes created alliances with France. 35 The British issued the Proclamation at а time when the French and Indian Wars threatened the Crown's control over the colo­ nies. 36 The history told оп the website of the Saint Regis Mohawk Tribe is illustrative of the ever-changing alliances and tribal groupings that were taking place during this period. 37 The history also illuminates the transitory alliances between different American Indian peoples and ever-changing definitions of what constituted а tribe. Even before tribal groupings were torn apart during the period of removal in the 1830s, allegiances to various European settler groups and inter-tribe conflicts caused movement of people between and 31 ld. at 57. Vacuum domicilium means literally "empty domicile," and, in the context of the British settlers, refers to the belief that if the land is not domesticated, it is vacant and availaЫe for settling. Lauren Benton and Benjamin Straumann, Aquiring Empire Ьу Law: From Roman Doctrine to Early European Practice, 28 Lлw & Н1sт. REV. 1, 2 (FЕв. 2010). 32 GETCHES ЕТ ЛI-,, supra note 18, at 57. 33 Juопн V. RoYSTER & MICHAEI- с. BLUMM, NлТIVE AMERICAN NATURAI_ RESOURCES Lлw 38 (2002); RoвERT N. CuNTON ЕТ AL., AмERICAN INOIAN Lлw: Nлт1vЕ NлтюNs AN0 ТнЕ FюERAI- SvsтEм 21-22 (2003). 34 RoYSТER & В1_uмм, supra note 33, at 38. 35 ld. 36 ld.; RoвERT Т. ANш,RsoN ЕТ л1_., AмERICAN INI)IAN Lлw: CлsEs ANI) СоммЕNТАRУ 28 (2d ed. 2010). 37 Tribal History, Sл1Nт REGIS Монлwк ТRШЕ, http://srmt-nsn.gov/his.htm (last visited July 17, 2010). In part, the history explains that а group of Mohawks who now live on а reservation in upstate New York originally settled there in 1754. This was the result of two white brothers who had been captured in Massachusetts, married daughters of upstate New York Kanhnawake chiefs, but who had been living with French missionaries in Canada until they quarreled with other tribal members and decided to return to what is now the Saint Regis. Other refugees of the French and Jndian War soon joined them and а group of Mo­ hawk and Iroquois people soon emerged as а cultural entity. Since other New Уork Iroquois tribes fought on the side of the English in the French and lndian War, the tribe that the Saint Regis group emerged from, the Kahnawake Indians, was denounced and excluded Ьу the Six Nations Confederacy of Iroquois tribes whose homelands were in central New York State. Instead, Kahnawake lndians were allied with а group called the Seven Indian Nations of Canada. among different tribal groupings.38 Having viewed first-hand the potential impact of tribal alliances on warring nations, the soon-to-be American revo\utionaries sought to secure the neutrality of American Indian tribes Jeading up to and during the Revolutionary War.39 Moreover, American revo\utionaries adopted the symbo\ of American Indians in their political propaganda leading up to the Revolution-the American Indi­ an "came to symbolize а rebellious and uniquely American spirit."40 Nonethe­ less, American colonists primarily viewed indigenous реор\е as conquered рео­ р\е, rather than independent sovereigns with equal or superior entitlement to the land.41 The aftermath of the Revolutionary War and the beginning of the formation of the United States as а separate nation created an opportunity to shift po\icy оп the acquisition of American Indian lands and the relationship between indig­ enous peop\es and American revolutionaries.42 The original Articles of Con­ federation contemplated roles for both federal and state governments in Ameri­ can Indian affairs.43 However, Ьу the time the Constitution was drafted, the Framers had decided to р\асе the power "[t]o regu\ate Commerce ...with the Indian tribes " in the hands of the federal govemment alone.44 The first Con­ gress then passed legislation relating to the boundaries of Indian country, regu­ \ation of Indian traders, and the requirement of federal approval of any transac­ tions conceming American Indian land.45 Until the War of 1812, the U.S.govemment had entered into treaty negotia­ tions with tribes using а model of international self-determination.46 In other words, tribes and the U.S. govemment used arms-length negotiations between govemments. These negotiations sometimes involved diplomacy or threats of alliances with others.Their negotiation techniques were similar to those used between other foreign sovereign nations at the time.47 However, Ьу the conclu­ sion of the War of 1812, the United States increasingly viewed American Indi­ an affairs as а domestic issue.48 The U.S.govemment began using federal leg38 39 ld. C1,1NTON ЕТ ЛL., supra note 33, at 22. ANI)ERSON ЕТ AL., supra note 36 (noting that in 1773 colonists dressed as Mohawks during the Boston Теа Party). 40 41 42 43 44 ld. ld. at 30. ld. at 30-31. U.S. CoNsт. art. 1, § 8, cl. 3. The original statute was passed in 1790, 1 Stat. 137 (1790). The Nonintercourse Acts, as they became known, were re-enacted in 1834. 25 U.S.C. § 177. They are still part ofthe U.S. Code today. ld. 46 RoвERT N. Ci,INTON ЕТ ЛL., AMERICAN INI)IAN Lлw: NATIVE NлтIONS ANI) ТНЕ Fiю­ ERAI, SYsтuм CлsEs ANI) МлтЕюл1,s 25 (LexisNexis 4th ed. 2003). 47 Ci,INTON ЕТ ЛL., supra note 33, at 25. 45 48 ld. islation as а means to regulate this perceived domestic, rather than international, concern.49 In 1817, Congress passed the first federal criminal statute that provided for the exercise of federa\ jurisdiction over tribal members who committed serious crimes against non-Indians in Indian country.50 Other legislation followed and, with it, the ushering in of а new phase of federal-tribal relations. In response to state demands for territory and control over their borders, the federal government embarked оп а policy of removing tribes from their ances­ tra\ homelands in the mid-1800s.51 The Cherokee cases emerged out of Presi­ dent Andrew Jackson's tribal policies, the Indian Removal Act of 1830, and­ most directly-Georgia's assertion of jurisdiction over Cherokee lands in 1828.52 In these cases, Chief Justice John Marshall first articu\ated that tribal governments were not constitutionally considered foreign sovereigns, but none­ theless were entitled to retain some of the powers of independently governed nations.53 While the Cherokee nation won legal victories in these cases, these victories were short-lived. The Indian Removal Act of 1830, the po\itical phi­ losophy of the Jackson administration, and the federal and state governments' initial refusal to enforce the U.S. Supreme Court decision in Worcester v. Geor­ gia, \ed to the infamous removal of the Cherokee tribe in the dead of winter along the Trail of Tears to Oklahoma.54 Ву 1850, most tribes were forced west Ьу fraudulent agreements, political pressure, and sometimes physica\ coer­ cion.55 Although in practicality the removal policy of Andrew Jackson's ad­ ministration forced American Indian tribes to relocate, the federal government entered into "voluntary" agreements with re\ocating tribes that provided for self-governance оп the new lands and tribal sovereignty.56 These agreements were sometimes fraudulently induced, but the federal government sought to make its policy appear law-aЬiding and fair. Westward expansion Ьу Americans of European descent and the Pacific Ocean eventually prohiЬited the federal government from "voluntarily" remov­ ing American Indians to territories beyond the existing United States. There­ fore, the policy of removal morphed into а policy of reserving \and within 49 ld. at 25-26. 18 U.S.C. § 1152 (2006). 51 Ci,1NTON ЕТ л1,., supra note 46, at 26. 52 ANOERSON ЕТ ЛI,., supra note 36, at 51-54. 53 Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832). In lndian law cases, the f\exibility of federal common law and the creation of new doctrines Ьу certain prominent jurists has made outcomes difficult to predict along political or ideological lines. 54 ANOERSON ЕТ ЛI,., supra note 36, at 75-77. 55 ld. at 77. 56 CиNTON ЕТ л1,., supra note 33, at 26-27. 50 states in order to give American Indians а permanent home.57 Throughout the reservation period, the federal govemment continued to make treaties that as­ sured tribes' self-determination and self-govemance, albeit оп specified Indian lands. 58 During this period, American Indians were only minimally involved with their respective political communities. The original Califomia Constitu­ tion, enacted in 1849, restricted suffrage to white male citizens of the United States and Mexico, but provided that the Legislature could permit Indian sut·­ frage Ьу а two-thirds vote, if it deemed such an extension was "just and prop­ er. " 59 Califomia did not extend suffrage to American Indians until the federal Citizenship Act was passed in 1924. 60 However, given the reservation policy, large tribal groups seldom had much contact with the political communities of nearby European-dominated cities and towns. 61 In the late nineteenth and early twentieth centuries, political relations be­ tween the U.S. govemment and American Indians turned away trom а model ot· independent sovereigns negotiating co-existence, albeit оп unequal terms, and into а model of federal colonization and control over Indian affairs. 62 During this period, Congress passed the General Allotment Act of 1887, which aimed to provide individual title over land to Indians and encourage settlement оп these lands Ьу both Indians and non-Indians. 63 During this time, Congress also passed legislation aimed at the assimilation of Indians.64 In the early part of the twentieth century, Congress recognized that the allot­ ment and assimilation approach was not working.65 As а result, Congress passed the Indian Reorganization Act of 1934, which focused оп rehaЬilitating Indian reservations' economies and halting the transfer of land that had previ­ ously been held for American Indian use. 66 The reorganization period was short-lived, and was immediately t"ollowed Ьу а policy of termination, in which the federal government terminated relationships with tribes, relocated individu57 ld. at 28-29; ANDERSON ЕТ л,,., supra note 36, at 79-80 (including а brief timeline of federal Indian policies). 58 CLJNTON ЕТ Лl .. , supra note 46, at 29. 59 К1мвЕR1_у JoнNsTON-Dooos, EлRLY CлuFORNIA Lлws AND Ро1_1сшs Rш_л11NG то СлиюRNIА INDIANS 3 (Califomia Research Bureau 2002) (citing Слс. CoNsт. OI'" 1850 art. 11, § 1). 60 Id. (citing 43 U.S.C. § 253) (repealed 1976). The Citizenship Act granted U.S. citizenship to all American lndian people. ld. 61 CиNTON ЕТ л,_., supra note 46, at 28-29. 62 CLINTON ЕТ АС., supra note 46, at 30. 63 25 U.S.C. §§ 331-33 (originally enacted as Act of Feb. 8, 1887, ch. 119, 24 Stat. 388), repealed Ьу Pub. L. No. 106-462, § I06(a)(I), 114 Stat. 1991, 2007 (2000). 64 See Winnebego lndian Reservation, Neb., ch. 431, 43 Stat. 1114 (1924); Eastern Band of Cherokee lndians, N.C., ch. 253, 43 Stat. 376 (1924); Lac du Flambeau Band of Chippe­ was, Wis., ch. 158, 43 Stat. 132 (1924); Kan. Indians, Okla., ch. 297, 42 Stat. 1561 (1923). 65 ANI)ERSON ЕТ л,__ , supra note 36, at 132-33. 66 ld. al American Indians to cities, and provided state governments authority over reservation lands.67 The 1960s and 1970s saw increased federal legislation concerning American Indians, but most of this legislation was now focused on Indian self-determina­ tion. 68 Congress extended federal court jurisdiction to controversies involving tribes. 69 Additionally, Congress passed the Indian Civil Rights Act,70 the Indi­ an Self-Determination and Education Assistance Act,71 and the Indian Child Welfare Act72 during this period. Congress's goal when passing this Iegislation was to increase the power of tribal jurisdiction over tribal matters and expand the exercise of tribal self-governance. 73 Again, these laws did not define or work toward cooperation between tribal and non-tribal political communities, but instead focused on empowering tribes to take on more independent sover­ eignty over tribal affairs and on tribal Iand. 74 According to most scholars and observers, the last few decades have seen а reemergence of government-to-govemment relations between tribes and the federal government. 75 Congress' s legislation since 1980 has focused on pro­ viding advantages to tribes in an effort to stimulate economic development on tribal lands. 76 The Indian Gaming Regulatory Act77 is the most prominent ex­ ample of Iegislation that has led to а massive increase in tribal revenues. 78 Oth­ er legislation, including laws to provide federal tax exemptions, mineral rights, and land consolidation, has also fostered economic prosperity. 79 2. Jurisprudence Conceming Triba\ Sovereign Immunity One hundred and seventy-six years ago, Chief Justice John Marshall wrote 67 See 18 U.S.C. §§ 1162 & 1360 (1953) (giving Califomia, Minnesota, Nebraska, Oregon and Washington jurisdiction over offenses committed Ьу or against Indians). 68 ANl)ERSON ЕТ Лl,., su ra note 36, at 152-58. p 69 70 ld. 25 U.S.C. §§ 1301-03, 1311-12 (1968). 25 U.S.C. § 450(а) (1975). 72 25 U.S.C. §§ 1901-03, 1911-23, 1931-34, 1951-52, 1961-63 (1978). 73 Cl,INTON ЕТ ЛI,., supra поtе 33, at 41-44. 74 ld. at 45. 75 See ANl)ERSON ЕТ лс., supra note 36, at 80 (noting that the Self-Determination period started in the l 960s, but that during this period Congress recognized Indian sovereignty and self-determination, while the judiciary often undermined tribal sovereignty through decisions which limited tribal power). 76 See Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (2006). 71 7 7 78 79 ld. CJ,INTON ЕТ AI,., supra note 33, at 47. See Indian Mineral Development Act of 1982, 25 U.S.C. §§ 2101-08 (2006); Indian Land Consolidation Act of 1983, 25 U.S.C. §§ 2201-11 (2006); Indian Tribal Govemment Тах Status Act of 1982, 26 U.S.C. § 7871 (2006); Cr,INTON ЕТ л1,., supra note 33, at 46. that tribes were domestic dependent nations. 80 Не suggested that the relation­ ship between Indian tribes and the federal government was analogous to the ward-guardian relationship. 81 However, he did not define the relationship be­ tween tribes and states, although he was writing at а time when states were increasingly attempting to assert jurisdiction over tribal lands. 82 Based on Chief Justice Marshall's characterization of tribes as having inherent sovereign­ ty, while at the same time being subject to the dominion of the United States, jurisprudence and legislation through the last 170 years has swung back and forth between focusing on the sovereignty of tribes-over their members and to some extent their land-and the dependence ot· tribes on the federal govem­ ment for all benefits and allowances.83 The doctrine of tribal sovereign immunity is not like the doctrine of state sovereign immunity. 84 The doctrine of tribal sovereign immunity cannot Ье waived Ьу implication, and qualified immunity does not attach to tribal ot·­ ficers.85 Tribal members may Ье sued in state court, but the tribe may not Ье sued.86 In Кiowa Tribe of Oklahoma v. Manufacturing Technologies, /пс., the Supreme Court, in а majority opinion Ьу Justice Kennedy, recounted how the doctrine accidentally came about and has been restated in case law for so long that it has become entrenched.87 Three dissenting justices in Kiowa concluded that tribal immunity should not Ье extended to suits arising from а tribe's off­ reservation activities. 88 Justice Stevens, joined Ьу Justice Thomas and Justice Ginsburg, 89 observed that по prior Supreme Court case had "set forth any rea­ soned explanation for а distinction between the states' power to regulate the off-reservation conduct of Indian tribes and the states' power to adjudicate dis­ putes arising out of such off-reservation conduct."90 The majority opinion, while recognizing that the doctrine of tribal immunity might Ье in need of limi­ tation or reform in the commercial enterprise context, opted to wait for Con­ gress to change the rules. 91 Justice Kennedy explained that the tederal immuni­ ty doctrine had been retained "оп the theory that Congress had failed to ° Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831). 8 /d.; Worcester v. Georgia, 31 U.S. 515, 555 (1832), abrogated Ьу Nevada v. Hicks, 533 U.S. 353 (2001). 82 See Worcester, 31 U.S. at 515. 83 See C1_1NTON ЕТ ЛL., supra note 33, at 26-49. 84 See Кiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 756 (1998). 85 Puyallup Tribe, Inc. v. Dep't of Game of Wash., 433 U.S. 165, 171 (1977). 86 See Кiowa Tribe, 523 U.S. at 751. 87 ld. at 756-57. 88 ld. at 760 (Stevens, J., dissenting). 89 Again demonstrating that in the area of lndian law, political and ideological leanings are frequently not predictive of judicial interpretation of the doctrines. 90 Кiowa Tribe of Okla. v. Mfg. Techs., lnc., 523 U.S. 751, 764 (1998) (Stevens, J., dissenting). 91 ld. at 758. 81 abrogate it in order to promote economic development and tribal self-sufficien­ cy ."92 Supreme Court precedent has estaЫished that а tribe' s clear statement93 or an unequivocal expression of waiver Ьу Congress94 сап waive tribal sovereign im­ munity. In С & L Enterprises, !пс. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, а tribe entered into а contract that contained an arЬitration clause. 95 When the contract was in dispute and the other party attempted to commence an arЬitration action, the tribe sought to invoke its sovereign immunity.96 The Supreme Court, in an opinion Ьу Justice Ginsburg, decided that since the tribe had drafted large portions of the agreement, stated that the choice of law for the contract was Oklahoma law, and agreed to have disputes resolved Ьу the Con­ struction Industry ArЬitration Rules of the American ArЬitration Association, the tribe had effectively waived its sovereign immunity to suit in the matter. 97 In the absence of such an express waiver, however, the Supreme Court has generally permitted the exercise of tribal sovereign immunity, even in situa­ tions where а state has а right to regulate the activities of tribal businesses owners. 98 In Oklahoma Тах Commission v. Citizen Band Potawatomi lndian Tribe of Oklahoma, the Supreme Court held that the State of Oklahoma could not maintain actions to collect cigarette taxes against а tribe that owned а con­ venience store and sold cigarettes to members and non-members of the tribe.99 While the Court acknowledged the state's right to tax the sale of cigarettes to nontribal members and to enlist the assistance of the tribe in collecting these taxes, the Court pointed the state to Congress to provide an enforcement mech­ anism in the event that the tribe did not voluntary engage in this collection. 100 While the California Supreme Court in Agua Caliente distinguished its case from Potawatomi based on core political process concerns present in the cam­ paign finance disclosure context,101 the distinction is а thin one. PresumaЫy, а state's right to tax is fundamental to its aЬility to exist and fund projects. Un­ fortunately, the Supreme Court did not have the opportunity to hear the Agua Caliente case, and the harmonization of these two rulings will have to await another case. ld. at 757. С & L Enters., lnc. v. Citizen Band Potawatomi lndian Tribe of Okla., 532 U.S. 411, 412 (2001). 94 CUNTON ЕТ ЛI,., supra note 33, at 490. 95 С & L Enters., 532 U.S. at 415. 96 ld. at 416. 97 ld. at 420. 98 Okla.Tax Comm'n v. Citizen Band Potawatomi lndian Tribe of Okla, 498 U.S. 505, 514 (1991). 99 ld. at 510. 100 ld. at 512. 101 Ag ua Caliente Band of Cahuilla lndians v. Superior Court, 148 Р.Зd 1126, 1133 (Са!. 2006). 92 93 State Sovereignty and Guaranteed Powers While judicial opinions and federa\ statutes largely define the parameters and limits on tribal sovereignty, the U.S. Constitution expressly outlines the param­ eters of state sovereignty.102 The Tenth Amendment provides that "[t]he pow­ ers not delegated to the United States Ьу the Constitution, nor prohiЬited Ьу it to the States, are reserved to the States respectively, or to the people."103 The Eleventh Amendment prohiЬits suits Ьу citizens against states, unless а state has waived its right to immunity.104 The Federalist Papers indicate that the retention of certain powers Ьу the states was critical to the balanced system that we now call federalism.105 А strong national government was necessary to unite the interests of the various states and to speak as one voice in matters of foreign relations.106 However, the unique interests of the citizens of each state were to Ье recognized through the retention of \оса\ control over criminal laws, police power, and the electoral process. 107 As discussed above, the Drafters of the Constitution decided that the federal govemment should have the aЬility to negotiate in а uniform manner with American Indian tribes.108 Individual states, which had been entering into trea­ ties with tribal nations within their borders, were stripped of this power Ьу express provisions of the Constitution.109 However, while the Constitution oЫiterated states' sovereign powers with respect to inter-govemmental negotiations, the Constitution preserved states' aЬility to direct and control their own electoral process, albeit very limited ex­ ceptions.110 Article 1, section 4 states, "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall Ье prescribed in each State Ьу the Legislature thereof."111 While Congress may change the rules set Ьу the states, courts have interpreted the Elections Clause and the Guarantee Clause112 as providing states with control over their own election processes.11 3 Even after the Fifteenth Amendment to the U. S. Constitution was ratified, the preference for al\owing states to run e\ections the way they saw fit was so entrenched in American jurisprudence that it took decades of contentious de­ bate for the federal govemment to step-in and pass legis\ation to ensure that В. 102 103 104 105 106 U.S. CoNsт. amend. XI. ld. ld. ТнЕ FEDERлusт No. 9 (Alexander Hamilton). J d. 101 ld. See U.S. CoNsт. art. I, § 8, с!. 3. 108 109 110 111 112 113 U.S. CoNsт., art. I, § 8. U.S. CoNsт. art. I, § 4, cl. 1. Jd. U.S. CoNsт. art. IV, § 4. Tashjian v. RepuЫican Party of Conn., 479 U.S. 208, 217 (1986). Southem states provided the franchise to African-American citizens.114 Con­ gress passed the Voting Rights Act in 1965 only after evidence of а history and pattem of denying African-Americans the right to vote for generations was es­ taЫished. 115 And to this day, in the election law context, the Supreme Court has sought to avoid any unnecessary interference with federalism in the course of allowing federal oversight of state election practices.116 IП. DEVELOPMENTS IN СлмРАЮN FINANCE D1scLOSURE Lлws Until recently, the sovereign interests of tribes and states have not converged in the arena of campaign finance laws.117 There has been little question that states and the federal govemment have а strong interest in the preservation of the integrity of the electoral process. 118 One constitutionally ассерtаЫе way to avoid corruption or the appearance of corruption Ьу campaign contributions has been through disclosure laws requiring that candidates puЫicly report major funders. 119 Both federal and state legislatures have passed new campaign fi­ nance laws-including disclosure requirements-and, in large measure, courts have upheld the laws for the purpose of eliminating corruption and the appear­ ance of corruption of puЫic officials. 120 The BCRA, which aimed to reduce the influence of "soft money" in federal campaigns Ьу limiting political party contributions and spending and Ьу redefining political speech and disclosure V oting Rights Act of 1965, 42 U.S.C. §§ 1973-1973ЬЬ-1 (2006). H.R. REP. No. 89-439(1965), reprinted in \965 U.S.C.C.A.N. 2437, 1965 WL 4484; 42 U.S.C.A. § 1973(с) (West 2010). 116 Growe v. Emison, 507 U.S. 25, 33 (1993) (recognizing that the Constitution leaves reapportionment decisions primarily to the states and estaЫishing that federal courts should defer to redistricting plans crafted Ьу state courts in order to avoid involving themselves with areas of state concern). One notaЫe exception might Ье Bush v. Gore. 531 U.S. 98 (2000). However, most scholars and judges see that case as unique to the circumstances and not signaling an increased federal oversight of state elections mechanisms. See, e.g., Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: А Comment оп Professor Amar, 61 F1,л. L. REv. 979, 985-86 n. 42 (2009); Akhil Reed Amar, Bush, Gore, Florida, and the Constitution, 61 FJ_л. L. REv. 945, 966 (2009) (indicating that there was really no consensus оп the equal protection argument advanced Ьу the Bush campaign and discussed in the per curiam opinion). 117 See Agua Caliente Band of Cahuilla lndians v. Superior Court, 148 P.3d 1126 (Са\. 2006). 118 Buck\ey v. Valeo, 424 U.S. 1, 58 (1976). 119 ld. at 60-68; McConnell v. FEC, 540 U.S. 93, 119-120, 196 (2003). In the wake of the Proposition 8 election in Califomia in 2008, some have suggested that disclosure laws should Ье modified. See Scott М. Noveck, Campaign Finance Disc\osure and the Legislative Process, 47 HлRv. J. oN LEGIS. 75, 75 (2010). 120 Most recently in Citizens United v. F.E. С., 130 S.Ct. 876 (2010), the Court held that the disclosure and disclaimer requirements of the BCRA were valid exercises of federal power over elections. 114 115 requirements, largely withstood а multi-angled federal court challenge. 121 The BCRA also expanded the definition of federal election activity and swept"in а fair amount of election spending that previously would have been regulated only Ьу state law.122 As will Ье discussed below, the federalization of election activity may signal an avenue for bringing tribes into the election rules, which are being followed Ьу all other participants in the political process. Starting with Buckley v. Valeo and extending to numerous state law deci­ sions, 1 23 courts have repeatedly upheld disclosure laws for the purpose of en­ suring transparency and voter information. 124 Disclosure laws require candi­ dates and major political donors to report contributions and spending, so that the electorate сап access information about the source of funding support for candidates.125 Disclosure is seen as а deterrent to corruption or the appearance thereot· Ьу providing agencies and watchdog organizations the tools to track and connect contributions to votes Ьу puЫic officials once they take oftice. 126 Lower courts have struggled to address the nuances of campaign financing, such as whether campaign contribution limits are too low or whether expendi­ ture limits are ассерtаЬ!е as long as puЫic financing options provide an oppor­ tunity for limitless speech. However, historically, few judges have questioned the govemmental interests in disclosure laws. 127 The last decade has seen some successful challenges to disclosure laws in lower courts on the basis that indi121 See McConnell, 540 U.S. at 93. 122 Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NoтRE DлмЕ L. REv. 1537, 1548-50 (2007); Miriam Galston, Emerging Consti­ tutional Paradigms and Justifications for Campaign Finance Regulation: The Case of 527 Groups, 95 G1ю. L.J. 1181, 1203-07 (2007); Richard L. Hall, Equalizing Expenditures in Congressional Campaigns: А Proposal, 6 ELECTION L.J. 145 (2007); Craig А. Defoe, Note, Regulating Coordinated Communications: How the FEC Rules Restrict Business Communi­ cations and Benefit Incumbents, 40 IND. L. REv. 119 (2007). 123 See Socialist Workers 1974 Cal. Campaign Comm. v. Brown, 125 Са\. Rptr. 915,920 (Са\. Ct. Арр. 1975). 124 Buckley v. Valeo,424 U.S. 1, 68-82 (1976); FEC v. Toledano, 317 F.3d 939 (9th Cir. 2002); Citizens for ResponsiЬ\e Gov't. v. Davidson, 236 F.3d 1174 (10th Cir. 2000); Colora­ do Right to Life Comm., lnc. v. Davidson, 395 F. Supp. 2d 1001, 1002 (D. Colo. 2005); Nat'I Fed'n of RepuЬ\ican AssemЬ\ies v. United States, 218 F. Supp. 2d 1300 (S.D. Ala. 2002); Herschaft v. N.Y.C. Campaign Fin. Bd., 139 F. Supp. 2d 282 (E.D.N.Y. 2001); Chamber of Commerce v. Moore, 191 F. Supp. 2d 747 (S.D. Miss. 2000); Frank v. City of Akron, 95 F. Supp. 2d 706 (N.D. Ohio 1999). 125 See Buckley, 424 U.S. at 61. 126 ld. at 66-68. 127 See Chamber of Commerce v. Moore,288 F.3d 187, 191 (5th Cir. 2002); In re Lance, 106 N.У.S. 211 (1907). There are а few noteworthy exceptions, but even where disclosure statutes were struck down, it was not because of а lack of state interest in disclosure. See, e.g., Buettell v. Wa\ker, 319 N.E.2d 502 (1\1. 1974) (finding that an Executive Order compel­ ling disclosure was beyond executive power under l\linois Constitution); State ех rel . Pub. Disclosure Comm'n v. Rains, 555 P.2d 1368 (Wash. 1976) (finding а disclosure statute viduals have а right to anonymity in political speech; but, generally, most courts still view disclosure rules as an important and naпowly drawn tool in the campaign finance regulation arena. 128 In the limited circumstances where disclosure requirements have been unen­ forceaЫe, the plaintiff challenging the law estaЫished а protected right to anonymous speech. 129 Two cases, Buckley and Mclntyre v. Ohio Elections Commission, send mixed messages with respect to compelled disclosure of identity in political speech.130 Buckley allows for compelled disclosure in the context of political speech; 131 Mclntyre states that anonymous political speech is guaranteed Ьу the First Amendment. 132 А third case, Brown v. Socialist Workers 1974 Campaign Committee, articulates а well-settled exception to dis­ closure rules for members of politically unpopular groups that might Ье targeted for harassment, if they cannot remain anonymous in their associa­ tion.133 Questions remain about the reach of the Socialist Workers exception to the general rule of puЫic disclosure of political donors and participants. То date, the Mclntyre rule of anonymous political speech has not been harmonized with the Buckley rule of disclosure. 134 Tribes have not argued that they fall within the Mclntyre or Socialist Workers exceptions to disclosure laws; in­ stead, they have relied оп arguments of sovereign immunity. Nonetheless, the underlying rationale for campaign finance disclosure laws and the exceptions to the laws are relevant to balancing the interest of а state against а tribe' s interest in avoiding disclosure enforcement. Buckley set forth three govemmental interests for requiring political partici­ pants to disclose their spending оп political campaigns: (1) anti-corruption; (2) information; and, (3) enforcement. 135 First, required disclosure deters corrup­ tion in that it enaЫes the puЬlic to track contributors and spenders and to link them to candidates or officials who might act in ways to benefit certain individ­ uals or groups. 136 Second, required disclosure provides information that is helpful to voters in that it demonstrates which individuals or groups support unconstitutional due to vagueness); Elections Bd. v. Wis. Mfrs. & Commerce, 597 N.W.2d 721 (Wis. 1999) (finding а disclosure regulation unconstitutional for due process violations). 128 Justice Kennedy, writing for the Court in Citizens United, only garnered а majority in Part IV ot' his opinion, which upheld the BCRA's disclosure and disclaimer provision. Citi­ zens United v. FEC, 130 S.Ct. 876, 914-15 (2010). 129 Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). 130 Buckley v. Valeo, 424 U.S. 1, 60-68 (1976); Mclntyre, 514 U.S. at 334. 131 Buckley, 424 U.S. at 60-68. 132 Mclntyre, 514 U.S. at 343. 133 Brown v. Socialist Workers 1974 Campaign Comm., 459 U.S. 87, 91-99 (1982). 134 Mclntyre, 514 U.S. at 334. 135 DлNIEI, Нлуs LowF.NSTEIN & R1cнлRD L. HлsEN, ЕLЕстюN Lлw: CлsEs AND MдТF.RJALS 989 (3d ed. 2004). 136 ld. candidates. 137 In other words, contributions and spending Ьу particular groups сап become shorthand for political philosophy or ideology. Third, required disclosure facilitates enforcement "of other campaign finance laws." 138 With­ out disclosure, determining which candidates have accepted contributions in excess of federal and state limits would Ье а difficult undertaking. The analytica\ challenge for disclosure limits is not that they restrict cam­ paign activities or directly limit speech Ьу placing а сар оп the amount of money that сап Ье spent оп а political message. Rather, the Supreme Court in Buckley explained that the concern with compelled disclosure of campaign re­ lated spending and communication relates to the First Amendment right to pri­ vacy of association and belief. 139 The Court explained: Since NAACP v. Alabama we have required that the subordinating inter­ ests of the State must survive exacting scrutiny. We also have insisted that there Ье а "relevant correlation" or "substantial relation" between the gov­ emmental interest and the information required to Ье disclosed. This type of scrutiny is necessary even if any deterrent effect оп the exercise of First Amendment rights arises, not through direct govemment action, but indi­ rectly as an unintended but inevitaЬle result of the government's conduct in requiring disclosure. 140 While identifying this form of strict scrutiny as the appropriate standard to employ, the Buckley Court acknowledged that under this articulation of the strict scrutiny test, some governmental interests of the kind that relate to the "free functioning of our national institutions" could outweigh even substantial burdens оп the exercise of the First Amendment Ьу individuals. 141 App\ying this test to the disclosure requirements contained in the Federal Election Cam131 13s 139 140 ld. ld. Buckley v. Valeo, 424 U.S. 1, 58 (1976). Id. at 64-65 141 ld. at 66 (citing Communist Party v. Subversive Activities Control Bd., 367 U.S. !, 97 (1961)). The Buckley decision covered а wide-range of rulings on campaign finance reforrn using this basic rubric, and ultimately estaЫished а forrnula where expenditure limitations are subject to the strictest forrn of constitutional scrutiny and contribution limits receive heightened, but not insurmountaЫe scrutiny. In the Supreme Court's most recent review of Buckley, а plurality of Justices in Randall v. Sorrell, 548 U.S. 230 (2006), concluded that Verrnont's campaign expenditure limits were unconstitutional and that its contribution lim­ its, while not an outright violation of the rules announced in Buckley, were too \ow to perrnit effective election speech. Most notaЫe about Randall was the fact that for different reasons, three Justices (Тhomas, Stevens, and Scalia) dissented Ьу stating that they would overrule Buckley. Two other Justices did not find the question of whether to overru\e Buckley to Ье squarely presented, but presumaЬly would overrule certain portions of the opinion if it were. Additiona\ly, two other Justices appeared to read the prohiЬition оп expenditure limitations as not absolute. While Randall does not address disclosure requirements, it does breathe insight into the confused area of campaign finance law. paign Act ("FECA"), the Buckley Court concluded that the informational, anti­ corruption, and enforcement interests were al\ substantial government interests, and that-in most applications-the requirement to disclose politica\ contribu­ tions to candidates was the least restrictive means of "curbing the evils of cam­ paign ignorance and corruption that Congress found to exist." 142 The challengers of the FECA in Buckley argued that the disclosure require­ ments were overly broad as applied to minor parties and their candidates. 143 They asserted that supporters of minor parties would Ье afraid to donate if they were required to disclose their allegiance to а politically less popular move­ ment. 144 They also argued and the Court acknowledged that there was а re­ duced likelihood that minor party candidates would Ье in а position to succumb to quid pro quo corruption. For these reasons, the challengers suggested that disclosure requirements should not Ье applied to minor parties and their candi­ dates in the same manner as major parties. 145 The Buckley court acknowledged that there was а more limited chance of quid pro quo corruption in contribu­ tions to minor party candidates who were unlikely to win office. 146 Further, the court acknowledged that minor party candidates were unlikely to amass the same level of resources to trigger anti-corruption and enforcement concerns. 147 Nonetheless, the Buckley court concluded that the informational interest was sufficient to have uniform rules for everyone who participates in the campaign process. 148 Decided almost twenty years later, Mclntyre held that anonymous politica\ speech was protected Ьу the First Amendment. 149 Justice Stevens, writing for the majority, framed the Mclntyre issue as "whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoral process." 150 In the case, а woman was fined under an Ohio statute for distributing anonymous leaflets opposing а school tax levy. 151 The Mc/ntyre court found that the statute was а content-based restriction aimed at "core political speech." 152 Accordingly, the Court applied exacting scrutiny to the \aw.153 In support of its case, Ohio articulated that its interests in preventing fraud and libe\ and in providing voters with re\evant information 142 143 144 145 146 147 148 149 150 151 152 153 Buckley, 424 U.S. at 68. Buckley v. Valeo, 424 U.S. 1, 68 (1976). ld. at 71. ld. ld. at 70. ld. at 70. ld. at 71. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). ld. at 344. ld. at 334. ld. at 380. ld. were compelling interests and furthered Ьу the law. 154 In а seeming departure from Buckley, the Mclntyre court held that "Ohio's inforrnational interest is plainly insufficient to support the constitutionality of its disclosure requirement." 155 The court further found that although the inter­ est in preventing fraud and libel was compelling, the statute was too broad to pass constitutional muster on that basis. 156 Responding to Ohio's attempt to rely оп the holding relating to disclosure requirements in Buckley, the Mclntyre court observed that the cases were distinguishaЬ\e in that Buckley focused оп mandatory disclosure of campaign-re\ated expenses, while Mclntyre addressed the prohiЬition of anonymous campaign literature. 157 Of course, this distinction rings hollow when taken together with Buckley's pronouncement that campaign expenditures equate to politica\ speech. PresumaЬ\y, the requirement that cam­ paign spending Ье disclosed is also а prohibition оп anonymous campaign speech. Many cases following Buckley have interpreted the message of Buckley in this manner both with respect to campaign spending оп candidates and cam­ paign spending оп ballot measures of the kind that the politica\ speaker in Mc­ lntyre sought to offer her opinion about, a\though some have seen а distinction between speech in the forrn of spending and compelled personal disclosures. 158 The Mclntyre Court a\so observed that Buckley approved of the FECA dis­ closure requirements as а result of а federal interest in avoiding the appearance of corruption; an interest not articulated Ьу the State of Ohio in Mclntyre. 159 After Mc/ntyre, the law concerning the validity of Buckley-approved enforce­ ment and voter inforrnation interests was left in doubt. Cases made their way through the lower courts challenging disclosure requirements that were not sup­ ported Ьу anti-corruption interests. 160 McConnell v. FEC, а multi-angled challenge to the BCRA, did not shine much light on the tension between Buckley and Mclntyre. 161 What McConnell did say about disclosure suggests that the Supreme Court continues to recog­ nize both the strong informational interests of the voting puЬ\ic and the en­ forcement interests of the govemment in being аЬ\е to track political contribu154 at 335. At 349. 156 at 350. 157 at 353. 158 Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1102 (10th Cir. 1997), aff'd sub пот. Buckley v. Am. Constitutional Law Found., !пс., 525 U.S. 182 (1999) (hold­ ing that name badges and compe\led disclosures Ьу petition circulators were unconstitutional under ап analysis that invoked both Buckley and Mclntyre). 159 Mc/ntyre, 514 U.S. at 354. 16° Citizens for ResponsiЫe Gov't. v. Davidson, 236 F.3d 1174 (10th Cir. 2000); Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000); Vt. Right to Life Comm., !пс. v. Sorrell, 19 F. Supp. 2d 204 (D. Vt. 1998). 161 McConnell v. FEC, 540 U.S. 93 (2003). 155 Id. Id. ld. Id. tions and spending. 162 In McConnell, all of the Justices---except Justice Thomas-joined in an interpretation of Buckley that upheld а BCRA require­ ment, which mandated the disclosure of contributions and expenditures made in support of an entire range of electioneering communications, if those funds exceeded $10,000. 163 In doing so, the McConnell Court reasserted that the state's interests in "providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data neces­ sary to enforce more substantive electioneering restrictions" were sufficient to support the limited burden on speech that after-the-fact disclosure to а govem­ mental agency imposed. 164 The most detailed mention of the Mclntyre case in the McConnell decision appears in Justice Thomas's dissent concerning the validity of the BCRA's dis­ closure requirements. 165 Justice Thomas contended that the only fair reading of Mclntyre is that Mclntyre overturned Buckley "to the extent that Buckley up­ held а disclosure requirement solely based on the governmental interest in pro­ viding int·ormation to the voters." 166 While попе of the other Justices who de­ cided the McConnell case in 2003 subscribe to this interpretation of the Mclntyre-Buckley disclosure divide, there are four new Justices оп the Su­ preme Court since McConnell was decided. However, even if some of them share Justice Thomas's conviction that no burden оп anonymous political speech сап Ье outweighed Ьу а puЫic interest in disclosure, it would Ье unlike­ ly that all four would join Justice Thomas to estaЫish majority support for this reading ot· Mclntyre-Buckley. Scholars have questioned whether McConnell тау have sub silentio over­ ruled Mclntyre on the question of whether an informational interest is sufficient to justify compelled disclosure of spending on election-related activity. 167 They have noted that the decision left open several questions relating to the scope of disclosure requirements. 168 Lower courts have also wrestled with the implications of the McConnell decision for state disclosure laws. 169 Most, like the Seventh Circuit Court of Appeals in Majors v. Abell, have concluded that 162 ld. at 195. ld. at 104. 164 ld. at 196. 163 165 Id. at 275 (Thomas, J., dissenting in part). ld. at 276. 167 LoWENSTEIN & HдSEN, supra note 135, at 1022 n.2. 168 Richard L. Hasen, The Surprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham lssue Advocacy, 3 ЕсЕСТЮN L.J. 251, 251 (2004) (indicating that the constitutionality of disclosure rules remains unclear in three areas: first, whether govemment may require disclosure in face-to-face communications-Mc/ntyre and Buckley would suggest по; second, whether govemment may compel disclosure of smal\ expendi­ tures; and, third, whether the govemment may compel disc\osure of contributions and ex­ penditures relating to ballot measure campaigns). 169 Majors v. Abell, 361 F.3d 349 (7th Cir. 2004). 166 voter information and collection of data for enforcement are sufficiently impor­ tant govemmental interests to warrant the burden associated with compelled disclosure of campaign spending. 170 California, like many other states, has enacted disclosure requirements that parallel those instituted Ьу federal law both in the FECA and later in the BCRA.171 In Califomia, the Government Code sets forth its rationale for its disclosure laws as follows: "Receipts and expenditures in election campaigns should Ье fully and truthfully disclosed in order that the voters may Ье fully informed and improper practices may Ье inhibited." 172 Неге, Califomia specifi­ cally identifies at least two of the interests approved of Ьу the Court in McCon­ nell; namely, the informational interest and the enforcement interest. 173 These interests should apply equally to all participants in the political process. Noth­ ing in the unique relationship between American Indian tribes and states sug­ gests that information about tribal money supporting state candidates and the aЬility to enforce campaign finance laws against all who contribute to а state's political process should Ье regulated differently than other political donors. IV. ТнЕ lNTERSECTION OF ТювдL, FEDERAL, дND SтдтЕ SovEREIGNTY wпн СдмРдIGN F1NдNCE Lлw From the early history of the nation, the interactions of states and tribes have been filtered through federal policies. Shifting notions of tribes as sovereigns and dependents that date back to pre-colonial times have informed these federal policies. Today's tension between а state's control of electoral politics and а tribe's aЬility to assert sovereign immunity is deeply rooted in the historical realities of three sources of power attempting to simultaneously govem and interact with one another. Where the area which а state seeks to regulate re­ Iates to its core function, the independence of а tribal action is most dit'ficult to accept. The integrity of а state's election process is one such core function. А. The California Example As discussed above, Agua Caliente featured а conflict between а large south­ em California tribe and the Fair Political Practices Commission of the State of 170 /d. at 354 (although the case does it with consideraЬ\e back and forth debate and а dissent Ьу Judge Easterbrook); Cal. Pro-Life Council, Inc., v. Getman, 328 F.3d 1088, 1107 (9th Cir. 2003); Voters Educ. Comm. v. Wash. State Pub. Disclosure Comm'n, 166 P.3d 1174 (Wash. 2007); see also Elizabeth Garrett & Daniel Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy, 4 ELECTION L.J. 295, 301-02 (2005); cf ACLU of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004) (holding that Mclntryre required invalidation of а Nevada disclosure statute). 171 Сл1_, Е1-Ес. СrюЕ § 81002(а) (West 2005). 172 fd. 173 McConnell v. FEC, 540 U.S. 93 (2003). Califomia. 174 Understanding this dilemma in Califomia is important to under­ standing the tension between various levels of govemment and tribal interests. All tribes in California, including the Agua Caliente Band of Cahuilla Indians in Palm Springs, must negotiate with the Govemor of Califomia and gain ap­ proval of the California Legislature to operate gamЫing casinos with "Class 111" gaming. 175 Under federal law, once а compact is reached with а state, the tribe is permitted to engage in Class III gaming. Class III games include highly profitaЫe slot machines and other games of chance. 176 The Agua Caliente Tribe reached an amended compact with Govemor Ar­ nold Schwarzenegger in August 2006, which would have brought at least $600 million to the tribe and about $80 million to California over а twenty-three year period. 177 The legislature, however, rejected this compact. 178 Without ratifica­ tion, the tribe could not break ground оп the expansion of its Palm Springs gamЫing empire. 179 As the State AssemЬ!y and Senate were contemplating the bill seeking approval of Agua Caliente's compact, the third branch of govern­ ment was also pondering the implications of the tribe's vast financial resources and its sovereign powers. In 2006, the California Supreme Court ruled оп the Agua Caliente case. 180 The tribe is registered as а major donor and as an Independent Expenditure Committee with the Calit"ornia Secretary of State. 181 Yet, the Agua Caliente Tribe and others182 maintained throughout litigation that Indian tribes are not subject to ent"orcement actions that would require them to disclose the recipi­ ents or amounts of their campaign contributions or expenditures. 183 They ar174 Agua Caliente Band of Cahuilla Indians v. Superior Court, 148 P.3d 1126, 1129 (Cal. 2006). 175 See Artichoke Joe's Са\. Grand Casino v. Norton, 353 F.3d 712, 715-16 (9th Cir. 2003). Class !, 11, and III gamЬ\ing devices are defined in the lndian Gaming Regulatory Act. ld. Class III gaming is allowed on Indian lands only if three conditions are met: (1) the tribe and the National lndian Gaming Commission approve; (2) gaming is allowed in the state; and, (3) а tribal-state compact exists. ld. 116 ld. Milboum, supra note 14, at А1. АВ 2399 (Garcia) introduced August 15, 2006, Died in Conference Nov. 30, 2006, http://www.leginfo.ca.gov/puЬ/05-06/Ьill/asm/ab_23512400/ab_2399_Ьi11_20061130_status. html (last visited Nov. 30, 2010). 179 Слс. CoNsт. art. IV, § 19(f). 1 so Agua Ca\iente Band of Cahuilla Indians v. Superior Court, 148 P.3d 1126 (Са\. 2006). The Real Party in Interest on behalf of the State of Califomia in that case was the Fair Political Practices Commission, а state agency that sued the Agua Caliente tribe to enforce campaign finance disclosure laws. 181 Сл. SEc'y SтлтЕ, supra note 14. 182 Brief for Blue Lake Rancheria & Mainstay Bus. Solutions as Amici Curiae Support­ ing Petitioner, Agua Caliente Band of Cahuilla Indians v. Superior Court, 148 P.3d 1126 (Са\. 2006) (No. S \23832), 2005 WL 2236910 *2. 183 Agua Caliente Opening Brief, 2004 WL 2823274 *2, *19-21 (Sept. 23, 2004). 177 178 gued that they may voluntarily report to the Secretary of State consistent with campaign finance laws, but that they may not Ье compelled to provide informa­ tion, nor can they Ье penalized for failing to report accurately. 184 The Califomia Supreme Court decided that the Fair Political Practices Com­ mission may enforce its disclosure regulations against the Agua Caliente Tribe through а lawsuit in state court. 185 The majority relied on the Tenth Amend­ ment and the Guarantee Clause of the U.S. Constitution to reach this conclu­ sion. As the three dissenting justices pointed out, these constitutional provi­ sions have not previously been relied on to create an exception to the long­ standing federal common law rule of tribal sovereign immunity from suit. 186 The four justice majority of the Califomia Supreme Court, closely following the reasoning of two justices from the Third District Court ot· Appeal, con­ sciously diverged from existing precedent and placed fundamental policy con­ cerns above traditional legal analysis. 187 Black letter law in this area to date suggests that tribal sovereign immunity from suit is broadly construed in the absence ot' express consent Ьу the tribe subject to suit. 188 The tribe filed а motion for reconsideration ot' the case with the California Supreme Court; how­ ever, the court denied the motion. 189 In Agua Caliente, the judges were divided on the issue of whether tribal sovereign immunity should apply to enforcement actions for violations of state election laws. The case turned on the unique intersection of federal, state, and tribal sovereignty and supremacy. In recent years, the previously unremarkaЫe balance of powers between these three units of government has been highlight­ ed Ьу the increased economic powers ot' gaming American lndian tribes. 190 Tribes have used this economic power to engage in the political process seem­ ingly without constraint. 191 Simultaneously, tederal legislation relating to elec184 185 186 See id. Agua Caliente, 148 Р.Зd at 1126. Agua Caliente Band of Cahuil\a lndians v. Superior Court, 148 Р.Зd 1126, 1141 (Са\. 2006) (Moreno, J., dissenting) ("The United States Supreme Court has thus far rejected al\ attempts to limit Indian lawsuit immunity that have not originated with Congress."). 187 See Agua Ca\iente Band of Cahuilla Indians v. Superior Court, 10 Са!. Rptr. 3d 679 (2004). This means that six jurists who reviewed the case adopted the approach favoring the state political process concems and five thought that traditional doctrines of tribal sovereign immunity and limitations оп а state's power over lndian tribes prevented the enforcement of disclosure laws. The close count demonstrates the uncertainty in this area of law. 188 42 C.J.S Jndians § 19 (2007). 189 Agua Caliente Band of Cahuil\a lndians' Petition for Rehearing and Request for Stay of Remittitur, Agua Caliente Band of Cahuilla lndians v. Superior Court, 148 Р.Зd 1126 (2007) (No. S l23832), 2007 WL 460018. The tribe initia\ly sought an extension of time to file а petition for certiorari to the Supreme Court, but then elected not to file а petition. Therefore, the Califomia Supreme Court decision is the last word оп the subject, for now. 190 Meister et al., supra note 5. 191 ld. tion law has increased. The BCRA arguaЫy extended the reach of federal elec­ tion Iaw into the purview of what had previously been left to state regulation. With the balance of power in election Iaw teetering between federal and state regulators, and the balance of power in Indian law uncertain in terms of state and tribal sovereignty concerns, the question of whether а state сап enforce its campaign regulations against tribes is not easy to answer. As discussed more fully below, the federal system is generally and historically the jurisdiction for tribal regulation. В. Federal Regulation of Federal Tribes Congress сап regulate tribes and tribal activities. 192 While federal campaign finance laws, such as the BCRA, apply to Indian tribes seeking to affect the outcome of federal elections, these laws do not apply to campaign giving spe­ cifically directed at state elections, including candidate elections and ballot measure committees. Congress could completely regulate tribal campaign giv­ ing under its plenary power contained in the Commerce Clause, but to date, it has chosen not to. As а result of federal regulatory action and inaction Ьу Congress, federal law currently treats tribes as "individuals" and requires disclosure of tribal spending in the same manner as any other individual player in the federal election are­ na. 193 Congress has never directed how Indians should Ье treated with respect to campaign finance laws. lnstead, the FEC defines the rights and responsibili­ ties of tribal govemments to comply with federal election laws through regula­ tions and advisory opinions.194 The root of this congressional silence may well Ье that tribes from certain regions have spent enormous amounts of money in recent years. 195 Given how many states now have wealthy tribes eager to par­ ticipate in the political process Ьу spending generously in federal and state 192 U.S. CoNsт. art. 1, § 8. 193 2 U.S.C.A. § 431(11) (West 2006); 11 C.F.R. § 100.10 (2006). 194 11 CFR § 100.10 (2006); FEC Advisory Opinions 1993-12, 1999-32, 2000-05, 200501. 195 W. Dл1_Е MлsoN, INDIAN Gлм1NG: Тювл1_ SovEREIGNТY AND AмERICAN Po1-rпcs 232-36 (2000); David Wilkins, Ап lnquiry lnto lndigenous Political Participation: lmplica­ tions for Tribal Sovereignty, 9 KAN. J.L. & Рuв. Ро1_'у 732, 732-33 (1999-2000); ВоЬ Ege\ko, State's Тор Court to Rule оп Disclosure of Tribal Donations, S.F. CнRON., June 24, 2004, at ВЗ; Phillip Matier & Andrew Ross, State lndian Tribes Cover Their Political Bets with Cash, S.F. CнRON., Jan. 8, 2003, at А17; Josh Richman, Two Gaming Measures оп Ballot, But Опе ls DOA, А1-лмЕ1JА Т1мЕs-SтлR, Oct. 19, 2004, availaЫe at 2004 WLNR 20578606; Benjamin Spillman, Battin Affirms Support of Easing Restrictions оп lndian GamЫing, DESERT SuN, Маг. 25, 2004, at 4В; lndian Gaming: Long-Term Contribution Trends, CENTER I'0R RESPONSIVE Ро1_., http://opensecrets.org/industries/indus.asp?Ind= G6550 (last visited Aug. 22, 2010) (website tracks federa\ contributions and documents an increase in campaign contributions Ьу Indian Casinos and individuals to federal candidates from over $2 million in 1996 to over $7.5 million in 2006). campaigns, the incentive for Congress to define tribes as political organizations or regulate their giving in any express manner is not great. An interesting comparison сап Ье drawn between the regulation of tribes within the federal campaign finance laws and the regu\ation of foreign sover­ eigns. Federal law treats sovereign nations as outside the scope of politica\ community. 196 In fact, federal \aw prohiЬits direct and indirect contributions and expenditures of foreign money to American political campaigns at the fed­ eral, state, and \оса\ level. 197 The prohiЬition applies to contributions, expendi­ tures, and any other thing of value made Ьу а foreign national or solicited from а foreign national to Ье used in connection with an election. 198 Under the stat­ ute, "foreign national" includes foreign governments, corporations, and individ­ uals. 199 Whi\e the early history of tribal sovereignty suggests that tribes were viewed as foreign nations сараЬ\е ot· entering treaties, aЬiding Ьу international govemment-to-government rules of engagement, and having exclusive contro\ over their own population, federal law recognizes only the \ast ot· these indicia of sovereignty today. The differential treatment of tribes and foreign nations with respect to federal election laws is one example of the distinction between these two types of sovereignty. А naпow exception to the prohiЬition оп foreign involvement in the United States Election process exists through а regulatory interpretation. The FEC has interpreted section 441 е to prohiЬit foreign corporations from forming political action committees ("PACs"). However, that same regulation permits certain domestic subsidiaries of foreign corporations to t·orm PACs and participate in the political process in the same manner as any other American corporation. 200 The fact that tribal casinos operate essentially in the same manner as а foreign corporation suggests that if tribal entities were truly sovereign, the same rules of political participation should apply to tribal casinos. Perhaps, tribes could form domestic subsidiaries to create а mechanism for participation оп а similar playing field as other corporations. The three dissenting Justices in the Кiowa case suggested that triba\ enter­ prises should Ье treated as corporations in situations where they act as corpora­ tions. 201 In the majority opinion, Justice Kennedy expressed agreement with this position as а matter of policy, but concluded that congressional action should expressly mandate this treatment. 202 Congress has the power to require 196 191 2 U.S.C. § 441е (2006). ld. ld. 1 9х 199 Jd. 200 Jeffrey К. Powell, Prohibltions оп Campaign Contributions from Foreign Sources: Questioning Their Justification in а Global Interdependent Есопоту, 17 U. Рл. J. INт'1, EcoN. L. 957, 965 (1996). 201 Kiowa Tribe of Okla. v. Mfg. Techs., lnc., 523 U.S. 751, 756 (1998) (Stevens, J., dissenting). 202 /d. at 757-58. tribal corporations to form PACs in the same manner as other corporations for the purpose of spending and reporting election related activity.203 С. Tribal-State Relations and Regulation in the State System The Constitution says little conceming the relationship between tribes and the federal government, and is silent оп the relationship between tribes and states. The Tenth and Eleventh Amendments help to define states' sovereignty and relationship with the federal govemment.204 In fact, the argument that the Fair Political Practices Commission ("FPPC") advanced in its enforcement cases against the Agua Caliente and Santa Rosa Rancheria tribes was that the Tenth Amendment and the Guarantee Clause ensure that по federal common law principle сап override the power of а state to control its political process.205 The two trial court judges who heard the companion cases, which were ulti­ mately consolidated and heard Ьу the Third District Court of Appeal as Agua Caliente, came to opposite conclusions оп the FPPC's argument against the application of sovereign immunity. The Third District Court of Appeal then heard the Agua Caliente case and split 2-1. The majority concluded that а state's sovereign right to control its electoral process could not yield to tribal sovereign immunity from civil en­ forcement actions.206 The dissenting justice reached the opposite conclusion.207 The California Supreme Court followed the majority in the Court of Appeal's decision and affirmed the FPPC's aЬility to bring an action.208 With such а split in the interpretations of the various judges who reviewed the case, the tribe understandaЫy opted to forego а petition for certiorari to the U.S. Supreme Court.209 The history of this case suggests that the status ot· the relationship of state sovereigns and tribal sovereigns residing in the same political community is anything but clear. Leamed legal minds differ оп the assessment of how 203 А recent case indicating that corporations have political speech rights which cannot Ье completely silenced may have implications for both tribal and non-tribal corporations. Citi­ zens United v. FEC, 130 S.Ct. 876, 879 (2010). Although Citizens United did say that corporations cannot Ье banned from contributing, it did not remove the abllity of Congress and of state legislatures to regulate the giving of corporate entities or impose disclosure and disclaimer requirements. ld. at 914-15. 204 U.S. Const. amends. X-XI. 205 Real Party in Interest's Opposition Brief on the Merits at 15, Agua Caliente Band of Cahuilla Indians v. Superior Court, 148 P.3d 1126 (Cal. 2006) (No. S123832), 2005 WL 760047. 206 Agua Caliente Band of Cahuilla Indians v. Superior Court, 148 P.3d 1126, 1139 (Cal. 2006). 207 ld. at 1140. 208 ld. at 1139. 209 See id. at 1140. Because of the difficulty of predicting judicial interpretations in this area, an appeal to the United States Supreme Court on such а close case might Ье considered risky to tribal interests. tribal sovereignty should Ье treated when directly in conflict with the exercise of sovereign powers of а state. Legal scholars Roger Clinton, Carole Goldberg, and Rebecca Tsosie ask with respect to the Califomia Court of Appeal's decision in Agua Caliente: If the state is unaЫe to bring suit in state court to enforce its campaign control laws against tribal participants in the state electoral process, is the integrity of that process seriously endangered, considering the potential for some gaming tribes to make substantial contributions to candidates and ballot measures? Can't the state insist that the recipients of campaign con­ tributions make the disclosures?210 While there may Ье other ways to protect the state electoral process, those very case-specific questions skirt the larger concem about how the sovereign interests of tribes and the states play out in the important area of political par­ ticipation in state processes. The campaign finance arena is not the only place where the Constitution's failure to define the relationship between states and tribes has resulted in а relationship that is at times tense. In certain federal legislation, like PuЬlic Law 280, Congress has delegated aspects of its guardian relationship to the states. 211 Passed in the 1950s, PuЫic Law 280 grants certain states, including California, criminal and civil adjudicatory jurisdiction over Indian land. 212 This was done in large part because federal oversight of Indian trust lands in small pockets scattered over а vast state like Califomia was difficult and there was а percep­ tion of lawlessness оп reservations with а resulting threat to nearby non-tribal communities. 213 As а result of the delegation, county sheriffs are responsiЫe for providing police services to most reservations and rancherias in Califor­ nia. 214 In other instances, the federal govemment has required states and tribes to negotiate as equal sovereigns. Enacted in 1988, the Indian Gaming Regulatory Act ("IGRA") permits Class III gaming-including Nevada-style games of chance-only when the tribe has entered into а compact with the state in which its land sits. 215 The IGRA contains provisions descriЬing in general terms the 21 ° CлRol,E GoLDBERG ЕТ AL., AмERlCAN INmAN Lлw: NлпvЕ NлтюNs AND тнЕ FE])­ ERAI- SYSTEM CлsEs AN]) МлшR1л,_s 454 (6th ed. 2010). 211 Pub. L. No. 280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 28 U.S.C. § 1360 (2006)). 212 ld. 213 Go,лBERG RT л,_., supra note 210, at 759. 214 ld. Currently, the Tribal and Order Act is pending in Congress. If passed and signed, the federa\ govemment would assume concurrent criminal jurisdiction over lndian Country within PuЬ\ic Law 280 states where authorized Ьу the Attorney General. H.R. 725, 111th Cong. (201О). 215 25 U.S.C. § 27l 0(d)(l)(C) (2006). subjects which tribes and states may negotiate216 and limits the purposes for which gaming revenues may Ье used.217 This piece of federal legislation con­ tains а good faith negotiating requirement and treats states and tribes as inde­ pendent sovereigns сараЫе of negotiating Ьinding agreements. 2 18 In the absence of specific federal legislation defining the relationship be­ tween tribes and states with respect to campaign finance, the participants and the courts are left to fall back on other less specific provisions in the Constitu­ tion and federal common law. The Constitution is implicated because tribes are comprised of members with First Amendment rights to speech and associa­ tion. 219 Therefore, it would seem that tribes must Ье allowed to participate in the political process. Participation in а state's political process would seem to bring with it the requirement to comply with that state's campaign finance dis­ closure rules. After all, if the Tenth Amendment means anything, it ought to mean that а state can control its election process. 220 However, the federal com­ mon law doctrine of tribal sovereign immunity suggests that the state cannot enforce its campaign finance laws through the enforcement mechanism those laws provide, i.e. civil suit. In Califomia, for purposes of campaign finance laws, а tribe is treated as а person.22 1 Other governmental organizations are also treated as а "person" for the purpose of Califomia campaign finance regulations.2 22 In Fair Political Practices Commission v. Suitt, the Califomia Court of Appeal determined that 216 25 U.S.C. § 27IO(d) (2006). 217 25 U.S.C. § 2710(Ь) (2006). 218 25 U.S.C.A. § 27IO(d)(3)(A) (West 2006). The relationship between the tribe and the state in good faith negotiations тау Ье taken up in а recent case entitled Rincon Band of Luiseno Mission lndians of the Rincon Reservation v. Schwarzenegger, 602 F.2d 1019 (9th Cir. 2010). А petition for а writ of certiorari was filed in this case оп September 23, 2010. The Ninth Circuit held that the State of Califomia did not negotiate with the Rincon tribe in good faith when it sought to enter into а revenue-sharing agreement that would have sup­ plied the state with General Fund revenue in exchange for а compact that greatly increased the size of the gamЫing operation оп tribal land. 219 United States v. Nice, 241 U.S. 591, 598-99 (1916). It has been \ong estaЫished that tribal members are citizens of both the United States and their Tribes, affording them а\1 the rights of U.S. citizenship. 220 Paul Е. McGrea\, Unconstitutional Politics, 76 NoтRE DлмЕ L. REv. 519, 559 (2001); Bruce G. Peabody & John D. Nugent, Toward а Unifying Theory of the Separation of Powers, 53 Ам. U. L. REv. \, 21-22 (2003); Cameron А. Reese, Tribal Immunity from California's Campaign Contribution Disclosure Requirements, 2004 BYU L. REv. 793 (2004); Stephen L. Smith, State Autonomy After Garcia: Will the Political Process Protect States' lnterests?, 71 lowл L. REv. 1527, 1528 (1986); Paul Porter, Note, А Tale ofConflict­ ing Sovereignties: The Case Against Tribal Sovereign lmmunity and Federal Preemption Doctrines Preventing States' Enforcement of Campaign Contribution Regulations оп lndian Tribes, 40 U. М1сн. J.L. REI'ORM 191, 213-215 (2006). 221 Сл1__ Gov'т. СооЕ § 82047 (2005). 222 Id.; СлL. Gov'т. Сош, § 84210 (2005). the Califomia Legislature and the AssemЬly Democratic Caucus were "per­ sons" for purposes of reporting campaign contributions and expenditures.223 Federal law, as discussed above, mirrors this approach in defining both tribes and municipal govemments as persons in 2 U.S.C. § 431(11); however, tribes are not subject to the same yearly aggregate limits as individuals under federal law.224 After the BCRA, any communication identifying а candidate for federal of­ fice is regulated as an electioneering communication and is subject to federal regulation.225 Since tribes are now in the business ot· making communications about candidates for federal and state offices, they should understand their re­ porting oЫigations for communications relating to candidates they support and oppose. Equally important, states should understand their role, if any, in regu­ lating tribe-funded campaign related speech with respect to state officeholders and candidates. V. ALLOWING CлмPAIGN F1NдNCE ENFORCEMENT АстюNs AND LEGISLATIVE SOLUTIONS With the conc\usion of the Agua Caliente case, Califomia is the first state to enforce campaign finance disclosure \aws against tribes, even in the face of the seemingly abso\ute barrier to suit created Ьу tribal sovereign immunity. The majority of the justices оп the California Supreme Court concluded that apply­ ing the doctrine of triba\ immunity to suits involving campaign finance regula­ tions was not justified, even if the Supreme Court justified applying the doc­ trine to tribes acting in their commercial capacity in Кiowa.226 Other states will now likely grapple with the balance between tribes who engage in both оп- and off-reservation commercial activities, as well as participation in state and feder­ al political processes. А federal policy estaЫishing that states have the legisla­ tive power to regulate tribes, and all others who participate in а state's political process, is one way to make the rules of the election game clear for all partici­ pants. Principles of federalism, including allowing states to maintain control over their electoral processes, and the federal interest in maintaining control over а uniform and consistent American Indian policy, favor legislation that sets some ground rules for tribal political participation. Courts have found that campaign finance disclosure requirements serve at least three compelling state interests in the First Amendment context. First, 223 Fair Political Practices Comm'n v. Suitt, 153 Cal. Rptr. 311, 316 (Cal. Ct. Арр. 1979). 224 FEC Advisory Opinion 2000-05; 2 U.S.C. § 441а(а)(3) (1976). 225 2 U.S.C. § 434(f)(3) (2006). This provision withstood а facial challenge in McCon­ nell v. FEC, 540 U.S. 93 (2003), but was recently invalidated in some instances Ьу an as applied challenge in FEC v. Wis. Right to Life, lnc., 551 U.S. 449 (2007) (holding that corporate treasuries cou1d Ье used to promote issue advocacy). 226 Agua Caliente Band of Cahuilla lndians v. Superior Court, 148 P.3d 1126, 1140 (Са!. 2006) they are instrumental in promoting an informed electorate. Second, they com­ bat political corruption and the appearance of corruption. Third, they are а necessary measure in enforcing other campaign finance laws. 227 While these interests are generally discussed in the context of defending against First Amendment challenges to disclosure requirements, the interests are по less compelling when c9nsidered in determining whether disclosure laws should Ье enforced in the face of а common law claim of immunity. Congress сап alter tribal sovereign immunity because it is а federal common Iaw doctrine. 228 As Kiowa suggested, there is а need for federal Iegislation to change the reach of immunity in the context of tribal off-reservation commercial activities. 229 Reg­ ulation of tribal off-reservation political speech activity is по less, and perhaps is more, worthy of an exception to the federal common law immunity rule. In both instances, where the state may legislate, it should Ье allowed to enforce its Iegislation through litigation. In the absence of federal legislation making clear that tribal sovereign immu­ nity to suit does not apply to enforcement actions in the campaign finance con­ text, other states litigating the question should rely on the Tenth Amendment and Guarantee Clause rationales that the California Supreme Court followed in Agua Caliente. States attempting to distinguish Kiowa in future litigation should also focus оп the rationale that supported the majority opinion. Kiowa identifies the interests of economic development and tribal self-sufficiency as the purposes behind Congress's retention of tribal immunity. 230 These interests are not furthered Ьу allowing tribes to invoke immunity for enforcement ac­ tions relating to campaign disclosures. In other words, unlike commercial law­ suits, а suit Ьу the FPPC or another regulating agency requiring disclosure would not have severe economic impacts оп the tribe. As а practical matter, disclosure of tribal money in campaign financing is perhaps even more important than disclosure of some other sources of cam­ paign money. Given that tribal money comes predominantly from gaming rev­ enues, the state's interest in avoiding corruption or the appearance of corruption in its electoral process may Ье even more compelling. 231 Furtherrnore, the IGRA itself limits the uses for which а tribe may direct proceeds from casino gamЫing. 232 The federal government, therefore, has already articulated а fed­ eral interest in the sources of tribal money used in federal and state political processes. 233 M cConnell v. FEC, 540 U.S. 93, 95-96 (2003). Kiowa Tribe of Okla. v. Mfg. Techs., lnc., 523 U.S. 751, 758-59 (1998). 229 See id. at 760-61 (Stevens, J., dissenting). 230 Id. at 758-59. 231 Mike Doming, Casinos bet оп D.C. Clout Сн1. Тюв., Feb. 20, 2006, availaЫe at 2000 WLNR 724436. The Coushatta lndians gave Jack Abramoff $30 million to protect their Louisiana Riverboat Casino. ld. 232 25 U.S.C. . § 2710(Ь)(2)(В) (2006). 227 228 233 ld. The appropriateness of using gaming revenue for campaign contributions under the IGRA is an open question. This federal act enumerates purposes for which tribes may use gaming revenue,234 and political contributions are not an enumerated use. 235 While the catch-all provision might encompass political participation, one could also construe the IGRA to prohiЬit the use of casino money for political spending. As in other areas involving tribal aft'airs, this is an omission that is legally significant not just to the federal government, but also to state governments. Economic self-sufficiency is а laudaЫe goal оп which the federal govemment may rest its American Indian policy. However, а side effect of economic independence should not Ье corruption, or the appear­ ance of corruption, in state and federal electoral systems, as tribes pump gam­ ing dollars into candidate coffers and ballot measure committees. If the disclosure requirements of the various states and the BCRA are aimed at anything, it is to ensure that the sources of funds in election campaigns are discemiЫe to enforcement agencies and the general puЫic. Congress should not knowingly provide tribes the tools to gain an economic advantage without ensuring that the primary use of the money acquired is to further the welfare of tribe members. Lining the pockets of federal and state legislator campaign committees and ballot measure committees may result in tribes having in­ creased access to state and federal lawmakers. However, unless one supposes illegal bribery or improper quid pro quo arrangements are being made in return for the expenditure of casino profits, there is по direct benefit to tribal members when casino revenues are spent оп state or federal elections. Based оп the interests that the federal govemment has already articulated conceming the sources and uses of tribal casino money and the disclosure of campaign finance spending, Congress should enact legislation expressly abrogating tribal sover­ eign immunity for enforcement actions Ьу states seeking to uphold their cam­ paign finance laws against American Indian tribes. VI. CoNcLusюN There are а number of solutions to the proЫem posed Ьу the intersection of tribal interests in political participation and state interests in enforcement of campaign finance disc\osure laws. Federal legislative action expressly waiving federal common Iaw tribal sovereign immunity in the limited circumstance of off-reservation political activity is the preferred solution to the tension. Tribes and states will both benefit from having clear ground rules for tribal engage­ ment in state political processes. А limited federal Iegislative solution is also consistent with the history of the relationship between tribes and states, as one that must involve а national arrangement between the U.S. government and tribal govemments, which are domestic dependent sovereigns. In the absence of such legislation, future courts should follow the Agua Са234 ld. 235 ld. Liente court's reliance on the Tenth Amendment as а basis for allowing the state to go forward in enforcing its campaign finance laws. Any solution, whether legislative or judicial, must Ье regarded with an understanding of the three sov­ ereigns whose concems are implicated, the critical importance of disclosure requirements in the maintenance of an informed electorate, and the Constitu­ tional guarantees embodied in the First Amendment. With an еуе to all of these factors, this paper concludes that tribes should fully participate and fully disc\ose their participation in state e\ection activity. When they do not disclose pursuant to the rules of the jurisdiction, tribal immunity should not Ье an avail­ aЬ\e shield, unless Congress articu\ates other reasons or rationales necessitating this protection.