Stanford Law School - Robert Crown Law Library

Filed 12/21/06

IN THE SUPREME COURT OF CALIFORNIA

AGUA CALIENTE BAND OF
CAHUILLA INDIANS,
Petitioner,
S123832
v.
Ct.App. 3 C043716
THE SUPERIOR COURT OF
SACRAMENTO COUNTY,
Sacramento
County
Respondent;
Super. Ct. No. 02AS04545
FAIR POLITICAL PRACTICES
COMMISSION, )

Real Party in Interest.

The question we address is whether the Fair Political Practices Commission
(FPPC) can file a lawsuit in superior court against the Agua Caliente Band of
Cahuilla Indians (the Tribe), a federally recognized Indian tribe,1 for the Tribe’s
alleged failure to comply with the reporting requirements for campaign

1 Labeling an Indian tribe as federally recognized is a function of the executive
branch. (United States v. John (1978) 437 U.S. 634, 652-653.) Congress, in turn,
has mandated that the executive branch publish an official list of all federally
recognized tribes in the Federal Register. (25 U.S.C § 479a-1.) Appearance on
the list grants the tribes immunities and privileges, including immunity from
unconsented suit, by virtue of their relationship with the United States. (67 Fed.
Reg. 46,328 (July 12, 2002).)
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contributions under the Political Reform Act (PRA) (Gov. Code, § 81000 et seq.),2
an initiative measure that regulates numerous aspects of the election process on the
state and local level. We conclude that the FPPC may file the lawsuit and affirm
the Court of Appeal’s judgment denying the Tribe’s petition for writ of mandate.
DISCUSSION
I. Factual and Procedural Background
The facts and procedural discussion are taken largely from the Court of
Appeal opinion, supplemented by the record. In 1974, California adopted the
PRA, which charges the FPPC with its enforcement. (§ 81000.) Consistent with
the California Constitution, article III, section 3.5, the PRA requires the FPPC to
enforce the statute equally against all affected contributors. (§ 81002 et seq.) In
chapter 1, the PRA recites findings of greatly increased costs of election
campaigns, large contributions from wealthy corporations and individuals, and the
inadequacy of existing laws to address objectionable political practices. (§ 81001;
see 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law § 272, pp.
432-433.) The PRA seeks to prevent corruption of the political process. It
requires, among other things, that “[r]eceipts and expenditures in election
campaigns . . . be fully and truthfully disclosed in order that the voters may be
fully informed and improper practices may be inhibited.” (§ 81002, subd. (a); see
also Fair Political Practices Com. v. Suitt (1979) 90 Cal.App.3d 125, 132.) The
PRA also regulates lobbyists and lobbyists’ employers, requiring them to report
their lobbying activities in order to ensure the lobbyists do not improperly
influence public officials. (§§ 81002, 86113, 86116.)

2 All statutory references are to the Government Code unless otherwise noted.
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Real party in interest, the FPPC, sued the Tribe, seeking civil penalties and
injunctive relief for the Tribe’s alleged violations of the PRA’s reporting
requirements after the Tribe made substantial campaign contributions to California
political campaigns. The FPPC’s complaint alleged that the Tribe was subject to
PRA reporting requirements for its political campaign contributions totaling more
than $7,500,000 in 1998, $175,250 in the first half of 2001, and $426,000 in the
first half of 2002. The complaint also alleged numerous violations of the PRA,
including the Tribe’s failure to report lobbying interests (§ 86116), late
contributions (§ 84203) of more than $1 million, and failure to file required semi-
annual campaign statements (§ 84200). One of the unreported contributions
alleged to have been made by the Tribe in March 2002 went to a committee
supporting Proposition 51, a statewide ballot initiative. Although Proposition 51
failed, it would have authorized $15 million per fiscal year for eight years to fund
several projects, including a passenger rail line from Los Angeles to Palm Springs,
where the Tribe operates a casino. The complaint sought monetary penalties (§§
91004, 91005.5) and an injunction ordering the Tribe to file the PRA’s required
disclosure statements.
The Tribe, specially appearing, filed a motion to quash service of summons
for lack of personal jurisdiction. It claimed that, as a federally recognized Indian
tribe, it was immune from suit under the doctrine of tribal sovereign immunity.
The trial court denied the Tribe’s motion to quash in a written ruling. The court
believed that to apply tribal sovereign immunity from suit in this case would (1)
intrude upon the state’s exercise of its reserved power under the federal
Constitution’s Tenth Amendment to regulate its electoral and legislative processes
and (2) would interfere with the republican form of government guaranteed to the
state under article IV, section 4 of the United States Constitution (sometimes
referred to as the guarantee clause). Following the trial court’s decision, the Tribe
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petitioned the Court of Appeal to issue a peremptory writ of mandate directing the
trial court to vacate its ruling denying its motion to quash service of summons for
lack of personal jurisdiction and enter a new order granting the motion.
After the Court of Appeal denied the Tribe’s petition for writ of mandate
seeking reversal of the trial court’s order denying the motion to quash, this court
granted the Tribe’s petition for review and transferred the matter to the Court of
Appeal “with directions to vacate the order denying mandate and to issue an order
directing respondent to show cause why the relief sought should not be granted.”
Following this court’s order, the Court of Appeal issued the order to show cause,
and the FPPC filed a return to the petition. The Court of Appeal also allowed the
Attorney General of California and California Common Cause to file amicus
curiae briefs in the FPPC’s support. As we discuss, the Court of Appeal denied
the Tribe’s motion for a writ of mandate. We then granted the Tribe’s petition for
review on the important tribal sovereign immunity question.
II. Court of Appeal Opinion
The Court of Appeal agreed with the trial court that the state’s efforts to
preserve its republican form of government—the very essence of its political
process—from corruption implicated both the guarantee clause and its reserved
right under the Tenth Amendment. This interest, the court held, outweighed the
Tribe’s claim to sovereign immunity from suit.
The Tenth Amendment to the United States Constitution provides that “The
powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.” The Court
of Appeal reasoned that “surely” one of the powers reserved to the states is the
“power and duty to maintain a republican form of government,” accorded it under
the guarantee clause, which provides, in pertinent part, “[t]he United States shall
guarantee to every state in this union a republican form of government . . . .”
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(U.S. Const., art. IV, § 4.) The Court of Appeal continued, noting that this
guarantee “necessarily includes the right . . . to protect against corruption of the
political process.” The Court of Appeal concluded that the PRA served to
vindicate the state’s constitutional interest.
The court agreed with the FPPC that “resort to a judicial remedy” is
necessary to enforce the PRA against the Tribe in order to uphold the state’s
constitutional right to guarantee a republican form of government free of
corruption. The court observed that rules or procedures required to protect
constitutional rights may themselves be given “constitutional stature.” (See, e.g.,
Dickerson v. United States (2000) 530 U.S. 428 [Miranda warnings are required
by federal Constitution and cannot be overruled by an act of Congress]; Mapp v.
Ohio (1961) 367 U.S. 643, 657 [rule requiring exclusion at trial of unlawfully
obtained evidence “an essential part of both the Fourth and Fourteenth
Amendments”].) The state’s right to preserve its republican form of government
would be “ephemeral” without the right to bring suit to enforce the PRA.
III. Tribal Sovereign Immunity
A. The Parties’ Contentions
The Tribe has recognized that the state has the power to regulate political
campaigns or create campaign contribution disclosure rules within its borders.
The Tribe asserts, however, that the state has been divested of the power to sue a
federally recognized Indian tribe because the United States Supreme Court has
declared tribal sovereign immunity a matter of federal law. The Tribe contends
that although Congress has in limited circumstances authorized classes of suits
against Indian tribes, where Congress has not done so, the tribes’ historical
immunity from suit remains. The Tribe relies on the high court’s rulings that
recognize a state’s ability to tax or regulate tribal activities but reject a state’s
ability to sue a tribe to collect the taxes or regulate the tribe unless the tribe has
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waived its immunity or Congress has limited it. (Kiowa Tribe of Oklahoma v.
Manufacturing Tech. (1998) 523 U.S. 751, 754-755 (Kiowa Tribe).)
The FPPC, by contrast, asserts that the doctrine of tribal sovereign
immunity is a federal common law doctrine that does not give the Tribe the power
to interfere with state sovereign power over state elections. The FPPC contends
that the origins and application of the doctrine indicate that we should not extend
it to a case involving the state’s constitutional authority to regulate its elections or
state legislative processes. We review the competing arguments below.
B. Historical Basis of Sovereign Immunity Doctrine
In 1831, the United States Supreme Court first recognized that native
Indian tribes possess sovereignty that is different from foreign countries, and is
subject to the dominion of the United States. In Cherokee Nation v. Georgia
(1831) 30 U.S. 1, and Worcester v. Georgia (1832) 31 U.S. 515 (Worcester), the
State of Georgia sought to extend its law to the Cherokee Nation. In Cherokee
Nation the high court described tribes as “domestic dependent nations,” or
separate sovereigns, that preexisted the Constitution, rather than as independent
nations or “foreign states,” and denied the Cherokee’s motion for an injunction to
prevent the State of Georgia from executing certain acts in the territory of the
Cherokee Nation. (Cherokee Nation, supra, 30 U.S. at pp. 17, 20.) In Worcester,
the Chief Justice traced the foundation of tribal sovereignty through colonial times
and treaties between the tribes and Great Britain and the United States. The Court
explained that since the arrival of the colonists on American soil, the tribes were
treated as dependant sovereign nations, with distinct political communities under
the protection and dominion of the United States. (Worcester, supra, 31 U.S. at
pp. 549-561.) The tribes possessed territorial and governance rights with which
no state could interfere. (Id. at p. 561.)
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Tribal sovereign immunity from suit is not synonymous with tribal
sovereignty. Rather, it is merely one attribute of the status of Indian tribes as
domestic dependant nations. (See In re Geene (9th Cir. 1992) 980 F.2d 590, 596.)
That tribal sovereign immunity included immunity from suit was a concept
developed “almost by accident” in Turner v. United States (1919) 248 U.S. 354.
(Kiowa Tribe, supra, 523 U.S. at p. 756.) Turner involved a suit for damages by a
non-Indian who had purchased tribal members’ grazing rights. There, “for the
sake of argument,” (Kiowa Tribe at p. 757) the high court made a “passing
reference to immunity.” (Ibid.) The concept of tribal immunity was elevated from
dictum to holding in United States v. United States Fidelity & Guaranty Co.
(1940) 309 U.S. 506 (USF&G) [Indian nations are exempt from suit without
congressional authorization]. USF&G held that as sovereigns or quasi-sovereigns,
a suit against any of the Indian tribes must fail absent the tribe’s consent to be
sued. (Id. at pp. 513-514.) “Later cases, albeit with little analysis, reiterated the
doctrine.” (Kiowa Tribe, supra, 523 U.S. at p. 757; see, e.g., Santa Clara Pueblo
v. Martinez (1978) 436 U.S. 49, 58; Puyallup Tribe, Inc. v. Dept. of Game of
Washington (1977) 433 U.S. 165, 167, 173-173.)
The general rule still holds that although Indian tribes are not immune from
lawsuits filed against them by the United States, the Indian tribes’ sovereign status
affords them immunity from state jurisdiction. (See Cohen, Handbook of Federal
Indian Law (2005 ed.) § 7.05 [1][a], p. 636 (Cohen).) “Although the immunity
extends to entities that are arms of the tribes, it apparently does not cover tribally
chartered corporations that are completely independent of the tribe. Nor does the
immunity extend to members of the tribe just because of their status as
members. . . . When tribal officials act outside the bounds of their lawful
authority, however, most courts would extend the doctrine of Ex Parte Young
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[(1908) 209 U.S. 123] to allow suits against the officials, at least for declaratory or
injunctive relief.” (Cohen, supra, § 7.05[1][a], pp. 636-637.)
Recent Supreme Court cases have favored a preemption analysis in
determining the enforceability of a state statute regulating Indian affairs. (E.g.,
Three Affiliated Tribes v. Wold Engineering, P.C. (1986) 476 U.S. 877, 884.)
There, the court analyzed the issue according to principles of federal preemption
in rejecting North Dakota’s plan to implement a statutory mutual jurisdiction
scheme that required an Indian tribe to disclaim its immunity from suit in order to
file suit in state court. (Id. at p. 878; see also White Mountain Apache Tribe v.
Bracker (1980) 448 U.S. 136, 145 [federal preemption analysis involves balancing
“state, federal, and tribal interests at state”].)
Other cases upheld federal statutes affecting Indian tribes under a sovereign
immunity rationale where federal statutes were deemed to be “reasonably and
rationally designed to further Indian self-government.” (Morton v. Mancari
(1974) 417 U.S. 535, 555.) Morton described Congress’ power to address the
“special problems of Indians” that stemmed from “ ‘[dis]possession of their lands,
sometimes by force, leaving them an uneducated, helpless and dependent people,
needing protection against the selfishness of others and their own improvidence.’ ”
(Id. at pp. 551-552.) Significantly, Morton noted that “[l]iterally every piece of
legislation dealing with Indian tribes and reservations, and certainly all legislation
dealing with the BIA [Bureau of Indian Affairs], single out for special treatment a
constituency of tribal Indians living on or near reservations.” (Id. at p. 552.) On
this basis, the high court rejected a constitutional challenge against a federal
statute that provided for Indian hiring preferences within the BIA. (Id. at pp. 554-
555; see also City of Roseville v. Norton (D.D.C. 2002) 219 F. Supp.2d 130
[federal government has authority to set land aside for Indian casino operation and
rejecting Tenth Amendment argument opposing the taking].)
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The Tribe asserts that sovereign immunity from suit has a constitutional
basis because the federal Constitution provides Congress with plenary power over
Indian affairs. The Tribe, however, fails to cite any authority that specifically
states that tribal immunity from suit is a constitutional imperative. Indeed, the
federal Constitution is silent regarding state action into sovereign immunity
questions.
Some high court cases do rely on the plenary powers of Congress to
support the immunity doctrine’s application. For example, Worcester commented
that the United States Constitution “confers on congress the powers of war and
peace; of making treaties, and of regulating commerce with foreign nations, and
among the several States, and with the Indian tribes. [(U.S. Const., art. I, § 8, cl.
3.)] These powers comprehend all that is required for the regulation of our
intercourse with the Indians.” (Worcester, supra, 31 U.S. at p. 559.)
The Tribe points out that the high court has interpreted the Indian
commerce clause to mean that Indian relations are the “exclusive province of
federal law.” (Oneida County v. Oneida Indian Nation (1985) 470 U.S. 226, 234;
Cotton Petroleum Corp. v. New Mexico (1989) 490 U.S. 163, 192 ["central
function of the Indian Commerce Clause is to provide Congress with plenary
power to legislate in the field of Indian affairs”]; Montana v. Blackfeet Tribe
(1985) 471 U.S. 759, 764 [“Constitution vests . . . Federal Government with
exclusive authority over relations with Indian tribes”].)
As the Court of Appeal observed, the Indian commerce clause of article I,
section 8, of the federal Constitution “cannot support tribal immunity in this case
because (1) it grants a power to Congress, and Congress has not granted the tribe
immunity from this suit, and (2) it concerns the regulation of commerce, and this
case concerns not commerce but rather the political process.” The United States
Supreme Court has described the commerce clause as a potential barrier to the
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exercise of state authority if the state authority interferes with “commercial
activity on an Indian reservation.” (Ramah Navajo School Bd. v. Bureau of
Revenue (1982) 458 U.S. 832, 837 [federal law may preempt state authority if it
interferes with tribe’s ability to exercise its sovereign functions].) Here, the PRA
involves no interference with activity, commercial or otherwise, or sovereign
functions, on or near the Tribe’s reservation. Indeed, this case presents a state
interest that is beyond the commercial and regulatory interests involved in the
Indian commerce clause cases.
The treaty clause of the federal Constitution has been recognized in some
cases as another potential source of plenary federal authority over Indian tribes.
(U.S. Const., art. II, § 2, cl. 2; see United States v. Lara (2004) 541 U.S. 193
[Indian relations became exclusive province of federal law after Constitution
ratified].) The Court of Appeal pointed out, however, that authority for applying
the tribal immunity doctrine in this case cannot be premised on the treaty clause
“because the Tribe has cited no treaty that exists between it and the federal
government.” As the high court recently recognized, since 1871 Congress has not
had the power to negotiate new treaties with Indian tribes. (Lara, supra, 541 U.S.
at p. 201; see 25 U.S.C. § 71 [retaining Congress’ plenary powers to legislate on
Indian affairs, but recognizing tribes are not entities with whom United States may
contract by treaties].)
The supremacy clause of the federal Constitution (U.S. Const., art. VI, cl.
2) may serve as a basis for preemption of state law where it conflicts with
congressional legislation or federal common law in the realm of Indian affairs.
(See Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1148, citing Cohen,
supra, [1982 ed.] pp. 207-208, 270-271.) The Court of Appeal, however,
correctly observed that the supremacy clause does not “suggest that the doctrine of
tribal immunity is other than a common law rule. The supremacy clause tells us
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that federal law trumps state law, but it does not provide textual support for
adoption of the law in the first place.”
C. Recent Case Law on Sovereign Immunity from Suit
In Kiowa Tribe, the high court addressed the issue whether recognized
Indian tribes enjoy immunity from suit on contracts, regardless of whether those
contracts were made on or off a reservation or involved governmental or
commercial activities. (Kiowa Tribe, supra, 523 U.S. at p. 755.) The Kiowa
Tribe’s industrial development commission agreed to purchase corporate stock
from a technology company and gave a promissory note as part of the transaction.
(Id. at pp. 753-754.) Under the note, the Kiowa Tribe agreed to pay the company
$285,000 plus interest. The face of the note indicated it was signed in Carnegie,
Oklahoma, where the Kiowa Tribe has a complex held for it in trust. (Ibid.)
According to the technology company, however, the Kiowa Tribe executed and
delivered the note in Oklahoma City, beyond its tribal lands. The Tribe’s
payments were also to be made in Oklahoma City. Although the note did not
specify governing law, it did contain a paragraph entitled “Waivers and Governing
Law.” (Id. at p. 754.) That paragraph provided in part that, “Nothing in this Note
subjects or limits the sovereign rights of the Kiowa Tribe of Oklahoma.” (Ibid.)
When the tribe defaulted on the note, the technology company sued in state court
for repayment. The Kiowa Tribe moved to dismiss for lack of jurisdiction, relying
in part on its sovereign immunity from suit and state court jurisdiction. (Ibid.)
Kiowa Tribe held that as “a matter of federal law, an Indian tribe is subject
to suit only where Congress has authorized the suit or the tribe has waived its
immunity.” (Kiowa Tribe, supra, 523 U.S. at p. 754; see also Oklahoma Tax
Comm’n v. Citizen Band Potawatomi Indian Tribe (1991) 498 U.S. 505, 509
(Potawatomi Tribe) [sovereign immunity protects Indian tribes from suit to collect
taxes from cigarette sales on Indian land absent clear waiver or congressional
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abrogation]; Santa Clara Pueblo v. Martinez, supra, 436 U.S. at p. 49, 58 [tribal
immunity from suit subject to Congressional plenary control] .) Although the
respondent technology company asked the court to confine tribal sovereign
immunity to activities occurring on reservations or to issues involving tribal
governance, the court observed that “our precedents have not drawn these
distinctions.” (Kiowa Tribe, supra, 523 U.S. at p. 755.)
Writing for the Kiowa Tribe majority, while doubting “the wisdom of
perpetuating the [sovereign immunity] doctrine,” Justice Kennedy observed that
“[t]o date, our cases have sustained tribal immunity from suit without drawing a
distinction based on where the tribal activities occurred.” (Kiowa Tribe, supra,
523 U.S. at p. 754.) Kiowa Tribe made several observations, however, about the
doctrine of sovereign immunity that provide the foundation for our departure from
the doctrine within the context of the present action.
Initially, Kiowa Tribe observed that like foreign sovereign immunity, tribal
sovereign immunity has historically been applied as a matter of federal law, not
constitutional law. “In Blatchford [v. Native Village of Noatak (1991) 501 U.S.
775] we distinguished state sovereign immunity from tribal sovereign immunity,
as tribes were not at the Constitutional Convention. They were thus not parties to
the ‘mutuality of . . . concession’ that ‘makes the States’ surrender of immunity
from suit by sister States plausible.’ [Citations.] So tribal immunity is a matter of
federal law and is not subject to diminution by the States. Three Affiliated Tribes,
supra, [476 U.S.] at [p.] 891; Washington v. Confederated Tribes of Colville
Reservation, 447 U.S. 134, 154 (1980).” (Kiowa Tribe, supra, 523 U.S. at p. 756.)
Kiowa Tribe discussed several “reasons to doubt the wisdom of
perpetuating the doctrine.” (Kiowa Tribe, supra, 523 U.S. at p. 758.) The court
noted that once the doctrine “might have been thought necessary to protect nascent
tribal governments from encroachments by States. In our interdependent and
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mobile society, however, tribal immunity extends beyond what is needed to
safeguard tribal self-governance. This is evident when tribes take part in the
Nation’s commerce. Tribal enterprises now include ski resorts, gambling, and
sales of cigarettes to non-Indians. See Mescalero Apache Tribe v. Jones, 411 U.S.
145 (1973); Potawatomi [Tribe], supra[, 498 U.S. 505]; Seminole Tribe of Fla. v.
Florida, 517 U.S. 44 (1996). In this economic context, immunity can harm those
who are unaware that they are dealing with a tribe, who do not know of tribal
immunity, or who have no choice in the matter, as in the case of tort victims.
“These considerations might suggest a need to abrogate tribal immunity, at
least as an overarching rule. Respondent does not ask us to repudiate the principle
outright, but suggests instead that we confine it to reservations or to non-
commercial activities. We decline to draw this distinction in this case, as we defer
to the role Congress may wish to exercise in this important judgment.” (Kiowa
Tribe, supra, 523 U.S. at p. 758.)
As Kiowa Tribe observed, Congress has acted against the background of
the court’s decisions and restricted immunity in limited circumstances, including
liability insurance and gaming activities. (Kiowa Tribe, supra, 523 U.S. at p. 758;
see, e.g., 25 U.S.C. §§ 450f(c)(3) [mandatory liability insurance],3 2710
(d)(7)(A)(ii) [gaming activities].)
Kiowa Tribe also recognized that similar problems exist in the doctrine of
sovereign immunity for foreign countries, problems that have, as in tribal
immunity, existed since immunity began as a judicial doctrine. (See Schooner

3 Even 25 United States Code section 450f(c)(3), limiting tribal immunity on
mandatory insurance, provides that, “such waiver [of tribal immunity] shall not
authorize or empower such insurance carrier to waive or otherwise limit the tribe’s
sovereign immunity outside or beyond the coverage or limits of the policy of
insurance.”
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Exchange v. M’Faddon (1812) 11 U.S. 116 [no jurisdiction over armed ship of
foreign state even while in American port].) The court observed, that “while the
holding [in Schooner] was narrow,” the opinion was regarded as standing for the
proposition that foreign sovereigns had absolute immunity from United States
jurisdiction. (Kiowa Tribe, supra, 523 U.S. at p. 759.) Because foreign sovereign
immunity was difficult to implement, Congress passed the Foreign Sovereign
Immunities Act in 1976, “resulting in more predictable and precise rules.” (Kiowa
Tribe, supra, 523 U.S. at p. 759; see Verlinden B. v. Central Bank of Nigeria
(1983) 461 U.S. 480, 488-489 [discussing Foreign Sovereign Immunities Act of
1976, 28 U.S.C. §§ 1604, 1605, 1607].)
Drawing the parallel between foreign and tribal sovereign immunity, in
Kiowa Tribe the court noted that like foreign sovereign immunity, tribal immunity
is a matter of federal law and thus only Congress can alter immunity limits
through “explicit legislation.” (Kiowa Tribe, supra, 523 U.S. at p. 759.) The
court stated that although “a State may have authority to tax or regulate tribal
activities occurring within the State but outside Indian country, ” that “is not to say
that a tribe no longer enjoys immunity from suit. . . . There is a difference
between the right to demand compliance with state laws and the means available
to enforce them.” (Id. at p. 755.) Kiowa Tribe expressed the view that Congress
is traditionally in a “position to weigh and accommodate the competing policy
concerns and reliance interests. The capacity of the Legislative Branch to address
the issue by comprehensive legislation counsels some caution by us in this area.”
(Kiowa Tribe, supra, 523 U.S. at p. 759.)
Although Justice Stevens agreed with the Kiowa Tribe majority’s comment
that “it is now too late to repudiate the doctrine entirely,” he stated reasons why he
would not extend the doctrine “to purely off-reservation conduct.” (Kiowa Tribe,
supra, 523 U.S. at pp. 764 (dis. opn. of Stevens, J.).) Joined by Justices Thomas
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and Ginsburg, Justice Stevens believed that in the absence of any congressional
statute or treaty, the court created a federal common law rule by “ ‘default’ ” that
“lacks . . . justification” and “completely ignores [states’] interests.” (Id. at p.
765.) He also found the rule anomalous in that it allows the tribes to enjoy
“broader immunity than the States, the Federal Government, and foreign nations.”
(Ibid.)
Indeed, unlike tribal members, foreign governments are prohibited from
participating in our elections. (See 2 U.S.C. § 441e; 22 U.S.C. § 622(b)(1).)
Foreign sovereign immunity has been judicially abrogated in several important
respects, particularly since the enactment of the Foreign Sovereign Immunities Act
of 1976, under which Congress expanded the general exceptions to the
jurisdictional immunity of a foreign state beyond the area of commercial activity
into private acts. (See 28 U.S.C. §§ 1601-1605(a) & (b) [instances where foreign
state not immune from jurisdiction of the United States].) Justice Stevens
generally considered the sovereign immunity from suit rule unjust and unfair in
that all governments should be held responsible for their debts as well as their
injurious or unlawful conduct. (Kiowa Tribe, supra, 523 U.S. at p. 766 (dis. opn.
of Stevens, J.).)
Kiowa Tribe relied in part on Potawatomi Tribe, where the high court
rejected the State of Oklahoma’s invitation to construe more narrowly, or abandon
entirely, the doctrine of sovereign immunity in order that it might impose a
cigarette tax on tribal cigarette sales. (Potawatomi Tribe, supra, 498 U.S. at p.
510.) Oklahoma contended “that the tribal sovereign immunity doctrine
impermissibly burdens the administration of state tax laws.” (Ibid.) The state
asserted that because cigarette sales are “so detached from traditional tribal
interests,” the Potawatomi’s should not enjoy immunity from enforcement efforts.
(Ibid.) The state believed that the sovereign immunity doctrine “should be limited
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to the tribal courts and the internal affairs of tribal government, because no
purpose is served by insulating tribal business ventures from the authority of the
States to administer their laws.” (Ibid.)
Writing for the majority, Justice Rehnquist rejected Oklahoma’s argument
for abandoning the immunity doctrine in the commercial context presented. The
court disagreed with Oklahoma’s contention that giving it the ability to require
Indian retailers to collect taxes without the corresponding ability to sue to recover
the taxes was giving it a “right without any remedy.” (Potawatomi Tribe, supra,
498 U.S. at p. 514.) “Although Congress has occasionally authorized limited
classes of suits against Indian tribes, it has never authorized suits to enforce tax
assessments. Instead, Congress has consistently reiterated its approval of the
immunity doctrine. See, e.g., Indian Financing Act of 1974, 88 Stat. 77, 25 U.S.C.
§ 1451 et seq., and the Indian Self-Determination and Education Assistance Act,
88 Stat. 2203, 25 U.S.C., § 450 et seq. These Acts reflect Congress’ desire to
promote the ‘goal of Indian self-government, including its “overriding goal” of
encouraging tribal self-sufficiency and economic development.’ California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 216, 94 L. Ed. 2d 244, 107 S. Ct.
1083 (1987).” (Potawatomi Tribe, supra, 498 U.S. at p. 510.) Justice Stevens
concurred in the judgment, although he noted that he found the Indian sovereign
immunity doctrine “anachronistic.” (Potawatomi Tribe, supra, 498 U.S. at p. 514
(conc. opn. of Stevens, J.).)
Thus, in light of Kiowa Tribe, supra, 523 U.S. 759, and its progeny, the
United States Supreme Court, while consistently affirming the sovereign
immunity doctrine, has grown increasingly critical of its continued application in
light of the changed status of Indian tribes as viable economic and political
nations. Although the high court has not abrogated sovereign immunity from suit
in a context such as the present one, it has in other contexts recognized the
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common law evolution of certain limitations on tribal exercise of regulatory and
judicial jurisdiction. (See, e.g., Strate v. A-1 Contractors (1997) 520 U.S. 438
[tribal court may not exercise subject matter jurisdiction in personal injury suit
between non-Indians on highway that bordered, and in part entered, Indian
reservation]; see also Nevada v. Hall (1979) 440 U.S. 410, 417-419.)
IV. Tenth Amendment and Guarantee Clause
A. The Parties’ Contentions
Like the Court of Appeal, the FPPC distinguishes high court precedent
from the present case. This case, it asserts, falls outside the realm of congressional
plenary power because it implicates the state’s right to preserve its republican
form of government under the guarantee clause (art. IV, §4) of the United States
Constitution together with its reserved right under the Tenth Amendment of the
United States Constitution.4 The FPPC contends that because the present action
concerns the state’s political process, the state’s enforcement of the PRA is an
exercise of constitutionally protected powers. Additionally, it contends, the state’s
activities do not involve the regulation of commerce and do not encroach on the
authority of treaty or congressional legislation. As the FPPC observes, several of
the United States Supreme Court’s recent decisions have recognized that the
federal Constitution’s article IV, section 4 guarantee to the states and the reserved
powers granted to the states under the Tenth Amendment present constitutional

4 Article IV, section 4 of the United States Constitution is states that “The United
States shall guarantee to every state in this union a republican form of
government, and shall protect each of them against invasion; and on application of
the legislature, or of the executive (when the legislature cannot be convened)
against domestic violence.” The Tenth Amendment to the United States
Constitution reserves “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states . . . . ”
17

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limitations on Congress’ plenary powers under the commerce clause of article I,
section 8, clause 3 of the federal Constitution.
The Tribe does not dispute the power of the state to regulate political
campaigns under the PRA, nor does the Tribe dispute that it is generally subject to
those regulations. (See generally Mescalero Apache Tribe v. Jones (1973) 411
U.S. 145, 148-149 [tribal members beyond reservation boundaries are subject to
nondiscriminatory state law applicable to all state citizens].) Rather, the Tribe
asserts that the state cannot sue to enforce those regulations. In opposing the
FPPC’s Tenth Amendment and guarantee clause contentions, the Tribe relies in
particular on City of Roseville v. Norton, supra, 219 F.Supp.2d at pages 153-154,
and Carcieri v. Norton (D.R.I. 2003) 290 F.Supp.2d 167, in which the federal
district court held that the federal Department of the Interior’s placing a parcel of
land into a trust for an Indian tribe did not violate the Tenth Amendment.
However, Roseville and Carcieri involved challenges to federal legislation
aimed at the Indian tribes’ activity occurring on or near the reservation. (See also
Matter of Guardianship of D.L.L. (S.D. 1980) 291 N.W.2d 278, 280-281 [Indian
Child Welfare Act does not infringe on state’s Tenth Amendment powers over
domestic relations cases].) As such, those cases have at best minimal bearing on
the matter before us.
B. Discussion
Historically, under the Tenth Amendment’s reservation of powers to the
states, and the guarantee clause, a republican form of government has been
reserved and guaranteed “to every state in the Union, and the distinguishing
feature of that form is the right of the people to choose their own officers for
governmental administration.” (Duncan v. McCall (1891) 139 U.S. 449, 461.)
Since at least 1941, the high court had refused to read the Tenth
Amendment as a cap on congressional power, instead interpreting that provision
18

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as a “truism.” (United States v. Darby (1941) 312 U.S. 100, 124.) In 1976,
however, in a majority opinion authored by Chief Justice Rehnquist, the court held
that the Tenth Amendment limited congressional power to legislate under the
commerce clause. (National League of Cities v. Usery (1976) 426 U.S. 833.) The
Tenth Amendment, the court concluded, sheltered “the States’ freedom to
structure integral operations in areas of traditional governmental functions.”
(National League of Cities, supra, 426 U.S. at p. 852.) Congress, therefore, could
not “directly displace” (ibid.) that freedom by limiting “ ‘essentials of state
sovereignty.’ ” (Id. at p. 855.) The decision held the Tenth Amendment to be an
affirmative limit on congressional power and reshaped federal-state relations.
(Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third
Century (1988) 88 Colum. L.Rev. 1 (Merritt).)
Less than 10 years later, the high court overruled National League of Cities.
In Garcia v. San Antonio Metropolitan Transit Authority (1985) 469 U.S. 528, a
majority of the court expressed the view that the principal protection for state
sovereignty “lies in the structure of the Federal Government” rather than in the
Tenth Amendment or any other judicially enforceable constitutional provision.
(Id. at p. 550.) Garcia reasoned that the federal Constitution’s Framers protected
the interests of state governments by giving states equal representation in the
Senate and allowing states to choose Senators and electors. The courts could
interfere with congressional regulation of the states only if the states could point to
specific “failings in the national political process.” (Id. at p. 554.) In his dissent,
Justice Rehnquist reiterated that the “ ‘balancing test’ approved in National
League of Cities . . . recognized that Congress could not act under commerce
power to infringe on certain fundamental aspects of state sovereignty that are
essential to ‘the States’ separate and independent existence.’ ” (Id. at p. 579 (dis.
opn. of Rehnquist, J.).)
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Legal scholars soon criticized Garcia for weakening constitutional
protections of state autonomy. For example, Professor Merritt observed that
“[p]ermitting a majority of Congress to override constitutional limits on state
autonomy . . . disregards the express language of article V. Under that provision,
changes in the constitutional balance of powers may be achieved only by a
constitutional amendment garnering support from two-thirds of the members of
Congress, as well as three-fourths of the states. A bare majority of Congress is
never sufficient to amend the Constitution; yet Garcia’s logic appears to give
Congress just that power.” (Merritt, supra, 88 Colum. L.Rev. at p. 19, citing
Oregon v. Mitchell (1970) 400 U.S. 112, 201 (conc. & dis. opn. of Harlan, J.).)
Professor Van Alstyne also criticized Garcia for overruling National League of
Cities, and asserted that in deferring to the political process over judicial review,
Garcia partially repudiated the court’s power of judicial review under Marbury v.
Madison (1803) 5 U.S. 137. (Van Alstyne, The Second Death of Federalism
(1985) 83 Mich. L.Rev. 1709, 1721.)
Six years after Garcia, the court further modified its view of the Tenth
Amendment’s vitality in constitutional jurisprudence. The Court found that the
Missouri Constitution’s mandatory retirement provision, as applied to appointed
judges who survived retention elections, did not violate the Age Discrimination in
Employment Act of 1967 (ADEA, 29 U.S.C. § 621 et seq.). (Gregory v. Ashcroft
(1991) 501 U.S. 452 (Gregory).) In upholding the state’s right to prescribe a
mandatory retirement age for the appointed judges, and rejecting the judges’ equal
protection claim under the Fourteenth Amendment, Gregory noted that the states’
power to determine the qualifications of their governmental officials derived from
both the Tenth Amendment and the guarantee clause of article IV, section 4. In so
holding, the court relied on a recent line of authority that acknowledged the
“unique nature of state decisions that ‘go to the heart of representative
20

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government.’ ” (Gregory, supra, 501 U.S. at p. 461, quoting Sugarman v.
Dougall (1973) 413 U.S. 634, 647 [striking New York City law that banned
employment of aliens].)
In recognizing the state’s constitutional power to establish the
qualifications of its governmental officers, Gregory observed that the Tenth
Amendment and the guarantee clause provide an important check on Congress’
power to interfere with the state’s “substantial sovereign powers under our
constitutional scheme.” (Gregory, supra, 501 U.S. at p. 461.) The court
emphasized that the states’ power to keep for themselves the power “to determine
the qualifications of their most important government officials” derived from the
guarantee clause and the Tenth Amendment. (Gregory, supra, 501 U.S. at pp.
463.) These powers, the court observed, inhere in the state by way of its
“ ‘obligation to preserve the basic conception of a political
community.’ [Citations.]” (Gregory, supra, 501 U.S. at pp. 462.)
One year later, the high court decided New York v. United States (1992)
505 U.S. 144 (New York). New York struck a provision of the Low-Level
Radioactive Waste Policy Amendments Act of 1985 (42 U.S.C. § 2021b et seq.),
commanding states either to enact laws regulating the disposal of low-level
radioactive waste or to take title to all such waste generated within their borders.
(New York, supra, 505 U.S. at p. 149.) The court distinguished between
congressional power “to pass laws requiring or prohibiting certain acts” by private
parties and congressional attempts “to compel the States to require or prohibit
those acts.” (Id. at p. 166.) The court discussed the guarantee clause, although it
concluded that the constitutional provision was not implicated because “neither
the monetary incentives provided by the Act nor the possibility that a State’s waste
producers may find themselves excluded from the disposal sites of another State
can reasonably be said to deny any State a republican form of government.” (New
21

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York, supra, 505 U.S. at p. 185.) Noting that the provision has been an infrequent
source of litigation throughout history, the court did note that most claims
presented under article IV, section 4 have been “nonjusticiable under the ‘political
question’ doctrine.” (New York, supra, 505 U.S., at p. 184.)
The court also found the guarantee clause inapplicable in part because
“state government officials remain[ed] accountable to the local electorate.” (New
York, supra, 505 U.S. at p. 185.) The court did note, however, that it has
recognized “that perhaps not all claims under the Guarantee Clause present
nonjusticiable political questions. See Reynolds v. Sims, 277 U.S. 533, 582, 12
L.Ed. 2d 506, 84 S.CT. 1362 (1964) (‘some questions raised under the Guarantee
Clause are nonjusticiable’). Contemporary commentators have likewise suggested
that courts should address the merits of such claims, at least in some
circumstances. See e.g., L. Tribe, American Constitutional Law 398 (2d ed. 1988)
[Tribe]; J. Ely, Democracy and Distrust: A Theory of Judicial Review 118, n., and
122-123 (1980); W. Wiecek, The Guarantee Clause of the U. S. Constitution 287-
298, 300 (1972); Merritt, [supra,] 88 Colum. L.Rev., at 70-78; Bonfield, The
Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude,
46 Minn. L.Rev. 513, 560-565 (1962).” (New York, supra, 505 U.S. at p. 185.)
Professor Tribe has more recently observed that although the guarantee of
article IV, section 4 of the federal Constitution was intended to guard against
“ ‘aristocratic or monarchial innovations,’ ” it was also the case that the federal
Constitution “presupposed that neither the states nor the federal government could
undermine ultimate popular control over certain state officials, their qualifications,
and the state lawmaking process.” (1 Tribe, American Constitutional Law (3d ed.
2000) §§ 5-12, p. 909, discussing Gregory, supra, 501 U.S. at p. 463.) Other
legal scholars agree. As Professor Merritt observed in an article following New
York’s publication, both New York and Gregory suggest that the Supreme Court
22

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may be poised to recognize a new meaning of the guarantee clause: a promise by
the national government to avoid interfering with state governments in ways that
would compromise a republican form of government. (Merritt, Republican
Governments and Autonomous States: A New Role for the Guarantee Clause
(1994) 65 U. Colo. L.Rev. 815, 821-822.)
The Tribe correctly notes that the high court has not applied the Tenth
Amendment or the guarantee clause to uphold a state’s enforcement of a state
election provision against a sovereign tribe. But neither has the court held that the
federal common law doctrine of tribal sovereign immunity trumps state authority
when a state acts in political “ ‘matters resting firmly within [its] constitutional
prerogatives. [Sugarman v. Dougall, supra, 413 U.S.] at [p.] 648.’ ” (Gregory,
supra, 501 U.S. at p. 462.) Tribal members, as citizens of the United States, are
allowed to participate in state elections. Allowing the Tribe immunity from suit in
this context would allow tribal members to participate in elections and make
campaign contributions (using the tribal organization) unfettered by regulations
designed to ensure the system’s integrity. Allowing tribal members to participate
in our state electoral process while leaving the state powerless to effectively guard
against political corruption puts the state in an untenable and indefensible position
without recourse. Given the unique facts here, we agree with the Court of Appeal
and conclude that the guarantee clause, together with the rights reserved under the
Tenth Amendment, provide the FPPC authority under the federal Constitution to
bring suit against the Tribe in its enforcement of the PRA.
C. Alternatives to PRA Enforcement
The Tribe asserts that if we allow the FPPC to file suit against it, we will
undermine the foundation of the Tribe’s sovereign immunity and open the
floodgates to future suits against it. Conversely, the Tribe contends that if we do
not allow the suit to proceed, we will not significantly impair the state’s right to
23

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regulate the electoral process and preserve its republican form of government. In
other words, the Tribe, and the Court of Appeal dissent assert that depriving the
state of one of its “tools” under the PRA does not seriously compromise the state’s
right to regulate its electoral processes. According to both, recourse to suit is
largely unnecessary here because the PRA also requires recipients of campaign
donations to report the donations.
As amicus curiae Common Cause points out in its brief (and counsel for the
FPPC observed during oral argument), “there is not always a recipient to report a
tribe’s campaign financing. For example, if [a tribe] were to make independent
expenditures on behalf of a candidate or in support of a ballot measure, no one
would ever know about it. . . . There is no reporting by the recipient because there
is no recipient.” Additionally, the PRA’s dual reporting requirement detects and
prevents any misreporting that might occur if recipients knew that donors or
lobbyist employers were not reporting them. As the Court of Appeal observes, “it
stands to reason that the requirement for both payor and payee to file disclosure
statements will act as a check to discourage omissions by one or the other. Thus,
the fact that recipients are supposed to report contributions does not constitute an
alternative method of enforcement.”
The Tribe contends that other viable remedies exist for the state to
accomplish its goals under the PRA including: pursuing a government-to-
government agreement, petitioning Congress to make an exception to the
sovereign immunity doctrine, and acquiring the information from alternative
sources (e.g., recipients of campaign contributions). But as the Court of Appeal
reasoned, “[t]hese alternatives are uncertain; they do not persuade us to apply
tribal immunity to bar this action to enforce the PRA. Moreover, absent the threat
of a lawsuit, we see no incentive for the tribe to agree to comply with the FPPC
reporting requirements.” To the extent that the Tribe suggests encouraging
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Congress to solve the problem tribal immunity presents in this case, it is a
proposal with a highly unpredictable outcome. “[A]t the time the Court
deliberated over and rendered its decision in Kiowa Tribe, [Congress] was actively
considering the [tribal immunity] doctrine, and the Court was aware of this fact.
After months of deliberation and Congressional hearings, however, Congress
declined to implement the sweeping changes recommended by the Court. In 2000
Congress enacted legislation that, in the end, had little substantive impact on the
scope of tribal immunity.” (Seielstad, The Recognition and Evolution of Tribal
Sovereign Immunity Under Federal Law: Legal, Historical, and Normative
Reflections on a Fundamental Aspect of American Indian Sovereignty (2002) 37
Tulsa L.Rev. 661, 665-666.)
The inability to enforce the PRA against the Tribe, a major donor to
political campaigns, has the effect of substantially weakening the PRA. The State
of California has determined that the PRA is vitally important to its republican
form of government. (See, e.g., McConnell v. Federal Election Comm’n (2003)
540 U.S. 93, 187 [Congress has “fully legitimate interest in maintaining the
integrity of federal officeholders and preventing corruption of federal electoral
processes”—campaign contribution limits pass First Amendment scrutiny].)
Therefore, this case differs substantially from cases concerning application of
sovereign immunity involving a tribe’s contracts or commercial ventures, its
courts and governing bodies, or tribal lands. We conclude that the FPPC should
not be forced to rely on the alternative sources the Tribe suggests for obtaining the
information the PRA requires. Preserving the integrity of our democratic system
of governance is too important to compromise with weak alternative measures that
25

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the state may not be able to enforce. (See, e.g., Nixon v. Shrink Missouri
Government PAC (2000) 528 U.S. 377, 388.)5
CONCLUSION
In light of evolving United States Supreme Court precedent and the
constitutionally significant importance of the state’s ability to provide a
transparent election process with rules that apply equally to all parties who enter
the electoral fray, we find the FPPC states the better case. Although concepts of
tribal immunity have long-standing application under federal law, the state’s
exercise of state sovereignty in the form of regulating its electoral process is
protected under the Tenth Amendment and the guarantee clause. We therefore
find that the Tribe lacks immunity from suit for its alleged failure to follow the
PRA’s mandated reporting requirements. In so holding, we recognize that our
abrogation of the sovereign immunity doctrine under these facts is narrow and
carefully circumscribed to apply only in cases where California, through its Fair
Political Practices Commission, sues an Indian tribe for violations of state fair
political

5 In a letter brief filed on January 20, 2006, the Tribe cites two California cases it
believes support its sovereign immunity claim. (Big Valley Band of Pomo Indians
v. Superior Court (2005) 133 Cal.App.4th 1185, 1195-1196 [tribe’s consent to
arbitration is limited waiver of sovereign immunity only and does not waive suit
immunity under federal law]; Lamere v. Superior Court (2005) 131 Cal.App.4th
1059, 1065 [rejecting argument that Public Law 280, granting state court limited
jurisdiction over some tribal actions (mostly criminal), authorized suit involving
tribe membership issues].) We find the cases, which rely on traditional notions
tribal sovereignty, inapposite to the unique issue raised in the present case.
26

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practice laws. We thus affirm the Court of Appeal judgment and remand for
proceedings consistent with our ruling.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
CORRIGAN, J.
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C O P Y

AGUA CALIENTE BAND OF CAHUILLA INDIANS v. SUPERIOR
COURT

S123832

DISSENTING OPINION BY MORENO, J.

I dissent. The majority attempts to carve out an exception to the well-
established rule that Indian tribes are immune from suit absent congressional
authorization. As explained below, United States Supreme Court precedent does
not support the creation of this exception. Although the enforcement of the
Political Reform Act (PRA) (Gov. Code, § 81000 et seq.)1 is a highly desirable
objective, the means approved by the majority to accomplish that objective
unjustifiably circumvents well-established Indian sovereignty principles and
cannot be reconciled with controlling federal precedent.
I.
As recounted in the majority opinion, the Fair Political Practices
Commission (FPPC) filed a lawsuit against the Agua Caliente Band of Cahuilla
Indians (the Tribe), a federally recognized Indian tribe, alleging a failure to
comply with the reporting requirements for campaign contributions under the
PRA. The complaint alleged failure to report lobbying interests (§ 86116), late
contributions of more than $1 million (§ 84203), and failure to file semiannual
campaign statements (§ 84200). The Tribe, specially appearing, filed a motion to
quash service of summons for lack of personal jurisdiction on the grounds that it

1
All further undesignated statutory references are to the Government Code.
1

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was immune from suit under the doctrine of tribal sovereign immunity. The
majority affirms the decision of the Court of Appeal, which in turn affirmed the
decision of the trial court, that the application of tribal sovereign immunity in this
case would violate the state’s ability to order its own electoral processes, a power
the majority contends is reserved to the states by the Tenth Amendment of the
United States Constitution as well as the guarantee clause, article IV, section 4.
II.
“Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers. [Citations.] This
aspect of tribal sovereignty, like all others, is subject to the superior and plenary
control of Congress. But ‘without congressional authorization,’ the ‘Indian Nations
are exempt from suit.’ ” (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 58.) “It
is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be
unequivocally expressed.” ’ ” (Ibid.) “Indian tribes are ‘domestic dependent nations’
that exercise inherent sovereign authority over their members and territories.
[Citation.] Suits against Indian tribes are thus barred by sovereign immunity absent a
clear waiver by the tribe or congressional abrogation. [Citation.]” (Oklahoma Tax
Comm’n v. Potawatomi Tribe (1991) 498 U.S. 505, 509 (Potawatomi Tribe).) Put
another way, “tribal immunity is a matter of federal law and is not subject to
diminution by the States.” (Kiowa Tribe of Oklahoma v. Manufacturing Tech. (1998)
523 U.S. 751, 756 (Kiowa Tribe).)
The form tribal immunity has taken stems from the unique historical
circumstances in which it arose. As the United States Supreme Court has
explained, tribal immunity is to be distinguished from state sovereign immunity,
inasmuch as “tribes were not at the Constitutional Convention. They were thus
not parties to the ‘mutuality of . . . concession’ that ‘makes the States’ surrender of
2

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immunity from suit by sister States plausible.’ ” [Citation.] (Kiowa Tribe, supra,
523 U.S. at p. 756.)
Critical to the discussion of tribal immunity is an understanding of the
singular role that Congress plays in governing Indian affairs. Congress possesses
plenary power “to deal with the special problems of Indians,” a power that “is
drawn both explicitly and implicitly from the Constitution itself,” including the
Indian commerce clause, article I, section 8, clause 3, and the treaty clause, article
II, section 2, clause 2. (Morton v. Mancari (1974) 417 U.S. 535, 551-552.)
Congress itself has invoked this plenary, constitutionally based power, as
authorization for its own legislation. As it stated in the congressional findings to
the Indian Child Welfare Act: “clause 3, section 8, article I of the United States
Constitution provides that ‘The Congress shall have Power . . . To regulate
Commerce . . . with Indian tribes’ and, through this and other constitutional
authority, Congress has plenary power over Indian affairs.” (25 U.S.C. § 1901.)
As such, restrictions on tribal sovereign immunity are the sole province of
Congress. (Kiowa Tribe, supra, 523 U.S. at p. 756.) It has acted cautiously in this
area. “Although Congress has occasionally authorized limited classes of suits
against Indian tribes, it has . . . consistently reiterated its approval of the immunity
doctrine. See, e.g., Indian Financing Act of 1974, 88 Stat. 77, 25 U.S.C. § 1451 et
seq., and the Indian Self-Determination and Education Assistance Act, 88 Stat.
2203, 25 U.S.C. § 450 et seq. These Acts reflect Congress’ desire to promote the
‘goal of Indian self-government, including its “overriding goal” of encouraging
tribal self-sufficiency and economic development.’ ” (Potawatomi Tribe, supra,
498 U.S. at p. 510.)
The United States Supreme Court has thus far rejected all attempts to limit
Indian lawsuit immunity that have not originated with Congress. In Three
Affiliated Tribes v. World Engineering (1986) 476 U.S. 877, 890-891 (Three
3

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Affiliated Tribes), the court invalidated a state statute that required Indian tribes to
waive their sovereign immunity as a condition for bringing suit in state court,
holding, inter alia, that the statute placed an undue burden on Indian sovereignty.
In
Potawatomi Tribe the court held that, notwithstanding the fact that tribal
sales of cigarettes to non-Indians were taxable, the State of Oklahoma could not
sue the tribe to enforce its tax law. In so holding, the court rejected the state’s
argument “that the tribal sovereign immunity doctrine impermissibly burdens the
administration of state tax laws” and that “[t]he sovereignty doctrine . . . should be
limited to the tribal courts and the internal affairs of tribal government, because no
purpose is served by insulating tribal business ventures from the authority of the
States to administer their laws.” (Potawatomi Tribe, supra, 498 U.S. at
pp. 909-910.) Instead, it reaffirmed the principle that Congress alone could
restrict the tribe’s sovereign immunity. (Id. at p. 910.)
In
Kiowa Tribes, involving a suit over an Indian tribe’s default on a
promissory note issued in connection with a commercial transaction, the court
again rejected the argument that tribal immunity should be limited “to reservations
or to noncommercial activities.” (Kiowa Tribes, supra, 523 U.S. at p. 758.) While
expressing doubts about the wisdom of the doctrine, as the majority discusses, the
court reaffirmed that doctrine and rejected the proposed limitations: “Congress has
acted against the background of our decisions. It has restricted tribal immunity
from suit in limited circumstances.” (Ibid.) After citing many of the same statutes
as it did in Potawatomi Tribe, the court drew parallels between the doctrine of
tribal sovereign immunity and foreign sovereign immunity. Both types of
immunity are matters of federal law, and in the latter case, Congress has seen fit to
limit the immunity doctrine developed by the courts. (Ibid.) “In both fields,
Congress is in a position to weigh and accommodate the competing policy
concerns and reliance interests. The capacity of the Legislative Branch to address
4

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the issue by comprehensive legislation counsels some caution by us in this area.
Congress ‘has occasionally authorized limited classes of suits against Indian
tribes’ and ‘has always been at liberty to dispense with such tribal immunity or to
limit it.’ [Citation.] It has not yet done so.” (Kiowa Tribe, supra, 523 U.S. at
p. 759.) The court therefore elected “to defer to Congress” and upheld the tribe’s
immunity. (Id. at p. 760.)
The majority does not controvert the incontrovertible. Rather, it draws the
conclusion that “the United States Supreme Court, while consistently affirming the
sovereign immunity doctrine, has grown increasingly critical of its continued
application in light of the changed status of Indian tribes as viable economic and
political nations.” (Maj. opn., ante, at p. 16.) But it is more accurate to say that
the Supreme Court has not wavered from the principle that whatever problems
arise from the conflict between Indian and state sovereignty are matters for
Congress, exercising its plenary power over Indian affairs, to solve.
III.
The majority does not claim that the United States Supreme Court is on the
brink of abandoning this well-established doctrine of Indian sovereign immunity.
Rather, it contends that federal law will or should recognize a narrow exception to
the sovereign immunity doctrine under the Tenth Amendment to the United States
Constitution and article IV, section 4, the guarantee clause. I do not agree that
these provisions authorize the state to limit tribal sovereign immunity.
The Tenth Amendment states that “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the states are reserved to the
states respectively, or to the people.” Article IV, section 4 states that “The United
States shall guarantee to every state in this union a republican form of
government, and shall protect each of them against invasion; and on application of
5

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the legislature, or of the executive (when the legislature cannot be convened)
against domestic violence.”
As the majority acknowledges, neither constitutional provision has been
interpreted to provide much in the way of limitation on federal power. (See
Garcia v. San Antonio Metro. Transit Auth. (1985) 469 U.S. 528.) The only
recognized limitation on federal power over the states that has any basis in the
Tenth Amendment has been the restriction of congressional legislation that would
compel states to enact or administer a federal regulatory program. (See Printz v.
United States (1997) 521 U.S. 898, 919, 933.) No such federal commandeering of
state government is at issue here.
The guarantee clause provides even less support for the majority’s position.
As James Madison stated in explaining the meaning of the clause to potential
ratifiers of the Constitution: ‘‘In a confederacy founded on republican principles,
and composed of republican members, the superintending government ought
clearly to possess authority to defend the system against aristocratic or
monarchical innovations.” (Madison, The Federalist, No. 43, (J. Cooke ed. 1961)
p. 291.) Obviously, no such innovations are at issue here. Whether the guarantee
clause imposes any constraints on federal power, and whether guarantee clause
claims are justiciable at all, are still matters the high court has left unsettled. (See
New York v. United States (1992) 505 U.S. 144, 184-185.)
In making its argument based on these two constitutional provisions, the
majority relies a good deal on Gregory v. Ashcroft (1991) 501 U.S. 452 (Gregory),
in which the Supreme Court held that the federal Age Discrimination in
Employment Act (ADEA) did not apply to invalidate a state constitutional
provision establishing mandatory retirement for most judges at age 70. The
majority cites passages in Gregory that refer to the Tenth Amendment and the
guarantee clause as presupposing that states possess certain “substantial sovereign
6

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powers under our constitutional scheme” (id. at p. 461), including the power “to
determine the qualifications of their most important government officials” (id. at
p. 463).
But the actual holding in Gregory was more modest than is suggested by the
majority. The court evoked the “plain statement rule,” derived from the Tenth
Amendment and the federalist nature of our government, requiring that “[I]f Congress
intends to alter the “usual constitutional balance between the States and the Federal
Government,” it must make its intention to do so “unmistakably clear in the language
of the statute.” [Citation.]’ ” (Gregory, supra, 501 U.S. pp. 460-461.) The court
concluded that the determination of qualifications for state officers was traditionally a
state prerogative, the alteration of which would require a plain statement from
Congress, and that it was ambiguous whether Congress, in exempting appointed state
government officials on a “policymaking level” from the ADEA, intended to exempt
judges; therefore, the federal act would not override state law. (Id. at pp. 463-467.)
The present case is plainly distinguishable. As stated above, the condition for
applying the “plain statement rule” is an alteration of “the ‘usual constitutional
balance between the States and the Federal Government.’ ” (Gregory, supra, 51 U.S.
at pp. 461, 460.) In this case, there is no such alteration. Rather, the Tribe asks for
application of the usual rule that Congress alone has exclusive authority to place
conditions on tribal sovereignty. There is no need for Congress to affirmatively
specify that Indian sovereign immunity applies to suits to enforce state political
reform legislation, since the long-standing assumption of Congress and the courts is
that such immunity does apply absent congressional restriction.
More fundamentally, the Tenth Amendment, which speaks in terms of power
“reserved to the states,” gives the states no power to abrogate Indian sovereign
immunity, because all such power was ceded to the federal government when the
states ratified the Constitution. As noted, the United States Constitution gave
7

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Congress plenary authority over Indian affairs. “[B]ecause the power to regulate
Indians is one conferred on the federal government, the Tenth Amendment does not
reserve such authority to the States.” (Carcieri v. Norton (D.R.I. 2003) 290
F.Supp.2d 167, 189; see also City of Roseville v. Norton (D.D.C. 2002) 219
F.Supp.2d 130, 153-154.) Although the majority distinguishes these cases on their
facts, it does not come to grips with the basic principle to emerge from them: that the
Tenth Amendment does not and cannot authorize state control over Indian tribal
matters.
Indeed,
although
Gregory suggests that Congress, with a sufficiently plain
statement and substantial rationale, could legislate to prevent age discrimination
among state judges, the majority’s holding goes much further. According to the logic
of the majority opinion, even if Congress legislatively affirmed Indian sovereign
immunity from suits involving political reporting of contributions to the states, such
legislation would be constitutionally invalid. This conclusion contravenes United
States Supreme Court case law pertaining to Indian sovereignty and finds no support
in Tenth Amendment or guarantee clause jurisprudence.
Furthermore, even the more expansive visions of the Tenth Amendment and
the guarantee clause propounded by academic authorities cited by the majority
provide little support for its position. For example, Professor Tribe states:
“[W]hatever the interpretive difficulties, the text of the Constitution provides a
compelling justification for the Court to use Article IV as a basis for marking the
outer limits and inviolate spheres of state autonomy. Enforcement of the Guarantee
Clause would ensure that Congress would be unable to deny the states some symbolic
corollaries of independent status; some revenue with which to operate; some sphere of
autonomous lawmaking, law-enforcing, and dispute-resolving competence; and some
measure of choice in selecting a political and administrative structure.” (1 Tribe,
American Constitutional Law (3d ed. 2000) § 5-12, p. 910, italics in original.)
8

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There is no basis for asserting that the restriction on the state’s ability to
enforce political reporting requirements at issue here implicates these kinds of basic
minimums of state sovereignty. Indeed, in practical terms, it is far from clear why the
impairment of the state’s ability to enforce political reporting requirements is a greater
burden on state sovereignty than the impairment of its ability to collect lawfully owed
tax revenue at issue in Potawatomi Tribe, or its ability to provide a judicial forum for
its citizens aggrieved by tribal actions, as in Kiowa Tribe and Three Affiliated Tribes.
Affirming the principle that tribes possess sovereign immunity that cannot be
diminished by the states means, necessarily, that state sovereignty will in some
circumstances be correspondingly diminished. To assert that the loss of state
sovereignty implicates the Tenth Amendment is a formula for doing away with tribal
immunity, and goes considerably beyond what even the academic champions of the
Tenth Amendment have suggested.
Even assuming that the Tenth Amendment and the guarantee clause are
particularly focused on preserving aspects of state sovereignty having to do with the
most basic attributes of political self-determination, such as the ability of the state to
decide the qualifications of its important government officials (Gregory, supra, 501
U.S. at p. 463), it is difficult to see how those matters are implicated here. The Indian
tribes do not and cannot dictate the qualifications of state officials or any other feature
of California governance. Moreover, the Tribe concedes that it is subject to the
reporting requirements of the PRA. The FPPC and its amici curiae identify the
critical state interest advanced by the reporting requirements as one of ensuring that
voters know who is supporting and contributing to the various political candidates and
propositions, in order to make better informed voting choices. While the state’s
interest in ensuring an informed electorate is critical, the denial of the right to sue an
Indian tribe to enforce the reporting requirement does not put that interest beyond the
state’s reach. Although “sovereign immunity bars the State from pursuing the most
9

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efficient remedy” (Potawatomi Tribe, supra, 498 U.S. at p. 514), the state is not
without alternatives. For the most part, the FPPC may obtain the desired information
from the campaign contribution reports of those who are the recipients of the Tribe’s
political contributions or from other public record sources.
Even if the FPPC is unable to obtain such information in every instance, the
state has other options. It may pursue an agreement with the Tribe to waive sovereign
immunity in matters pertaining to political reporting requirements. The Tribe
emphasized at oral argument that it would be willing to enter into such an
agreement. Contrary to the majority’s view, the incentive of Indian tribes to do
so is strong. Growing concern with Indian tribal influence on politics has led to
widespread calls for greater tribal accountability. (See Knickerbocker, More
Scrutiny of Indian Casino Plans, Christian Science Monitor (Feb. 7, 2006),
<http://www.csmonitor.com/2006/0207/p02s01-uspo.html> [as of Dec. 21, 2006]
[Abramoff scandal has lead to proposed reforms of tribal political contribution rules].)
A tribe concerned with preserving its own sovereignty while at the same time seeking
to maintain good relations with the government and citizens of the state in which it
resides may recognize that concessions are necessary to promote its own long-run
interests. Moreover, tribal officials acting beyond the scope of their authority may be
subject to civil liability. (Potawatomi Tribe, supra, 498 U.S. at p. 514; Cohen,
Handbook of Federal Indian Law (2005 ed.) § 7.05 [1][a], p. 636 (Cohen).)
Finally, California and other similarly situated states concerned with
addressing the growing problem of tribal campaign contributions may petition
Congress. (Potawatomi Tribe, supra, 498 U.S. at p. 514.) The same political
pressures that provide the Tribes with incentives to negotiate with the states also point
toward congressional action if the current problems are not resolved through other
means.
10

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IV.
The ideal of Indian tribal sovereign immunity and federal protection has
existed side by side with the reality of Indians massacred and dispossessed from
their land by state and private interests (see, e.g., Heizer, The Destruction of
California Indians (1974) pp. vi-ix.), or more recently, of Indians living in poverty
as second-class citizens (see generally Cohen, supra, §§ 1.04-1.06, pp. 75-97).
We have now begun to enter a new era in which tribal economic and political
power is growing, and the ideal of tribal sovereignty is becoming more concretely
realized. If the doctrine of tribal sovereign immunity needs to be modified to
respond to these changes, federal law teaches that it is Congress, not the states,
that is constitutionally delegated and historically assigned the task of making that
modification, and it is in a unique position “to weigh and accommodate the
competing policy concerns and reliance interests.” (Kiowa Tribe, supra, 523 U.S.
at p. 759.)
I would therefore reverse the judgment of the Court of Appeal.
MORENO, J.

WE CONCUR: KENNARD, J.

WERDEGAR,
J.

11

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Agua Caliente Band of Cahuilla Indians v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 545
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S123832
Date Filed: December 21, 2006
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Loren E. McMaster
__________________________________________________________________________________

Attorneys for Appellant:

Reed Smith Crosby Heafey, Reed Smith, Bernard P. Simons, James C. Martin, Kathy M. Banke, George P.
Schiavelli, Denise M. Howell; Law Offices of Art Bunce, Art Bunce, Kathryn Clenney; Reed & Davidson,
Dana W. Reed and Darryl R. Wold for Petitioner.

Roxborough, Pomerance & Nye, Nicholas P. Roxborough and Vincent S. Gannuscio for Blue Lake
Rancheria and Mainstay Business Solutions as Amici Curiae on behalf of Petitioners.

Holland & Knight, Jerome L. Levine, Frank R. Lawrence and Zehava Zevit for Robert Anderson, Carole
Goldberg, John LaVelle, Nell Jessup Newton, Judith Royster, Joseph Singer and Rennard Strickland as
Amici Curiae on behalf of Petitioners.

Carole Goldberg and Jay Shapiro for UCLA Native American Law Students Association as Amicus Curiae
on behalf of Petitioners.

Daniel F. Decker; Lang, Richert & Patch, Val W. Saldaña, Laurie L. Quigley and David T. Richards for
Santa Rosa Indian Community of the Santa Rosa Rancheria as Amici Curiae on behalf of Petitioners.
__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

John M. Appelbaum, Steven Benito Russo, Luisa Menchaca, William L. Williams, Jr., C. Scott Tocher,
Holly B. Armstrong; Riegels Campos & Kenyon and Charity Kenyon for Real Party in Interest.

Heller Ehrman White & McAuliffe, Heller Ehrman, John C. Ulin, D. Eric Shapland and Gary Ostrick for
California Common Cause as Amicus Curiae on behalf of Real Party in Interest.

Bill Lockyer, Attorney General, Manuel M. Mederios, State Solicitor General, Andrea Lyn Hoch, Chief
Assistant Attorney General, Louis R. Mauro and Robert L. Mukai, Assistant Attorneys General, Kenneth
R. Williams, Robert C. Nash, Sara J. Drake and Marc A. Le Forestier, Deputy Attorneys General, as Amici
Curiae on behalf of Real Party in Interest.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

James C. Martin
Reed Smith
355 Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
(213) 457-8000

Charity Kenyon
Riegels Campos & Kenyon
2500 Venture Oaks Way, Suite 220
Sacramento, CA 95833-4222
(916) 779-7100

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Opinion Information

Date:	Docket Number:
Thu, 12/21/2006	S123832

Disposition
Dec 21 2006	Opinion: Affirmed with directions

Dockets
Apr 6 2004	Request for depublication filed (initial case event)   By Blue Lake Rancheria (NON-PARTY).
Apr 13 2004	Petition for review filed   by counsel for petitioner (Agua Caliente Band of Cahuilla Indians) CRC 40K/FedEx
Apr 19 2004	Received:   Faxed copy of letter from Hon. Rick Sims, Associate Justice, 3rd District, dated today, Third District Clerk did not receive a service copy of the depub request.
Apr 22 2004	Received:   letter from non party dep. requestor ( Blue Lake).
Apr 23 2004	Received:   faxed copy letter from Hon. Rick Sims, Third District Court of Appeal, dated April 23, 2004.
May 5 2004	Received Court of Appeal record   one doghouse
May 13 2004	Received:   Letter from counsel for petitioner dated May 12, 2004 re New Authority.
Jun 8 2004	Time extended to grant or deny review   to and including July 12, 2004
Jun 23 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 23 2004	2nd record request   for balance of record (three doghouses)
Jun 25 2004	Received Court of Appeal record   consisting of three volumes.
Jul 1 2004	Certification of interested entities or persons filed   by James C. Martin, Reed Smith LLP, counsel for petitioner (Agua Caliente etc.)
Jul 14 2004	Request for extension of time filed   by petitioner (Agua Caliente) for a 60-day extension to and including Sept. 21, 2004, to file Petitioner's Opening Brief on the Merits.
Jul 15 2004	Received:   Letter from Riegels Campos & Kenyon daetd 7-14-2004, informing the Court that FPPC agrees that the "Certification of Interested Entities or Parties' filed by James C. Martin, counsel for petitioner, Agua Caliente Band of Cahuilla Indians accurately identifies all interested entities and parties known to real party in interest.
Jul 21 2004	Extension of time granted   On application of petitioner and good cause appearing, it is ordered that the time to serve and file Petitioner's Opening Brief on the Merits is extended to and including September 21, 2004.
Sep 22 2004	Application filed to:   leave to file an oversized opening brief on the merits by petitioner.
Sep 22 2004	Received:   Petitioner's oversized Opening Brief on the Merits. / CRC 40(K).
Sep 23 2004	Opening brief on the merits filed   Petitioner {Agua Caliente Band of Cahuilla Indians}.
Oct 18 2004	Request for extension of time filed   by real party in interest Fair Political Practices, to file the answer brief on the merits: asking to December 30, 2004.
Oct 26 2004	Extension of time granted   To December 30, 2004 to file RPI's answer brief on the merits.
Dec 30 2004	Received:   RPI's answer brief on the merits in excess of the page limit, with application
Jan 6 2005	Answer brief on the merits filed   Real Pary in Interest ( Fair Political) filed with permission.
Jan 13 2005	Request for extension of time filed   Petitioner (Agua Caliente) to file the reply brief on the merits. Asking to March 2, 2005.
Jan 19 2005	Extension of time granted   to March 2, 2005 for petitioner to file the reply brief on the merits.
Feb 18 2005	Request for extension of time filed   by Petitioner Aqua Caliente etc. for a 30-day e.o.t. to 4-1-2005 to file the reply brief on the merits.
Feb 24 2005	Extension of time granted   On application of petitioner and good cause appearing, it is ordered that the time to serve and file petitioner's reply brief on the merits is extended to and including 4-1-05.
Apr 4 2005	Received:   Petitioner's (Agua Caliente) reply brief on the merits in excess of the word limit and separate application to file.
Apr 6 2005	Reply brief filed (case fully briefed)   By counsel for petitioner {Agua Caliente Band of Cahuilla Indians}. / Filed w/ perm.
Apr 29 2005	Received application to file Amicus Curiae Brief   and brief of Santa Rosa Indian Community of the Santa Rosa Rancheria in support of petitioners (Agua Caliente Band of Cahuilla Indians)
Apr 29 2005	Received application to file Amicus Curiae Brief   UCLA Native American Law Students Assn [in support of petr]
Apr 29 2005	Received application to file Amicus Curiae Brief   Robert Anderson, etal [in support of petr]
May 3 2005	Application to appear as counsel pro hac vice (granted case)   by Daniel F. Decker of Montana [Montana Bar No. 2217] on behalf of Amicus Santa Rosa Indian Community of the Santa Rosa Rancheria
May 5 2005	Amicus curiae brief filed   by Attorney General Bill Lockyer in support of real party in interest (filed in Sacramento)
May 6 2005	Permission to file amicus curiae brief granted   The application of Santa Rosa Indian Community of the Santa Rosa Rancheria for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 6 2005	Amicus curiae brief filed   Santa Rosa Indian Community of the Santa Rosa Rancheria in support of petitioner.
May 6 2005	Application to appear as counsel pro hac vice granted   The application of Daniel F. Decker of the State of Montana (Montana State Bar #2217) for admission to appear as counsel pro hac vice on behalf of Amicus Curiae Santa Rosa Indian Community of the Santa Rosa Rancheria is hereby granted. (See Cal. Rules of Court, rule 983.)
May 6 2005	Permission to file amicus curiae brief granted   The application of U.C.L.A. American Law Students Association for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 6 2005	Amicus curiae brief filed   U.C.L.A. Native American Law Students Association in support of petitioner.
May 6 2005	Permission to file amicus curiae brief granted   The application of Robert Anderson, Carole Goldberg, John La Velle, Nell Jessup Newton, Judith Royster, Joseph Singer, and Rennard Strickland for permission to file an amicus curiae brief in support of petitioner (Agua Caliente) is hereby granted. An answer thereto may be served and filed byn any party within twenty days of the filing of the brief.
May 6 2005	Amicus curiae brief filed   by Robert Anderson, Carole Goldberg, John La Velle, Nell Jessup Newton, Judith Royster, Joseph Singer, and Rennard Strickland in support of petitioner.
May 6 2005	Received application to file Amicus Curiae Brief   Blue Lake Rancheria Indian Tribe, etal [in support of petitioner]
May 9 2005	Received application to file Amicus Curiae Brief   and brief of Common Cause in support of real party in interest CRC 40.1(b)
May 16 2005	Permission to file amicus curiae brief granted   The application of California Common Cause for permission to file an amicus curiae brief in support of real party in interest (FPPC) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 16 2005	Amicus curiae brief filed   California Common Cause in support of real party in interest (FPPC).
May 16 2005	Request for judicial notice filed (granted case)   by Amicus California Common Cause
May 16 2005	Permission to file amicus curiae brief granted   The application of Blue Lake Rancheria et al., for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 16 2005	Amicus curiae brief filed   Blue Lake Rancheria et al. in support of petitioner.
May 18 2005	Request for extension of time filed   for an e.o.t. to 7-7-2005 to file petitioner's (Agua Caliente) responses to various amici curiae brief.
May 19 2005	Request for extension of time filed   to July 5, 2005, to file real party's (FPPC) answer to various amicus curiae briefs. [ Real Party FPPCanticipates filing a single answer to all four amici curiae briefs. ]
May 23 2005	Extension of time granted   On applications of both parties and good cause appearing, it is ordered that the time to serve and file petitioner's (Agua) and real party's (Fair Political Practices Commission) responses to various amici curiae briefs is extended to and including July 7, 2005.
May 24 2005	Note: Mail returned and re-sent   to Kathryn S. Clenney at address shown on the State Bar of California's web site, and noted herein.
May 31 2005	Opposition filed   by Petitioner (Agua Caliente) to Amicus Curiae California Common Cause's Request for Judicial Notice
May 31 2005	Note: Mail returned and re-sent   Jay Brian Shapiro at address verified with the State Bar of California.
Jul 8 2005	Response to amicus curiae brief filed   By counsel for petitioner {Agua Caliente Band of Cahuilla Indians} / CRC 40.1(b).
Jul 8 2005	Response to amicus curiae brief filed   By counsel for RPI {Fair Political Practices Commission} / CRC 40.1(b).
Jan 23 2006	Filed:   Letters dated January 20, 2006 from James C. Martin and Kathy M. Banke, attorneys for Petitioner Agua Caliente Band of Cahuilla Indians citing recent cases (attached)
Sep 5 2006	Case ordered on calendar   October 4, 2006, at 9:00 a.m., in Santa Barbara
Oct 4 2006	Cause argued and submitted
Oct 16 2006	Note: Mail returned and re-sent   to Attorney Frank Ronald Lawrence at address shown on the State Bar website.
Oct 25 2006	Received:   Letter dated 10-23-2006 from William L. Williams, Jr., FPPC, advising that the FPPC staff counsel/co-counsel has changed. John M. Appelbaum and Steven Benito Russo are no longer with FPPC. Current staff counsel/co-counsel for FPPC are: William L. Williams, Jr., Chief of Enforcement; Luisa Menchaca, General Counsel; Amanda Saxton, Commission Counsel Enforcement, for Real Party in Interest FPPC.
Dec 21 2006	Opinion filed: Affirmed in full with directions   Opinion by Chin, J. -- joined by George, C.J., Baxter and Corrigan, JJ. Dissenting Opinion by Moreno, J. -- concurred to by Kennard and Werdegar, JJ.
Jan 5 2007	Rehearing petition filed   Agua Caliente Band of Cahuilla Indians, petitioner James Martin, Kathryn Chenney, Dana Reed, counsel
Jan 8 2007	Note: Mail returned and re-sent   Attorney Jay Brian Shapiro at address appearing on the State Bar's website.
Jan 8 2007	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the aboave-entitled case is hereby extended to and including March 21, 2007, or the date upon whicjh rehearing is either granted or denied, whichever occurs first.
Jan 9 2007	Received application to file Amicus Curiae Brief   Morongo Band of Mission Indians, Shingle Springs Band of Miwok Indians, et al in support of Petitioner Agua Caliente Band of Cahuilla Indians' petition for rehearing and request for stay of remittitur
Jan 11 2007	Answer to rehearing petition filed   Fair Political Practices Commission, real party in interest by Charity Kenyon of Riegels Campos & Kenyon LLP, retained CRC 8.25
Jan 17 2007	Permission to file amicus curiae brief granted   The application of Morongo Band of Mission Indians, Shingle springs Band of Mkiwok Indians, Yurok Tribe, Round Valley Indian Tribes, Ione Band of Miwok Indians, Utu Utu Gwaitu Paiute Tribe, Greenville Rancheria of Maidu Indians, Cachil DeHe Band of Wintun Indians for permission to file an amicus curiae brief in support of Petitioner Agua Caliente Band of Cahuilla Indians' petition for rehearing and request for stay of remittitur is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 17 2007	Amicus curiae brief filed   Morongo Band of Mission Indians, Shingle Springs Band of Miwok Indians, Yurok Tribe, Round Valley Indian Tribes, Ione Band of Miwok Indians, Utu Utu Gwaitu Paiute Tribe, Greenville Rancheria of Maidu Indians, Cachil DeHe Band of Wintun Indians in support of Petitioner Agua Caliente Band of Cahuilla Indians petition for rehearing and request for stay of remittitur.
Feb 28 2007	Rehearing denied   Petition for rehearing is DENIED. Issuance of the remittitur in the above-entitled cause is stayed to permit petitioner to file a petition for writ of certiorari with the Supreme Court of the United States. Upon the filing of that petition, the issuance of the remittitur is further stayed until final determination of the certiorari proceeding. If a petition for writ of certiorari is not filed within the time prescribed, the stay will terminate when the time for filing the petition has expired. Kennard, Werdegar, and Moreno, JJ., are of the opinion the petition should be granted.
May 8 2007	Received:   Copy of "Application of Agua Caliente Band of Cahuilla Indians' for Extension of Time to File Petition for Writ of Certiorari" in the Supreme Court of the United States. [ asking 60 days, to and including July 27, 2007 ] Requested by James C. Martin of Reed Smith, counsel for petitioner.
May 14 2007	Received:   Letter from the Supreme Court of the United States dated May 9, 2007, application for extension of time to file a petition for writ of certiorari extended to and including July 28, 2007.
Jul 12 2007	Received:   Letter dated July 11, 2007, from James C. Martin, ReedSmith, counsel for petitioner (Agua Cliente Band of Cahuilla Indians.) "Consistent with California Rule of Court 8.244 and pursuant to the parties' enclosed Stipulation for Judgment, enclosed also please find an endorsed Judgment in the above-referenced matter entered on June 29, 2007 by the Sacramento County Superior Court, McMaster, J. The Stipulation and Judgment states that Petitioner Agua Caliente Band of Cahuilla Indians will not seek review in the United States Supreme Court of this Court's December 21, 2006 decision in this case. Thus, although Agua Caliente has until July 30, 2007 to fle a timely petition for writ of certiorari with the United States Supreme Court, it will not be filing any such petition."
Aug 1 2007	Remittitur issued (civil case)
Aug 8 2007	Received:   Acknowledgment of receipt of remittitur from Third Appellate District Court of Appeal, signed for by Ana Cavazos, Deputy Clerk

Briefs
Sep 23 2004	Opening brief on the merits filed
Jan 6 2005	Answer brief on the merits filed
Apr 6 2005	Reply brief filed (case fully briefed)
May 5 2005	Amicus curiae brief filed
May 6 2005	Amicus curiae brief filed
May 6 2005	Amicus curiae brief filed
May 6 2005	Amicus curiae brief filed
May 16 2005	Amicus curiae brief filed
May 16 2005	Amicus curiae brief filed
Jul 8 2005	Response to amicus curiae brief filed
Jul 8 2005	Response to amicus curiae brief filed
Jan 17 2007	Amicus curiae brief filed

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