Politically-active tribes who make contributions to federal campaigns
can do so while performing contracting work for the government,
a split Federal Election Commission ruled on Friday.
Rejecting a recommendation of the FEC's general counsel, the FEC voted 4-2
to adopt an opinion that separates a tribe's political activities from
its business operation. The decision ensures that tribes can participate
in the political process without being subject to rules that would otherwise
limit donations by federal contractors.
The case affects the Mississippi Band of Choctaw Indians, a
politically-active tribe whose donations rival those of small corporations.
Flush with proceeds from its successful gaming and business enterprises,
the tribe gave more than $220,000 to Republican and Democratic
interests in the 2004 election cycle. In 2002, the tribe's donations
Other tribes, however, could end up benefiting from the FEC's ruling.
Any tribe with a federal contract can continue to make contributions
so long as proceeds from the work aren't used to fund political
The decision is an extension of the FEC's long-standing policy towards
tribal sovereigns. The agency has previously determined
the tribal governments aren't subject to certain limitations placed on
political contributions by individuals.
The FEC also has held that "the general relationships between tribal
governments and their commercial ventures are unique" and should be treated
Normally, donations from a tribe that does work for the
government wouldn't be allowed because
federal law bars contractors from "directly or indirectly"
contributing to political campaigns or political action committees
during the term of the contract.
But in cases involving tribes, the FEC looks to the facts
to determine whether the contributions are legal.
In a 2000 case involving the Tohono O'odham
Nation, the agency said the tribe could make donations
even though its utility was a federal contractor
because the tribe and the utility maintained separate structures
and bank accounts.
This ruling superseded a FEC opinion from 1983 that
determined the Mississippi Band of Choctaw Indians, as a tribe,
was a federal contractor subject to the prohibition on donations.
In the current case,
the FEC's general counsel had in fact prepared, and endorsed,
a draft opinion that would
have treated the Mississippi Band as a contractor.
The draft noted that the tribe provided all the funds
to create a construction company that intended to become a federal
contractor, controlled nearly every aspect of the company
and would be held liable if the company faulted on a performance
"While some aspects of the circumstances might indicate that
IKBI has an identity distinct from the tribe, such as its
separate corporate structure, many more substantial factors
support the conclusion that the tribe and IKBI are inextricably
linked," the opinion stated. IKBI is the name of the tribe's
The majority of the FEC, however, accepted a second draft opinion concluding
that IKBI maintains a
"distinct and separate identity" from the tribe itself.
"Accordingly, when IKBI qualifies as a federal contractor,
its status as federal contractor does not confer federal
contractor status on the tribe and therefore will not affect the
tribe's political activities," the document stated.
The two drafts were presented to the tribe on March 3 and
were considered at a public meeting last Thursday.
The FEC's vote was made public on Friday.
Last year, the Mississippi Band came under scrutiny during a Senate
investigation into the activities of two Washington lobbyists
accused of bilking tribes out of more than $80 million. Choctaw
Chief Phillip Martin initially balked at the probe but later
agreed to cooperate. Further hearings before the Senate Indian
Affairs Committee are planned.
Mississippi Band of Choctaw Indians Political Donations:
Source: The Center for Responsive Politics
| 2004 || $223,623 || 48% || 52% |
| 2002 || $578,938 || 64% || 36% |
| 2000 || $202,750 || 15% || 85% |
Advisory Opinion Draft A and Draft B
Tribe's Request for Advisory Opinion
Earlier FEC Rulings:
Mississippi Band of Choctaw Indians
(September 17, 1993) |
(May 15, 2000) |
Tohono O'odham Nation
(January 28, 2000)
Mississippi Band of Choctaw Indians - http://www.choctaw.org