BILL ANALYSIS Ķ
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 307 HEARING: 6/8/11
AUTHOR: Nestande FISCAL: No
VERSION: 5/31/11 TAX LEVY: No
CONSULTANT: Weinberger
JOINT POWERS AGREEMENTS AND TRIBAL GOVERNMENTS
Allows federally recognized Indian tribes to enter joint
powers agreements.
Background and Existing Law
The Joint Exercise of Powers Act allows two or more public
agencies to use their powers in common if they sign a joint
powers agreement. Sometimes an agreement creates a new,
separate government called a joint powers authority (JPA).
Public officials have created about 700 JPAs which are
confederations of governments working together for common
purposes.
State law generally limits membership in JPAs to public
agencies: federal, state, and local governments. According
to a 1996 informal Attorney General's opinion, tribal
governments can't sign joint powers agreements because
Indian tribes are "domestic dependent nations" and not
public agencies as defined by the Act.
Nevertheless, the Legislature has allowed three tribal
governments to join JPAs:
The Hoopa Business Council can join the Humboldt
County Association of Governments (AB 1137, Hauser,
1987).
The Torres Martinez Desert Cahuilla Indians can
join the Salton Sea Authority (AB 959, Kelley, 2001).
The Elk Valley Rancheria Tribal Council can join a
JPA with Del Norte County or the City of Crescent
City, or both (AB 1172, Berg, 2003).
Most federally recognized Indian tribes received federal
recognition status through treaties, acts of Congress,
presidential executive orders, other federal administrative
actions, or federal court decisions. Federal law specifies
AB 307 -- 5/31/11 -- Page 2
three ways in which an Indian group may become federally
recognized:
By Act of Congress,
By administrative procedures specified in federal
regulations, or
By decision of a United States court.
The federal government recognizes 565 American Indian and
Alaska Native tribes and villages. More than 100 federally
recognized tribes are in California.
Many tribal governments and California local governments
want to use joint powers agreements to collaborate on
transportation, land use, public safety, environmental
restoration, economic development and other policy issues.
Instead of requiring the Legislature to pass numerous bills
authorizing specific joint powers agreements to include
specific tribal governments, some tribal government
officials want to include federally recognized Indian
tribes in the definition of public agencies that may enter
into agreements under the Joint Exercise of Powers Act.
Proposed Law
Assembly Bill 307 adds federally recognized Indian tribes
to the Joint Exercise of Powers Act's definition of a
"public agency."
AB 307 prohibits any joint powers authority that includes a
federally recognized Indian tribe from having the authority
to authorize or issue Marks-Roos bonds unless:
The public improvements to be funded by the bonds
will be owned and maintained by the authority or one
or more of its public agency members, and
The revenue streams pledged to repay the bonds
derive from the authority, one or more of its public
agency members, or any governmental or public fund or
account the proceeds of which may be used for that
purpose.
The bill defines "governmental or public fund or account"
as including monies or revenue streams derived from, held
by, belonging to, due to, or otherwise held for the benefit
of, one or more public agency members, but not including
any fund or account that is funded by any grants
AB 307 -- 5/31/11 -- Page 3
distributed to local government agencies from the Indian
Gaming Special Distribution Fund.
AB 307 repeals the statutes authorizing the Torres Martinez
Desert Cahuilla Indians and the Elk Valley Rancheria Tribal
Council to enter into specified joint powers agreements.
The bill repeals language authorizing the Hoopa Business
Council to enter into a joint powers agreement specifically
for the purpose of participating on the Humboldt County
Association of Governments.
AB 307 declares that it must not be construed to affect,
modify, or repeal any existing joint powers authority
formed before its effective date, including a joint powers
authority that includes a federally recognized Indian tribe
as a party or cooperating agency. The bill continues any
authority granted by any prior law for a federally
recognized Indian tribe to enter into a joint powers
agreement.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Recognizing that collaboration
between local governments and tribal governments on matters
of mutual concern can produce significant public benefits,
AB 307 eliminates the need for local governments to seek
legislative approval before entering into JPAs with Indian
tribes. California local governments already exercise
independent discretion when entering into joint powers
agreements with each other, California state agencies, the
federal government, federal agencies, other states, or even
local governments from other states. AB 307 simply grants
local governments the same discretionary authority to enter
into JPAs with federally recognized Indian tribes. Two
California joint powers authorities already include Indian
tribal governments as members; the Salton Sea Authority's
membership includes the Torres Martinez Desert Cahuilla
Indians and the Border Coast Regional Airport Authority's
membership includes the Elk Valley Rancheria. State laws
in other states, including Arizona, Nevada, New Mexico,
AB 307 -- 5/31/11 -- Page 4
Oregon, and Washington authorize joint powers agreements
that include tribal governments. AB 307 follows these
examples by eliminating the statutory barrier to
local-tribal government collaboration through joint powers
agreements.
2. New Governor, different result ? AB 307 is similar to
several recently unsuccessful legislative efforts to
authorize tribal participation in JPAs. Governor
Schwarzenegger vetoed:
AB 2166 (Chesbro, 2010), which would have allowed
the Smith River Rancheria Tribal Council to join the
Border Coast Regional Airport Authority.
AB 1884 (Maze, 2008), which would have allowed the
Tule River Tribal Council to join a JPA to develop
land near the Porterville airport.
AB 1962 (Berg, 2006), which would have allowed the
Tribal Council of the Yurok Tribe to join a JPA to
restore fisheries in the Klamath River Basin.
AB 2762 (Levine, 2006), which would have allowed 17
tribal governments to join a the Southern California
Association of Governments.
AB 1747 (Wolk, 2005), which would have allowed the
Rumsey Band of Wintun Indians to join a JPA in Yolo
County.
The Governor's veto messages cited various concerns related
to tribes' exercising sovereign powers, particularly off
reservation lands, and expressed his preference that tribes
and local governments cooperate through "agreements and
memorandums of understanding." The Committee may wish to
consider whether the new Governor will continue his
predecessor's practice of vetoing bills similar to AB 307,
or whether he will take a different approach.
3. Related legislation . At its June 8 hearing, the
Committee will also consider AB 798 (Chesbro), which allows
the Smith River Rancheria Tribal Council to enter into a
joint powers agreement.
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Floor: 66-0
AB 307 -- 5/31/11 -- Page 5
Support and Opposition (6/2/11)
Support : United Auburn Indian Community; Agua Caliente
Band of Cahuilla Indians; California Nations Indian Gaming
Association; City of La Mesa; Coachella Valley Association
of Governments; Elk Valley Rancheria; Heartland
Communications Facility Authority; Rincon Band of Luiseņo
Indians; San Diego County Supervisor Dianne Jacob; Santa
Ynez Band of Chumash Indians; Smith River Rancheria;
Susanville Indian Rancheria; Yocha Dehe Wintun Nation.
Opposition : Unknown.