BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 798
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 798 (Chesbro)
          As Introduced  February 17, 2011
          Majority vote

           LOCAL GOVERNMENT    9-0                                         
           
           ----------------------------------------------------------------- 
          |Ayes:|Smyth, Alejo, Bradford,   |     |                          |
          |     |Campos, Davis, Gordon,    |     |                          |
          |     |Hueso, Knight, Norby      |     |                          |
           ----------------------------------------------------------------- 
           
          SUMMARY  :  Authorizes Smith River Rancheria Tribal Council to 
          enter into a joint powers agreement (JPA) with the County of Del 
          Norte, the City of Crescent City, or both, and declares Smith 
          River Rancheria to be a public agency for purposes of that JPA.

           EXISTING LAW  :

          1)Authorizes, under the Joint Exercise of Powers Act, two or 
            more public agencies (i.e. federal government, any state, any 
            state department or agency, county, county board of education, 
            county superintendent of schools, city, public corporation, 
            public district, and regional transportation commission in any 
            state) to enter into a JPA to exercise jointly any power 
            common to the contracting agencies that it can do by itself.

          2)Authorizes Elk Valley Rancheria Tribal Council to enter into a 
            JPA with the County of Del Norte, the City of Crescent City, 
            or both, and declares Elk Valley Rancheria Tribal Council to 
            be a public agency for purposes of that JPA.

           FISCAL EFFECT  :  None

           COMMENTS  :  California's JPAs are federations of federal, state, 
          and local public agencies that jointly perform duties that each 
          entity could perform on its own.  California's JPAs collaborate 
          to address public needs, such as financing public facilities, 
          forming insurance pools, and enhancing planning and regulation.  
          JPAs can be structured as an agreement between existing agencies 
          or as a creation of a new, separate entity called a joint powers 
          authority.









                                                                  AB 798
                                                                  Page  2


          In an opinion dated August 28, 1996, the California State 
          Attorney General (AG) found that an Indian tribe does not meet 
          any of the public agency definitions listed in Government Code 
          Section 6500, but rather is a "domestic dependent nation" 
          separate and distinct from the United States.  As a result, 
          special legislation is necessary in order for individual tribes 
          to enter into JPAs with legal public agencies.

          There is precedent for declaring Indian tribes to be public 
          agencies for the purpose of participating in JPAs.  Before the 
          1996 AG opinion, the Legislature designated Hoopa Valley Indian 
          Tribe as a public agency for the purpose of entering into JPAs 
          with the members of the Humboldt County Association of 
          Governments.  Subsequent to the AG's opinion, AB 959 (Kelley), 
          Chapter 19, Statutes of 2001, authorized Torres Martinez Desert 
          Cahuilla Indians to enter into a JPA to participate in the 
          Salton Sea Authority, and AB 1172 (Berg), Chapter 39, Statutes 
          of 2003, authorized Elk Valley Rancheria Tribal Council to enter 
          into a JPA with 

          Del Norte County and Crescent City, with the original purpose of 
          jointly financing and managing a regional wastewater treatment 
          plant.

          Elk Valley Rancheria Tribal Council, Del Norte County, and 
          Crescent City have formed another JPA based on their original 
          authorization added in statute in 2004.  The Border Coast 
          Regional Airport Authority was formed in 2007.  This joint 
          powers authority manages and operates the Del Norte County 
          Regional Airport/Jack McNamara Field Airport by providing 
          regional representation for the entire geographic base of its 
          users.  The initial membership of the JPA was later joined by 
          the City of Brookings, Oregon, and, in January 2010, Curry 
          County, Oregon. 

          According to the author, Smith River Rancheria, a federally 
          recognized tribe, has had a standing invitation to join the 
          Border Coast Regional Airport Authority, but has been unable to 
          do so because it lacks the legislative authority declaring the 
          sovereign Indian tribe a "public agency" for purposes of JPA 
          law.

          The author also says the Smith River Rancheria would like to 
          leave open the possibility of entering into different and future 








                                                                  AB 798
                                                                  Page  3


          JPAs with the County of Del Norte and the City of Crescent City, 
          which the language of this bill would allow.

          Prior governors when vetoing bills granting specific Indian 
          tribes JPA authorizations have said Memorandums of Understanding 
          (MOU) are a better way for Indian tribes to partner with local 
          agencies.  However, MOUs between local agencies and Indian 
          tribes do not allow tribes to be full and complete partners with 
          the local agencies.

          The Legislature may wish to consider whether it would prefer to 
          limit Smith River Rancheria's participation in a JPA to the 
          Border Coast Regional Airport Authority rather than leave the 
          door open for the Smith River Rancheria to join future JPAs that 
          might occur between the County of Del Norte, the City of 
          Crescent City, or both.  The Legislature also may wish to 
          consider whether it would be preferable to have Smith River 
          Rancheria work with Del Norte County and Crescent City through 
          an MOU.

          AB 2166 (Chesbro) of 2009, containing similar provisions, was 
          passed by the Assembly Local Government Committee on an 8-0 
          vote.  Governor Schwarzenegger vetoed AB 2166, saying:

          "As I have stated before in vetoing similar measures, allowing a 
          tribal government that is not subject to all federal, state and 
          local laws to participate in the exercise of public power, 
          particularly off reservation lands, diminishes public 
          accountability and control.

          "Sovereign tribes can work cooperatively with their local 
          governments through agreements and memorandums of understanding 
          as contemplated in the tribal-state compacts my Administration 
          has executed.  I encourage the proponents of this measure to 
          pursue their objectives in this manner."

          AB 847 (Berg) of 2008, which would have allowed the Tribal 
          Council of the Yurok Tribe to enter into a JPA with public 
          agencies for the purposes of projects and activities for the 
          preservation and restoration of fisheries in the Klamath River 
          Basin, was held in the Senate Local Government Committee.  
          Governor Schwarzenegger vetoed AB 1884 (Maze) of 2008, which 
          would have allowed the Tule River Tribal Council to enter into a 
          JPA with the City of Porterville to develop commercial property 








                                                                  AB 798
                                                                  Page  4


          in the vicinity of the Porterville Airport.  
          AB 1962 (Berg) of 2006 was vetoed by Governor Schwarzenegger 
          with the veto message expressing concern about ambiguous 
          language and a lack of specifics about the scope of the Yurok 
          Tribe's participation in a JPA.  Governor Schwarzenegger also 
          vetoed AB 2762 (Levine) of 2006, which would have allowed 17 
          federally recognized Indian tribal governments to enter into a 
          joint powers agreement to participate in the Southern California 
          Association of Governments.  In 2005, Governor Schwarzenegger 
          vetoed AB 1747 (Wolk) of 2005, which would have allowed the 
          Rumsey Band of Wintun Indians to join a JPA in Yolo County.  

          AB 307 (Nestande) of 2011 changes the definition of "public 
          agency" for purposes of JPAs to include federally recognized 
          Indian tribes and prohibits any joint powers authority that 
          includes a federally recognized Indian tribe from having the 
          authority to authorize or issue bonds pursuant to the Marks-Roos 
          Local Bond Pooling Act of 1985 unless the public improvements to 
          be funded by the bonds will be owned and maintained by the joint 
          powers authority or one or more of its public agency members, 
          and the revenue streams pledged to repay the bonds derive from 
          the joint powers authority or one or more of its public agency 
          members.

          Support arguments:  Supporters say including Smith River 
          Rancheria in the JPA will promote the coordinated economic 
          development of the region and will help achieve regional 
          representation for all users of the Del Norte County Regional 
          Airport/Jack McNamara Field Airport.

          Opposition arguments:  Prior governor vetoes said it was 
          inappropriate to have a sovereign nation that is not directly 
          subject to all federal, state, and local laws participating in 
          the exercise of public power when the land in question was not 
          on tribal land. 

           
          Analysis Prepared by  :    Jennifer Klein Baldwin / L. GOV. / 
          (916) 319-3958 


                                                                FN: 0000219










                                                                  AB 798
                                                                  Page  5