BILL ANALYSIS
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Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
ACR 32 (Miller) - As Introduced: March 11, 2009
SUBJECT : Native American Tribal Rights
KEY ISSUE : Should the Legislature reaffirm, by resolution,
California's recognition OF the sovereign status of federally
recognized Native American Tribes and encourage state agencies
to act in a manner that is knowledgeable, sensitive, and
respectful of that sovereignty?
FISCAL EFFECT : As currently in print this measure is keyed
fiscal.
SYNOPSIS
This resolution would reaffirm state recognition of the
sovereign status of federally recognized Indian tribes as
separate and independent governmental and political communities.
The resolution also calls upon state agencies, when engaging in
activities or developing policies that affect Native Americans,
to do so in a knowledgeable, sensitive manner that is respectful
of tribal sovereignty, and to encourage state agencies to
continue to reevaluate and improve the implementation of laws
affecting Native American tribal rights. This resolution is
almost identical to ACR 185 (Battin) of 2000, except where that
resolution reaffirmed state recognition of tribes as "separate
and independent political communities," this resolution
reaffirms state recognition of tribes as "separate and
independent governmental and political communities." There is
neither registered support nor opposition to this resolution at
the time of this writing.
SUMMARY : Reaffirms state recognition of the sovereign status of
federally recognized Indian Tribes, and makes related
declarations. Specifically, this resolution :
1)Reaffirms state recognition of the sovereign status of
federally recognized as separate and independent governmental
and political communities within the territorial boundaries of
the United States.
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2)Encourages state agencies, when engaging in activities and
developing policies that affect Native American tribal rights
and trust resources, to do so in a manner that is
knowledgeable, sensitive, and respectful of tribal
sovereignty, and to continue to reevaluate and improve the
implementation of laws that affect Native American tribal
rights.
3)Requires the Chief Clerk of the Assembly to transmit copies of
this resolution to all federally recognized tribes in
California, Members of Congress, and the President of the
United States.
EXISTING LAW:
1)Gives Congress the power to regulate commerce with foreign
nations, and among the several states, and with the Indian
Tribes. (U.S. Constitution Article I, Section 8.)
2)Provides, generally, that the United States government has
exclusive power to regulate, through the Bureau of Indian
Affairs within the Department of the Interior, relations with
federally recognized tribes. (25 USC Section 2.)
3)Protects, through the Indian Civil Rights Act of 1968, the
civil rights of Native American people and safeguards the
tribal sovereignty of federal recognized Indian tribes. (25
USC Section 1301 et seq.)
4)Permits, under the federal Indian Faming Regulatory Act,
various classifications of Indian gaming activity for federal
recognition, in a state that regulates but does not prohibit
gaming, to promote tribal economic development and
self-sufficiency. (25 USC Section 2701 et seq.)
5)Notwithstanding any other provision of state law, authorizes
the Governor to negotiate Indian gaming compacts, subject to
ratification by the Legislature, with federally recognized
Indian tribes on Indian lands within California in accordance
with federal law. (California Constitution, Article IV,
Section 19.)
COMMENTS : In the general election of November 3, 1998, 63
percent of California voters voted in favor of Proposition 5, an
initiative entitled the "Tribal Government Gaming and
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Self-Sufficiency Act of 1998." (Former Government Code Section
98000 et seq.) That measure, consistent with the federal Indian
Gaming Regulatory Act (25 USC 2701 et seq.) authorized the
Governor of California to enter into gaming compacts with
California Indian tribes. In its findings, the initiative
expressed the state's recognition that, historically, Indian
tribes within the state had long suffered from poverty,
unemployment, and inadequate housing and health care, and that
these conditions were at least partly the byproduct of an
absence of economic development and opportunity in tribal areas.
The purpose of the initiative, therefore, was to use Indian
gaming as a means of spurring economic development and tribal
self-sufficiency.
However a little over a year after Proposition 5 was approved by
the voters, the California Supreme Court struck down its most
substantial provisions on the grounds that the initiative
enacted a statute that was in violation of the state
Constitution. Specifically, the Court found that Article IV
Section 19 of the California Constitution prohibited gaming and
other forms of gambling within the state. (Hotel Employees and
Restaurant Employees International Union v. Gray Davis (1999) 21
Cal. 4th 585. The decision left intact a provision relating to
waivers of state immunity in suits growing out of the federal
Indian Gaming Regulatory Act.) In response to this ruling, a
coalition of California Indian tribes successfully launched
Proposition 1A, a constitutional amendment that expressly
authorized Indian gaming compacts. This measure passed with
64.5 percent of the vote in the March 20, 2000, primary
election.
In wake of the election, then-Assembly Member Jim Battin
introduced ACR 185, which, with the exception of two words, is
identical to the resolution now before the Committee. ACR 185
likewise reaffirmed the state's recognition of the sovereign
status of federally recognized tribes and encouraged all state
agencies to approach matters affecting Native Americans and
tribal rights with knowledge, sensitivity, and respect for
tribal sovereignty. ACR 185 expressly mentioned the strong
electoral support for both Proposition 5 in 1998 and Proposition
1A in 2000 as one of the justifications for resolution.
Presumably, if the voters supported Indian gaming activity, they
also supported the principle of tribal independence and
sovereignty since such gaming activity was otherwise in
violation of state law.
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This measure is identical to ACR 185, with one notable
exception. Whereas ACR 185 called upon the state to recognize
the sovereignty of federally recognized tribes as "separate and
independent political communities," this measure calls upon the
state to recognize such tribes as "separate and independent
governmental and political communities." Presumably, this
change may reflect the fact that federal laws and proclamations
speak in terms of "self-government," and that federally
recognized tribes have jurisdiction over institutions such as
tribal courts and the like. However, there is nothing in the
background material to indicate why the resolution and this
particular change are being offered at this time.
Although this resolution appears to be a fairly
non-controversial measure - indeed ACR 185 did not garner a
single vote in opposition - the Committee may nonetheless wish
to ask the author the following questions :
Given that ACR 185 already "reaffirmed" state recognition of
tribal sovereignty and encouraged state agencies to approach
matters in this light, why is this measure necessary at this
time? Indeed, ACR 185 cited what were then recent measures of
Proposition 5 and Proposition 1A in support of the resolution.
This measure includes this same rationale, even though those
measures are approximately a decade old. Are there any events
in the last ten years that create the need to reaffirm the
prior reaffirmation?
If the primary reason for reaffirming the prior resolution is
to add state recognition that tribes are independent
"governmental" as well as "political" communities, what is the
legal, political, or symbolic significance of this change and
why is it necessary to reaffirm it at this time? What if any
is the legal difference between "governmental" and "political"
communities?
Given that federal statutes and case law have repeatedly
asserted that the federal government has exclusive power over
relations with federally recognized tribes and that states
have no power to grant or to challenge federal recognition,
what does it mean to reaffirm that the state recognizes the
sovereign status of federally recognized Indian tribes?
Indeed, the state has no choice but to recognize the sovereign
status of federally-recognized tribes.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334