BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 2166 HEARING: 6/16/10
AUTHOR: Chesbro FISCAL: No
VERSION: 2/18/10 CONSULTANT:
Weinberger
JOINT POWERS AGREEMENT AND
THE SMITH RIVER RANCHERIA TRIBAL COUNCIL
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 724 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).
The Del Norte County Regional Airport is a commercial
service and general aviation airport located north of
Crescent City (Del Norte County). The Border Coast
Regional Airport Authority, a JPA, operates the airport.
The JPA's governing board includes representatives from Del
Norte County, the City of Crescent City, the Elk Valley
Rancheria, the City of Brookings (Oregon), and Curry County
(Oregon). The Smith River Rancheria is a
federally-recognized sovereign tribal nation located about
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14 miles north of Crescent City. As the governing body of
a community served by the Del Norte County Regional
Airport, the Smith River Rancheria Tribal Council wants the
same ability to become a member of the Border Coast Airport
Authority JPA that the Legislature granted to the Elk
Valley Rancheria Tribal Council.
Proposed Law
Assembly Bill 2166 allows the Smith River Rancheria Tribal
Council to enter into a joint powers agreement with the
County of Del Norte and the City of Crescent City, or both.
The Smith River Rancheria Tribal Council is deemed to be a
public agency for the purposes of the Joint Exercise of
Powers Act.
Comments
1. Be fair . The Border Coast Regional Airport Authority
JPA already includes a sovereign tribal government, the Elk
Valley Rancheria, as one of its members. Since 2007, the
JPA has operated the Del Norte County Regional Airport,
which is a vital transportation facility for the
surrounding communities. The JPA plans to significantly
improve the airport, including an expansion of the
passenger terminal. Although the airport directly affects
the Smith River Rancheria's tribal members and economic
activities, the Rancheria can't join the airport's JPA. AB
2166 remedies this unfair situation by giving the Smith
River Rancheria the same authority to participate in a JPA
that the Legislature gave to the Elk Valley Rancheria.
2. Be specific . State law allows the Hoopa Valley
Business Council and the Torrez Martinez Desert Cahuilla
Indians to participate in specific JPAs. The 2003 Berg
bill was less specific, authorizing the Elk Valley
Rancheria Tribal Council to enter into a JPA with Del Norte
County, Crescent City, or both. When the Berg bill passed,
the Elk Valley Rancheria Tribal Council expected to join a
JPA to finance a sewer plant. Instead, it became a member
of the Border Coast Regional Airport Authority JPA.
Although the Smith River Rancheria Tribal Council expects
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that AB 2166 will allow it to join the airport JPA, AB 2166
uses the Berg bill's broad language, raising the
possibility that the Tribal Council could join different
JPAs. The Committee may wish to consider narrowing AB 2166
to allow the Smith River Rancheria Tribal Council to enter
into a joint powers agreement to participate in the Border
Coast Regional Airport Authority.
3. Try again . AB 2166 is similar to a number of recently
unsuccessful legislative efforts to authorize tribal
participation in JPAs. Governor Schwarzenegger vetoed:
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."
4. Special legislation . The California Constitution
prohibits special legislation when a general law can apply
(Article IV, 16). AB 2166 contains findings and
declarations explaining the need for legislation that
applies only to the Smith River Rancheria Tribal Council.
Assembly Actions
Assembly Local Government Committee: 8-0
Assembly Floor: 68-1
Support and Opposition (6/10/10)
Support : Smith River Rancheria, Border Coast Regional
Airport Authority, City of Brookings (Oregon), Crescent
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City, Curry County (Oregon), Del Norte County, Agua
Caliente Band of Cahuilla Indians, Cloverdale Rancheria,
Elk Valley Rancheria, Morongo Band of Mission Indians,
Ramona Band of Cahuilla Indians, Santa Ynez Band of Chumash
Indians, Scotts Valley Band of Pomo Indians, Shingle
Springs Band of Miwok Indians, Susanville Indian Rancheria,
Sycuan Band of the Kumeyaay Nation, California State
Association of Counties, Crescent City - Del Norte County
Chamber of Commerce, Regional Council of Rural Counties,
California Nations Indian Gaming Association, California
Association of Tribal Governments, California Tribal
Business Alliance.
Opposition : Unknown.