BILL ANALYSIS �
AB 307
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Date of Hearing: April 6, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 307 (Nestande) - As Amended: March 29, 2011
SUBJECT : Joints powers agreements: public agency: federally
recognized Indian tribe.
SUMMARY : Changes the definition of "public agency" for
purposes of joint powers agreements (JPA) to include federally
recognized Indian tribes. Specifically, this bill :
1)Changes the definition of "public agency" for purposes of JPAs
to include federally recognized Indian tribes.
2)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.
3)Repeals provisions that authorize the Elk Valley Rancheria
Tribal Council to enter into a JPA with the County of Del
Norte and the City of Crescent City, or both.
4)Repeals provisions that authorize the Torres Martinez Desert
Cahuilla Indians to enter into a JPA to participate in the
Salton Sea Authority.
5)Repeals provisions that authorize the Hoopa Valley Business
Council, as the governing body of the Hoopa Valley Indian
Tribe, to enter into a JPA with the Humboldt County
Association of Governments.
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,
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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)Defines "public agency" to include, but not be limited to, the
federal government or any federal department or agency, this
state, another state or any state department or agency, a
county, county board of education, county superintendent of
schools, city, public corporation, public district, regional
transportation commission of this state or another state, or
any joint powers authority formed by any of these agencies
pursuant to the Joint Exercise of Powers Act.
3)Authorizes the Elk Valley Rancheria Tribal Council to enter
into a JPA with the County of Del Norte and the City of
Crescent City, or both.
4)Authorizes the Torres Martinez Desert Cahuilla Indians to
enter into a JPA to participate in the Salton Sea Authority.
5)Authorizes the Hoopa Valley Business Council, as the governing
body of the Hoopa Valley Indian Tribe, to enter into a JPA
with the Humboldt County Association of Governments.
FISCAL EFFECT : None
COMMENTS :
1)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.
In an opinion dated August 28, 1996, the California State
Attorney General found that an Indian tribe does not meet any
of the public agency definitions listed under the Joint
Exercise of Powers Act, 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.
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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 to jointly finance and manage a regional
wastewater treatment plant and later to enter into a JPA for
purposes of forming the Border Coast Regional Airport
Authority.
2)The Marks-Roos Local Bond Pooling Act of 1985 (Marks-Roos)
allows local governments, as a joint powers authority, to pool
bonds to lower their overhead costs. Marks-Roos bonds were
created to provide a flexible alternative method of financing
needed public improvements, along with the benefit of reduced
borrowing costs through the use of bond pools. These bonds do
not require voter approval, and instead are approved by
resolution of the joint powers authority. The joint powers
authority is required when approving the resolution to issue
bonds at a regular meeting that (a) the authority reasonably
expects the public improvement is to be located within the
boundaries of one or more local agencies of the authority, (b)
a local agency within whose boundaries the public improvement
is to be located has approved the financing and make a finding
of significant public benefit, and (c) notice is sent to the
Attorney General and the California Debt and Investment
Advisory Commission.
AB 307 would exclude Indian tribes participating in JPAs from
directly owning or operating any public improvement for public
benefit and from pledging to repay the bonds derived from the
joint powers authority. Thus, Indian tribes would differ from
other public agencies in the JPA in one fundamental aspect.
3)In the March 2000 primary, Proposition 1A was approved by
voters. Proposition 1A amended the California Constitution to
allow the Governor to negotiate and enter into gaming compacts
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with Indian tribes, subject to ratification by the
Legislature. In anticipation of the passage of Proposition
1A, the Governor, in 1999, negotiated and the Legislature
approved ratifying compacts with many Indian tribes. These
compacts received federal approval and are effective until
December 31, 2020. As part of the 1999 compacts, the Indian
tribes agreed to provide to the state a portion of their
revenues from gaming devices in the form of license and
operation fees. These fees provide money for two funds: the
Indian Gaming Revenue Sharing Trust Fund (IGRSTF), which
distributes money to tribes that do not have compacts or that
have compacts and have fewer than 350 gaming devices, and the
Indian Gaming Special Distribution Fund (IGSDF), which
finances various state and local government activities. Each
tribe under these compacts deposits a percentage of its
average net wins into IGSDF.
Between 2003 and 2010, the Governor negotiated, the Legislature
ratified, and the federal government approved six additional
compacts and amendments to 12 of the original compacts. The
post-1999 compacts and amendments do not have those Indian
tribes contributing to IGSDF, but do allow Indian tribes to
work directly with local governments to address casino
impacts.
State law specifies the money deposited into IGSDF is available
for appropriation by the Legislature to address four needs in
the following priorities: (a) supporting IGRSTF, (b) funding
problem-gambling prevention programs managed by the Department
of Alcohol and Drug Programs, (c) paying the operating costs
for the Indian gaming regulatory functions of the Gambling
Control Commission and Department of Justice, and (d)
supporting local governments impacted by tribal gaming.
Once the money is appropriated for local governments using a
nexus test, the money is divided among eligible counties to
use for mitigation projects according to a specified
methodology. In the 2008-09 fiscal year, the Legislature
allocated a total of $30 million for 25 counties, who issued
185 grants. At the county-level, there are Indian Gaming
Local Community Benefit Committees, who evaluate the grant
applications and award the money. Any money that is not
awarded reverts back to IGSDF. The priority uses of IGSDF, as
specified in statute, are: law enforcement, fire services,
emergency medical services, environmental impacts, water
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supplies, waste disposal, behavioral health, planning and
adjacent land uses, public health, roads, recreation and youth
programs, and child care programs.
4)The author states, today, many tribal governments have the
resources and sophistication to engage in large-scale economic
development, infrastructure construction, and broad-based
community services beyond their tribal membership. The author
also says many public agencies in the state have sought to
include tribal governments in JPAs in recent years, but
special legislation is necessary for each of these individual
JPA opportunities. AB 307, says the author, would allow
Indian tribes and public agencies to enter into JPAs affecting
local issues without having to come to the Legislature each
time.
5)As noted earlier, JPAs are formed for a variety of public
service reasons, spanning groundwater resource management
programs to agricultural associations. Allowing public
agencies to enter into JPAs with Indian tribes without seeking
special legislation from the Legislature could mean Indian
tribes become more easily and integrally woven into the
network of social services provided to local communities.
The powers of JPAs are limited to the powers in common of all
the individual members of the JPA. Indian tribes would easily
fit into any number of JPAs because Indian tribes are not
limited by state laws and have more flexibility in what they
can accomplish than federal, state, and local agencies, which
are all constrained by regulations and statutes.
Would allowing Indian tribes to join JPAs at their discretion
create an unbalanced and inequitable relationship with public
agencies because Indian tribes would have all the benefits and
powers of a public agency while preserving sovereign immunity?
The question remains whether, as a sovereign nation, Indian
tribes would be subject to the same liabilities as public
agencies while serving on the JPA because, unless authorized
by Congress, the jurisdiction of state governments and the
application of state laws do not extend to Indian lands.
The Committee may wish to ask how Indian tribes will benefit by
being partners in JPAs? It could be as simple as they want to
act as good neighbors and provide capital and input to
regional concerns and projects. It also could be that most
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Indian tribes' members and employees live off tribal lands and
partnering with local agencies to provide public services is a
direct way of helping their own constituents. The sponsor of
AB 307, United Auburn Indian Community, says, "Tribal
governments are mature governmental agencies that are
experienced in running schools, housing programs, health care
systems, natural resource protection services, and other
public-benefit programs."
The money in IGSDF derived from the 1999 Indian gaming compacts
is not much and is not distributed to all counties. The list
of priorities the Indian Gaming Local Community Benefit
Committees have to follow does not always match up to the
needs of a local government agency wanting to partner with an
Indian tribe. Thus, allowing Indian tribes to participate in
JPAs would be a more stable source of revenue and support for
local governments wanting not only to mitigate the impacts of
gaming but also those wanting to meet the other social
services needs of the community at large.
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 Coachella
Valley Association of Governments (CVAG) is a joint powers
authority made up of 10 cities and the County of Riverside.
Three Indian tribes have joined the joint powers authority
through MOUs, but cannot be given full membership. CVAG wants
to have these three Indian tribes as full members based on
their successful, but limited, partnership.
The Committee, however, may wish to consider whether it wants to
deviate from the precedent established by the original
language of the Joint Exercise of Powers Act of 1949 and allow
Indian tribes to be deemed a public agency for purposes of
JPAs.
6)Prior legislation: AB 847 (Berg, 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, did not make it out of the Senate
Local Government Committee. Governor Schwarzenegger vetoed AB
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1884 (Maze, 2008), which would have allowed the Tule River
Tribal Council to enter into a JPA with the City of
Porterville to develop commercial property in the vicinity of
the Porterville Airport. AB 1962 (Berg, 2006) was vetoed by
the Governor 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. The Governor also
vetoed AB 2762 (Levine, 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, 2005), which would have
allowed the Rumsey Band of Wintun Indians to join a JPA in
Yolo County. More recently, in 2010 Governor Schwarzenegger
vetoed AB 2166 (Chesbro, 2010), which sought to allow the
Smith River Rancheria Tribal Council to enter into a JPA to
participate in the Border Coast Regional Airport Authority.
7)Similar legislation: AB 798 (Chesbro, 2011) allows the Smith
River Rancheria Tribal Council to enter into a JPA with the
County of Del Norte, the City of Crescent City, or both.
8)Support arguments: Supporters, the United Auburn Indian
Community, say allowing federally recognized Indian tribes to
join JPAs with local agencies will allow Indian tribes to join
their non-tribal counterparts in advancing the public good.
Opposition arguments: Opponents might say allowing federally
recognized Indian tribes to reap the benefits of being a
public agency without potentially having to be subject to the
liabilities of a public agency is unfair and inequitable.
REGISTERED SUPPORT / OPPOSITION :
Support
United Auburn Indian Community �SPONSOR]
Agua Caliente Band of Cahuilla Indians Tribal Council
Coachella Valley Association of Governments
Elk Valley Rancheria, CA
Santa Ynez Band of Chumash Indians
Susanville Indian Rancheria
Opposition
AB 307
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None on file
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958