BILL ANALYSIS �
AB 2092
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Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
AB 2092 (Chesbro) - As Introduced: February 23, 2012
SUBJECT : Economic development: federally recognized Indian
tribes.
SUMMARY : Requires all state agencies to cooperate with
federally recognized California Indian tribes on matters of
economic development and improvement. Requires the Office of
Planning and Research (OPR), in consultation with the Governor's
Tribal Advisor, to adopt a policy of communication and
consultation with all federally recognized California Indian
tribes that must meet certain requirements. Specifically, this
bill :
1) Requires, rather than authorizes, all state agencies to
cooperate with federally recognized tribes on economic
development and improvement issues.
2) Requires the Office of Planning and Research (OPR), in
consultation with the Governor's Tribal Advisor, to adopt a
policy of communication and consultation with all federally
recognized California Indian tribes. Requires that all state
agencies shall comply with the policy.
3) Specifies that the policy provide for "timely and meaningful
communication and consultation with Indian tribes and permit
elected officials and other representatives of tribal
governments to provide timely and meaningful input into the
development of legislation, regulations, rules, and policies on
matters that significantly or uniquely affect the tribal
community.
4) Provides that the policy shall require the state agency to
communicate and consult with Indian tribes before the agency
proposes legislation, or proposes or adopts regulations, rules,
or policies that may materially affect the tribal community.
5) Deletes an existing prohibition against using state
resources to promote tribal gaming.
EXISTING LAW :
AB 2092
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1) Encourages and authorizes all state agencies to cooperate
with federally recognized California Indian tribes on matters of
economic development and improvement for the Indian tribes.
2) Provides that cooperation by state agencies with federally
recognized California Indian tribes on those matters may include
certain activities, but it may not include activities that
promote gambling.
3) Encourages and authorizes all state agencies to "cooperate
with federally recognized California Indian Tribes on matters of
economic development and improvement for the tribes."
4) Provides that cooperation by state agencies may include, but
is not limited to, the following:
a. Providing information on programs available to assist
Indian tribes.
b. Providing technical assistance on grants and
application preparation for public and/or private funds, as well
as conducting meetings and workshops.
c. Any other steps that may reasonably be expected to
assist Indian tribes to become economically self-sufficient.
5) Indicates that cooperation on economic development by state
agencies will not be construed to include any activities that
promote gambling.
FISCAL EFFECT : Unknown.
COMMENTS :
Purpose of the bill : According to the author, current law only
encourages and authorizes state agencies to cooperate with
federally recognized Indian Tribes. There is no requirement for
them to do so. Since the law is permissive, there is no
obligation for any state agency or department to work with the
tribes on issues of importance to them.
The author maintains this bill will strengthen an effective
government to government relationship between California's
Indian Tribes and state government and allow the tribes to have
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input on issues of importance to them.
In September of 2011, an Executive Order by Governor Brown
established the position of "Tribal Advisor" in the Office of
the Governor to strengthen communication and collaboration with
California's Native American Tribes. In March 2012, the
Governor appointed an individual to the position of Tribal
Advisor to serve as a direct link between the Governor's Office
and tribal governments on matters including legislation, policy
and regulation.
The author states, while this administration is committed to
furthering California's government to government relationship
with California's tribal governments, there is no guarantee that
the next Governor will share this commitment. The author
believes that AB 2092 will ensure that policies are in place to
protect those relationships and ensure that California's Indian
Tribes are equal partners with our state government.
AB 2092 would require state agencies to meet and confer with
federally recognized Indian Tribes on matters of economic
development and improvement for the tribe. In that effort, the
bill requires OPR, in consultation with the Governor's Tribal
Advisor, to adopt a policy of communication and consultation
with all federally recognized California Indian tribes. The
bill will require that all state agencies comply with the
policy.
In support : The Northern California Tribal Chairman's
Association (NCTCA), states relationships between federally
recognized California Indian tribal governments and the State of
California have improved, although there have been actions taken
by state agencies which have had a tremendous impact upon tribal
communities, and there was little or no effort made to
consultant with the affected tribal governments prior to the
implementation of the policy. AB 2092 is necessary to codify a
policy of consultation in current law in order to ensure
uniformity with state agencies with respect to their
communication with all of California federally recognized Indian
tribal governments.
Tribal Advisor Position Created : Executive Order B-10-11 states
that "the Governor's Tribal Advisor shall oversee and implement
effective government-to-government consultation between my
Administration and Tribes on policies that affect California
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tribal communities, and shall:
Serve as a direct link between the Tribes and the Governor of
the State of California.
Facilitate communication and consultations between the Tribes,
the Office of the Governor, state agencies, and agency tribal
liaisons.
Review state legislation and regulations affecting Tribes and
make recommendations on these proposals.
IT IS FUTHER ORDERED that the Office of the Governor shall meet
regularly with the elected officials of California Indian Tribes
to discuss state policies that may affect tribal communities.
IT IS FURTHER ORDERED that it is the policy of this
Administration that every state agency and department subject to
my executive control shall encourage communication and
consultation with California Indian Tribes. Agencies and
departments shall permit elected officials and other
representatives of tribal governments to provide meaningful
input into the development of legislation, regulations, rules,
and policies on matters that may affect tribal communities."
In opposition : The San Manuel Band of Mission Indians writes
"the Governor's Tribal Advisor position was filled less than six
weeks ago. We believe that this issue should be deferred for at
least one year to allow Executive Order B-10-11 and the Tribal
Advisor position to become settled before proposing to codify
the position and add duties."
The Rincon Band of Luiseno Indians states, "We believe that the
model for tribal consultation that is proposed in AB 2092 is
outdated. Prior to President Obama's administration, agencies
would unilaterally create and impose consultation policies with
their constituent Tribes. Tribes were given the choice of
taking the consultation protocol as imposed or walking away from
the process. Since 2009, President Obama has reinvigorated and
revamped the federal consultation process. Instead of agency
imposed consultation protocols, each agency was directed to meet
with federally recognized Tribes to jointly create a
consultation protocol specific to such Tribes and each federal
agency. In contrast, AB 2092 gives the Governor's Office of
Planning and Research (OPR) unilateral power to impose its form
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of consultation on California Tribes. This is a step in the
wrong direction."
Suggested amendment : The author might want to consider an
amendment which would clarify that "cooperation by state
agencies on economic development and improvement for federally
recognized California Indian tribes, shall not be construed to
include activities that are solely related to gaming."
Policy consideration : The bill does not detail any specific
areas of possible cooperation with any state agency on economic
development matters, nor does it list any goals, objectives,
measurements, benchmarks, or performance standards that could be
used to determine what
effective cooperation would mean.
Related Legislation . The state has executed several
tribal-state gaming compacts on a government-to-government basis
to authorize Class III gaming on tribal lands. These compacts
have formed the basis of state-tribal relations since 1999.
AB 968 (Chesbro) of 2011-2012 Legislative Session. Would have
codified Executive Order B-10-11, which established the position
of Tribal Advisor within the Office of the Governor, to serve at
his/her pleasure. AB 968 would have also specified the duties
of the Tribal Advisor, to oversee and implement affect
government-to-government consultation between the administration
and the tribes on policies that affect the California tribal
community. (Died - Never heard in Assembly G.O. Committee)
SB 1200 (Ducheny) of 2007-2008 Legislative Session. Requires
the Secretary of Business, Transportation, and Housing Agency to
establish the Native American Business Revolving Loan Program
for the purpose of funding non-gaming business projects for
federally recognized, non-compacted and revenue sharing tribes
who are based in California. (Held - Assembly Appropriations
Committee)
AB 1881 (Thompson), Chapter 397, Statutes of 1998. Encouraged
and authorized all state agencies to cooperate with federally
recognized Indian tribes on matters of economic development and
improvement. Specifies that none of this assistance shall be
construed to promote gambling. Requires the Department of
Housing and Community Development to prepare and submit to the
Legislature a report summarizing generally the steps taken, and
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results achieved, by state agencies in cooperating with the
tribes on those matters, by January 1, 2000.
REGISTERED SUPPORT / OPPOSITION :
Support
Northern California Tribal Chairman's Association
Smith River Rancheria
Opposition
Rincon Band of Luiseno Indians
San Manuel Band of Mission Indians
Santa Ynez Band of Chumash Indians
Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531