Power sharing between Indian tribes and government offices, a prickly topic in a state where the political and economic influence of the tribes is on the rise, is taking center stage in the Capitol–again.
A move to give Indian tribes a greater role in local and regional government, including the ability to form Joint Powers Agreements with public agencies, is moving through the Legislature. The new bill is a reprise of legislation that sailed through the Legislature last year–33-1 in the Senate and 74-2 in the Assembly–but was vetoed by Gov. Arnold Schwarzenegger on the last day of the 2005-06 legislative session. Schwarzenegger said at the time that the bill, authored by Assemblyman Lloyd Levine, D-Van Nuys, “contains vague and ambiguous language regarding the rights of tribes as sovereign governments.” The bill could, he added, “result in unforeseen legal and policy consequences.”
But the Republican governor left the door open to consider the issue again, and Levine’s latest bill, which focuses on transportation, does just that. The bill has excited little public attention but tribes, local governments and others are watching the legislation carefully.
“Many of the flashpoints between tribes and local governments have occurred over transportation issues, and over the traffic impacts of casinos,” said Sacramento attorney Howard Dickstein, who represents the California Tribal Business Alliance and has appeared on behalf of tribes in court disputes. “[Levine’s bill] makes sense as a starting point because tribes have interests that impact local governments.”
Like the bill Schwarzenegger criticized, the governor’s veto message was itself vague, as a number of observers in the Capitol immediately noted.
But, between the lines, the governor appeared to be concerned about whether the bill was a smokescreen to give tribes a new taxing authority, allowing them to seize property under eminent domain or otherwise impinge on government’s role. Two years ago, for example, in a move that sparked public controversy, the casino-owning Rumsey Band of Wintun Indians sought to participate in a JPA with local governments to manage a 17,300-acre ranch that Yolo County hoped to buy or seize through eminent domain.
The Levine bill won’t do any of that, supporters say.
“This is a regional planning issue. It’s apart from gaming compacts, Indian gaming and anything else,” Levine said. “By having them become part of the planning process, it allows the tribes to get in early. They become partners instead of adversaries.” The legislation does not deal with the most hotly contested tribal-related legislation of the year–a series of agreements, or compacts, that define the level of gambling on Indian reservations. The first major legislative hearing on the compacts is scheduled this week.
The new plan, Levine’s AB 169, is two-pronged.
First, it gives 16 federally recognized tribes in Southern California participation and voting rights in the Southern California Association of Governments, or SCAG, which encompasses six counties, 187 cities and a number of transportation and planning agencies. The tribes would have one representative on SCAG’s regional council, the 77-member body that decides dues and budgeting, and two members each on the policy committees that deal with transportation, the environment and housing, among other issues. The tribes would decide among themselves who should represent them in the SCAG positions.
Second, it expedites the use of JPAs, in which the tribes could participate with other agencies in writing rules that govern such things as development, transportation, law enforcement, emergency services, environmental policies and other issues. There are a handful of tribe-linked JPAs already in California, but those were approved on a case-by-case basis.
For example, the Salton Sea Authority, which was created with Imperial and Riverside counties and two area irrigation districts, was expanded under 2001 legislation to include the Torres Martinez Desert Cahuilla Indians, whose 25,000-acre reservation includes lands around–and under–the Salton Sea.
The tribe had to be part of decisions about the Salton Sea, said Rick Daniels, executive director of the Salton Sea Authority. “The original four members and the tribal members agreed that you couldn’t design a solution with a hole in the donut. We wanted to have them at the table so that any plan we committed to would respect their tribal heritage and their cultural heritage. The tribal representatives have pretty much been good-citizen members.”
“With a JPA,” he added, “you are almost always forming a separate arm of government. They incur costs, they develop policy.” Other Western states with significant American Indian populations have devised a variety of JPAs, while California, the largest state, has not. “California is unique in this regard,” one Capitol staffer said.
A 1996 opinion by the state attorney general’s office said Indian tribes are “domestic dependent nations” and not public agencies, as defined by the state law that authorized JPAs. Despite that opinion, which by tradition carries the force of law until the Legislature decrees otherwise, lawmakers have considered JPAs on individual merits. Broadly, a JPA is a pact between public agencies to take action on behalf of the public.
At least two other tribe-related JPAs currently exist in California. One, approved 20 years ago, allows the Hoopa tribe’s business council to join the Humboldt County Association of Governments. The other, approved in 2003, allows the Elk Valley Rancheria Tribal Council to join a JPA with Del Norte County and Crescent City to finance a sewer plant.
SCAG is the sponsor of Levine’s bill and has been working on the issue for several years, said Don Rhodes, SCAG’s manager for public and government affairs. SCAG produces a regional transportation plan every four years, and the organization–a metropolitan planning agency, under federal law–believes the tribes should be part of that effort, as well as any other regional issues.
But the governor’s office, thus far, has been suspicious, concerned that the push for JPAs may somehow cloak an attempt to expand casino gambling without sufficient scrutiny by the Schwarzenegger administration. In his earlier veto message, Schwarzenegger asked that the issue be negotiated with the administration’s Office of Planning and Research.
Meanwhile, the sponsors of the latest JPA bill are waiting for Schwarzenegger to open negotiations.
“We are anxiously awaiting the telephone call,” Rhodes said.
Contact John Howard at firstname.lastname@example.org