1287 AMH ANDG OSBO 189
HB 1287 - H AMD 401
By Representative Anderson
NOT CONSIDERED 04/22/2011
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1. Under federal law, Indian nations are federally dependent domestic sovereigns that are distinct, independent political entities legally separate from the state and owing no allegiance to the state. Indian nations are uniquely empowered to generate income for their communities through taxing and other revenue mechanisms, such as operating casinos, that are not available to constitutionally authorized political subdivisions of the state. Indian nations do not pay property tax on land held in trust by the federal government nor on nonreservation land used for essential government services. Tribally owned businesses are not subject to sales and excise taxes on transactions conducted by tribal members on tribal land. The state of Washington, through the Centennial Accord, has agreed to treat Indian nations on a sovereign-to-sovereign basis.
The legislature finds that many statutory provisions treat Indian nations not as independent sovereigns but as state-dependent entities, which they are not, creating a clear conflict in the application of state laws. Tribal nations have numerous independent sources of revenue. In 2010, the tribes generated nearly one billion seven hundred fifty million dollars in net gambling receipts. The Washington state office of financial management estimated that less than two percent of the state's population is Native American.
In this time when the state faces significant continuing budget deficits and must make funding reductions to service programs it is providing to all its citizens, the legislature has made policy changes in many areas to require those that have independent sources of revenue to pay for the state services they use. The legislature intends to clarify the sovereign legal standing of Indian nations with respect to the state of Washington and the eligibility of Indian nations to apply for and receive state-provided program resources contingent upon sovereign-to-sovereign revenue sharing agreements to help defray the cost of such program services.
NEW SECTION. Sec. 2. (1) To be eligible to apply for and receive money from programs identified in section 3 of this act, a tribal government of a federally recognized Indian tribe located within the state must have a sovereign-to-sovereign agreement with the state that provides for the state to receive remuneration from the Indian nation for the privileges provided by these state programs and services in an amount sufficient so that the state receives a benefit for extending the privilege of state programs and services to federally recognized Indian nations.
(2) The requirements and conditions of this section apply unless the application of a requirement or condition is prohibited by federal law.
NEW SECTION. Sec. 3. (1) State-funded programs subject to the conditions of section 2 of this act include but are not limited to:
(a) Public facilities loans and grants from the community economic development board;
(b) The local infrastructure financing tool program;
(c) Bond funding from the state and local improvement revolving account for:
(i) Waste disposal facilities;
(ii) Water supply facilities;
(iii) Recreation areas and facilities; and
(iv) Health and social service facilities;
(d) Department of agriculture programs for:
(i) Funding and technical assistance under the department's pest program;
(ii) Surface water monitoring; and
(iii) Food safety;
(e) The building communities fund program;
(f) The tourism competitive grant program;
(g) Grant programs under the recreation and conservation office;
(h) Lake Roosevelt Columbia partnership agreements;
(i) Toxic clean-up programs under the department of ecology;
(j) The centennial clean water program;
(k) Public health emergency preparedness and response under the department of health;
(l) State-funded grant programs under the emergency management division of the military department;
(m) The competitive grant program for economic development activity designed to further regional cluster growth administered by the department of commerce;
(n) Grants and loans through the department of transportation for planning, acquisition, construction, improvement, and maintenance or operation of an airport;
(o) Funds received from counties using the county road administration board ferry capital improvement program;
(p) State maintenance funds to eligible tribes under the temporary assistance to needy families program;
(q) Housing-based supportive services for homeless families;
(r) Funds available through housing assistance programs and the Washington housing trust fund;
(s) Affordable housing programs; and
(t) Funds from the home visiting services account.
(2) State agencies may require compliance with section 2 of this act for Indian nations seeking access to state-funded programs not listed in subsection (1) of this section that come into existence after the effective date of this section unless prohibited by statute.
(3) Nothing in this chapter prevents tribal citizens as individuals from applying for and receiving state services that they are eligible to receive under the law.
NEW SECTION. Sec. 4. (1) The governor may enter an agreement with a tribe to receive payment for the privilege of participating in state programs under section 2 of this act subject to the conditions of this section.
(2) The agreement with each tribe must be for an amount sufficient to provide the state with a benefit for extending the privilege of state programs and services to federally recognized Indian nations. The agreement must specify that payments are made to the state treasurer on a quarterly basis.
(3) A sovereign-to-sovereign agreement entered into pursuant to this chapter must include:
(a) Mechanisms to allow the state auditor and state agencies to conduct audits of recipients of state services in the same manner as they would for local governments or other program participants; and
(b) A provision that agreements are public records and must be disclosed upon request and posted on an appropriate state web site.
NEW SECTION. Sec. 5. The Indian nation eligibility for state services account is created in the state treasury. All receipts from the agreements in section 4 of this act must be deposited into the account. The state treasurer must track amounts received from individual tribes and report amounts received quarterly to the department of revenue. The state treasurer must transfer on July 1st of each year the entire fund balance of the account into the general fund.
NEW SECTION. Sec. 6. The state consents to the jurisdiction of the federal courts in actions brought by a tribe seeking enforcement of an agreement under section 4 of this act, conditioned upon the tribe providing similar consent in the agreement and waiver of claims of sovereign immunity that would prevent enforcement of any provisions of this chapter. This limited waiver of sovereign immunity shall not extend to actions other than those expressly set forth in this chapter and the agreement.
Sec. 7. RCW 82.36.450 and 2007 c 515 s 19 are each amended to read as follows:
(1) The governor may enter into an agreement with any federally recognized Indian tribe located on a reservation within this state regarding motor vehicle fuel taxes included in the price of fuel delivered to a retail station wholly owned and operated by a tribe, tribal enterprise, or tribal member licensed by the tribe to operate a retail station located on reservation or trust property. The agreement may provide mutually agreeable means to address any tribal immunities or any preemption of the state motor vehicle fuel tax.
(2) The provisions of this section do not repeal existing state/tribal fuel tax agreements or consent decrees in existence on May 15, 2007. The state and the tribe may agree to substitute an agreement negotiated under this section for an existing agreement or consent decree, or to enter into an agreement using a methodology similar to the state/tribal fuel tax agreements in effect on May 15, 2007.
(3) If a new agreement is negotiated, the agreement must:
(a) Require that the tribe or the tribal retailer acquire all motor vehicle fuel only from persons or companies operating lawfully in accordance with this chapter as a motor vehicle fuel distributor, supplier, importer, or blender, or from a tribal distributor, supplier, importer, or blender lawfully doing business according to all applicable laws;
(b) Provide that the tribe will expend fuel tax proceeds or equivalent amounts on: Planning, construction, and maintenance of roads, bridges, and boat ramps; transit services and facilities; transportation planning; police services; and other highway-related purposes;
(c) Include provisions for annual audits ((or
other means of ensuring compliance)) to certify the number of gallons of
motor vehicle fuel purchased by the tribe for resale at tribal retail stations,
and the use of fuel tax proceeds or their equivalent for the purposes
identified in (b) of this subsection. ((Compliance reports)) Audits
must be delivered to the director of the department of licensing. The
director of the department of licensing must certify the audits required in
this subsection and submit them to the transportation committees of the
legislature by January 1st of each calendar year. Following receipt of the
audits, the transportation committees of the legislature must jointly hold a
public hearing to consider the audits and any related issues with agreements
entered into under this section.
(4) ((Information from the tribe or tribal retailers
received by the state or open to state review under the terms of an agreement
shall be deemed to be personal information under RCW 42.56.230(3)(b) and exempt
from public inspection and copying.
(5))) The governor may delegate the power to negotiate fuel tax
agreements to the department of licensing.
(((6))) (5) The department of licensing
shall prepare and submit an annual report to the legislature on the status of
existing agreements and any ongoing negotiations with tribes.
Sec. 8. RCW 82.38.310 and 2007 c 515 s 31 are each amended to read as follows:
(1) The governor may enter into an agreement with any federally recognized Indian tribe located on a reservation within this state regarding special fuel taxes included in the price of fuel delivered to a retail station wholly owned and operated by a tribe, tribal enterprise, or tribal member licensed by the tribe to operate a retail station located on reservation or trust property. The agreement may provide mutually agreeable means to address any tribal immunities or any preemption of the state special fuel tax.
(2) The provisions of this section do not repeal existing state/tribal fuel tax agreements or consent decrees in existence on May 15, 2007. The state and the tribe may agree to substitute an agreement negotiated under this section for an existing agreement or consent decree, or to enter into an agreement using a methodology similar to the state/tribal fuel tax agreements in effect on May 15, 2007.
(3) If a new agreement is negotiated, the agreement must:
(a) Require that the tribe or the tribal retailer acquire all special fuel only from persons or companies operating lawfully in accordance with this chapter as a special fuel distributor, supplier, importer, or blender, or from a tribal distributor, supplier, importer, or blender lawfully doing business according to all applicable laws;
(b) Provide that the tribe will expend fuel tax proceeds or equivalent amounts on: Planning, construction, and maintenance of roads, bridges, and boat ramps; transit services and facilities; transportation planning; police services; and other highway-related purposes;
(c) Include provisions for annual audits ((or
other means of ensuring compliance)) to certify the number of gallons of
special fuel purchased by the tribe for resale at tribal retail stations, and
the use of fuel tax proceeds or their equivalent for the purposes identified in
(b) of this subsection. ((Compliance reports)) Audits must be
delivered to the director of the department of licensing. The director of
the department of licensing must certify the audits required in this subsection
and submit them to the transportation committees of the legislature by January
1st of each calendar year. Following receipt of the audits, the transportation
committees of the legislature must jointly hold a public hearing to consider the
audits and any related issues with agreements entered into under this section.
(4) ((Information from the tribe or tribal retailers
received by the state or open to state review under the terms of an agreement
shall be deemed personal information under RCW 42.56.230(3)(b) and exempt from
public inspection and copying.
(5))) The governor may delegate the power to negotiate fuel tax
agreements to the department of licensing.
(((6))) (5) The department of licensing
shall prepare and submit an annual report to the legislature on the status of
existing agreements and any ongoing negotiations with tribes.
Sec. 9. RCW 84.36.010 and 2010 c 281 s 1 are each amended to read as follows:
(1) All property belonging exclusively to the United States, the state, or any county or municipal corporation; subject to subsection (3) of this section all property belonging exclusively to any federally recognized Indian tribe located in the state, if that property is used exclusively for essential government services; all state route number 16 corridor transportation systems and facilities constructed under chapter 47.46 RCW; all property under a financing contract pursuant to chapter 39.94 RCW or recorded agreement granting immediate possession and use to the public bodies listed in this section or under an order of immediate possession and use pursuant to RCW 8.04.090; and, for a period of forty years from acquisition, all property of a community center; is exempt from taxation. All property belonging exclusively to a foreign national government is exempt from taxation if that property is used exclusively as an office or residence for a consul or other official representative of the foreign national government, and if the consul or other official representative is a citizen of that foreign nation.
(2) For the purposes of this section the following definitions apply unless the context clearly requires otherwise.
(a) "Community center" means property, including a building or buildings, determined to be surplus to the needs of a district by a local school board, and purchased or acquired by a nonprofit organization for the purposes of converting them into community facilities for the delivery of nonresidential coordinated services for community members. The community center may make space available to businesses, individuals, or other parties through the loan or rental of space in or on the property.
(b) "Essential government services" means services such as tribal administration, public facilities, fire, police, public health, education, sewer, water, environmental and land use, transportation, and utility services.
(3) The exemption for a federally recognized Indian tribe located in the state is only allowed for those tribes with a valid sovereign-to-sovereign remuneration agreement under chapter 43.--- RCW (the new chapter created in section 11 of this act).
Sec. 10. RCW 82.29A.130 and 2008 c 194 s 1 and 2008 c 84 s 2 are each reenacted and amended to read as follows:
The following leasehold interests shall be exempt from taxes imposed pursuant to RCW 82.29A.030 and 82.29A.040:
(1) All leasehold interests constituting a part of the operating properties of any public utility which is assessed and taxed as a public utility pursuant to chapter 84.12 RCW.
(2) All leasehold interests in facilities owned or used by a school, college or university which leasehold provides housing for students and which is otherwise exempt from taxation under provisions of RCW 84.36.010 and 84.36.050.
(3) All leasehold interests of subsidized housing where the fee ownership of such property is vested in the government of the United States, or the state of Washington or any political subdivision thereof but only if income qualification exists for such housing.
(4) All leasehold interests used for fair purposes of a nonprofit fair association that sponsors or conducts a fair or fairs which receive support from revenues collected pursuant to RCW 67.16.100 and allocated by the director of the department of agriculture where the fee ownership of such property is vested in the government of the United States, the state of Washington or any of its political subdivisions: PROVIDED, That this exemption shall not apply to the leasehold interest of any sublessee of such nonprofit fair association if such leasehold interest would be taxable if it were the primary lease.
(5) All leasehold interests in any property of any public entity used as a residence by an employee of that public entity who is required as a condition of employment to live in the publicly owned property.
(6) All leasehold interests held by enrolled Indians of lands owned or held by any Indian or Indian tribe where the fee ownership of such property is vested in or held in trust by the United States and which are not subleased to other than to a lessee which would qualify pursuant to this chapter, RCW 84.36.451 and 84.40.175.
(7) All leasehold interests in any real property of any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States: PROVIDED, That this exemption shall apply only where it is determined that contract rent paid is greater than or equal to ninety percent of fair market rental, to be determined by the department of revenue using the same criteria used to establish taxable rent in RCW 82.29A.020(2)(b). The exemption for a federally recognized Indian tribe located in the state is only allowed for those tribes with a valid sovereign-to-sovereign remuneration agreement under chapter 43.--- RCW (the new chapter created in section 11 of this act).
(8) All leasehold interests for which annual taxable rent is less than two hundred fifty dollars per year. For purposes of this subsection leasehold interests held by the same lessee in contiguous properties owned by the same lessor shall be deemed a single leasehold interest.
(9) All leasehold interests which give use or possession of the leased property for a continuous period of less than thirty days: PROVIDED, That for purposes of this subsection, successive leases or lease renewals giving substantially continuous use of possession of the same property to the same lessee shall be deemed a single leasehold interest: PROVIDED FURTHER, That no leasehold interest shall be deemed to give use or possession for a period of less than thirty days solely by virtue of the reservation by the public lessor of the right to use the property or to allow third parties to use the property on an occasional, temporary basis.
(10) All leasehold interests under month-to-month leases in residential units rented for residential purposes of the lessee pending destruction or removal for the purpose of constructing a public highway or building.
(11) All leasehold interests in any publicly owned real or personal property to the extent such leasehold interests arises solely by virtue of a contract for public improvements or work executed under the public works statutes of this state or of the United States between the public owner of the property and a contractor.
(12) All leasehold interests that give use or possession of state adult correctional facilities for the purposes of operating correctional industries under RCW 72.09.100.
(13) All leasehold interests used to provide organized and supervised recreational activities for persons with disabilities of all ages in a camp facility and for public recreational purposes by a nonprofit organization, association, or corporation that would be exempt from property tax under RCW 84.36.030(1) if it owned the property. If the publicly owned property is used for any taxable purpose, the leasehold excise taxes set forth in RCW 82.29A.030 and 82.29A.040 shall be imposed and shall be apportioned accordingly.
(14) All leasehold interests in the public or entertainment areas of a baseball stadium with natural turf and a retractable roof or canopy that is in a county with a population of over one million, that has a seating capacity of over forty thousand, and that is constructed on or after January 1, 1995. "Public or entertainment areas" include ticket sales areas, ramps and stairs, lobbies and concourses, parking areas, concession areas, restaurants, hospitality and stadium club areas, kitchens or other work areas primarily servicing other public or entertainment areas, public rest room areas, press and media areas, control booths, broadcast and production areas, retail sales areas, museum and exhibit areas, scoreboards or other public displays, storage areas, loading, staging, and servicing areas, seating areas and suites, the playing field, and any other areas to which the public has access or which are used for the production of the entertainment event or other public usage, and any other personal property used for these purposes. "Public or entertainment areas" does not include locker rooms or private offices exclusively used by the lessee.
(15) All leasehold interests in the public or entertainment areas of a stadium and exhibition center, as defined in RCW 36.102.010, that is constructed on or after January 1, 1998. For the purposes of this subsection, "public or entertainment areas" has the same meaning as in subsection (14) of this section, and includes exhibition areas.
(16) All leasehold interests in public facilities districts, as provided in chapter 36.100 or 35.57 RCW.
(17) All leasehold interests in property that is: (a) Owned by the United States government or a municipal corporation; (b) listed on any federal or state register of historical sites; and (c) wholly contained within a designated national historic reserve under 16 U.S.C. Sec. 461.
(18) All leasehold interests in the public or entertainment areas of an amphitheater if a private entity is responsible for one hundred percent of the cost of constructing the amphitheater which is not reimbursed by the public owner, both the public owner and the private lessee sponsor events at the facility on a regular basis, the lessee is responsible under the lease or agreement to operate and maintain the facility, and the amphitheater has a seating capacity of over seventeen thousand reserved and general admission seats and is in a county that had a population of over three hundred fifty thousand, but less than four hundred twenty-five thousand when the amphitheater first opened to the public.
For the purposes of this subsection, "public or entertainment areas" include box offices or other ticket sales areas, entrance gates, ramps and stairs, lobbies and concourses, parking areas, concession areas, restaurants, hospitality areas, kitchens or other work areas primarily servicing other public or entertainment areas, public rest room areas, press and media areas, control booths, broadcast and production areas, retail sales areas, museum and exhibit areas, scoreboards or other public displays, storage areas, loading, staging, and servicing areas, seating areas including lawn seating areas and suites, stages, and any other areas to which the public has access or which are used for the production of the entertainment event or other public usage, and any other personal property used for these purposes. "Public or entertainment areas" does not include office areas used predominately by the lessee.
(19) All leasehold interests in real property used for the placement of military housing meeting the requirements of RCW 84.36.665.
NEW SECTION. Sec. 11. Sections 1 through 6 of this act constitute a new chapter in Title 43 RCW.
NEW SECTION. Sec. 12. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
NEW SECTION. Sec. 13. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."
Correct the title.
|
|
|
--- END ---