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Unofficial Opinion 95-21

Unofficial Opinion 95-21

October 3, 1995
To: 

Lumpkin County Attorney

Re: 

Lumpkin County may not enter into a long-term lease with the Georgia Tribe of Eastern Cherokee Indians under the intergovernmental contract provisions of 1983 Georgia Constitution, Article IX, Section III, Paragraph I.

You have asked for an opinion from this office on the question of whether Lumpkin County can enter into a valid long-term lease with the Georgia Tribe of Eastern Cherokee Indians, when such lease is intended to exceed one year and to exceed the current term of office of the Commissioner of Lumpkin County. You have opined that the lease would be proper based upon the conclusion that the Georgia Tribe of Eastern Cherokee Indians is analogous to those entities set out under the intergovernmental contract provisions of the Georgia Constitution. Ga. Const. 1983, Art. IX, Sec. III, Para. I.

The Georgia Tribe of Eastern Cherokee Indians (hereinafter sometimes "GTEC") wishes to lease from Lumpkin County a county-owned structure known as the "Old Jail." The structure would be used as a museum operated by the GTEC and providing a repository for Cherokee Indian records and memorabilia. GTEC also anticipates that, if approved, this site would enable it to petition to receive Cherokee artifacts and human remains which are scheduled to be returned from private and public collections.

Your request states that this museum to provide a repository for material and documents associated with the history of the County and the region would provide a public purpose. I will assume that the consideration to the County for the proposed lease is the operation of the public museum, an activity the County can undertake, and that the "in kind" consideration is of fair market value to the County, leaving no gift and gratuity question. I will also assume that the term is to be of such a length that the question of binding successors in office on a matter of governmental activity is the issue. See Aven v. Steiner Cancer Hosp., Inc., 189 Ga. 126 (1939).

One exception to the binding successors in office prohibition is found in Article IX, Section III, Paragraph I(a) of the 1983 Georgia Constitution (herein the "intergovernmental contract provision"), authorizing specified governmental entities to contract with each other for periods up to fifty years, so long as the subject matter of the contract is something the contracting parties are authorized by law to undertake or provide. See Building Auth. v. State, 253 Ga. 242 (1984).

There is no question of the intergovernmental contract provision's applicability to Lumpkin County. Counties are specifically enumerated in, and given the right to contract by, that provision.

Indian tribes are not specifically mentioned in the intergovernmental contract provision and, therefore, must fall within the umbrella of one of the specifically mentioned entities if the provision is to be applicable to them. The only language broad enough to include the Georgia Tribe of Eastern Cherokee Indians is the phrase "other public agency, public corporation or public authority."

This phrase was examined in State v. Blasingame, 212 Ga. 222 (1956). Although the Court focused on the words "public authority," it held as follows: "We therefore hold that the foregoing clause of the Constitution (Code, Ann., § 2-5901 [now 1983 Ga. Const., Art. 9, Sec. 3, Para. 1]) has reference only to corporations and authorities created by the State of Georgia, and does not include any public authorities created by another State or country." State v. Blasingame, 212 Ga. at 225-26. Although this case has been questioned, it has not been overruled. See Building Auth. v. State, 253 Ga. 242, 246-47 (1984).

The Georgia Tribe of Eastern Cherokee Indians, according to your letter, is not recognized as a separate tribe by the government of the United States. GTEC has been recognized by the State of Georgia. O.C.G.A. § 44-12-300. However, the state did not create that tribe, and recognition is not synonymous with creation. Cf. State v. Blasingame, 212 Ga. 222, 226 (1956). Therefore, the Georgia Tribe of Eastern Cherokee Indians is not a "public agency, public corporation, or public authority" for purposes of the intergovernmental contract provision of the Georgia Constitution.

In Official Opinion 72-132 this office opined that the term "public agency" in this constitutional provision included the United States Government. That opinion is consistent with the holding of State v. Blasingame, 212 Ga. 222.

In Blasingame the court's decision excluded entities created by "another state or country" from the scope of the intergovernmental contract provision. The United States Government does not fall within that exclusion. That government was created with the participation and concurrence of Georgia. Although the process was protracted, the United States Government was ultimately established by the United States Constitution. On January 2, 1788, in Augusta, Georgia, a convention of twenty-six delegates of the people of the State of Georgia "for and in behalf of ourselves and our constituents, fully and entirely assent to, ratify, and adopt the said Constitution [proposed by the Deputies of the United States in General Convention, held in the City of Philadelphia, on the 17th day of September, 1787]." 1 Cyclopedia of Georgia 444-45 (Allen D. Candler & Clement A. Evans, eds., 1906).

It is, therefore, my unofficial opinion that the Georgia Tribe of Eastern Cherokee Indians is not a "public agency, public corporation or public authority" created by the State of Georgia as the phrase is used in 1983 Georgia Constitution, Article IX, Section III, Paragraph I(a), and construed by State v. Blasingame, 212 Ga. 222 (1956).

Prepared by:

 

ROLAND F. MATSON
Senior Assistant Attorney General