The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

COUNTIES:

COUNTY ROAD COMMISSIONS:

INDIAN TRIBES:

Authority of county road commission to enter agreements to maintain roads with Indian Tribes

A county road commission has the authority to enter into an agreement with an Indian Tribe under the Urban Cooperation Act of 1967 to maintain roads.

A county road commission also has the authority to enter into an agreement with an Indian Tribe under 1951 PA 35 to maintain roads that are outside the geographical boundaries of its county.

Opinion No. 7134

May 21, 2003

Honorable Ken Bradstreet
State Representative
The Capitol
Lansing, MI 48913

You have asked if a county road commission has the authority to enter into an agreement with an Indian Tribe to maintain roads.

The Urban Cooperation Act of 1967 (UCA), 1967 (Ex Sess) PA 7, MCL 124.501 et seq, provides for interlocal public agency agreements. Section 4 of the Act, MCL 124.504, states:

A public agency of this state may exercise jointly with any other public agency of this state, with a public agency of any other state of the United States, with a public agency of Canada, or with any public agency of the United States government any power, privilege, or authority that the agencies share in common and that each might exercise separately.

Whether a county road commission and an Indian Tribe are public agencies is determined by the definition of "public agency" in section 2(e) of the Act:

"Public agency" means a political subdivision of this state or of another state of the United States or of Canada, including, but not limited to, a state government; a county, city, village, township, charter township, school district, single or multipurpose special district, or single or multipurpose public authority; a provincial government, metropolitan government, borough, or other political subdivision of Canada; an agency of the United States government; or a similar entity of any other states of the United States and of Canada. As used in this subdivision, agency of the United States government includes an Indian tribe recognized by the federal government before 2000 that exercises governmental authority over land within this state, except that this act or any intergovernmental agreement entered into under this act shall not authorize the approval of a class III gaming compact negotiated under the Indian gaming regulatory act, Public Law 100-497, 102 Stat. 2467. [MCL 124.502(e); emphasis added.]

The UCA does not define "public authority." Thus, the ordinary meaning of the term applies, and it is appropriate to consult a dictionary to determine that ordinary meaning. Popma v Auto Club Ins Ass'n, 446 Mich 460, 469-470; 521 NW2d 831 (1994). "Public" has several definitions, including "acting in an official capacity on behalf of the people as a whole." Webster's New World College Dictionary, 3rd Edition (1997). "Authority," in the context of governmental law, is defined as "a body having jurisdiction in certain matters of a public nature." Black's Law Dictionary, Revised 4th Edition (1968). Because a county road commission is a body having jurisdiction in the building and maintaining of public roads, which are matters of a public nature, and because it acts in an official capacity on behalf of the people of a county, it has the attributes of a "public authority," and therefore is a "public agency" within the UCA.

An Attorney General opinion bolsters this conclusion. OAG, 1961-1962, No 3664, p 524 (September 10, 1962), discussed the attributes of an "authority." While acknowledging that the word "authority" has no established meaning in the law, the opinion nevertheless identified several characteristics of an authority. It may have the power to sue and be sued, to acquire private property, to contract, and to issue bonds. The opinion concluded that the purpose of the Legislature in allowing the creation of an authority is to provide it with an autonomous existence. It is clear upon a reading of the County Road Law, 1909 PA 283, MCL 224.1 et seq, that the Legislature vested county road commissions with the attributes of an authority. For example, county road commissions may sue and be sued, MCL 224.9(3); purchase private property, MCL 224.11(4); acquire private property by condemnation, MCL 224.12; and enter into contracts for a variety of purposes, MCL 224.10(4), 224.19a(2), and 224.19(2). See also Edington v Grand Trunk Western Railroad Co, 165 Mich App 163; 418 NW2d 415 (1987) (a county road commission is a "public authority" empowered to order installation of railroad crossing signs under the statute at issue there).

Three additional opinions of the Attorney General have addressed whether, under the particular statutes at issue, a county road commission was a "political subdivision." Two of those opinions, OAG, 1977-1978, No 5375, p 663 (October 18, 1978) (interpreting the Emergency Preparedness Act), and OAG, 1957-1958, No 2897, p 86 (February 7, 1957) (interpreting the Michigan Employment Security Act), relied upon an earlier opinion, OAG, 1951-1952, No 1513, p 428 (January 29, 1952). OAG No 1513 interpreted 1951 PA 205, an act providing social security coverage to public employees, to determine whether road commission employees were included within the county's coverage. The particular definition examined there defined "political subdivision" for purposes of 1951 PA 205 to include:

"[A]n instrumentality (1) of a state, (2) of 1 or more of its political subdivisions, or (3) of the state and 1 or more of its political subdivisions, but only if such instrumentality is a juristic entity which is legally separate and distinct from the state or subdivision and only if its employees are not by virtue of their relation to such juristic entity employees of the state or subdivision." [OAG No 1513 at p 429.]

The opinion considered that definition and implicitly concluded that a road commission was not a "political subdivision" for purposes of 1951 PA 205.

A county road commission is a part of county government and not a distinct juristic entity. In this connection we do not overlook the fact that a county road commission is a body corporate. The county road commissioners are, however, county officers and the employees of the county road commission have been held to be county employees. [Id., citation omitted.]

In contrast, however, the UCA utilizes a different definition of "political subdivision" for purposes of determining who may enter into an interlocal agreement, which definition includes a "public authority." As explained above, a road commission is a public authority. When a statute specifically defines a given term, that definition alone controls. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). Thus, a county road commission is a "public authority," and therefore is a "public agency" within the meaning of section 2(e) of the UCA.

Section 2(e) of the UCA also defines "public agency" to include "an Indian tribe recognized by the federal government before 2000 that exercises governmental authority over land within this state." MCL 124.502(e). Thus, an Indian Tribe that satisfies the terms of that definition is a "public agency" within the UCA.

These two public agencies, the road commission and the Indian Tribe, may enter into an interlocal agreement for the road commission to maintain certain roads if maintaining roads is a "power, privilege, or authority that the agencies share in common and that each might exercise separately" under section 4 of the UCA. MCL 124.504.

Section 19(1) of 1909 PA 283 allows a road commission to maintain roads:

The board of county road commissioners may grade, drain, construct, gravel, shale, or macadamize a road under its control, make an improvement in the road, and may extend and enlarge an improvement. The board may construct bridges and culverts on the line of the road, and repair and maintain roads, bridges, and culverts. [MCL 224.19(1); emphasis added.]

Section 2(1) of 1964 PA 170, MCL 691.1401 et seq, requires a governmental agency having jurisdiction over a highway to "maintain the highway in reasonable repair." MCL 691.1402(1). Therefore, the maintenance of highways is a power that a county road commission "might exercise."

An Indian Tribe also has the authority to maintain roads. The Code of Federal Regulations provides at 25 CFR 170.6 that:

The administration and maintenance of Indian reservation roads and bridges is basically a function of the local Government. Subject to the availability of funds, the Commissioner [of Indian Affairs] shall maintain, or cause to be maintained, those approved roads on the Federal-Aid Indian Road System. The Commissioner may also maintain roads not on the Federal-Aid Indian Road System if such roads meet the definition of "Indian reservation road and bridges"[1] and are approved for maintenance by the Commissioner. No funds authorized under 23 U.S.C. 208 are available for the maintenance of roads. [Emphasis added.]

"[L]ocal Government" is not defined in Part 170 of the Code of Federal Regulations. However, the United States Court of Appeals for the Ninth Circuit's treatment of 25 CFR 170.6 in McDonald v Means, 309 F3d 530, 539 (CA 9, 2002), is instructive. There, a Tribal member was injured on a Bureau of Indian Affairs road within the Northern Cheyenne Indian Reservation. Id., at 535. The Ninth Circuit considered whether the Northern Cheyenne Tribal Court or the United States District Court for District of Montana had jurisdiction over a lawsuit brought by the injured member and concluded:

Moreover, the Route 5 grant preserves to the Tribe considerable rights and responsibility over traffic and maintenance on the right-of-way. See generally 25 C.F.R. § 170. For example, the Code of Federal Regulations makes clear that "the administration and maintenance of Indian reservation roads and bridges is basically a function of the local government," 25 C.F.R. § 170.6, which, as regards Route 5, is the Northern Cheyenne Tribe. [Id., at 539; emphasis added.]

Again, later in the opinion, the Court equated "local" government with "tribal" government when it stated, "The Commissioner must make recommendations to local (tribal) officials about maximum speed and weight limits . . . ." Id.

25 CFR 170.6 establishes that a Tribe has the authority to maintain roads within its reservation. However, the regulation also indicates that the Commissioner of Indian Affairs may maintain roads on the Federal-Aid Indian Road System and some "Indian reservation roads." This apparent overlapping authority of a Tribe and the Commissioner to maintain Tribal roads necessitates that a road commission assure that it is contracting with the appropriate governmental entity. That may be done in consultation with the Tribe and the Bureau of Indian Affairs.

It is my opinion, therefore, that a county road commission has the authority to enter into an agreement with an Indian Tribe under the Urban Cooperation Act of 1967 to maintain roads.

In addition, a county road commission may contract with an Indian Tribe for road maintenance under 1951 PA 35, MCL 124.1 et seq (1951 PA 35), an act providing for intergovernmental contracts between municipal corporations. Section 3(1), MCL 124.3(1), authorizes a "municipal corporation" to enter into a contract with a "person" to provide any lawful municipal service that the municipal corporation furnishes within its corporate limits, outside its corporate limits:

A municipal corporation may contract for adequate consideration with a person or another municipal corporation to furnish to property outside the municipal corporate limits any lawful municipal service that it is furnishing to property within the municipal corporate limits. . . . [Emphasis added.]

The definition of "municipal corporation" expressly includes a county road commission:

"Municipal corporation" means a county, charter county, county road commission, township, charter township, city, village, school district, intermediate school district, community college district, metropolitan district, court district, public authority, or drainage district as defined in the drain code of 1956, Act No. 40 of the Public Acts of 1956, being sections 280.1 to 280.630 of the Michigan Compiled law, or any other local governmental authority or local agency with power to enter into contractual undertakings. For purposes of sections 5 to 12b, "municipal corporation" includes a public transportation corporation. [MCL 124.1(a); emphasis added.]

Person is defined in section 3 as "an individual, partnership, association, governmental entity, or other legal entity." MCL 124.3(3)(c). (Emphasis added.) An Indian Tribe is a governmental entity. See Cotton Petroleum v New Mexico, 490 US 163, 189; 109 S Ct 1698; 104 L Ed 2d 209 (1989). Accordingly, an Indian Tribe is a "person" that may enter into a contract under section 3 of 1951 PA 35.

Since, as shown above, a road commission has both the authority and duty to maintain roads under its control, a road commission's maintenance of its own roads is a "lawful municipal service that it is furnishing . . . within the municipal corporate limits." MCL 124.3(1). Therefore, the maintenance of highways by a county road commission falls within the range of municipal services that the road commission may contract to perform outside its corporate limits.

Thus, these provisions authorize a road commission to contract with an Indian Tribe to maintain a Tribe's roads. However, the proviso in section 3(1), MCL 124.3(1), that a road commission may contract to furnish service "to property outside the municipal corporate limits" must be recognized. Because a road commission is a part of county government, a road commission’s "municipal corporate limits" are the geographical limits of the county in which it operates. See OAG, 1951-1952, No 1513, supra. To the extent that the roads for which the Tribe is seeking maintenance are located within the geographical boundaries of a particular county, 1951 PA 35 does not allow the road commission of that county to contract to maintain those roads. Instead, this Act allows a road commission to contract to maintain only those roads that are located outside the geographical boundaries of the county.

In addition, the Attorney General has concluded that 1951 PA 35 allows a road commission to contract with another governmental entity to maintain its roads. OAG, 1979-1980, No 5524, p 246 (July 13, 1979), stated:

It is clear that under 1951 PA 35, § 2, supra, a board of county road commissioners is a municipal corporation authorized to contract with another governmental authority to provide road building and maintenance services.

It is also my opinion, therefore, that a county road commission has the authority to enter into an agreement with an Indian Tribe under 1951 PA 35 to maintain roads that are outside the geographical boundaries of its county.

MIKE COX
Attorney General

1That definition provides: "Indian Reservation Roads and Bridges" means roads and bridges that are located within or provide access to an Indian reservation or Indian trust land or restricted Indian land which is not subject to fee title alienation without the approval of the Federal Government, or Indian and Alaska Native villages, groups or communities in which Indians and Alaskan Natives reside, whom the Commissioner has determined are eligible for services generally available to Indians under Federal laws specifically applicable to Indians. 25 CFR 170.2(d).