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Attorney General Rules Commission has no Authority |
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Written by Administrator
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Wednesday, 21 January 2009 |
Attorney General Rules Commission has no Authority
Memorandum Office of Attorney General
To: Donald Stevens, Chairman, Commission on Native American Affairs
From: Mike McShane, Assistant Attorney General
Re: Intervale
Date: January 8, 2009
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You have asked what authority the Commission may have concerning land use in the Intervale in Burlington. More specifically, if the Commission has authority to become a party in zoning proceedings or Act 250 proceedings concerning land use in that area.
The Commission is created by statute. As creatures of statute, administrative entities have only those powers that the legislature has specifically given to them. Miner v. Chater, 137 Vt. 330 (1979) The powers of the Commission are enumerated at 1 VSA Section 852 which reads in relevant part, as follows:
(a) In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in state policy, programs, and actions, there is hereby established the Vermont commission on Native American affairs (the "commission").
(c) The commission shall have the authority to assist Native American tribal councils, organizations, and individuals to:
(1) Secure social services, education, employment opportunities, health care, housing, and census information.
(2) Permit the creation, display, and sale of Native American arts and crafts and legally to label them as Indian- or Native American-produced as provided in 18 U.S.C. § 1159(c)(3)(B) and 25 U.S.C. § 305e(d)(3)(B).
(3) Receive assistance and support from the federal Indian Arts and Crafts Board, as provided in 25 U.S.C. § 305 et seq.
(4) Become eligible for federal assistance with educational, housing, and cultural opportunities.
(5) Establish and continue programs offered through the U.S. Department of Education Office on Indian Education pursuant to Title VII of the Elementary and Secondary
Education Act established in 1972 to support educational and cultural efforts of tribal entities that have been either state or federally recognized.
The enumerated powers of the Commission do not include the authority to take any formal action concerning land use. Consequently, it is my opinion that the Commission is without authority to be a party in zoning proceeding or Act 250 proceedings.
1 cc: file
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