80 FR 36557 - HEARTH Act Approval of Oneida Indian Nation Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 80, Issue 122 (June 25, 2015)
Bureau of Indian Affairs
Federal Register Volume 80, Issue 122 (June 25, 2015)
| Page Range | 36557-36558 | |
| FR Document | 2015-15587 |
[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)] [Notices] [Pages 36557-36558] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-15587] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Oneida Indian Nation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On January 28, 2015, the Bureau of Indian Affairs (BIA) approved the Oneida Indian Nation leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into the following type of leases without BIA approval: Business leases. FOR FURTHER INFORMATION CONTACT: Ms. Cynthia Morales, Office of Trust Services--Division of Realty, Bureau of Indian Affairs; Telephone (202) 768-4166; Email: [email protected]. [[Page 36558]] SUPPLEMENTARY INFORMATION: I. Summary of the HEARTH Act The HEARTH (Helping Expedite and Advance Responsible Tribal Homeownership) Act of 2012 (the Act) makes a voluntary, alternative land leasing process available to tribes, by amending the Indian Long- Term Leasing Act of 1955, 25 U.S.C. 415. The Act authorizes tribes to negotiate and enter into agricultural and business leases of tribal trust lands with a primary term of 25 years, and up to two renewal terms of 25 years each, without the approval of the Secretary of the Interior. The Act also authorizes tribes to enter into leases for residential, recreational, religious or educational purposes for a primary term of up to 75 years without the approval of the Secretary. Participating tribes develop tribal leasing regulations, including an environmental review process, and then must obtain the Secretary's approval of those regulations prior to entering into leases. The Act requires the Secretary to approve tribal regulations if the tribal regulations are consistent with the Department's leasing regulations at 25 CFR part 162 and provide for an environmental review process that meets requirements set forth in the Act. This notice announces that the Secretary, through the Assistant Secretary--Indian Affairs, has approved the tribal regulations for the Oneida Indian Nation. II. Federal Preemption of State and Local Taxes The Department's regulations governing the surface leasing of trust and restricted Indian lands specify that, subject to applicable Federal law, permanent improvements on leased land, leasehold or possessory interests, and activities under the lease are not subject to State and local taxation and may be subject to taxation by the Indian tribe with jurisdiction. See 25 CFR 162.017. As explained further in the preamble to the final regulations, the Federal government has a strong interest in promoting economic development, self-determination, and tribal sovereignty. 77 FR 72,440, 72447-48 (December 5, 2012). The principles supporting the Federal preemption of State law in the field of Indian leasing and the taxation of lease-related interests and activities applies with equal force to leases entered into under tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act. Section 5 of the Indian Reorganization Act, 25 U.S.C 465, preempts State and local taxation of permanent improvements on trust land. Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)). In addition, as explained in the preamble to the revised leasing regulations at 25 CFR part 162, Federal courts have applied a balancing test to determine whether State and local taxation of non-Indians on the reservation is preempted. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing test, which is conducted against a backdrop of ``traditional notions of Indian self-government,'' requires a particularized examination of the relevant State, Federal, and tribal interests. We hereby adopt the Bracker analysis from the preamble to the surface leasing regulations, 77 FR 72,447-48, as supplemented by the analysis below. The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to ``allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.'' 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes ``flexibility to adapt lease terms to suit [their] business and cultural needs'' and to ``enable [tribes] to approve leases quickly and efficiently.'' Id. at 5-6. Assessment of State and local taxes would obstruct these express Federal policies supporting tribal economic development and self- determination, and also threaten substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ``[a] key goal of the Federal Government is to render Tribes more self- sufficient, and better positioned to fund their own sovereign functions, rather than relying on Federal funding''). The additional costs of State and local taxation have a chilling effect on potential lessees, as well as on a tribe that, as a result, might refrain from exercising its own sovereign right to impose a tribal tax to support its infrastructure needs. See id. at 2043-44 (finding that State and local taxes greatly discourage tribes from raising tax revenue from the same sources because the imposition of double taxation would impede tribal economic growth). Just like BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See Guidance for the Approval of Tribal Leasing Regulations under the HEARTH Act, NPM-TRUS-29 (effective Jan. 16, 2013) (providing guidance on Federal review process to ensure consistency of proposed tribal regulations with Part 162 regulations and listing required tribal regulatory provisions). Furthermore, the Federal government remains involved in the tribal land leasing process by approving the tribal leasing regulations in the first instance and providing technical assistance, upon request by a tribe, for the development of an environmental review process. The Secretary also retains authority to take any necessary actions to remedy violations of a lease or of the tribal regulations, including terminating the lease or rescinding approval of the tribal regulations and reassuming lease approval responsibilities. Moreover, the Secretary continues to review, approve, and monitor individual Indian land leases and other types of leases not covered under the tribal regulations according to the Part 162 regulations. Accordingly, the Federal and tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Oneida Indian Nation. Dated: June 17, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-15587 Filed 6-24-15; 8:45 am] BILLING CODE 4337-15-P
![Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36557
amending the Indian Long-Term Leasing test to determine whether State and under the HEARTH Act, NPM–TRUS–
Act of 1955, 25 U.S.C. 415. The Act local taxation of non-Indians on the 29 (effective Jan. 16, 2013) (providing
authorizes tribes to negotiate and enter reservation is preempted. White guidance on Federal review process to
into agricultural and business leases of Mountain Apache Tribe v. Bracker, 448 ensure consistency of proposed tribal
tribal trust lands with a primary term of U.S. 136, 143 (1980). The Bracker regulations with Part 162 regulations
25 years, and up to two renewal terms balancing test, which is conducted and listing required tribal regulatory
of 25 years each, without the approval against a backdrop of ‘‘traditional provisions). Furthermore, the Federal
of the Secretary of the Interior. The Act notions of Indian self-government,’’ government remains involved in the
also authorizes tribes to enter into leases requires a particularized examination of tribal land leasing process by approving
for residential, recreational, religious or the relevant State, Federal, and tribal the tribal leasing regulations in the first
educational purposes for a primary term interests. We hereby adopt the Bracker instance and providing technical
of up to 75 years without the approval analysis from the preamble to the assistance, upon request by a tribe, for
of the Secretary. Participating tribes surface leasing regulations, 77 FR at the development of an environmental
develop tribal leasing regulations, 72,447–48, as supplemented by the review process. The Secretary also
including an environmental review analysis below. retains authority to take any necessary
process, and then must obtain the The strong Federal and tribal interests actions to remedy violations of a lease
Secretary’s approval of those regulations against State and local taxation of or of the tribal regulations, including
prior to entering into leases. The Act improvements, leaseholds, and terminating the lease or rescinding
requires the Secretary to approve tribal activities on land leased under the approval of the tribal regulations and
regulations if the tribal regulations are Department’s leasing regulations apply reassuming lease approval
consistent with the Department’s leasing equally to improvements, leaseholds, responsibilities. Moreover, the Secretary
regulations at 25 CFR part 162 and and activities on land leased pursuant to continues to review, approve, and
provide for an environmental review tribal leasing regulations approved monitor individual Indian land leases
process that meets requirements set under the HEARTH Act. Congress’s and other types of leases not covered
forth in the Act. This notice announces overarching intent was to ‘‘allow tribes under the tribal regulations according to
that the Secretary, through the Assistant to exercise greater control over their the Part 162 regulations.
Secretary—Indian Affairs, has approved own land, support self-determination, Accordingly, the Federal and tribal
the tribal regulations for the Mohegan and eliminate bureaucratic delays that interests weigh heavily in favor of
Tribe of Indians of Connecticut. stand in the way of homeownership and preemption of State and local taxes on
economic development in tribal lease-related activities and interests,
II. Federal Preemption of State and communities.’’ 158 Cong. Rec. H. 2682 regardless of whether the lease is
Local Taxes (May 15, 2012). The HEARTH Act was governed by tribal leasing regulations or
The Department’s regulations intended to afford tribes ‘‘flexibility to Part 162. Improvements, activities, and
governing the surface leasing of trust adapt lease terms to suit [their] business leasehold or possessory interests may be
and restricted Indian lands specify that, and cultural needs’’ and to ‘‘enable subject to taxation by the Mohegan
subject to applicable Federal law, [tribes] to approve leases quickly and Tribe of Indians of Connecticut.
permanent improvements on leased efficiently.’’ Id. at 5–6. Dated: June 17, 2015.
land, leasehold or possessory interests, Assessment of State and local taxes
Kevin K. Washburn,
and activities under the lease are not would obstruct these express Federal
Assistant Secretary—Indian Affairs.
subject to State and local taxation and policies supporting tribal economic
may be subject to taxation by the Indian development and self-determination, [FR Doc. 2015–15588 Filed 6–24–15; 8:45 am]
tribe with jurisdiction. See 25 CFR and also threaten substantial tribal BILLING CODE 4337–15–P
162.017. As explained further in the interests in effective tribal government,
preamble to the final regulations, the economic self-sufficiency, and territorial
Federal government has a strong interest autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
in promoting economic development, Indian Community, 134 S. Ct. 2024, Bureau of Indian Affairs
self-determination, and tribal 2043 (2014) (Sotomayor, J., concurring)
sovereignty. 77 FR 72,440, 72447–48 (determining that ‘‘[a] key goal of the [156A2100DD/AAKC001030/
(December 5, 2012). The principles Federal Government is to render Tribes A0A501010.999900 253G]
supporting the Federal preemption of more self-sufficient, and better
State law in the field of Indian leasing HEARTH Act Approval of Oneida
positioned to fund their own sovereign
and the taxation of lease-related Indian Nation Regulations
functions, rather than relying on Federal
interests and activities applies with funding’’). The additional costs of State AGENCY: Bureau of Indian Affairs,
equal force to leases entered into under and local taxation have a chilling effect Interior.
tribal leasing regulations approved by on potential lessees, as well as on a tribe ACTION: Notice.
the Federal government pursuant to the that, as a result, might refrain from
HEARTH Act. exercising its own sovereign right to SUMMARY: On January 28, 2015, the
Section 5 of the Indian Reorganization impose a tribal tax to support its Bureau of Indian Affairs (BIA) approved
Act, 25 U.S.C 465, preempts State and infrastructure needs. See id. at 2043–44 the Oneida Indian Nation leasing
local taxation of permanent (finding that State and local taxes regulations under the HEARTH Act.
improvements on trust land. greatly discourage tribes from raising tax With this approval, the Tribe is
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Confederated Tribes of the Chehalis revenue from the same sources because authorized to enter into the following
Reservation v. Thurston County, 724 the imposition of double taxation would type of leases without BIA approval:
F.3d 1153, 1157 (9th Cir. 2013) (citing impede tribal economic growth). Business leases.
Mescalero Apache Tribe v. Jones, 411 Just like BIA’s surface leasing FOR FURTHER INFORMATION CONTACT: Ms.
U.S. 145 (1973)). In addition, as regulations, tribal regulations under the Cynthia Morales, Office of Trust
explained in the preamble to the revised HEARTH Act pervasively cover all Services—Division of Realty, Bureau of
leasing regulations at 25 CFR part 162, aspects of leasing. See Guidance for the Indian Affairs; Telephone (202) 768–
Federal courts have applied a balancing Approval of Tribal Leasing Regulations 4166; Email: cynthia.morales@bia.gov.
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36679/page/1.svg)
![36558 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices
SUPPLEMENTARY INFORMATION: Confederated Tribes of the Chehalis revenue from the same sources because
Reservation v. Thurston County, 724 the imposition of double taxation would
I. Summary of the HEARTH Act
F.3d 1153, 1157 (9th Cir. 2013) (citing impede tribal economic growth).
The HEARTH (Helping Expedite and Mescalero Apache Tribe v. Jones, 411 Just like BIA’s surface leasing
Advance Responsible Tribal U.S. 145 (1973)). In addition, as regulations, tribal regulations under the
Homeownership) Act of 2012 (the Act) explained in the preamble to the revised HEARTH Act pervasively cover all
makes a voluntary, alternative land leasing regulations at 25 CFR part 162, aspects of leasing. See Guidance for the
leasing process available to tribes, by Federal courts have applied a balancing Approval of Tribal Leasing Regulations
amending the Indian Long-Term Leasing test to determine whether State and under the HEARTH Act, NPM–TRUS–
Act of 1955, 25 U.S.C. 415. The Act local taxation of non-Indians on the 29 (effective Jan. 16, 2013) (providing
authorizes tribes to negotiate and enter reservation is preempted. White guidance on Federal review process to
into agricultural and business leases of Mountain Apache Tribe v. Bracker, 448 ensure consistency of proposed tribal
tribal trust lands with a primary term of U.S. 136, 143 (1980). The Bracker regulations with Part 162 regulations
25 years, and up to two renewal terms balancing test, which is conducted and listing required tribal regulatory
of 25 years each, without the approval against a backdrop of ‘‘traditional provisions). Furthermore, the Federal
of the Secretary of the Interior. The Act notions of Indian self-government,’’ government remains involved in the
also authorizes tribes to enter into leases requires a particularized examination of tribal land leasing process by approving
for residential, recreational, religious or the relevant State, Federal, and tribal the tribal leasing regulations in the first
educational purposes for a primary term interests. We hereby adopt the Bracker instance and providing technical
of up to 75 years without the approval analysis from the preamble to the assistance, upon request by a tribe, for
of the Secretary. Participating tribes surface leasing regulations, 77 FR the development of an environmental
develop tribal leasing regulations, 72,447–48, as supplemented by the review process. The Secretary also
including an environmental review analysis below. retains authority to take any necessary
process, and then must obtain the The strong Federal and tribal interests actions to remedy violations of a lease
Secretary’s approval of those regulations against State and local taxation of or of the tribal regulations, including
prior to entering into leases. The Act improvements, leaseholds, and terminating the lease or rescinding
requires the Secretary to approve tribal activities on land leased under the approval of the tribal regulations and
regulations if the tribal regulations are Department’s leasing regulations apply reassuming lease approval
consistent with the Department’s leasing equally to improvements, leaseholds, responsibilities. Moreover, the Secretary
regulations at 25 CFR part 162 and and activities on land leased pursuant to continues to review, approve, and
provide for an environmental review tribal leasing regulations approved monitor individual Indian land leases
process that meets requirements set under the HEARTH Act. Congress’s and other types of leases not covered
forth in the Act. This notice announces overarching intent was to ‘‘allow tribes under the tribal regulations according to
that the Secretary, through the Assistant to exercise greater control over their the Part 162 regulations.
Secretary—Indian Affairs, has approved own land, support self-determination, Accordingly, the Federal and tribal
the tribal regulations for the Oneida and eliminate bureaucratic delays that interests weigh heavily in favor of
Indian Nation. stand in the way of homeownership and preemption of State and local taxes on
II. Federal Preemption of State and economic development in tribal lease-related activities and interests,
Local Taxes communities.’’ 158 Cong. Rec. H. 2682 regardless of whether the lease is
(May 15, 2012). The HEARTH Act was governed by tribal leasing regulations or
The Department’s regulations intended to afford tribes ‘‘flexibility to Part 162. Improvements, activities, and
governing the surface leasing of trust adapt lease terms to suit [their] business leasehold or possessory interests may be
and restricted Indian lands specify that, and cultural needs’’ and to ‘‘enable subject to taxation by the Oneida Indian
subject to applicable Federal law, [tribes] to approve leases quickly and Nation.
permanent improvements on leased efficiently.’’ Id. at 5–6.
land, leasehold or possessory interests, Dated: June 17, 2015.
Assessment of State and local taxes
and activities under the lease are not Kevin K. Washburn,
would obstruct these express Federal
subject to State and local taxation and policies supporting tribal economic Assistant Secretary—Indian Affairs.
may be subject to taxation by the Indian development and self-determination, [FR Doc. 2015–15587 Filed 6–24–15; 8:45 am]
tribe with jurisdiction. See 25 CFR and also threaten substantial tribal BILLING CODE 4337–15–P
162.017. As explained further in the interests in effective tribal government,
preamble to the final regulations, the economic self-sufficiency, and territorial
Federal government has a strong interest autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
in promoting economic development, Indian Community, 134 S. Ct. 2024,
self-determination, and tribal Bureau of Indian Affairs
2043 (2014) (Sotomayor, J., concurring)
sovereignty. 77 FR 72,440, 72447–48 (determining that ‘‘[a] key goal of the [156A2100DD/AAKC001030/
(December 5, 2012). The principles Federal Government is to render Tribes A0A501010.999900 253G]
supporting the Federal preemption of more self-sufficient, and better
State law in the field of Indian leasing positioned to fund their own sovereign HEARTH Act Approval of Jamestown
and the taxation of lease-related functions, rather than relying on Federal S’Klallam Tribe Regulations
interests and activities applies with funding’’). The additional costs of State
asabaliauskas on DSK5VPTVN1PROD with NOTICES
AGENCY: Bureau of Indian Affairs,
equal force to leases entered into under and local taxation have a chilling effect Interior.
tribal leasing regulations approved by on potential lessees, as well as on a tribe ACTION: Notice.
the Federal government pursuant to the that, as a result, might refrain from
HEARTH Act. exercising its own sovereign right to SUMMARY: On April 4, 2014, the Bureau
Section 5 of the Indian Reorganization impose a tribal tax to support its of Indian Affairs (BIA) approved the
Act, 25 U.S.C 465, preempts State and infrastructure needs. See id. at 2043–44 Jamestown S’Klallam Tribe leasing
local taxation of permanent (finding that State and local taxes regulations under the HEARTH Act.
improvements on trust land. greatly discourage tribes from raising tax With this approval, the Tribe is
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36679/page/2.svg)
Document Created: 2015-12-15 14:16:59
Document Modified: 2015-12-15 14:16:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Contact | Ms. Cynthia Morales, Office of Trust Services--Division of Realty, Bureau of Indian Affairs; Telephone (202) 768-4166; Email: [email protected] | |
| FR Citation | 80 FR 36557 |
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