80 FR 36561 - HEARTH Act Approval of Pueblo of Sandia Leasing Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 80, Issue 122 (June 25, 2015)

Page Range		36561-36562
FR Document		2015-15573

On March 14, 2013, the Bureau of Indian Affairs (BIA) approved the Pueblo of Sandia 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.

Federal Register, Volume 80 Issue 122 (Thursday, June 25, 2015)

[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)]
[Notices]
[Pages 36561-36562]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-15573]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[156A2100DD/AAKC001030/A0A501010.999900 253G]


HEARTH Act Approval of Pueblo of Sandia Leasing Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: On March 14, 2013, the Bureau of Indian Affairs (BIA) approved 
the Pueblo of Sandia 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: cynthia.morales@bia.gov.

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 Pueblo of Sandia.

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.

[[Page 36562]]

    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 
Pueblo of Sandia.

    Dated: June 17, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-15573 Filed 6-24-15; 8:45 am]
BILLING CODE 4337-15-P

Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36561

subject to taxation by the Ak-Chin Secretary—Indian Affairs, has approved own land, support self-determination,
Indian Community. the tribal regulations for the Pueblo of and eliminate bureaucratic delays that
Dated: June 17, 2015. Sandia. stand in the way of homeownership and
economic development in tribal
Kevin K. Washburn, II. Federal Preemption of State and
communities.’’ 158 Cong. Rec. H. 2682
Assistant Secretary—Indian Affairs. Local Taxes
(May 15, 2012). The HEARTH Act was
[FR Doc. 2015–15586 Filed 6–24–15; 8:45 am] The Department’s regulations intended to afford tribes ‘‘flexibility to
BILLING CODE 4337–15–P governing the surface leasing of trust adapt lease terms to suit [their] business
and restricted Indian lands specify that, and cultural needs’’ and to ‘‘enable
subject to applicable Federal law, [tribes] to approve leases quickly and
DEPARTMENT OF THE INTERIOR permanent improvements on leased efficiently.’’ Id. at 5–6.
land, leasehold or possessory interests, Assessment of State and local taxes
Bureau of Indian Affairs and activities under the lease are not would obstruct these express Federal
[156A2100DD/AAKC001030/ subject to State and local taxation and policies supporting tribal economic
A0A501010.999900 253G] may be subject to taxation by the Indian development and self-determination,
tribe with jurisdiction. See 25 CFR and also threaten substantial tribal
HEARTH Act Approval of Pueblo of 162.017. As explained further in the interests in effective tribal government,
Sandia Leasing Regulations preamble to the final regulations, the economic self-sufficiency, and territorial
AGENCY: Bureau of Indian Affairs, Federal government has a strong interest autonomy. See Michigan v. Bay Mills
Interior. in promoting economic development, Indian Community, 134 S. Ct. 2024,
self-determination, and tribal 2043 (2014) (Sotomayor, J., concurring)
ACTION: Notice.
sovereignty. 77 FR 72,440, 72447–48 (determining that ‘‘[a] key goal of the
SUMMARY: On March 14, 2013, the (December 5, 2012). The principles Federal Government is to render Tribes
Bureau of Indian Affairs (BIA) approved supporting the Federal preemption of more self-sufficient, and better
the Pueblo of Sandia leasing regulations State law in the field of Indian leasing positioned to fund their own sovereign
under the HEARTH Act. With this and the taxation of lease-related functions, rather than relying on Federal
approval, the Tribe is authorized to interests and activities applies with funding’’). The additional costs of State
enter into the following type of leases equal force to leases entered into under and local taxation have a chilling effect
without BIA approval: Business leases. tribal leasing regulations approved by on potential lessees, as well as on a tribe
the Federal government pursuant to the that, as a result, might refrain from
FOR FURTHER INFORMATION CONTACT: Ms.
HEARTH Act. exercising its own sovereign right to
Cynthia Morales, Office of Trust Section 5 of the Indian Reorganization impose a tribal tax to support its
Services—Division of Realty, Bureau of Act, 25 U.S.C. 465, preempts State and infrastructure needs. See id. at 2043–44
Indian Affairs; Telephone (202) 768– local taxation of permanent (finding that State and local taxes
4166; Email: cynthia.morales@bia.gov. improvements on trust land. greatly discourage tribes from raising tax
SUPPLEMENTARY INFORMATION: Confederated Tribes of the Chehalis revenue from the same sources because
I. Summary of the HEARTH Act Reservation v. Thurston County, 724 the imposition of double taxation would
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
asabaliauskas on DSK5VPTVN1PROD with NOTICES

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.

VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1

36562 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices

Accordingly, the Federal and tribal prior to entering into leases. The Act improvements, leaseholds, and
interests weigh heavily in favor of requires the Secretary to approve tribal activities on land leased under the
preemption of State and local taxes on regulations if the tribal regulations are Department’s leasing regulations apply
lease-related activities and interests, consistent with the Department’s leasing equally to improvements, leaseholds,
regardless of whether the lease is regulations at 25 CFR part 162 and and activities on land leased pursuant to
governed by tribal leasing regulations or provide for an environmental review tribal leasing regulations approved
Part 162. Improvements, activities, and process that meets requirements set under the HEARTH Act. Congress’s
leasehold or possessory interests may be forth in the Act. This notice announces overarching intent was to ‘‘allow tribes
subject to taxation by the Pueblo of that the Secretary, through the Assistant to exercise greater control over their
Sandia. Secretary—Indian Affairs, has approved own land, support self-determination,
Dated: June 17, 2015.
the tribal regulations for the Citizen and eliminate bureaucratic delays that
Potawatomi Nation. stand in the way of homeownership and
Kevin K. Washburn,
economic development in tribal
Assistant Secretary—Indian Affairs. II. Federal Preemption of State and
communities.’’ 158 Cong. Rec. H. 2682
[FR Doc. 2015–15573 Filed 6–24–15; 8:45 am] Local Taxes
(May 15, 2012). The HEARTH Act was
BILLING CODE 4337–15–P The Department’s regulations intended to afford tribes ‘‘flexibility to
governing the surface leasing of trust adapt lease terms to suit [their] business
and restricted Indian lands specify that, and cultural needs’’ and to ‘‘enable
DEPARTMENT OF THE INTERIOR subject to applicable Federal law, [tribes] to approve leases quickly and
permanent improvements on leased efficiently.’’ Id. at 5–6.
Bureau of Indian Affairs land, leasehold or possessory interests, Assessment of State and local taxes
[156A2100DD/AAKC001030/ and activities under the lease are not would obstruct these express Federal
A0A501010.999900 253G] subject to State and local taxation and policies supporting tribal economic
may be subject to taxation by the Indian development and self-determination,
HEARTH Act Approval of Citizen tribe with jurisdiction. See 25 CFR and also threaten substantial tribal
Potawatomi Nation Regulations 162.017. As explained further in the interests in effective tribal government,
preamble to the final regulations, the economic self-sufficiency, and territorial
AGENCY: Bureau of Indian Affairs,
Federal government has a strong interest autonomy. See Michigan v. Bay Mills
Interior.
in promoting economic development, Indian Community, 134 S. Ct. 2024,
ACTION: Notice. self-determination, and tribal 2043 (2014) (Sotomayor, J., concurring)
SUMMARY: On November 10, 2013, the sovereignty. 77 FR 72,440, 72447–48 (determining that ‘‘[a] key goal of the
Bureau of Indian Affairs (BIA) approved (December 5, 2012). The principles Federal Government is to render Tribes
the Citizen Potawatomi Nation leasing supporting the Federal preemption of more self-sufficient, and better
regulations under the HEARTH Act. State law in the field of Indian leasing positioned to fund their own sovereign
and the taxation of lease-related functions, rather than relying on Federal
With this approval, the Tribe is
interests and activities applies with funding’’). The additional costs of State
authorized to enter into the following
equal force to leases entered into under and local taxation have a chilling effect
type of leases without BIA approval:
tribal leasing regulations approved by on potential lessees, as well as on a tribe
Business leases.
the Federal government pursuant to the that, as a result, might refrain from
FOR FURTHER INFORMATION CONTACT: Ms. HEARTH Act. exercising its own sovereign right to
Cynthia Morales, Office of Trust Section 5 of the Indian Reorganization impose a tribal tax to support its
Services—Division of Realty, Bureau of Act, 25 U.S.C 465, preempts State and infrastructure needs. See id. at 2043–44
Indian Affairs; Telephone (202) 768– local taxation of permanent (finding that State and local taxes
4166; Email: cynthia.morales@bia.gov. improvements on trust land. greatly discourage tribes from raising tax
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
asabaliauskas on DSK5VPTVN1PROD with NOTICES

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

VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1

Document Created: 2015-12-15 14:16:54
Document Modified: 2015-12-15 14:16:54

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 36561

80 FR 36561 - HEARTH Act Approval of Pueblo of Sandia Leasing Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 80, Issue 122 (June 25, 2015)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs