80 FR 36562 - HEARTH Act Approval of Citizen Potawatomi 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 | 36562-36563 | |
| FR Document | 2015-15592 |
[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)] [Notices] [Pages 36562-36563] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-15592] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Citizen Potawatomi Nation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On November 10, 2013, the Bureau of Indian Affairs (BIA) approved the Citizen Potawatomi 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]. 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 Citizen Potawatomi 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 [[Page 36563]] 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 Citizen Potawatomi Nation. Dated: June 17, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-15592 Filed 6-24-15; 8:45 am] BILLING CODE 4337-15-P
![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](https://thefederalregister.org/doc/80_FR_36684/page/1.svg)
![Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36563
terminating the lease or rescinding of the Secretary of the Interior. The Act against a backdrop of ‘‘traditional
approval of the tribal regulations and also authorizes tribes to enter into leases notions of Indian self-government,’’
reassuming lease approval for residential, recreational, religious or requires a particularized examination of
responsibilities. Moreover, the Secretary educational purposes for a primary term the relevant State, Federal, and tribal
continues to review, approve, and of up to 75 years without the approval interests. We hereby adopt the Bracker
monitor individual Indian land leases of the Secretary. Participating tribes analysis from the preamble to the
and other types of leases not covered develop tribal leasing regulations, surface leasing regulations, 77 FR at
under the tribal regulations according to including an environmental review 72,447–48, as supplemented by the
the Part 162 regulations. process, and then must obtain the analysis below.
Accordingly, the Federal and tribal Secretary’s approval of those regulations The strong Federal and tribal interests
interests weigh heavily in favor of prior to entering into leases. The Act against State and local taxation of
preemption of State and local taxes on requires the Secretary to approve tribal improvements, leaseholds, and
lease-related activities and interests, regulations if the tribal regulations are activities on land leased under the
regardless of whether the lease is consistent with the Department’s leasing Department’s leasing regulations apply
governed by tribal leasing regulations or regulations at 25 CFR part 162 and equally to improvements, leaseholds,
Part 162. Improvements, activities, and provide for an environmental review and activities on land leased pursuant to
leasehold or possessory interests may be process that meets requirements set tribal leasing regulations approved
subject to taxation by the Citizen forth in the Act. This notice announces under the HEARTH Act. Congress’s
Potawatomi Nation. that the Secretary, through the Assistant overarching intent was to ‘‘allow tribes
Secretary—Indian Affairs, has approved to exercise greater control over their
Dated: June 17, 2015.
the tribal regulations for the own land, support self-determination,
Kevin K. Washburn, and eliminate bureaucratic delays that
Ewiiaapaayp Band of Kumeyaay
Assistant Secretary—Indian Affairs. Indians. stand in the way of homeownership and
[FR Doc. 2015–15592 Filed 6–24–15; 8:45 am] economic development in tribal
BILLING CODE 4337–15–P
II. Federal Preemption of State and communities.’’ 158 Cong. Rec. H. 2682
Local Taxes (May 15, 2012). The HEARTH Act was
The Department’s regulations intended to afford tribes ‘‘flexibility to
DEPARTMENT OF THE INTERIOR 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
Bureau of Indian Affairs subject to applicable Federal law, [tribes] to approve leases quickly and
[156A2100DD/AAKC001030/ permanent improvements on leased efficiently.’’ Id. at 5–6.
A0A501010.999900 253G] land, leasehold or possessory interests, Assessment of State and local taxes
and activities under the lease are not would obstruct these express Federal
HEARTH Act Approval of Ewiiaapaayp subject to State and local taxation and policies supporting tribal economic
Band of Kumeyaay Indians may be subject to taxation by the Indian development and self-determination,
Regulations tribe with jurisdiction. See 25 CFR and also threaten substantial tribal
162.017. As explained further in the interests in effective tribal government,
AGENCY: Bureau of Indian Affairs, preamble to the final regulations, the economic self-sufficiency, and territorial
Interior. Federal government has a strong interest autonomy. See Michigan v. Bay Mills
ACTION: Notice. in promoting economic development, Indian Community, 134 S. Ct. 2024,
self-determination, and tribal 2043 (2014) (Sotomayor, J., concurring)
SUMMARY: On December 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 Ewiiaapaayp Band of Kumeyaay
supporting the Federal preemption of more self-sufficient, and better
Indians leasing regulations under the
State law in the field of Indian leasing positioned to fund their own sovereign
HEARTH Act. With this approval, the and the taxation of lease-related functions, rather than relying on Federal
Tribe is authorized to enter into the interests and activities applies with funding’’). The additional costs of State
following type of leases without BIA equal force to leases entered into under and local taxation have a chilling effect
approval: business leases. tribal leasing regulations approved by on potential lessees, as well as on a tribe
FOR FURTHER INFORMATION CONTACT: Ms. the Federal government pursuant to the that, as a result, might refrain from
Cynthia Morales, Office of Trust HEARTH Act. exercising its own sovereign right to
Services—Division of Realty, Bureau of Section 5 of the Indian Reorganization impose a tribal tax to support its
Indian Affairs; Telephone (202) 768– Act, 25 U.S.C. 465, preempts State and infrastructure needs. See id. at 2043–44
4166; Email: cynthia.morales@bia.gov. local taxation of permanent (finding that State and local taxes
SUPPLEMENTARY INFORMATION: improvements on trust land. greatly discourage tribes from raising tax
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
The HEARTH (Helping Expedite and F.3d 1153, 1157 (9th Cir. 2013) (citing impede tribal economic growth).
Advance Responsible Tribal Mescalero Apache Tribe v. Jones, 411 Just like BIA’s surface leasing
Homeownership) Act of 2012 (the Act) U.S. 145 (1973)). In addition, as regulations, tribal regulations under the
makes a voluntary, alternative land explained in the preamble to the revised HEARTH Act pervasively cover all
asabaliauskas on DSK5VPTVN1PROD with NOTICES
leasing process available to tribes, by leasing regulations at 25 CFR part 162, aspects of leasing. See Guidance for the
amending the Indian Long-Term Leasing Federal courts have applied a balancing Approval of Tribal Leasing Regulations
Act of 1955, 25 U.S.C. 415. The Act test to determine whether State and under the HEARTH Act, NPM–TRUS–
authorizes tribes to negotiate and enter local taxation of non-Indians on the 29 (effective Jan. 16, 2013) (providing
into agricultural and business leases of reservation is preempted. White guidance on Federal review process to
tribal trust lands with a primary term of Mountain Apache Tribe v. Bracker, 448 ensure consistency of proposed tribal
25 years, and up to two renewal terms U.S. 136, 143 (1980). The Bracker regulations with Part 162 regulations
of 25 years each, without the approval balancing test, which is conducted and listing required tribal regulatory
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36684/page/2.svg)
Document Created: 2015-12-15 14:17:19
Document Modified: 2015-12-15 14:17:19
| 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 36562 |
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