80 FR 36564 - HEARTH Act Approval of Kaw 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 | 36564-36565 | |
| FR Document | 2015-15581 |
[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)] [Notices] [Pages 36564-36565] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-15581] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Kaw Nation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On December 13, 2013, the Bureau of Indian Affairs (BIA) approved the Kaw 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 Kaw 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 at 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 [[Page 36565]] 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 Kaw Nation. Dated: June 17, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-15581 Filed 6-24-15; 8:45 am] BILLING CODE 4337-15-P
![36564 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices
provisions). Furthermore, the Federal makes a voluntary, alternative land leasing regulations at 25 CFR part 162,
government remains involved in the leasing process available to tribes, by Federal courts have applied a balancing
tribal land leasing process by approving amending the Indian Long-Term Leasing test to determine whether State and
the tribal leasing regulations in the first Act of 1955, 25 U.S.C. 415. The Act local taxation of non-Indians on the
instance and providing technical authorizes tribes to negotiate and enter reservation is preempted. White
assistance, upon request by a tribe, for into agricultural and business leases of Mountain Apache Tribe v. Bracker, 448
the development of an environmental tribal trust lands with a primary term of U.S. 136, 143 (1980). The Bracker
review process. The Secretary also 25 years, and up to two renewal terms balancing test, which is conducted
retains authority to take any necessary of 25 years each, without the approval against a backdrop of ‘‘traditional
actions to remedy violations of a lease of the Secretary of the Interior. The Act notions of Indian self-government,’’
or of the tribal regulations, including also authorizes tribes to enter into leases requires a particularized examination of
terminating the lease or rescinding for residential, recreational, religious or the relevant State, Federal, and tribal
approval of the tribal regulations and educational purposes for a primary term interests. We hereby adopt the Bracker
reassuming lease approval of up to 75 years without the approval analysis from the preamble to the
responsibilities. Moreover, the Secretary of the Secretary. Participating tribes surface leasing regulations, 77 FR at
continues to review, approve, and develop tribal leasing regulations, 72,447–48, as supplemented by the
monitor individual Indian land leases including an environmental review analysis below.
and other types of leases not covered process, and then must obtain the The strong Federal and tribal interests
under the tribal regulations according to Secretary’s approval of those regulations against State and local taxation of
the Part 162 regulations. prior to entering into leases. The Act improvements, leaseholds, and
Accordingly, the Federal and tribal requires the Secretary to approve tribal activities on land leased under the
interests weigh heavily in favor of regulations if the tribal regulations are Department’s leasing regulations apply
preemption of State and local taxes on consistent with the Department’s leasing equally to improvements, leaseholds,
lease-related activities and interests, regulations at 25 CFR part 162 and and activities on land leased pursuant to
regardless of whether the lease is provide for an environmental review tribal leasing regulations approved
governed by tribal leasing regulations or process that meets requirements set under the HEARTH Act. Congress’s
Part 162. Improvements, activities, and forth in the Act. This notice announces overarching intent was to ‘‘allow tribes
leasehold or possessory interests may be that the Secretary, through the Assistant to exercise greater control over their
subject to taxation by the Ewiiaapaayp Secretary—Indian Affairs, has approved own land, support self-determination,
Band of Kumeyaay Indians. the tribal regulations for the Kaw and eliminate bureaucratic delays that
Nation. stand in the way of homeownership and
Dated: June 17, 2015. 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. 2015–15595 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 Kaw Nation 162.017. As explained further in the interests in effective tribal government,
Regulations preamble to the final regulations, the economic self-sufficiency, and territorial
Federal government has a strong interest autonomy. See Michigan v. Bay Mills
AGENCY: Bureau of Indian Affairs, in promoting economic development, Indian Community, 134 S. Ct. 2024,
Interior. 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
(December 5, 2012). The principles Federal Government is to render Tribes
SUMMARY: On December 13, 2013, the supporting the Federal preemption of more self-sufficient, and better
Bureau of Indian Affairs (BIA) approved State law in the field of Indian leasing positioned to fund their own sovereign
the Kaw Nation leasing regulations and the taxation of lease-related functions, rather than relying on Federal
under the HEARTH Act. With this interests and activities applies with funding’’). The additional costs of State
approval, the Tribe is authorized to equal force to leases entered into under and local taxation have a chilling effect
enter into the following type of leases tribal leasing regulations approved by on potential lessees, as well as on a tribe
without BIA approval: 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
asabaliauskas on DSK5VPTVN1PROD with NOTICES
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
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36686/page/1.svg)
![Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36565
aspects of leasing. See Guidance for the Services—Division of Realty, Bureau of Section 5 of the Indian Reorganization
Approval of Tribal Leasing Regulations Indian Affairs; Telephone (202) 768– Act, 25 U.S.C 465, preempts State and
under the HEARTH Act, NPM–TRUS– 4166; Email: cynthia.morales@bia.gov. local taxation of permanent
29 (effective Jan. 16, 2013) (providing SUPPLEMENTARY INFORMATION: improvements on trust land.
guidance on Federal review process to Confederated Tribes of the Chehalis
ensure consistency of proposed tribal I. Summary of the HEARTH Act Reservation v. Thurston County, 724
regulations with Part 162 regulations The HEARTH (Helping Expedite and F.3d 1153, 1157 (9th Cir. 2013) (citing
and listing required tribal regulatory Advance Responsible Tribal Mescalero Apache Tribe v. Jones, 411
provisions). Furthermore, the Federal Homeownership) Act of 2012 (the Act) U.S. 145 (1973)). In addition, as
government remains involved in the makes a voluntary, alternative land explained in the preamble to the revised
tribal land leasing process by approving leasing process available to tribes, by leasing regulations at 25 CFR part 162,
the tribal leasing regulations in the first amending the Indian Long-Term Leasing Federal courts have applied a balancing
instance and providing technical Act of 1955, 25 U.S.C. 415. The Act test to determine whether State and
assistance, upon request by a tribe, for authorizes tribes to negotiate and enter local taxation of non-Indians on the
the development of an environmental into agricultural and business leases of reservation is preempted. White
review process. The Secretary also tribal trust lands with a primary term of Mountain Apache Tribe v. Bracker, 448
retains authority to take any necessary 25 years, and up to two renewal terms U.S. 136, 143 (1980). The Bracker
actions to remedy violations of a lease of 25 years each, without the approval balancing test, which is conducted
or of the tribal regulations, including of the Secretary of the Interior. The Act against a backdrop of ‘‘traditional
terminating the lease or rescinding also authorizes tribes to enter into leases notions of Indian self-government,’’
approval of the tribal regulations and for residential, recreational, religious or requires a particularized examination of
reassuming lease approval the relevant State, Federal, and tribal
educational purposes for a primary term
responsibilities. Moreover, the Secretary interests. We hereby adopt the Bracker
of up to 75 years without the approval
continues to review, approve, and analysis from the preamble to the
of the Secretary. Participating tribes
monitor individual Indian land leases surface leasing regulations, 77 FR
develop tribal leasing regulations,
and other types of leases not covered 72,447–48, as supplemented by the
including an environmental review
under the tribal regulations according to analysis below.
process, and then must obtain the The strong Federal and tribal interests
the Part 162 regulations.
Accordingly, the Federal and tribal Secretary’s approval of those regulations against State and local taxation of
interests weigh heavily in favor of prior to entering into leases. The Act improvements, leaseholds, and
preemption of State and local taxes on requires the Secretary to approve tribal activities on land leased under the
lease-related activities and interests, regulations if the tribal regulations are Department’s leasing regulations apply
regardless of whether the lease is consistent with the Department’s leasing equally to improvements, leaseholds,
governed by tribal leasing regulations or regulations at 25 CFR part 162 and and activities on land leased pursuant to
Part 162. Improvements, activities, and provide for an environmental review tribal leasing regulations approved
leasehold or possessory interests may be process that meets requirements set under the HEARTH Act. Congress’s
subject to taxation by the Kaw Nation. forth in the Act. This notice announces overarching intent was to ‘‘allow tribes
that the Secretary, through the Assistant to exercise greater control over their
Dated: June 17, 2015. Secretary—Indian Affairs, has approved
Kevin K. Washburn, own land, support self-determination,
the tribal regulations for the Pokagon and eliminate bureaucratic delays that
Assistant Secretary—Indian Affairs. Band of Potawatomi Indians. stand in the way of homeownership and
[FR Doc. 2015–15581 Filed 6–24–15; 8:45 am]
II. Federal Preemption of State and economic development in tribal
BILLING CODE 4337–15–P
Local Taxes communities.’’ 158 Cong. Rec. H. 2682
(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 Pokagon subject to State and local taxation and policies supporting tribal economic
Band of Potawatomi Indians Leasing may be subject to taxation by the Indian development and self-determination,
Regulations tribe with jurisdiction. See 25 CFR and also threaten substantial tribal
AGENCY: Bureau of Indian Affairs, 162.017. As explained further in the interests in effective tribal government,
Interior. preamble to the final regulations, the economic self-sufficiency, and territorial
ACTION: Notice. Federal government has a strong interest autonomy. See Michigan v. Bay Mills
in promoting economic development, Indian Community, 134 S. Ct. 2024,
SUMMARY: On April 11, 2013 (amended self-determination, and tribal 2043 (2014) (Sotomayor, J., concurring)
November 24, 2014), the Bureau of sovereignty. 77 FR 72,440, 72447–48 (determining that ‘‘[a] key goal of the
Indian Affairs (BIA) approved the (December 5, 2012). The principles Federal Government is to render Tribes
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Pokagon Band of Potawatomi Indians supporting the Federal preemption of more self-sufficient, and better
leasing regulations under the HEARTH State law in the field of Indian leasing positioned to fund their own sovereign
Act. With this approval, the Tribe is and the taxation of lease-related functions, rather than relying on Federal
authorized to enter into the following interests and activities applies with funding’’). The additional costs of State
type of leases without BIA approval: equal force to leases entered into under and local taxation have a chilling effect
Residential 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
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36686/page/2.svg)
Document Created: 2015-12-15 14:16:56
Document Modified: 2015-12-15 14:16:56
| 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 36564 |
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