80 FR 36568 - HEARTH Act Approval of Absentee Shawnee Tribe of Oklahoma Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

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

Page Range		36568-36569
FR Document		2015-15589

On June 3, 2015, the Bureau of Indian Affairs (BIA) approved the Absentee Shawnee Tribe of Oklahoma 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 36568-36569]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-15589]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

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


HEARTH Act Approval of Absentee Shawnee Tribe of Oklahoma 
Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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

SUMMARY: On June 3, 2015, the Bureau of Indian Affairs (BIA) approved 
the Absentee Shawnee Tribe of Oklahoma 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 Absentee Shawnee Tribe of 
Oklahoma.

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, 72,447-48 (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

[[Page 36569]]

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 
Absentee Shawnee Tribe of Oklahoma.

    Dated: June 17, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-15589 Filed 6-24-15; 8:45 am]
 BILLING CODE 4337-15-P

36568 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices

[tribes] to approve leases quickly and subject to taxation by the Santa Rosa forth in the Act. This notice announces
efficiently.’’ Id. at 5–6. Band of Cahuilla Indians. that the Secretary, through the Assistant
Assessment of State and local taxes Dated: June 17, 2015. Secretary—Indian Affairs, has approved
would obstruct these express Federal Kevin K. Washburn,
the tribal regulations for the Absentee
policies supporting tribal economic Shawnee Tribe of Oklahoma.
Assistant Secretary—Indian Affairs.
development and self-determination, II. Federal Preemption of State and
[FR Doc. 2015–15567 Filed 6–24–15; 8:45 am]
and also threaten substantial tribal Local Taxes
BILLING CODE 4337–15–P
interests in effective tribal government,
economic self-sufficiency, and territorial The Department’s regulations
autonomy. See Michigan v. Bay Mills governing the surface leasing of trust
DEPARTMENT OF THE INTERIOR and restricted Indian lands specify that,
Indian Community, 134 S. Ct. 2024,
2043 (2014) (Sotomayor, J., concurring) subject to applicable Federal law,
Bureau of Indian Affairs permanent improvements on leased
(determining that ‘‘[a] key goal of the
Federal Government is to render Tribes [156A2100DD/AAKC001030/ land, leasehold or possessory interests,
more self-sufficient, and better A0A501010.999900 253G] and activities under the lease are not
positioned to fund their own sovereign subject to State and local taxation and
HEARTH Act Approval of Absentee may be subject to taxation by the Indian
functions, rather than relying on Federal Shawnee Tribe of Oklahoma
funding’’). The additional costs of State tribe with jurisdiction. See 25 CFR
Regulations 162.017. As explained further in the
and local taxation have a chilling effect
on potential lessees, as well as on a tribe AGENCY: Bureau of Indian Affairs, preamble to the final regulations, the
that, as a result, might refrain from Interior. Federal government has a strong interest
in promoting economic development,
exercising its own sovereign right to ACTION: Notice.
self-determination, and tribal
impose a tribal tax to support its
SUMMARY: On June 3, 2015, the Bureau sovereignty. 77 FR 72,440, 72,447–48
infrastructure needs. See id. at 2043–44
of Indian Affairs (BIA) approved the (December 5, 2012). The principles
(finding that State and local taxes
Absentee Shawnee Tribe of Oklahoma supporting the Federal preemption of
greatly discourage tribes from raising tax
leasing regulations under the HEARTH State law in the field of Indian leasing
revenue from the same sources because
Act. With this approval, the Tribe is and the taxation of lease-related
the imposition of double taxation would
authorized to enter into the following interests and activities applies with
impede tribal economic growth).
type of leases without BIA approval: equal force to leases entered into under
Just like BIA’s surface leasing tribal leasing regulations approved by
regulations, tribal regulations under the Business leases.
the Federal government pursuant to the
HEARTH Act pervasively cover all FOR FURTHER INFORMATION CONTACT: Ms.
HEARTH Act.
aspects of leasing. See Guidance for the Cynthia Morales, Office of Trust Section 5 of the Indian Reorganization
Approval of Tribal Leasing Regulations Services—Division of Realty, Bureau of Act, 25 U.S.C. 465, preempts State and
under the HEARTH Act, NPM–TRUS– Indian Affairs; Telephone (202) 768– local taxation of permanent
29 (effective Jan. 16, 2013) (providing 4166; Email: cynthia.morales@bia.gov. improvements on trust land.
guidance on Federal review process to SUPPLEMENTARY INFORMATION: Confederated Tribes of the Chehalis
ensure consistency of proposed tribal Reservation v. Thurston County, 724
regulations with Part 162 regulations I. Summary of the HEARTH Act
F.3d 1153, 1157 (9th Cir. 2013) (citing
and listing required tribal regulatory The HEARTH (Helping Expedite and Mescalero Apache Tribe v. Jones, 411
provisions). Furthermore, the Federal Advance Responsible Tribal U.S. 145 (1973)). In addition, as
government remains involved in the Homeownership) Act of 2012 (the Act) explained in the preamble to the revised
tribal land leasing process by approving makes a voluntary, alternative land leasing regulations at 25 CFR part 162,
the tribal leasing regulations in the first leasing process available to tribes, by Federal courts have applied a balancing
instance and providing technical amending the Indian Long-Term Leasing test to determine whether State and
assistance, upon request by a tribe, for Act of 1955, 25 U.S.C. 415. The Act local taxation of non-Indians on the
the development of an environmental authorizes tribes to negotiate and enter reservation is preempted. White
review process. The Secretary also into agricultural and business leases of Mountain Apache Tribe v. Bracker, 448
retains authority to take any necessary tribal trust lands with a primary term of U.S. 136, 143 (1980). The Bracker
actions to remedy violations of a lease 25 years, and up to two renewal terms balancing test, which is conducted
or of the tribal regulations, including of 25 years each, without the approval against a backdrop of ‘‘traditional
terminating the lease or rescinding of the Secretary of the Interior. The Act notions of Indian self-government,’’
approval of the tribal regulations and also authorizes tribes to enter into leases requires a particularized examination of
reassuming lease approval for residential, recreational, religious or the relevant State, Federal, and tribal
responsibilities. Moreover, the Secretary educational purposes for a primary term interests. We hereby adopt the Bracker
continues to review, approve, and of up to 75 years without the approval analysis from the preamble to the
monitor individual Indian land leases of the Secretary. Participating tribes surface leasing regulations, 77 FR
and other types of leases not covered develop tribal leasing regulations, 72,447–48, as supplemented by the
under the tribal regulations according to including an environmental review analysis below.
the Part 162 regulations. process, and then must obtain the The strong Federal and tribal interests
asabaliauskas on DSK5VPTVN1PROD with NOTICES

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

VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1

Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36569

overarching intent was to ‘‘allow tribes under the tribal regulations according to including an environmental review
to exercise greater control over their the Part 162 regulations. process, and then must obtain the
own land, support self-determination, Accordingly, the Federal and tribal Secretary’s approval of those regulations
and eliminate bureaucratic delays that interests weigh heavily in favor of prior to entering into leases. The Act
stand in the way of homeownership and preemption of State and local taxes on requires the Secretary to approve tribal
economic development in tribal lease-related activities and interests, regulations if the tribal regulations are
communities.’’ 158 Cong. Rec. H. 2682 regardless of whether the lease is consistent with the Department’s leasing
(May 15, 2012). The HEARTH Act was governed by tribal leasing regulations or regulations at 25 CFR part 162 and
intended to afford tribes ‘‘flexibility to Part 162. Improvements, activities, and provide for an environmental review
adapt lease terms to suit [their] business leasehold or possessory interests may be process that meets requirements set
and cultural needs’’ and to ‘‘enable subject to taxation by the Absentee forth in the Act. This notice announces
[tribes] to approve leases quickly and Shawnee Tribe of Oklahoma. that the Secretary, through the Assistant
efficiently.’’ Id. at 5–6. Dated: June 17, 2015. Secretary—Indian Affairs, has approved
Assessment of State and local taxes the tribal regulations for the Agua
Kevin K. Washburn,
would obstruct these express Federal Caliente Band of Cahuilla Indians.
policies supporting tribal economic Assistant Secretary—Indian Affairs.
development and self-determination, [FR Doc. 2015–15589 Filed 6–24–15; 8:45 am] II. Federal Preemption of State and
and also threaten substantial tribal BILLING CODE 4337–15–P Local Taxes
interests in effective tribal government, The Department’s regulations
economic self-sufficiency, and territorial governing the surface leasing of trust
autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
and restricted Indian lands specify that,
Indian Community, 134 S. Ct. 2024, subject to applicable Federal law,
2043 (2014) (Sotomayor, J., concurring) Bureau of Indian Affairs
permanent improvements on leased
(determining that ‘‘[a] key goal of the [156A2100DD/AAKC001030/ land, leasehold or possessory interests,
Federal Government is to render Tribes A0A501010.999900 253G] and activities under the lease are not
more self-sufficient, and better subject to State and local taxation and
positioned to fund their own sovereign HEARTH Act Approval of Agua
Caliente Band of Cahuilla Indians may be subject to taxation by the Indian
functions, rather than relying on Federal tribe with jurisdiction. See 25 CFR
funding’’). The additional costs of State Regulations
162.017. As explained further in the
and local taxation have a chilling effect AGENCY: Bureau of Indian Affairs, preamble to the final regulations, the
on potential lessees, as well as on a tribe Interior. Federal government has a strong interest
that, as a result, might refrain from in promoting economic development,
ACTION: Notice.
exercising its own sovereign right to self-determination, and tribal
impose a tribal tax to support its SUMMARY: On September 23, 2014, the sovereignty. 77 FR 72,440, 72447–48
infrastructure needs. See id. at 2043–44 Bureau of Indian Affairs (BIA) approved (December 5, 2012). The principles
(finding that State and local taxes the Agua Caliente Band of Cahuilla supporting the Federal preemption of
greatly discourage tribes from raising tax Indians leasing regulations under the State law in the field of Indian leasing
revenue from the same sources because HEARTH Act. With this approval, the and the taxation of lease-related
the imposition of double taxation would Tribe is authorized to enter into the interests and activities applies with
impede tribal economic growth). following type of leases without BIA
Just like BIA’s surface leasing equal force to leases entered into under
approval: Business leases. tribal leasing regulations approved by
regulations, tribal regulations under the
HEARTH Act pervasively cover all FOR FURTHER INFORMATION CONTACT: Ms. the Federal government pursuant to the
aspects of leasing. See Guidance for the Cynthia Morales, Office of Trust HEARTH Act.
Approval of Tribal Leasing Regulations Services—Division of Realty, Bureau of Section 5 of the Indian Reorganization
under the HEARTH Act, NPM–TRUS– Indian Affairs; Telephone (202) 768– Act, 25 U.S.C 465, preempts State and
29 (effective Jan. 16, 2013) (providing 4166; Email: cynthia.morales@bia.gov. local taxation of permanent
guidance on Federal review process to SUPPLEMENTARY INFORMATION: improvements on trust land.
ensure consistency of proposed tribal Confederated Tribes of the Chehalis
I. Summary of the HEARTH Act Reservation v. Thurston County, 724
regulations with Part 162 regulations
and listing required tribal regulatory The HEARTH (Helping Expedite and F.3d 1153, 1157 (9th Cir. 2013) (citing
provisions). Furthermore, the Federal Advance Responsible Tribal Mescalero Apache Tribe v. Jones, 411
government remains involved in the Homeownership) Act of 2012 (the Act) U.S. 145 (1973)). In addition, as
tribal land leasing process by approving makes a voluntary, alternative land explained in the preamble to the revised
the tribal leasing regulations in the first leasing process available to tribes, by leasing regulations at 25 CFR part 162,
instance and providing technical amending the Indian Long-Term Leasing Federal courts have applied a balancing
assistance, upon request by a tribe, for Act of 1955, 25 U.S.C. 415. The Act test to determine whether State and
the development of an environmental authorizes tribes to negotiate and enter local taxation of non-Indians on the
review process. The Secretary also into agricultural and business leases of reservation is preempted. White
retains authority to take any necessary tribal trust lands with a primary term of Mountain Apache Tribe v. Bracker, 448
actions to remedy violations of a lease 25 years, and up to two renewal terms U.S. 136, 143 (1980). The Bracker
asabaliauskas on DSK5VPTVN1PROD with NOTICES

or of the tribal regulations, including of 25 years each, without the approval balancing test, which is conducted
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

VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1

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 36568

80 FR 36568 - HEARTH Act Approval of Absentee Shawnee Tribe of Oklahoma 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