80 FR 36569 - HEARTH Act Approval of Agua Caliente Band of Cahuilla Indians 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 | 36569-36570 | |
| FR Document | 2015-15585 |
[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)] [Notices] [Pages 36569-36570] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-15585] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Agua Caliente Band of Cahuilla Indians Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On September 23, 2014, the Bureau of Indian Affairs (BIA) approved the Agua Caliente Band of Cahuilla Indians 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 Agua Caliente Band of Cahuilla Indians. 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 [[Page 36570]] 72,447-48, as supplemented by the analysis below. The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to ``allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.'' 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes ``flexibility to adapt lease terms to suit [their] business and cultural needs'' and to ``enable [tribes] to approve leases quickly and efficiently.'' Id. at 5-6. Assessment of State and local taxes would obstruct these express Federal policies supporting tribal economic development and self- determination, and also threaten substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ``[a] key goal of the Federal Government is to render Tribes more self- sufficient, and better positioned to fund their own sovereign functions, rather than relying on Federal funding''). The additional costs of State and local taxation have a chilling effect on potential lessees, as well as on a tribe that, as a result, might refrain from exercising its own sovereign right to impose a tribal tax to support its infrastructure needs. See id. at 2043-44 (finding that State and local taxes greatly discourage tribes from raising tax revenue from the same sources because the imposition of double taxation would impede tribal economic growth). Just like BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See Guidance for the Approval of Tribal Leasing Regulations under the HEARTH Act, NPM-TRUS-29 (effective Jan. 16, 2013) (providing guidance on Federal review process to ensure consistency of proposed tribal regulations with Part 162 regulations and listing required tribal regulatory provisions). Furthermore, the Federal government remains involved in the tribal land leasing process by approving the tribal leasing regulations in the first instance and providing technical assistance, upon request by a tribe, for the development of an environmental review process. The Secretary also retains authority to take any necessary actions to remedy violations of a lease or of the tribal regulations, including terminating the lease or rescinding approval of the tribal regulations and reassuming lease approval responsibilities. Moreover, the Secretary continues to review, approve, and monitor individual Indian land leases and other types of leases not covered under the tribal regulations according to the Part 162 regulations. Accordingly, the Federal and tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Agua Caliente Band of Cahuilla Indians. Dated: June 17, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-15585 Filed 6-24-15; 8:45 am] BILLING CODE 4337-15-P
![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](https://thefederalregister.org/doc/80_FR_36691/page/1.svg)
![36570 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices
72,447–48, as supplemented by the review process. The Secretary also into agricultural and business leases of
analysis below. retains authority to take any necessary tribal trust lands with a primary term of
The strong Federal and tribal interests actions to remedy violations of a lease 25 years, and up to two renewal terms
against State and local taxation of or of the tribal regulations, including of 25 years each, without the approval
improvements, leaseholds, and terminating the lease or rescinding of the Secretary of the Interior. The Act
activities on land leased under the approval of the tribal regulations and also authorizes tribes to enter into leases
Department’s leasing regulations apply reassuming lease approval for residential, recreational, religious or
equally to improvements, leaseholds, responsibilities. Moreover, the Secretary educational purposes for a primary term
and activities on land leased pursuant to continues to review, approve, and of up to 75 years without the approval
tribal leasing regulations approved monitor individual Indian land leases of the Secretary. Participating tribes
under the HEARTH Act. Congress’s and other types of leases not covered develop tribal leasing regulations,
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 Agua Caliente forth in the Act. This notice announces
[tribes] to approve leases quickly and Band of Cahuilla Indians. that the Secretary, through the Assistant
efficiently.’’ Id. at 5–6. Secretary—Indian Affairs, has approved
Assessment of State and local taxes Dated: June 17, 2015.
the tribal regulations for the Rincon
would obstruct these express Federal Kevin K. Washburn, Band of Luiseno Mission Indians.
policies supporting tribal economic Assistant Secretary—Indian Affairs.
development and self-determination, [FR Doc. 2015–15585 Filed 6–24–15; 8:45 am]
II. Federal Preemption of State and
and also threaten substantial tribal Local Taxes
BILLING CODE 4337–15–P
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 Rincon Band may be subject to taxation by the Indian
functions, rather than relying on Federal of Luiseno Mission Indians 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 preamble to the final regulations, the
on potential lessees, as well as on a tribe AGENCY: Bureau of Indian Affairs, Federal government has a strong interest
that, as a result, might refrain from Interior. in promoting economic development,
exercising its own sovereign right to ACTION: Notice. self-determination, and tribal
impose a tribal tax to support its sovereignty. 77 FR 72,440, 72447–48
SUMMARY: On June 4, 2015, the Bureau (December 5, 2012). The principles
infrastructure needs. See id. at 2043–44
of Indian Affairs (BIA) approved the supporting the Federal preemption of
(finding that State and local taxes
Rincon Band of Luiseno Mission State law in the field of Indian leasing
greatly discourage tribes from raising tax
revenue from the same sources because Indians leasing regulations under the and the taxation of lease-related
the imposition of double taxation would HEARTH Act. With this approval, the interests and activities applies with
impede tribal economic growth). Tribe is authorized to enter into the equal force to leases entered into under
Just like BIA’s surface leasing following type of leases without BIA tribal leasing regulations approved by
regulations, tribal regulations under the approval: 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
asabaliauskas on DSK5VPTVN1PROD with NOTICES
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
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36691/page/2.svg)
Document Created: 2015-12-15 14:17:23
Document Modified: 2015-12-15 14:17:23
| 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 36569 |
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