80 FR 36572 - HEARTH Act Approval of Ho-Chunk 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 | 36572-36573 | |
| FR Document | 2015-15593 |
[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)] [Notices] [Pages 36572-36573] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-15593] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Ho-Chunk Nation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On February 4, 2015, the Bureau of Indian Affairs (BIA) approved the Ho-Chunk 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, residential, and agricultural ordinances. 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 Ho-Chunk 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 [[Page 36573]] interests and activities applies with equal force to leases entered into under tribal leasing regulations approved by the Federal government pursuant to the HEARTH Act. Section 5 of the Indian Reorganization Act, 25 U.S.C 465, preempts State and local taxation of permanent improvements on trust land. Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)). In addition, as explained in the preamble to the revised leasing regulations at 25 CFR part 162, Federal courts have applied a balancing test to determine whether State and local taxation of non-Indians on the reservation is preempted. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing test, which is conducted against a backdrop of ``traditional notions of Indian self-government,'' requires a particularized examination of the relevant State, Federal, and tribal interests. We hereby adopt the Bracker analysis from the preamble to the surface leasing regulations, 77 FR 72,447-48, as supplemented by the analysis below. The strong Federal and tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to ``allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.'' 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford tribes ``flexibility to adapt lease terms to suit [their] business and cultural needs'' and to ``enable [tribes] to approve leases quickly and efficiently.'' Id. at 5-6. Assessment of State and local taxes would obstruct these express Federal policies supporting tribal economic development and self- determination, and also threaten substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ``[a] key goal of the Federal Government is to render Tribes more self- sufficient, and better positioned to fund their own sovereign functions, rather than relying on Federal funding''). The additional costs of State and local taxation have a chilling effect on potential lessees, as well as on a tribe that, as a result, might refrain from exercising its own sovereign right to impose a tribal tax to support its infrastructure needs. See id. at 2043-44 (finding that State and local taxes greatly discourage tribes from raising tax revenue from the same sources because the imposition of double taxation would impede tribal economic growth). Just like BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See Guidance for the Approval of Tribal Leasing Regulations under the HEARTH Act, NPM-TRUS-29 (effective Jan. 16, 2013) (providing guidance on Federal review process to ensure consistency of proposed tribal regulations with Part 162 regulations and listing required tribal regulatory provisions). Furthermore, the Federal government remains involved in the tribal land leasing process by approving the tribal leasing regulations in the first instance and providing technical assistance, upon request by a tribe, for the development of an environmental review process. The Secretary also retains authority to take any necessary actions to remedy violations of a lease or of the tribal regulations, including terminating the lease or rescinding approval of the tribal regulations and reassuming lease approval responsibilities. Moreover, the Secretary continues to review, approve, and monitor individual Indian land leases and other types of leases not covered under the tribal regulations according to the Part 162 regulations. 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 Ho-Chunk Nation. Dated: June 17, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-15593 Filed 6-24-15; 8:45 am] BILLING CODE 4337-15-P
![36572 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices
Reservation v. Thurston County, 724 the imposition of double taxation would type of leases without BIA approval:
F.3d 1153, 1157 (9th Cir. 2013) (citing impede tribal economic growth). Business, residential, and agricultural
Mescalero Apache Tribe v. Jones, 411 Just like BIA’s surface leasing ordinances.
U.S. 145 (1973)). In addition, as regulations, tribal regulations under the
FOR FURTHER INFORMATION CONTACT: Ms.
explained in the preamble to the revised HEARTH Act pervasively cover all
Cynthia Morales, Office of Trust
leasing regulations at 25 CFR part 162, aspects of leasing. See Guidance for the
Services—Division of Realty, Bureau of
Federal courts have applied a balancing Approval of Tribal Leasing Regulations
Indian Affairs; Telephone (202) 768–
test to determine whether State and under the HEARTH Act, NPM–TRUS–
4166; Email: cynthia.morales@bia.gov.
local taxation of non-Indians on the 29 (effective Jan. 16, 2013) (providing
guidance on Federal review process to SUPPLEMENTARY INFORMATION:
reservation is preempted. White
Mountain Apache Tribe v. Bracker, 448 ensure consistency of proposed tribal I. Summary of the HEARTH Act
U.S. 136, 143 (1980). The Bracker regulations with Part 162 regulations
The HEARTH (Helping Expedite and
balancing test, which is conducted and listing required tribal regulatory
provisions). Furthermore, the Federal Advance Responsible Tribal
against a backdrop of ‘‘traditional
government remains involved in the Homeownership) Act of 2012 (the Act)
notions of Indian self-government,’’
tribal land leasing process by approving makes a voluntary, alternative land
requires a particularized examination of
the tribal leasing regulations in the first leasing process available to tribes, by
the relevant State, Federal, and tribal
instance and providing technical amending the Indian Long-Term Leasing
interests. We hereby adopt the Bracker
assistance, upon request by a tribe, for Act of 1955, 25 U.S.C. 415. The Act
analysis from the preamble to the
the development of an environmental authorizes tribes to negotiate and enter
surface leasing regulations, 77 FR
review process. The Secretary also into agricultural and business leases of
72,447–48, as supplemented by the
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 Dry Creek forth in the Act. This notice announces
[tribes] to approve leases quickly and Rancheria Band of Pomo Indians. that the Secretary, through the Assistant
efficiently.’’ Id. at 5–6. Secretary—Indian Affairs, has approved
Dated: June 17, 2015.
Assessment of State and local taxes the tribal regulations for the Ho-Chunk
Kevin K. Washburn, Nation.
would obstruct these express Federal
policies supporting tribal economic Assistant Secretary—Indian Affairs.
[FR Doc. 2015–15597 Filed 6–24–15; 8:45 am] II. Federal Preemption of State and
development and self-determination,
Local Taxes
and also threaten substantial tribal 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,
Bureau of Indian Affairs permanent improvements on leased
2043 (2014) (Sotomayor, J., concurring)
(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 Ho-Chunk may be subject to taxation by the Indian
functions, rather than relying on Federal Nation Regulations tribe with jurisdiction. See 25 CFR
funding’’). The additional costs of State AGENCY: Bureau of Indian Affairs, 162.017. As explained further in the
and local taxation have a chilling effect preamble to the final regulations, the
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Interior.
on potential lessees, as well as on a tribe ACTION: Notice.
Federal government has a strong interest
that, as a result, might refrain from in promoting economic development,
exercising its own sovereign right to SUMMARY: On February 4, 2015, the self-determination, and tribal
impose a tribal tax to support its Bureau of Indian Affairs (BIA) approved sovereignty. 77 FR 72,440, 72447–48
infrastructure needs. See id. at 2043–44 the Ho-Chunk Nation leasing (December 5, 2012). The principles
(finding that State and local taxes regulations under the HEARTH Act. supporting the Federal preemption of
greatly discourage tribes from raising tax With this approval, the Tribe is State law in the field of Indian leasing
revenue from the same sources because authorized to enter into the following and the taxation of lease-related
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36694/page/1.svg)
![Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Notices 36573
interests and activities applies with funding’’). The additional costs of State DEPARTMENT OF THE INTERIOR
equal force to leases entered into under and local taxation have a chilling effect
tribal leasing regulations approved by on potential lessees, as well as on a tribe Bureau of Indian Affairs
the Federal government pursuant to the that, as a result, might refrain from [156A2100DD/AAKC001030/
HEARTH Act. exercising its own sovereign right to A0A501010.999900 253G]
Section 5 of the Indian Reorganization impose a tribal tax to support its
Act, 25 U.S.C 465, preempts State and infrastructure needs. See id. at 2043–44 HEARTH Act Approval of Cowlitz
local taxation of permanent (finding that State and local taxes Indian Tribe Regulations
improvements on trust land.
greatly discourage tribes from raising tax AGENCY: Bureau of Indian Affairs,
Confederated Tribes of the Chehalis
revenue from the same sources because Interior.
Reservation v. Thurston County, 724
F.3d 1153, 1157 (9th Cir. 2013) (citing the imposition of double taxation would ACTION: Notice.
Mescalero Apache Tribe v. Jones, 411 impede tribal economic growth).
Just like BIA’s surface leasing SUMMARY: On January 22, 2015, the
U.S. 145 (1973)). In addition, as
Bureau of Indian Affairs (BIA) approved
explained in the preamble to the revised regulations, tribal regulations under the
the Cowlitz Indian Tribe leasing
leasing regulations at 25 CFR part 162, HEARTH Act pervasively cover all
regulations under the HEARTH Act.
Federal courts have applied a balancing aspects of leasing. See Guidance for the
test to determine whether State and With this approval, the Tribe is
Approval of Tribal Leasing Regulations authorized to enter into the following
local taxation of non-Indians on the under the HEARTH Act, NPM–TRUS–
reservation is preempted. White type of leases without BIA approval:
29 (effective Jan. 16, 2013) (providing Business leases.
Mountain Apache Tribe v. Bracker, 448 guidance on Federal review process to
U.S. 136, 143 (1980). The Bracker FOR FURTHER INFORMATION CONTACT: Ms.
ensure consistency of proposed tribal Cynthia Morales, Office of Trust
balancing test, which is conducted regulations with Part 162 regulations
against a backdrop of ‘‘traditional Services—Division of Realty, Bureau of
and listing required tribal regulatory Indian Affairs; Telephone (202) 768–
notions of Indian self-government,’’
provisions). Furthermore, the Federal 4166; Email: cynthia.morales@bia.gov.
requires a particularized examination of
the relevant State, Federal, and tribal government remains involved in the SUPPLEMENTARY INFORMATION:
interests. We hereby adopt the Bracker tribal land leasing process by approving
the tribal leasing regulations in the first I. Summary of the HEARTH Act
analysis from the preamble to the
surface leasing regulations, 77 FR instance and providing technical The HEARTH (Helping Expedite and
72,447–48, as supplemented by the assistance, upon request by a tribe, for Advance Responsible Tribal
analysis below. the development of an environmental Homeownership) Act of 2012 (the Act)
The strong Federal and tribal interests review process. The Secretary also makes a voluntary, alternative land
against State and local taxation of retains authority to take any necessary leasing process available to tribes, by
improvements, leaseholds, and actions to remedy violations of a lease amending the Indian Long-Term Leasing
activities on land leased under the or of the tribal regulations, including Act of 1955, 25 U.S.C. 415. The Act
Department’s leasing regulations apply terminating the lease or rescinding authorizes tribes to negotiate and enter
equally to improvements, leaseholds, approval of the tribal regulations and into agricultural and business leases of
and activities on land leased pursuant to reassuming lease approval tribal trust lands with a primary term of
tribal leasing regulations approved responsibilities. Moreover, the Secretary 25 years, and up to two renewal terms
under the HEARTH Act. Congress’s continues to review, approve, and of 25 years each, without the approval
overarching intent was to ‘‘allow tribes of the Secretary of the Interior. The Act
monitor individual Indian land leases
to exercise greater control over their also authorizes tribes to enter into leases
and other types of leases not covered
own land, support self-determination, for residential, recreational, religious or
under the tribal regulations according to educational purposes for a primary term
and eliminate bureaucratic delays that
stand in the way of homeownership and the Part 162 regulations. of up to 75 years without the approval
economic development in tribal Accordingly, the Federal and tribal of the Secretary. Participating tribes
communities.’’ 158 Cong. Rec. H. 2682 interests weigh heavily in favor of develop tribal leasing regulations,
(May 15, 2012). The HEARTH Act was preemption of State and local taxes on including an environmental review
intended to afford tribes ‘‘flexibility to lease-related activities and interests, process, and then must obtain the
adapt lease terms to suit [their] business regardless of whether the lease is Secretary’s approval of those regulations
and cultural needs’’ and to ‘‘enable governed by tribal leasing regulations or prior to entering into leases. The Act
[tribes] to approve leases quickly and Part 162. Improvements, activities, and requires the Secretary to approve tribal
efficiently.’’ Id. at 5–6. leasehold or possessory interests may be regulations if the tribal regulations are
Assessment of State and local taxes subject to taxation by the Ho-Chunk consistent with the Department’s leasing
would obstruct these express Federal Nation. regulations at 25 CFR part 162 and
policies supporting tribal economic provide for an environmental review
development and self-determination, Dated: June 17, 2015. process that meets requirements set
and also threaten substantial tribal Kevin K. Washburn, forth in the Act. This notice announces
interests in effective tribal government, Assistant Secretary—Indian Affairs. that the Secretary, through the Assistant
economic self-sufficiency, and territorial
asabaliauskas on DSK5VPTVN1PROD with NOTICES
[FR Doc. 2015–15593 Filed 6–24–15; 8:45 am] Secretary—Indian Affairs, has approved
autonomy. See Michigan v. Bay Mills the tribal regulations for the Cowlitz
BILLING CODE 4337–15–P
Indian Community, 134 S. Ct. 2024, Indian Tribe.
2043 (2014) (Sotomayor, J., concurring)
(determining that ‘‘[a] key goal of the II. Federal Preemption of State and
Federal Government is to render Tribes Local Taxes
more self-sufficient, and better The Department’s regulations
positioned to fund their own sovereign governing the surface leasing of trust
functions, rather than relying on Federal and restricted Indian lands specify that,
VerDate Sep<11>2014 16:37 Jun 24, 2015 Jkt 235001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\25JNN1.SGM 25JNN1](https://thefederalregister.org/doc/80_FR_36694/page/2.svg)
Document Created: 2015-12-15 14:17:10
Document Modified: 2015-12-15 14:17:10
| 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 36572 |
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