80 FR 51835 - HEARTH Act Approval of Squaxin Island Tribe Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 80, Issue 165 (August 26, 2015)

Page Range		51835-51836
FR Document		2015-21151

On August 20, 2015, the Bureau of Indian Affairs (BIA) approved the Squaxin Island Tribe leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into business leases without BIA approval.

Federal Register, Volume 80 Issue 165 (Wednesday, August 26, 2015)

[Federal Register Volume 80, Number 165 (Wednesday, August 26, 2015)]
[Notices]
[Pages 51835-51836]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-21151]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

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


HEARTH Act Approval of Squaxin Island Tribe Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On August 20, 2015, the Bureau of Indian Affairs (BIA) 
approved the Squaxin Island Tribe leasing regulations under the HEARTH 
Act. With this approval, the Tribe is authorized to enter into business 
leases without BIA approval.

FOR FURTHER INFORMATION CONTACT: 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 Squaxin Island Tribe.

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 72440, 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

[[Page 51836]]

interests. We hereby adopt the Bracker analysis from the preamble to 
the surface leasing regulations, 77 FR at 72447-48, 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 
Squaxin Island Tribe.
    Through the Congressionally-authorized Land Buy Back Program for 
Tribal Nations, the Squaxin Island Tribe has recovered the equivalent 
of more than 155 acres of land in trust. This initiative reflects the 
Federal policy of reducing the problem of fractionated interests in 
land and restoring tribal homelands. The approval of tribal leasing 
regulations has the potential to expand tribal sovereignty and increase 
tribal economic development on some of these newly consolidated lands.

    Dated: August 20, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-21151 Filed 8-24-15; 4:15 pm]
BILLING CODE 4337-15-P

Federal Register / Vol. 80, No. 165 / Wednesday, August 26, 2015 / Notices 51835

U.S.C. 4321 et seq.) as provided by the 10(a)(1)(A) enhancement of survival educational purposes for a primary term
Department of the Interior Manual (516 permits would comply with section 7 of of up to 75 years without the approval
DM 2 Appendix 1 and 516 DM 6 the Act by conducting an intra-Service of the Secretary. Participating tribes
Appendix 1). A low-effect project section 7 consultation. If we determine develop tribal leasing regulations,
involves (1) minor or negligible effects that the requirements are met, we will including an environmental review
on federally-listed or candidate species issue a permit under section 10(a)(1)(A) process, and then must obtain the
or their habitats, and (2) minor or of the Act to the Applicants in Secretary’s approval of those regulations
negligible effects on other accordance with the applicable prior to entering into leases. The Act
environmental values or resources. regulatory requirements. We will not requires the Secretary to approve tribal
Further, we specifically solicit make our final decision until after the regulations if the tribal regulations are
information regarding the adequacy of end of the 30-day comment period and consistent with the Department’s leasing
the agreement per 50 CFR parts 13 and will fully consider all comments regulations at 25 CFR part 162 and
17. received during the comment period. provide for an environmental review
process that meets requirements set
Public Comments Authority forth in the Act. This notice announces
Before including your address, phone We provide this notice under section that the Secretary, through the Assistant
number, email address, or other 10 of the Act (16 U.S.C. 1531 et seq.) Secretary—Indian Affairs, has approved
personal identifying information in your and NEPA regulations (40 CFR 1506.6). the tribal regulations for the Squaxin
comment, you should be aware that Dated: July 29, 2015. Island Tribe.
your entire comment—including your
Mike Oetker, II. Federal Preemption of State and
personal identifying information—may
Deputy Regional Director. Local Taxes
be made publicly available at any time.
While you can ask us in your comment [FR Doc. 2015–20960 Filed 8–25–15; 8:45 am] The Department’s regulations
to withhold your personal identifying BILLING CODE 4310–55–P governing the surface leasing of trust
information from public review, we and restricted Indian lands specify that,
cannot guarantee that we will be able to subject to applicable Federal law,
do so. DEPARTMENT OF THE INTERIOR permanent improvements on leased
If you wish to comment, you may land, leasehold or possessory interests,
submit comments by any one of several Bureau of Indian Affairs and activities under the lease are not
methods. Please reference TE 71956B or [156A2100DD/AAKC001030/ subject to State and local taxation and
TE 71959B in such comments. You may A0A501010.999900 253G] may be subject to taxation by the Indian
mail comments to the Fish and Wildlife tribe with jurisdiction. See 25 CFR
Service’s Regional Office (see HEARTH Act Approval of Squaxin 162.017. As explained further in the
ADDRESSES). You may also comment via Island Tribe Regulations preamble to the final regulations, the
the internet to david_dell@fws.gov or Federal government has a strong interest
AGENCY: Bureau of Indian Affairs,
michael_harris@fws.gov. Please include in promoting economic development,
Interior.
your name and return address in your self-determination, and tribal
ACTION: Notice. sovereignty. 77 FR 72440, 72447–48
email message. If you do not receive a
confirmation from us that we have (December 5, 2012). The principles
SUMMARY: On August 20, 2015, the
received your email message, contact us supporting the Federal preemption of
Bureau of Indian Affairs (BIA) approved
directly at either telephone number State law in the field of Indian leasing
the Squaxin Island Tribe leasing
listed under FOR FURTHER INFORMATION and the taxation of lease-related
regulations under the HEARTH Act.
CONTACT. interests and activities applies with
With this approval, the Tribe is
Finally, you may hand-deliver equal force to leases entered into under
authorized to enter into business leases
comments to either of our offices listed tribal leasing regulations approved by
without BIA approval.
under ADDRESSES. the Federal government pursuant to the
FOR FURTHER INFORMATION CONTACT: HEARTH Act.
Covered Area Cynthia Morales, Office of Trust Section 5 of the Indian Reorganization
The agreement covers approximately Services—Division of Realty, Bureau of Act, 25 U.S.C. 465, preempts State and
439,792 acres of potentially eligible Indian Affairs; Telephone (202) 768– local taxation of permanent
lands in the upper Saline River 4166; Email: cynthia.morales@bia.gov. improvements on trust land.
watershed; 412,556 acres of potentially SUPPLEMENTARY INFORMATION: Confederated Tribes of the Chehalis
eligible lands in the upper Ouachita Reservation v. Thurston County, 724
I. Summary of the HEARTH Act F.3d 1153, 1157 (9th Cir. 2013) (citing
River watershed; and 235,010 acres of
potentially eligible lands in the upper The HEARTH (Helping Expedite and Mescalero Apache Tribe v. Jones, 411
Caddo River watershed. Lands eligible Advance Responsible Tribal U.S. 145 (1973)). In addition, as
to enroll in the agreement include any Homeownership) Act of 2012 (the Act) explained in the preamble to the revised
non-Federal properties within the makes a voluntary, alternative land leasing regulations at 25 CFR part 162,
watershed of the upper Saline, Caddo, leasing process available to tribes, by Federal courts have applied a balancing
and Ouachita Rivers. amending the Indian Long-Term Leasing test to determine whether State and
Act of 1955, 25 U.S.C. 415. The Act local taxation of non-Indians on the
Next Steps authorizes tribes to negotiate and enter reservation is preempted. White
rmajette on DSK7SPTVN1PROD with NOTICES

We will evaluate the enhancement of into agricultural and business leases of Mountain Apache Tribe v. Bracker, 448
survival permit application, including tribal trust lands with a primary term of U.S. 136, 143 (1980). The Bracker
the agreement and any comments we 25 years, and up to two renewal terms balancing test, which is conducted
receive, to determine whether the of 25 years each, without the approval against a backdrop of ‘‘traditional
applications meet the requirements of of the Secretary of the Interior. The Act notions of Indian self-government,’’
section 10(a)(1)(A) of the Act. We will also authorizes tribes to enter into leases requires a particularized examination of
also evaluate whether the section for residential, recreational, religious or the relevant State, Federal, and tribal

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Document Created: 2015-12-15 10:58:24
Document Modified: 2015-12-15 10:58:24

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		Cynthia Morales, Office of Trust Services--Division of Realty, Bureau of Indian Affairs; Telephone (202) 768-4166; Email: [email protected]
FR Citation		80 FR 51835

80 FR 51835 - HEARTH Act Approval of Squaxin Island Tribe Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 80, Issue 165 (August 26, 2015)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs