80 FR 51836 - HEARTH Act Approval of Makah Indian Tribe of the Makah Indian Reservation Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 80, Issue 165 (August 26, 2015)
Bureau of Indian Affairs
Federal Register Volume 80, Issue 165 (August 26, 2015)
| Page Range | 51836-51837 | |
| FR Document | 2015-20888 |
[Federal Register Volume 80, Number 165 (Wednesday, August 26, 2015)] [Notices] [Pages 51836-51837] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-20888] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [156A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Makah Indian Tribe of the Makah Indian Reservation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On August 18, 2015, the Bureau of Indian Affairs (BIA) approved the Makah Indian Tribe of the Makah Indian Reservation leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into the following type of leases without BIA approval: Residential, business, wind and solar development, and other authorized purposes. 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 Makah Indian Tribe of the Makah Indian Reservation. 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 [[Page 51837]] 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 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 Makah Indian Tribe of the Makah Indian Reservation. We note that the Makah Indian Reservation possesses a fractionated lands problem, but through the Land Buy Back Program authorized by Congress, fractional interests in trust land equivalent to approximately 64 acres of land have been repurchased and restored to the Makah Indian Tribe. The Land Buy Back Program represents a Federal policy initiative to restore tribal homelands. It is Federal policy to support tribal sovereignty and self-government to the maximum extent possible on tribal trust lands. Dated: August 18, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-20888 Filed 8-24-15; 4:15 pm] BILLING CODE 4337-15-P
![51836 Federal Register / Vol. 80, No. 165 / Wednesday, August 26, 2015 / Notices
interests. We hereby adopt the Bracker instance and providing technical business, wind and solar development,
analysis from the preamble to the assistance, upon request by a tribe, for and other authorized purposes.
surface leasing regulations, 77 FR at the development of an environmental FOR FURTHER INFORMATION CONTACT:
72447–48, as supplemented by the review process. The Secretary also Cynthia Morales, Office of Trust
analysis below. retains authority to take any necessary Services—Division of Realty, Bureau of
The strong Federal and tribal interests actions to remedy violations of a lease Indian Affairs; Telephone (202) 768–
against State and local taxation of or of the tribal regulations, including 4166; Email cynthia.morales@bia.gov.
improvements, leaseholds, and terminating the lease or rescinding SUPPLEMENTARY INFORMATION:
activities on land leased under the approval of the tribal regulations and
Department’s leasing regulations apply reassuming lease approval I. Summary of the HEARTH Act
equally to improvements, leaseholds, responsibilities. Moreover, the Secretary The HEARTH (Helping Expedite and
and activities on land leased pursuant to continues to review, approve, and Advance Responsible Tribal
tribal leasing regulations approved monitor individual Indian land leases Homeownership) Act of 2012 (the Act)
under the HEARTH Act. Congress’s and other types of leases not covered makes a voluntary, alternative land
overarching intent was to ‘‘allow tribes under the tribal regulations according to leasing process available to tribes, by
to exercise greater control over their the Part 162 regulations. amending the Indian Long-Term Leasing
own land, support self-determination, Accordingly, the Federal and tribal Act of 1955, 25 U.S.C. 415. The Act
and eliminate bureaucratic delays that interests weigh heavily in favor of
stand in the way of homeownership and authorizes tribes to negotiate and enter
preemption of State and local taxes on into agricultural and business leases of
economic development in tribal lease-related activities and interests,
communities.’’ 158 Cong. Rec. H. 2682 tribal trust lands with a primary term of
regardless of whether the lease is 25 years, and up to two renewal terms
(May 15, 2012). The HEARTH Act was governed by tribal leasing regulations or
intended to afford tribes ‘‘flexibility to of 25 years each, without the approval
Part 162. Improvements, activities, and of the Secretary of the Interior. The Act
adapt lease terms to suit [their] business leasehold or possessory interests may be
and cultural needs’’ and to ‘‘enable also authorizes tribes to enter into leases
subject to taxation by the Squaxin Island for residential, recreational, religious or
[tribes] to approve leases quickly and Tribe.
efficiently.’’ Id. at 5–6. educational purposes for a primary term
Through the Congressionally- of up to 75 years without the approval
Assessment of State and local taxes authorized Land Buy Back Program for
would obstruct these express Federal of the Secretary. Participating tribes
Tribal Nations, the Squaxin Island Tribe develop tribal leasing regulations,
policies supporting tribal economic has recovered the equivalent of more
development and self-determination, including an environmental review
than 155 acres of land in trust. This process, and then must obtain the
and also threaten substantial tribal initiative reflects the Federal policy of
interests in effective tribal government, Secretary’s approval of those regulations
reducing the problem of fractionated prior to entering into leases. The Act
economic self-sufficiency, and territorial
interests in land and restoring tribal requires the Secretary to approve tribal
autonomy. See Michigan v. Bay Mills
homelands. The approval of tribal regulations if the tribal regulations are
Indian Community, 134 S. Ct. 2024,
leasing regulations has the potential to consistent with the Department’s leasing
2043 (2014) (Sotomayor, J., concurring)
expand tribal sovereignty and increase regulations at 25 CFR part 162 and
(determining that ‘‘[a] key goal of the
tribal economic development on some provide for an environmental review
Federal Government is to render Tribes
of these newly consolidated lands. process that meets requirements set
more self-sufficient, and better
positioned to fund their own sovereign Dated: August 20, 2015. forth in the Act. This notice announces
functions, rather than relying on Federal Kevin K. Washburn, that the Secretary, through the Assistant
funding’’). The additional costs of State Assistant Secretary—Indian Affairs. Secretary—Indian Affairs, has approved
and local taxation have a chilling effect [FR Doc. 2015–21151 Filed 8–24–15; 4:15 pm] the tribal regulations for the Makah
on potential lessees, as well as on a tribe BILLING CODE 4337–15–P
Indian Tribe of the Makah Indian
that, as a result, might refrain from Reservation.
exercising its own sovereign right to II. Federal Preemption of State and
impose a tribal tax to support its DEPARTMENT OF THE INTERIOR Local Taxes
infrastructure needs. See id. at 2043–44
(finding that State and local taxes Bureau of Indian Affairs The Department’s regulations
greatly discourage tribes from raising tax governing the surface leasing of trust
revenue from the same sources because [156A2100DD/AAKC001030/ and restricted Indian lands specify that,
A0A501010.999900 253G] subject to applicable Federal law,
the imposition of double taxation would
impede tribal economic growth). permanent improvements on leased
HEARTH Act Approval of Makah Indian
Just like BIA’s surface leasing land, leasehold or possessory interests,
Tribe of the Makah Indian Reservation
regulations, tribal regulations under the and activities under the lease are not
Regulations
HEARTH Act pervasively cover all subject to State and local taxation and
aspects of leasing. See Guidance for the AGENCY: Bureau of Indian Affairs, may be subject to taxation by the Indian
Approval of Tribal Leasing Regulations Interior. tribe with jurisdiction. See 25 CFR
under the HEARTH Act, NPM–TRUS– ACTION: Notice. 162.017. As explained further in the
29 (effective Jan. 16, 2013) (providing preamble to the final regulations, the
guidance on Federal review process to SUMMARY: On August 18, 2015, the Federal government has a strong interest
rmajette on DSK7SPTVN1PROD with NOTICES
ensure consistency of proposed tribal Bureau of Indian Affairs (BIA) approved in promoting economic development,
regulations with Part 162 regulations the Makah Indian Tribe of the Makah self-determination, and tribal
and listing required tribal regulatory Indian Reservation leasing regulations sovereignty. 77 FR 72,440, 72,447–48
provisions). Furthermore, the Federal under the HEARTH Act. With this (December 5, 2012). The principles
government remains involved in the approval, the Tribe is authorized to supporting the Federal preemption of
tribal land leasing process by approving enter into the following type of leases State law in the field of Indian leasing
the tribal leasing regulations in the first without BIA approval: Residential, and the taxation of lease-related
VerDate Sep<11>2014 14:29 Aug 25, 2015 Jkt 235001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\26AUN1.SGM 26AUN1](https://thefederalregister.org/doc/80_FR_52001/page/1.svg)
![Federal Register / Vol. 80, No. 165 / Wednesday, August 26, 2015 / Notices 51837
interests and activities applies with funding’’). The additional costs of State Dated: August 18, 2015.
equal force to leases entered into under and local taxation have a chilling effect Kevin K. Washburn,
tribal leasing regulations approved by on potential lessees, as well as on a tribe Assistant Secretary—Indian Affairs.
the Federal government pursuant to the that, as a result, might refrain from [FR Doc. 2015–20888 Filed 8–24–15; 4:15 pm]
HEARTH Act. exercising its own sovereign right to BILLING CODE 4337–15–P
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
local taxation of permanent (finding that State and local taxes DEPARTMENT OF THE INTERIOR
improvements on trust land. greatly discourage tribes from raising tax
Confederated Tribes of the Chehalis revenue from the same sources because Bureau of Land Management
Reservation v. Thurston County, 724 the imposition of double taxation would [15 XL LLIDI00000–L11200000–PH0000 241
F.3d 1153, 1157 (9th Cir. 2013) (citing impede tribal economic growth). A 4500075502]
Mescalero Apache Tribe v. Jones, 411
U.S. 145 (1973)). In addition, as Just like BIA’s surface leasing
Notice of Public Meeting, Idaho Falls
explained in the preamble to the revised regulations, tribal regulations under the
District Resource Advisory Council
leasing regulations at 25 CFR part 162, HEARTH Act pervasively cover all
Meeting
Federal courts have applied a balancing aspects of leasing. See Guidance for the
test to determine whether State and Approval of Tribal Leasing Regulations AGENCY: Bureau of Land Management,
local taxation of non-Indians on the under the HEARTH Act, NPM–TRUS– Interior.
reservation is preempted. White 29 (effective Jan. 16, 2013) (providing ACTION: Notice of public meetings.
Mountain Apache Tribe v. Bracker, 448 guidance on Federal review process to
ensure consistency of proposed tribal SUMMARY: In accordance with the
U.S. 136, 143 (1980). The Bracker Federal Land Policy and Management
balancing test, which is conducted regulations with Part 162 regulations
and listing required tribal regulatory Act (FLPMA) and the Federal Advisory
against a backdrop of ‘‘traditional Committee Act of 1972 (FACA), the U.S.
notions of Indian self-government,’’ provisions). Furthermore, the Federal
government remains involved in the Department of the Interior, Bureau of
requires a particularized examination of Land Management (BLM) Idaho Falls
the relevant State, Federal, and tribal tribal land leasing process by approving
District Resource Advisory Council
interests. We hereby adopt the Bracker the tribal leasing regulations in the first
(RAC), will meet as indicated below.
analysis from the preamble to the instance and providing technical
assistance, upon request by a tribe, for DATES: The Idaho Falls District RAC will
surface leasing regulations, 77 FR at
72447–48, as supplemented by the the development of an environmental meet in Challis, Idaho, September 22–
analysis below. review process. The Secretary also 23, 2015, for a two-day meeting at the
The strong Federal and tribal interests retains authority to take any necessary Challis Field Office, 1151 Blue
against State and local taxation of actions to remedy violations of a lease Mountain Road, Challis, Idaho 83226.
improvements, leaseholds, and The first day will begin at 10:00 a.m.
or of the tribal regulations, including
activities on land leased under the and adjourn at 4:30 p.m. The second
terminating the lease or rescinding
Department’s leasing regulations apply day will begin at 8:00 a.m. and adjourn
approval of the tribal regulations and
equally to improvements, leaseholds, at 2:30 p.m. Members of the public are
reassuming lease approval
and activities on land leased pursuant to invited to attend. A comment period
responsibilities. Moreover, the Secretary
tribal leasing regulations approved will be held following the introductions
continues to review, approve, and
under the HEARTH Act. Congress’s from 10:00–10:30 a.m. All meetings are
monitor individual Indian land leases
overarching intent was to ‘‘allow tribes open to the public.
and other types of leases not covered
to exercise greater control over their SUPPLEMENTARY INFORMATION: The 15-
under the tribal regulations according to
own land, support self-determination, the Part 162 regulations. member Council advises the Secretary
and eliminate bureaucratic delays that of the Interior, through the Bureau of
stand in the way of homeownership and Accordingly, the Federal and tribal Land Management, on a variety of
economic development in tribal interests weigh heavily in favor of planning and management issues
communities.’’ 158 Cong. Rec. H. 2682 preemption of State and local taxes on associated with public land
(May 15, 2012). The HEARTH Act was lease-related activities and interests, management in the BLM Idaho Falls
intended to afford tribes ‘‘flexibility to regardless of whether the lease is District (IFD), which covers eastern
adapt lease terms to suit [their] business governed by tribal leasing regulations or Idaho. Items on the agenda include an
and cultural needs’’ and to ‘‘enable Part 162. Improvements, activities, and overview and tour of the new
[tribes] to approve leases quickly and leasehold or possessory interests may be wilderness area.
efficiently.’’ Id. at 5–6. subject to taxation by the Makah Indian The Recreation RAC will convene at
Assessment of State and local taxes Tribe of the Makah Indian Reservation. approximately 11:15 a.m. to discuss the
would obstruct these express Federal We note that the Makah Indian Caribou-Targhee National Forest
policies supporting tribal economic Reservation possesses a fractionated proposal to increase Christmas tree
development and self-determination, lands problem, but through the Land permits to $15.00, and the Salmon
and also threaten substantial tribal Buy Back Program authorized by Challis National Forest’s proposal to
interests in effective tribal government, Congress, fractional interests in trust begin using the Copper Basin Guard
economic self-sufficiency, and territorial land equivalent to approximately 64 Station (located approximately 35 miles
autonomy. See Michigan v. Bay Mills acres of land have been repurchased and from Mackay, Idaho) as a rental cabin.
rmajette on DSK7SPTVN1PROD with NOTICES
Indian Community, 134 S. Ct. 2024, restored to the Makah Indian Tribe. The Following the morning part of the
2043 (2014) (Sotomayor, J., concurring) Land Buy Back Program represents a meeting, the group will discuss several
(determining that ‘‘[a] key goal of the Federal policy initiative to restore tribal riparian projects the Challis Field Office
Federal Government is to render Tribes homelands. It is Federal policy to is undertaking to improve fish habitat
more self-sufficient, and better support tribal sovereignty and self- and learn more about permitting Special
positioned to fund their own sovereign government to the maximum extent Recreational Permits (SRPs) in
functions, rather than relying on Federal possible on tribal trust lands. Wilderness Study Areas (WSAs). The
VerDate Sep<11>2014 14:29 Aug 25, 2015 Jkt 235001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\26AUN1.SGM 26AUN1](https://thefederalregister.org/doc/80_FR_52001/page/2.svg)
Document Created: 2015-12-15 10:58:37
Document Modified: 2015-12-15 10:58:37
| 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 51836 |
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