80 FR 69692 - Navajo Nation Trust Leasing Act of 2000 Approval of Navajo Nation Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 80, Issue 217 (November 10, 2015)

Page Range		69692-69693
FR Document		2015-28476

On May 16, 2014, the Bureau of Indian Affairs (BIA) approved the Navajo Nation General Leasing Regulations under the Navajo Nation Trust Leasing Act of 2000. With this approval, the Tribe is authorized to enter into leases without BIA approval.

Federal Register, Volume 80 Issue 217 (Tuesday, November 10, 2015)

[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Notices]
[Pages 69692-69693]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-28476]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

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


Navajo Nation Trust Leasing Act of 2000 Approval of Navajo Nation 
Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On May 16, 2014, the Bureau of Indian Affairs (BIA) approved 
the Navajo Nation General Leasing Regulations under the Navajo Nation 
Trust Leasing Act of 2000. With this approval, the Tribe is authorized 
to enter into leases without BIA approval.

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 Navajo Nation Trust Leasing Act of 2000

    The Navajo Nation Trust Leasing Act authorizes the Nation to issue 
leases for purposes authorized under 25 U.S.C. 415(a) without the 
approval of the Secretary, provided the lease is executed under tribal 
regulations approved by the Secretary. Congress enacted the Leasing Act 
in 2000, to ``establish a streamlined process for the Navajo Nation to 
lease trust lands without having the approval of the Secretary of the 
Interior for individual leases,'' and ``[t]o maintain, strengthen, and 
protect the Navajo Nation's leasing power over Navajo trust lands.'' 
Public Law 106-568 Sec.  1202, 114 Stat. 2933 (Dec. 27, 2000). See also 
S. Rpt. 106-511 (Oct. 31, 2000). The Navajo Nation Trust Leasing 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 Navajo 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, 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 Navajo 
Nation Trust Leasing 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 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 Navajo Nation Trust 
Leasing Act. The Navajo Nation Trust Leasing Act was intended to 
``revitalize the distressed Navajo Reservation by promoting political 
self-determination, and encouraging economic self-sufficiency, 
including economic development that increases productivity and the 
standard of living for members of the Navajo Nation.'' Public Law 106-
568 Sec.  1202, 114 Stat. 2933 (Dec. 27, 2000). Moreover, the Navajo 
Nation Trust Leasing Act was the model for the HEARTH (Helping Expedite 
and Advance Responsible Tribal Homeownership) Act of 2012, for which 
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).
    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 Navajo Nation Trust Leasing Act pervasively cover all aspects 
of leasing. Furthermore, the Federal government remains involved in the 
tribal land leasing process by approving the tribal leasing regulations 
in the first instance. The Secretary also retains authority to take 
``all appropriate actions . . . in furtherance of the trust obligation 
of the United States to the Navajo Nation'' and necessary actions 
remedy violations of tribal regulations, including cancelling the lease 
or rescinding approval of the tribal regulations and reassuming lease 
approval responsibilities. 25 U.S.C. 415(e). Moreover, the Secretary 
continues to review, approve, and

[[Page 69693]]

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 
Navajo Nation.

    Dated: November 2, 2015.
Kevin K. Washburn,
Assistant Secretary, Indian Affairs.
[FR Doc. 2015-28476 Filed 11-9-15; 8:45 am]
BILLING CODE 4337-15-P

69692 Federal Register / Vol. 80, No. 217 / Tuesday, November 10, 2015 / Notices

Send comments to Summer King, This notice announces that the Act. The Navajo Nation Trust Leasing
SAMHSA Reports Clearance Officer, Secretary, through the Assistant Act was intended to ‘‘revitalize the
Room 2–1057, One Choke Cherry Road, Secretary—Indian Affairs, has approved distressed Navajo Reservation by
Rockville, MD 20857 or email her a the tribal regulations for the Navajo promoting political self-determination,
copy at summer.king@samhsa.hhs.gov. Nation. and encouraging economic self-
Written comments should be received sufficiency, including economic
II. Federal Preemption of State and
by January 11, 2016. development that increases productivity
Local Taxes
and the standard of living for members
Summer King, The Department’s regulations of the Navajo Nation.’’ Public Law 106–
Statistician. governing the surface leasing of trust 568 § 1202, 114 Stat. 2933 (Dec. 27,
[FR Doc. 2015–28558 Filed 11–9–15; 8:45 am] and restricted Indian lands specify that, 2000). Moreover, the Navajo Nation
BILLING CODE 4162–20–P subject to applicable Federal law, Trust Leasing Act was the model for the
permanent improvements on leased HEARTH (Helping Expedite and
land, leasehold or possessory interests, Advance Responsible Tribal
DEPARTMENT OF THE INTERIOR and activities under the lease are not Homeownership) Act of 2012, for which
subject to State and local taxation and Congress’s overarching intent was to
Bureau of Indian Affairs may be subject to taxation by the Indian ‘‘allow tribes to exercise greater control
tribe with jurisdiction. See 25 CFR over their own land, support self-
[156A2100DD/AAKC001030/
A0A501010.999900 253G] 162.017. As explained further in the determination, and eliminate
preamble to the final regulations, the bureaucratic delays that stand in the
Navajo Nation Trust Leasing Act of Federal government has a strong interest way of homeownership and economic
2000 Approval of Navajo Nation in promoting economic development, development in tribal communities.’’
Regulations self-determination, and tribal 158 Cong. Rec. H. 2682 (May 15, 2012).
sovereignty. 77 FR 72,440, 72,447–48 Assessment of State and local taxes
AGENCY: Bureau of Indian Affairs, (December 5, 2012). The principles would obstruct these express Federal
Interior. supporting the Federal preemption of policies supporting tribal economic
ACTION: Notice. State law in the field of Indian leasing development and self-determination,
and the taxation of lease-related and also threaten substantial tribal
SUMMARY: On May 16, 2014, the Bureau interests and activities applies with interests in effective tribal government,
of Indian Affairs (BIA) approved the equal force to leases entered into under economic self-sufficiency, and territorial
Navajo Nation General Leasing tribal leasing regulations approved by autonomy. See Michigan v. Bay Mills
Regulations under the Navajo Nation the Federal government pursuant to the Indian Community, 134 S. Ct. 2024,
Trust Leasing Act of 2000. With this Navajo Nation Trust Leasing Act. 2043 (2014) (Sotomayor, J., concurring)
approval, the Tribe is authorized to Section 5 of the Indian Reorganization (determining that ‘‘[a] key goal of the
enter into leases without BIA approval. Act, 25 U.S.C. 465, preempts State and Federal Government is to render Tribes
FOR FURTHER INFORMATION CONTACT: Ms. local taxation of permanent more self-sufficient, and better
Cynthia Morales, Office of Trust improvements on trust land. positioned to fund their own sovereign
Services—Division of Realty, Bureau of Confederated Tribes of the Chehalis functions, rather than relying on Federal
Indian Affairs; Telephone (202) 768– Reservation v. Thurston County, 724 funding’’). The additional costs of State
4166; Email cynthia.morales@bia.gov. F.3d 1153, 1157 (9th Cir. 2013) (citing and local taxation have a chilling effect
SUPPLEMENTARY INFORMATION: Mescalero Apache Tribe v. Jones, 411 on potential lessees, as well as on a tribe
U.S. 145 (1973)). In addition, as that, as a result, might refrain from
I. Summary of the Navajo Nation Trust
explained in the preamble to the revised exercising its own sovereign right to
Leasing Act of 2000
leasing regulations at 25 CFR part 162, impose a tribal tax to support its
The Navajo Nation Trust Leasing Act Federal courts have applied a balancing infrastructure needs. See id. at 2043–44
authorizes the Nation to issue leases for test to determine whether State and (finding that State and local taxes
purposes authorized under 25 U.S.C. local taxation of non-Indians on the greatly discourage tribes from raising tax
415(a) without the approval of the reservation is preempted. White revenue from the same sources because
Secretary, provided the lease is Mountain Apache Tribe v. Bracker, 448 the imposition of double taxation would
executed under tribal regulations U.S. 136, 143 (1980). The Bracker impede tribal economic growth).
approved by the Secretary. Congress balancing test, which is conducted Just like BIA’s surface leasing
enacted the Leasing Act in 2000, to against a backdrop of ‘‘traditional regulations, tribal regulations under the
‘‘establish a streamlined process for the notions of Indian self-government,’’ Navajo Nation Trust Leasing Act
Navajo Nation to lease trust lands requires a particularized examination of pervasively cover all aspects of leasing.
without having the approval of the the relevant State, Federal, and tribal Furthermore, the Federal government
Secretary of the Interior for individual interests. We hereby adopt the Bracker remains involved in the tribal land
leases,’’ and ‘‘[t]o maintain, strengthen, analysis from the preamble to the leasing process by approving the tribal
and protect the Navajo Nation’s leasing surface leasing regulations, 77 FR at leasing regulations in the first instance.
power over Navajo trust lands.’’ Public 72,447–48, as supplemented by the The Secretary also retains authority to
Law 106–568 § 1202, 114 Stat. 2933 analysis below. take ‘‘all appropriate actions . . . in
(Dec. 27, 2000). See also S. Rpt. 106–511 The strong Federal and tribal interests furtherance of the trust obligation of the
asabaliauskas on DSK5VPTVN1PROD with NOTICES

(Oct. 31, 2000). The Navajo Nation Trust against State and local taxation of United States to the Navajo Nation’’ and
Leasing Act requires the Secretary to improvements, leaseholds, and necessary actions remedy violations of
approve tribal regulations if the tribal activities on land leased under the tribal regulations, including cancelling
regulations are consistent with the Department’s leasing regulations apply the lease or rescinding approval of the
Department’s leasing regulations at 25 equally to improvements, leaseholds, tribal regulations and reassuming lease
CFR part 162 and provide for an and activities on land leased pursuant to approval responsibilities. 25 U.S.C.
environmental review process that tribal leasing regulations approved 415(e). Moreover, the Secretary
meets requirements set forth in the Act. under the Navajo Nation Trust Leasing continues to review, approve, and

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Federal Register / Vol. 80, No. 217 / Tuesday, November 10, 2015 / Notices 69693

monitor individual Indian land leases Las Cruces, New Mexico 88005; the entail the upgrade of approximately 120
and other types of leases not covered BLM New Mexico State Office, 301 miles of Western’s existing Saguaro-
under the tribal regulations according to Dinosaur Trail, Santa Fe, New Mexico Tucson and Tucson-Apache 115-kV
the Part 162 regulations. 87508; the BLM Arizona State Office, transmission line in a 100-foot existing
Accordingly, the Federal and tribal One North Central Avenue, Suite 800, ROW to a double-circuit 230-kV
interests weigh heavily in favor of Phoenix, Arizona 85004; the BLM transmission line in a 100 to 150-foot
preemption of State and local taxes on Safford Field Office, 711 14th Avenue, ROW (Apache-Saguaro or Upgrade
lease-related activities and interests, Safford, Arizona 85546; and the BLM Section). The Upgrade Section would
regardless of whether the lease is Tucson Field Office, 3201 East originate at the Apache Substation and
governed by tribal leasing regulations or Universal Way, Tucson, Arizona 85756. terminate at the Saguaro Substation
Part 162. Improvements, activities, and The Final EIS and supporting northwest of Tucson, Arizona. Both new
leasehold or possessory interests may be documents are available electronically permanent ROWs and temporary
subject to taxation by the Navajo Nation. on the Project Web site at: http:// construction ROWs would be required
Dated: November 2, 2015. www.blm.gov/nm/southline. in the New Build Section and in some
Kevin K. Washburn, FOR FURTHER INFORMATION CONTACT: portions of the Upgrade Section for the
Assistant Secretary, Indian Affairs. Mark Mackiewicz, PMP, BLM Senior transmission line, access roads, and
National Project Manager; telephone other permanent and temporary Project
[FR Doc. 2015–28476 Filed 11–9–15; 8:45 am]
(435) 636–3616; email: mmackiew@ components.
BILLING CODE 4337–15–P
blm.gov. For information about The proposed Project would involve
Western’s involvement, contact Mark the interconnection with and expansion
DEPARTMENT OF THE INTERIOR Wieringa, Western NEPA Document and upgrade of 14 existing substations
Manager; telephone (720) 962–7448; in southern Arizona and New Mexico,
Bureau of Land Management email: wieringa@wapa.gov. For general as well as the potential construction of
information on the Department of a new 345-kV substation facility in New
DEPARTMENT OF ENERGY Energy’s (DOE) NEPA review Mexico. The Project would also include
procedures or on the status of a NEPA installation of a fiber optic network
Western Area Power Administration review, contact Carol M. Borgstrom, communications system. Fee ownership
Director of NEPA Policy and would only be considered for
[LLNM930000 L51010000.ER0000 substations or substation expansions; all
Compliance, GC–54, U.S. Department of
LVRWG14G0790 14XL5017AP]
Energy, 1000 Independence Avenue other land rights acquired on non-
Notice of Availability of the Southline SW., Washington, DC 20585–0119, federal lands would be through
Transmission Line Project Final telephone (202) 586–4600 or toll free at easements or leases. The New Build
Environmental Impact Statement (DOE/ (800) 472–2756, fax (202) 586–7031, Section (Afton-Apache) would include
EIS–0474), New Mexico and Arizona email askNEPA@hq.doe.gov. construction and operation of:
Persons who use a • 205 miles of 345-kV double-circuit
AGENCY: Bureau of Land Management, telecommunications device for the deaf electric transmission line as well as
Interior; Western Area Power (TDD) may call the Federal Information associated roads and ancillary facilities
Administration, DOE. Relay Service (FIRS) at (800) 877–8339 in New Mexico and Arizona with a
ACTION: Notice of availability. to contact the above individual during planned bidirectional capacity of up to
normal business hours. The FIRS is 1,000 MW. This section is defined by
SUMMARY: In accordance with the available 24 hours a day, 7 days a week, endpoints at the existing Afton
National Environmental Policy Act of to leave a message or question with the Substation, south of Las Cruces in Doña
1969 (NEPA), as amended, and the above individual. You will receive a Ana County, New Mexico, and
Federal Land Policy and Management reply during normal business hours. Western’s existing Apache Substation,
Act of 1976 (FLPMA), as amended, the south of Willcox in Cochise County,
SUPPLEMENTARY INFORMATION: Southline
Bureau of Land Management (BLM) and Arizona;
Transmission, LLC (Southline), the
the Western Area Power Administration • 5 miles of 345-kV single-circuit
proponent, has filed a right-of-way
(Western) have prepared a Final electric transmission line between the
(ROW) application with the BLM
Environmental Impact Statement (EIS) existing Afton Substation and the
pursuant to Title V of FLPMA,
for the proposed Southline existing Luna-Diablo 345-kV
proposing to construct, operate,
Transmission Line Project (Project), and transmission line;
maintain, and eventually decommission
by this notice are announcing its • 30 miles of 345-kV double-circuit
a high-voltage, alternating current
availability. electric transmission line between New
electric transmission line. The BLM and
DATES: Neither the BLM nor Western Western agreed to be joint lead agencies Mexico State Route 9 and Interstate 10
will issue a final decision on the in accordance with 40 CFR 1501.5(b). east of Deming in Luna County, New
proposed Project for a minimum of 30 Western is a power-marketing agency Mexico, to provide access for potential
days after the date that the within the DOE and is also a participant renewable energy generation sources in
Environmental Protection Agency in the proposed Project with Southline. southern New Mexico. This segment of
publishes its Notice of Availability in The proposed Project would consist of the proposed Project is included in the
the Federal Register. two sections. The first section would analysis, however, development of this
asabaliauskas on DSK5VPTVN1PROD with NOTICES

ADDRESSES: Copies of the Southline entail construction of approximately segment would be determined at a later
Transmission Line Project Final EIS 240 miles of new double-circuit 345- date;
have been sent to affected Federal, State, kilovolt (kV) transmission line in a 200- • One potential new substation on
and local government agencies as well foot ROW between the Afton Substation, approximately 25 acres of land in Luna
as to other stakeholders. Copies of the south of Las Cruces, New Mexico, and County, New Mexico (proposed
Final EIS are available for public Apache Substation, south of Willcox, Midpoint Substation), to provide an
inspection at the BLM Las Cruces Arizona (Afton-Apache or New Build intermediate connection point for future
District Office, 1800 Marquess Street, Section). The second section would interconnection requests; and

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Document Created: 2018-03-01 11:25:26
Document Modified: 2018-03-01 11:25:26

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 69692

80 FR 69692 - Navajo Nation Trust Leasing Act of 2000 Approval of Navajo Nation Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 80, Issue 217 (November 10, 2015)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs