80 FR 77655 - HEARTH Act Approval of Gila River Indian Community Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 80, Issue 240 (December 15, 2015)
Bureau of Indian Affairs
Federal Register Volume 80, Issue 240 (December 15, 2015)
| Page Range | 77655-77656 | |
| FR Document | 2015-31565 |
[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)] [Notices] [Pages 77655-77656] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-31565] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [167A2100DD/AAKC001030/A0A501010.999900 253G] HEARTH Act Approval of Gila River Indian Community Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On November 20, 2015, the Bureau of Indian Affairs (BIA) approved the Gila River Indian Community leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into the following types of leases without BIA approval: Commercial leases and solar resource leases. FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C Street NW., Washington, DC 20240, at (202) 208-3615. 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 Gila River Indian Community. 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, 77 FR 72447 (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)). Similarly, section 465 preempts state taxation of rent payments by a lessee for leased trust lands, because ``tax on the payment of rent is indistinguishable from an impermissible tax on the land.'' See Seminole Tribe of Florida v. Stranburg, No. 14- 14524, *13-*17, n.8 (11th Cir. 2015). 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 [[Page 77656]] regulations, 77 FR 72447, 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 Gila River Indian Community. Dated: November 20, 2015. Kevin K. Washburn, Assistant Secretary--Indian Affairs. [FR Doc. 2015-31565 Filed 12-14-15; 8:45 am] BILLING CODE 4337-15-P
![Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices 77655
information, it would be impossible to working with rural housing Estimated Number of Respondents:
determine which applicants were development organizations, community 30.
eligible for award. development corporations (CDCs), Estimated Number of Responses: 1.
Respondents (i.e. affected public): community housing development Frequency of Response: Annual.
National organizations with expertise in organizations (CHDOs), local Average Hours per Response: 40.
rural housing and community governments, and Indian tribes. Total Estimated Burdens Hours: 1200
development, including experience hours.
Number of Frequency of Responses Burden hour Annual burden Hourly cost
Information collection Annual cost
respondents response per annum per response hours per response
Total ............................. 30 1 1 40 1200 $45 $54,000
B. Solicitation of Public Comment Act. With this approval, the Tribe is and restricted Indian lands specify that,
This notice is soliciting comments authorized to enter into the following subject to applicable Federal law,
from members of the public and affected types of leases without BIA approval: permanent improvements on leased
parties concerning the collection of Commercial leases and solar resource land, leasehold or possessory interests,
information described in Section A on leases. and activities under the lease are not
the following: FOR FURTHER INFORMATION CONTACT: Ms. subject to State and local taxation and
(1) Whether the proposed collection Sharlene Round Face, Bureau of Indian may be subject to taxation by the Indian
of information is necessary for the Affairs, Division of Real Estate Services, Tribe with jurisdiction. See 25 CFR
proper performance of the functions of 162.017. As explained further in the
MS–4642–MIB, 1849 C Street NW.,
the agency, including whether the preamble to the final regulations, the
Washington, DC 20240, at (202) 208–
information will have practical utility; Federal government has a strong interest
3615.
(2) The accuracy of the agency’s in promoting economic development,
SUPPLEMENTARY INFORMATION: self-determination, and Tribal
estimate of the burden of the proposed
collection of information; I. Summary of the HEARTH Act sovereignty. 77 FR 72440, 77 FR 72447
(3) Ways to enhance the quality, (December 5, 2012). The principles
The HEARTH (Helping Expedite and supporting the Federal preemption of
utility, and clarity of the information to Advance Responsible Tribal
be collected; and State law in the field of Indian leasing
Homeownership) Act of 2012 (the Act) and the taxation of lease-related
(4) Ways to minimize the burden of makes a voluntary, alternative land
the collection of information on those interests and activities applies with
leasing process available to Tribes, by equal force to leases entered into under
who are to respond; including through amending the Indian Long-Term Leasing
the use of appropriate automated Tribal leasing regulations approved by
Act of 1955, 25 U.S.C. 415. The Act the Federal government pursuant to the
collection techniques or other forms of authorizes Tribes to negotiate and enter HEARTH Act.
information technology, e.g., permitting into agricultural and business leases of Section 5 of the Indian Reorganization
electronic submission of responses. Tribal trust lands with a primary term Act, 25 U.S.C. 465, preempts State and
HUD encourages interested parties to of 25 years, and up to two renewal terms local taxation of permanent
submit comment in response to these of 25 years each, without the approval improvements on trust land.
questions. of the Secretary of the Interior. The Act Confederated Tribes of the Chehalis
Authority: Section 3507 of the Paperwork also authorizes Tribes to enter into Reservation v. Thurston County, 724
Reduction Act of 1995, 44 U.S.C. chapter 35. leases for residential, recreational, F.3d 1153, 1157 (9th Cir. 2013) (citing
Dated: December 9, 2015. religious, or educational purposes for a Mescalero Apache Tribe v. Jones, 411
Colette Pollard, primary term of up to 75 years without U.S. 145 (1973)). Similarly, section 465
Department Reports Management Officer, the approval of the Secretary. preempts state taxation of rent payments
Office of the Chief Information Officer. Participating Tribes develop Tribal by a lessee for leased trust lands,
[FR Doc. 2015–31507 Filed 12–14–15; 8:45 am] leasing regulations, including an because ‘‘tax on the payment of rent is
BILLING CODE 4210–67–P
environmental review process, and then indistinguishable from an impermissible
must obtain the Secretary’s approval of tax on the land.’’ See Seminole Tribe of
those regulations prior to entering into Florida v. Stranburg, No. 14–14524,
leases. The Act requires the Secretary to *13–*17, n.8 (11th Cir. 2015). In
DEPARTMENT OF THE INTERIOR addition, as explained in the preamble
approve Tribal regulations if the Tribal
Bureau of Indian Affairs regulations are consistent with the to the revised leasing regulations at 25
Department’s leasing regulations at 25 CFR part 162, Federal courts have
[167A2100DD/AAKC001030/ CFR part 162 and provide for an applied a balancing test to determine
A0A501010.999900 253G] environmental review process that whether State and local taxation of non-
meets requirements set forth in the Act. Indians on the reservation is preempted.
HEARTH Act Approval of Gila River White Mountain Apache Tribe v.
Indian Community Regulations This notice announces that the
Bracker, 448 U.S. 136, 143 (1980). The
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Secretary, through the Assistant
AGENCY: Bureau of Indian Affairs, Secretary—Indian Affairs, has approved Bracker balancing test, which is
Interior. the Tribal regulations for the Gila River conducted against a backdrop of
ACTION: Notice. Indian Community. ‘‘traditional notions of Indian self-
government,’’ requires a particularized
SUMMARY: On November 20, 2015, the II. Federal Preemption of State and examination of the relevant State,
Bureau of Indian Affairs (BIA) approved Local Taxes Federal, and Tribal interests. We hereby
the Gila River Indian Community The Department’s regulations adopt the Bracker analysis from the
leasing regulations under the HEARTH governing the surface leasing of trust preamble to the surface leasing
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![77656 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices
regulations, 77 FR 72447, as the development of an environmental comments should be submitted to OMB
supplemented by the analysis below. review process. The Secretary also by January 14, 2016, in order to be
The strong Federal and Tribal retains authority to take any necessary assured of consideration.
interests against State and local taxation actions to remedy violations of a lease ADDRESSES: Send your written
of improvements, leaseholds, and or of the Tribal regulations, including comments by facsimile (202) 395–5806
activities on land leased under the terminating the lease or rescinding or email (OIRA_Submission@
Department’s leasing regulations apply approval of the Tribal regulations and omb.eop.gov) to the Office of
equally to improvements, leaseholds, reassuming lease approval Information and Regulatory Affairs,
and activities on land leased pursuant to responsibilities. Moreover, the Secretary Office of Management and Budget,
Tribal leasing regulations approved continues to review, approve, and Attention: Department of the Interior
under the HEARTH Act. Congress’s monitor individual Indian land leases Desk Officer (1093–0005). Also, please
overarching intent was to ‘‘allow Tribes and other types of leases not covered send a copy of your comments to the
to exercise greater control over their under the Tribal regulations according U.S. Department of the Interior, Office
own land, support self-determination, to the Part 162 regulations. of the Secretary, Office of Budget, Attn.
and eliminate bureaucratic delays that Accordingly, the Federal and Tribal Dionna Kiernan, 1849 C St. NW., MS
stand in the way of homeownership and interests weigh heavily in favor of 7413 MIB, Washington, DC 20240. Send
economic development in Tribal preemption of State and local taxes on any faxed comments to (202) 219–2849,
communities.’’ 158 Cong. Rec. H. 2682 lease-related activities and interests, Attn. Dionna Kiernan. Comments may
(May 15, 2012). The HEARTH Act was regardless of whether the lease is also be emailed to dionna_kiernan@
intended to afford Tribes ‘‘flexibility to governed by Tribal leasing regulations ios.doi.gov.
adapt lease terms to suit [their] business or Part 162. Improvements, activities,
and cultural needs’’ and to ‘‘enable FOR FURTHER INFORMATION CONTACT:
and leasehold or possessory interests Requests for additional information or
[Tribes] to approve leases quickly and may be subject to taxation by the Gila
efficiently.’’ Id. at 5–6. copies of the information collection
River Indian Community. instrument should be directed to the
Assessment of State and local taxes
would obstruct these express Federal Dated: November 20, 2015. U.S. Department of the Interior, Office
policies supporting Tribal economic Kevin K. Washburn, of the Secretary, Office of Budget, Attn.
development and self-determination, Assistant Secretary—Indian Affairs. Dionna Kiernan, 1849 C St. NW., MS
and also threaten substantial Tribal [FR Doc. 2015–31565 Filed 12–14–15; 8:45 am] 7413 MIB, Washington, DC 20240.
interests in effective Tribal government, BILLING CODE 4337–15–P
Requests for additional information may
economic self-sufficiency, and territorial also be emailed to dionna_kiernan@
autonomy. See Michigan v. Bay Mills ios.doi.gov or faxed to (202) 219–2849.
Indian Community, 134 S. Ct. 2024, DEPARTMENT OF THE INTERIOR You may also review the information
2043 (2014) (Sotomayor, J., concurring) collection request online at http://
(determining that ‘‘[a] key goal of the Office of the Secretary www.reginfo.gov/public/do/PRAMain.
Federal Government is to render Tribes [166D1114PD DPD000000.000000 SUPPLEMENTARY INFORMATION:
more self-sufficient, and better DS62100000 DX.62101] I. Abstract
positioned to fund their own sovereign
functions, rather than relying on Federal Renewal of Information Collection for: Public Law 97–258 (31 U.S.C. 6901–
funding’’). The additional costs of State OMB Control Number—1093–0005— 6907), as amended, the Payments in
and local taxation have a chilling effect Payments in Lieu of Taxes (PILT) Act, Lieu of Taxes (PILT) Act, was designed
on potential lessees, as well as on a Statement of Federal Lands Payments, by Congress to help local governments
Tribe that, as a result, might refrain from (43 CFR 44) recover some of the expenses they incur
exercising its own sovereign right to in providing services on public lands.
impose a Tribal tax to support its AGENCY: Office of the Secretary, Office These local governments receive funds
infrastructure needs. See id. at 2043–44 of Budget, Department of the Interior. under various Federal land payment
(finding that State and local taxes ACTION: Notice and request for programs such as the National Forest
greatly discourage Tribes from raising comments. Revenue Act, the Mineral Lands Leasing
tax revenue from the same sources Act, and the Taylor Grazing Act. PILT
SUMMARY: In compliance with the payments supplement the payments
because the imposition of double
Paperwork Reduction Act of 1995, the local governments receive under these
taxation would impede Tribal economic
Office of Budget, Office of the Secretary, other programs. The FY 2016 budget
growth).
Just like BIA’s surface leasing and Department of the Interior (DOI), proposes a one-year extension of the
regulations, Tribal regulations under the announces the proposed extension of a current PILT program, maintaining the
HEARTH Act pervasively cover all public information collection required existing formula for calculating
aspects of leasing. See Guidance for the by the Payments in Lieu of Taxes (PILT) payments to counties. That proposal is
Approval of Tribal Leasing Regulations Act and seeks public comments on the currently pending before Congress. This
under the HEARTH Act, NPM–TRUS– provisions thereof. In compliance with renewal authority is being done in
29 (effective Jan. 16, 2013) (providing the Paperwork Reduction Act of 1995, anticipation of reauthorization by
guidance on Federal review process to the Office of Budget has submitted a Congress.
ensure consistency of proposed Tribal request for renewal of approval of this The PILT Act requires the Governor of
asabaliauskas on DSK5VPTVN1PROD with NOTICES
regulations with Part 162 regulations information collection to the Office of each State to furnish the Department of
and listing required Tribal regulatory Management and Budget (OMB), and the Interior with a listing of payments
provisions). Furthermore, the Federal requests public comments on this disbursed to local governments by the
government remains involved in the submission. States on behalf of the Federal
Tribal land leasing process by approving DATES: OMB has up to 60 days to Government under 12 statutes described
the Tribal leasing regulations in the first approve or disapprove the information in Section 6903 of 31 U.S.C. The
instance and providing technical collection request, but may respond Department of the Interior uses the
assistance, upon request by a Tribe, for after 30 days; therefore, public amounts reported by the States to
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Document Created: 2018-03-02 09:16:36
Document Modified: 2018-03-02 09:16:36
| 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. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C Street NW., Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 80 FR 77655 |
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