81 FR 13817 - HEARTH Act Approval of Shakopee Mdewakanton Sioux Community Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 81, Issue 50 (March 15, 2016)

Page Range		13817-13818
FR Document		2016-05807

On March 3, 2016, the Bureau of Indian Affairs (BIA) approved the Shakopee Mdewakanton Sioux Community 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 site leases.

Federal Register, Volume 81 Issue 50 (Tuesday, March 15, 2016)

[Federal Register Volume 81, Number 50 (Tuesday, March 15, 2016)]
[Notices]
[Pages 13817-13818]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-05807]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[167 A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Shakopee Mdewakanton Sioux Community 
Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On March 3, 2016, the Bureau of Indian Affairs (BIA) approved 
the Shakopee Mdewakanton Sioux Community 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 site 
leases.

FOR FURTHER INFORMATION CONTACT: 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 of the Interior's (the 
Department) 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 
Shakopee Mdewakanton Sioux 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 at 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)). 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 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

[[Page 13818]]

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 
Shakopee Mdewakanton Sioux Community.

    Dated: March 3, 2016.
Lawrence S. Roberts,
Assistant Secretary--Indian Affairs.
[FR Doc. 2016-05807 Filed 3-14-16; 8:45 am]
 BILLING CODE 4337-15-P

Federal Register / Vol. 81, No. 50 / Tuesday, March 15, 2016 / Notices 13817

information technology, e.g., permitting those regulations prior to entering into notions of Indian self-government,’’
electronic submission of responses. leases. The Act requires the Secretary to requires a particularized examination of
HUD encourages interested parties to approve Tribal regulations if the Tribal the relevant State, Federal, and Tribal
submit comment in response to these regulations are consistent with the interests. We hereby adopt the Bracker
questions. Department of the Interior’s (the analysis from the preamble to the
Authority: Section 3507 of the Paperwork Department) leasing regulations at 25 surface leasing regulations, 77 FR at
Reduction Act of 1995, 44 U.S.C. Chapter 35. CFR part 162 and provide for an 72447–48, as supplemented by the
environmental review process that analysis below.
Dated: March 10, 2016.
meets requirements set forth in the Act. The strong Federal and Tribal
Colette Pollard, interests against State and local taxation
This notice announces that the
Department Reports Management Officer, Secretary, through the Assistant of improvements, leaseholds, and
Office of the Chief Information Officer. activities on land leased under the
Secretary—Indian Affairs, has approved
[FR Doc. 2016–05779 Filed 3–14–16; 8:45 am] the Tribal regulations for the Shakopee Department’s leasing regulations apply
BILLING CODE 4210–67–P Mdewakanton Sioux Community. equally to improvements, leaseholds,
and activities on land leased pursuant to
II. Federal Preemption of State and Tribal leasing regulations approved
DEPARTMENT OF THE INTERIOR Local Taxes under the HEARTH Act. Congress’s
The Department’s regulations overarching intent was to ‘‘allow Tribes
Bureau of Indian Affairs governing the surface leasing of trust to exercise greater control over their
[167 A2100DD/AAKC001030/ and restricted Indian lands specify that, own land, support self-determination,
A0A501010.999900] subject to applicable Federal law, and eliminate bureaucratic delays that
permanent improvements on leased stand in the way of homeownership and
HEARTH Act Approval of Shakopee land, leasehold or possessory interests, economic development in Tribal
Mdewakanton Sioux Community and activities under the lease are not communities.’’ 158 Cong. Rec. H. 2682
Regulations subject to State and local taxation and (May 15, 2012). The HEARTH Act was
may be subject to taxation by the Indian intended to afford Tribes ‘‘flexibility to
AGENCY: Bureau of Indian Affairs, Tribe with jurisdiction. See 25 CFR adapt lease terms to suit [their] business
Interior. 162.017. As explained further in the and cultural needs’’ and to ‘‘enable
ACTION: Notice. preamble to the final regulations, the [Tribes] to approve leases quickly and
SUMMARY: On March 3, 2016, the Bureau Federal government has a strong interest efficiently.’’ Id. at 5–6.
of Indian Affairs (BIA) approved the in promoting economic development, Assessment of State and local taxes
Shakopee Mdewakanton Sioux self-determination, and Tribal would obstruct these express Federal
Community leasing regulations under sovereignty. 77 FR 72440 at 72447–48 policies supporting Tribal economic
the HEARTH Act. With this approval, (December 5, 2012). The principles development and self-determination,
supporting the Federal preemption of and also threaten substantial Tribal
the Tribe is authorized to enter into the
State law in the field of Indian leasing interests in effective Tribal government,
following type of leases without BIA
and the taxation of lease-related economic self-sufficiency, and territorial
approval: Business site leases.
interests and activities applies with autonomy. See Michigan v. Bay Mills
FOR FURTHER INFORMATION CONTACT:
equal force to leases entered into under Indian Community, 134 S. Ct. 2024,
Sharlene Round Face, Bureau of Indian Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring)
Affairs, Division of Real Estate Services, the Federal government pursuant to the (determining that ‘‘[a] key goal of the
MS–4642–MIB, 1849 C Street NW., HEARTH Act. Federal Government is to render Tribes
Washington, DC 20240, at (202) 208– Section 5 of the Indian Reorganization more self-sufficient, and better
3615. Act, 25 U.S.C. 465, preempts State and positioned to fund their own sovereign
SUPPLEMENTARY INFORMATION: local taxation of permanent functions, rather than relying on Federal
improvements on trust land. funding’’). The additional costs of State
I. Summary of the HEARTH Act Confederated Tribes of the Chehalis and local taxation have a chilling effect
The HEARTH (Helping Expedite and Reservation v. Thurston County, 724 on potential lessees, as well as on a
Advance Responsible Tribal F.3d 1153, 1157 (9th Cir. 2013) (citing Tribe that, as a result, might refrain from
Homeownership) Act of 2012 (the Act) Mescalero Apache Tribe v. Jones, 411 exercising its own sovereign right to
makes a voluntary, alternative land U.S. 145 (1973)). Similarly, section 465 impose a Tribal tax to support its
leasing process available to Tribes, by preempts State taxation of rent infrastructure needs. See id. at 2043–44
amending the Indian Long-Term Leasing payments by a lessee for leased trust (finding that State and local taxes
Act of 1955, 25 U.S.C. 415. The Act lands, because ‘‘tax on the payment of greatly discourage Tribes from raising
authorizes Tribes to negotiate and enter rent is indistinguishable from an tax revenue from the same sources
into agricultural and business leases of impermissible tax on the land.’’ See because the imposition of double
Tribal trust lands with a primary term Seminole Tribe of Florida v. Stranburg, taxation would impede Tribal economic
of 25 years, and up to two renewal terms No. 14–14524, *13–*17, n.8 (11th Cir. growth).
of 25 years each, without the approval 2015). In addition, as explained in the Just like BIA’s surface leasing
of the Secretary of the Interior. The Act preamble to the revised leasing regulations, Tribal regulations under the
also authorizes Tribes to enter into regulations at 25 CFR part 162, Federal HEARTH Act pervasively cover all
asabaliauskas on DSK3SPTVN1PROD with NOTICES

leases for residential, recreational, courts have applied a balancing test to aspects of leasing. See Guidance for the
religious, or educational purposes for a determine whether State and local Approval of Tribal Leasing Regulations
primary term of up to 75 years without taxation of non-Indians on the under the HEARTH Act, NPM–TRUS–
the approval of the Secretary. reservation is preempted. White 29 (effective Jan. 16, 2013) (providing
Participating Tribes develop Tribal Mountain Apache Tribe v. Bracker, 448 guidance on Federal review process to
leasing regulations, including an U.S. 136, 143 (1980). The Bracker ensure consistency of proposed Tribal
environmental review process, and then balancing test, which is conducted regulations with part 162 regulations
must obtain the Secretary’s approval of against a backdrop of ‘‘traditional and listing required Tribal regulatory

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13818 Federal Register / Vol. 81, No. 50 / Tuesday, March 15, 2016 / Notices

provisions). Furthermore, the Federal DATES: To ensure that we are able to 13, and 43 CFR part 36. Routes and
government remains involved in the consider your comments on this IC, we areas may be designated for OSV use
Tribal land leasing process by approving must receive them by May 16, 2016. only by special regulation after it has
the Tribal leasing regulations in the first ADDRESSES: Please send your comments first been determined through park
instance and providing technical on the ICR to Madonna L. Baucum, planning to be an appropriate use that
assistance, upon request by a Tribe, for Information Collection Clearance will meet the requirements of 36 CFR
the development of an environmental Officer, National Park Service, 12201 2.18 and not otherwise result in
review process. The Secretary also Sunrise Valley Drive, Room 2C114, Mail unacceptable impacts.
retains authority to take any necessary Stop 242, Reston, VA 20192 (mail); or Information collection requirements
actions to remedy violations of a lease madonna_baucum@nps.gov (email). in this renewal request include:
or of the Tribal regulations, including Please include ‘‘1024–0266’’ in the (1) Emission and Sound Standards
terminating the lease or rescinding subject line of your comments. (§ 7.13(l)(4)(vii) and (5)). Only OSVs that
approval of the Tribal regulations and meet NPS emission and sound
FOR FURTHER INFORMATION CONTACT: To
reassuming lease approval standards may operate in the park.
request additional information about Before the start of each winter season:
responsibilities. Moreover, the Secretary this IC, contact Christina Mills, Outdoor
continues to review, approve, and (a) Snowcoach manufacturers or
Recreation Planner, Yellowstone commercial tour operators must
monitor individual Indian land leases
National Park, National Park Service, demonstrate, by means acceptable to the
and other types of leases not covered
P.O. Box 168, Yellowstone National Superintendent, that their snowcoaches
under the Tribal regulations according
Park, WY 82190; (307) 344–2320 meet the standards.
to the part 162 regulations.
Accordingly, the Federal and Tribal (phone); or christina_mills@nps.gov@ (b) Snowmobile manufacturers must
interests weigh heavily in favor of nps.gov. Please reference ‘‘1024–0266’’ demonstrate, by means acceptable to the
preemption of State and local taxes on in your communication. Superintendent, that their snowmobiles
lease-related activities and interests, SUPPLEMENTARY INFORMATION: meet the standards.
regardless of whether the lease is (2) Transportation Events
I. Abstract
governed by Tribal leasing regulations (§ 7.13(l)(11)(i)–(iii)). So that we can
or part 162. Improvements, activities, The Yellowstone National Park monitor compliance with the required
and leasehold or possessory interests Organic Act (16 U.S.C. 21 and 22), average and maximum size of
may be subject to taxation by the signed March 1, 1872, established transportation events, as of December
Shakopee Mdewakanton Sioux Yellowstone National Park to ‘‘dedicate 15, 2014, each commercial tour operator
Community. and set apart as a public park or must:
pleasuring-ground for the benefit and (a) Maintain accurate and complete
Dated: March 3, 2016. enjoyment of the people’’ and ‘‘for the records on the number of snowmobiles
Lawrence S. Roberts, preservation, from injury or spoliation, and snowcoaches he or she brings into
Assistant Secretary—Indian Affairs. of all timber, mineral deposits, natural the park on a daily basis. These records
[FR Doc. 2016–05807 Filed 3–14–16; 8:45 am] curiosities, or wonders within said park, must be made available for inspection
BILLING CODE 4337–15–P and their retention in their natural by the park upon request.
condition’’ The Organic Act of 1916 (16 (b) Provide a monthly use report on
U.S.C. 1 et seq.) authorizes the Secretary their activities. We will use a form,
DEPARTMENT OF THE INTERIOR of the Interior to develop regulations for which will be available on the park Web
national park units under the site, to collect the following information
National Park Service
Department’s jurisdiction. for transportation events:
[NPS–IMR–YELL–20564; PPIMYELL1W, We (NPS) provide opportunities for • Report Month/Year
PROIESUC1.380000 (166)] people to experience Yellowstone in the • Contract Number
winter via oversnow vehicles • Departure Date
Proposed Information Collection; (snowmobiles and snowcoaches, • Duration of Trip (in days)
Reporting and Recordkeeping for collectively OSVs). Access to most of • Transportation event type
Snowcoaches and Snowmobiles, the park in the winter is limited by (snowmobile or snowcoach)
Yellowstone National Park distance and the harsh winter • Number of snowmobiles or
environment, which presents challenges snowcoaches
AGENCY: National Park Service, Interior. • Air/noise emissions standard (New
ACTION: Notice; request for comments. to safety and park operations. The park
BAT or E–BAT)
does not provide wintertime OSV tours • Number of visitors and guides
SUMMARY: We (National Park Service, directly, but currently authorizes OSV • Route and primary destination
NPS) will ask the Office of Management tours through concessions contracts (for • If the transportation event
and Budget (OMB) to approve the snowcoach tours) and commercial use allocation was from another commercial
information collection (IC) described authorizations (for snowmobile tours) tour operator
below. As required by the Paperwork with area businesses to provide • Administrative or guest services
Reduction Act of 1995 and as part of our transportation to visitors (Title IV, trip
continuing efforts to reduce paperwork Section 403 of the National Parks • Transportation event group size
and respondent burden, we invite the Omnibus Management Act of 1998, Pub. (previous month and season to-date)
general public and other Federal L. 105–391). The park issued 10-year (3) Enhanced Emission Standards
asabaliauskas on DSK3SPTVN1PROD with NOTICES

agencies to take this opportunity to concession contracts for all OSVs (§ 7.13(l)(11)(iv)). To qualify for the
comment on this IC. This IC is starting in December 2014. increased average size of snowmobile
scheduled to expire on October 31, OSV use is a form of off-road vehicle transportation events or increased
2016. We may not conduct or sponsor use governed by Executive Order 11644 maximum size of snowcoach
and a person is not required to respond (Use of Off-road Vehicles on Public transportation events, each commercial
to a collection of information unless it Lands, as amended by Executive Order tour operator must:
displays a currently valid OMB control 11989). Implementing regulations are (a) Before the start of each winter
number. published at 36 CFR 2.18, 36 CFR part season, demonstrate, by means

VerDate Sep<11>2014 17:40 Mar 14, 2016 Jkt 238001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1

Document Created: 2016-03-15 04:06:59
Document Modified: 2016-03-15 04:06:59

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		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		81 FR 13817

81 FR 13817 - HEARTH Act Approval of Shakopee Mdewakanton Sioux Community Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 81, Issue 50 (March 15, 2016)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs