81 FR 1638 - HEARTH Act Approval of Ohkay Owingeh Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 81, Issue 8 (January 13, 2016)

Page Range		1638-1639
FR Document		2016-00518

On January 4, 2016, the Bureau of Indian Affairs (BIA) approved the Ohkay Owingeh 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; residential; agricultural wind and solar resource; public; religious; educational; cultural; and other authorized purposes.

Federal Register, Volume 81 Issue 8 (Wednesday, January 13, 2016)

[Federal Register Volume 81, Number 8 (Wednesday, January 13, 2016)]
[Notices]
[Pages 1638-1639]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-00518]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[167A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Ohkay Owingeh Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On January 4, 2016, the Bureau of Indian Affairs (BIA) 
approved the Ohkay Owingeh 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; residential; 
agricultural wind and solar resource; public; religious; educational; 
cultural; and other authorized purposes.

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 Ohkay Owingeh.

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

[[Page 1639]]

in promoting economic development, self-determination, and Tribal 
sovereignty. 77 FR 72440, 72447-48 (December 5, 2012). The principles 
supporting the Federal preemption of State law in the field of Indian 
leasing and the taxation of lease-related interests and activities 
applies with equal force to leases entered into under Tribal leasing 
regulations approved by the Federal government pursuant to the HEARTH 
Act.
    Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, preempts 
State and local taxation of permanent improvements on trust land. 
Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 
F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. 
Jones, 411 U.S. 145 (1973)). 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 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 
Ohkay Owingeh.

    Dated: January 6, 2016.
Lawrence S. Roberts,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2016-00518 Filed 1-12-16; 8:45 am]
BILLING CODE 4337-15-P

Federal Register / Vol. 81, No. 8 / Wednesday, January 13, 2016 / Notices 1639

in promoting economic development, Assessment of State and local taxes Dated: January 6, 2016.
self-determination, and Tribal would obstruct these express Federal Lawrence S. Roberts,
sovereignty. 77 FR 72440, 72447–48 policies supporting Tribal economic Acting Assistant Secretary—Indian Affairs.
(December 5, 2012). The principles development and self-determination, [FR Doc. 2016–00518 Filed 1–12–16; 8:45 am]
supporting the Federal preemption of and also threaten substantial Tribal BILLING CODE 4337–15–P
State law in the field of Indian leasing interests in effective Tribal government,
and the taxation of lease-related economic self-sufficiency, and territorial
interests and activities applies with autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
equal force to leases entered into under Indian Community, 134 S. Ct. 2024,
Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring) Office of the Secretary
the Federal government pursuant to the (determining that ‘‘[a] key goal of the [133D5670LC DLCAP0000.000000
HEARTH Act. Federal Government is to render Tribes DS10100000 DX.10129]
Section 5 of the Indian Reorganization more self-sufficient, and better
Act, 25 U.S.C. 465, preempts State and positioned to fund their own sovereign Land Buy-Back Program for Tribal
local taxation of permanent functions, rather than relying on Federal Nations Under Cobell Settlement
improvements on trust land. funding’’). The additional costs of State
and local taxation have a chilling effect AGENCY: Office of the Deputy Secretary,
Confederated Tribes of the Chehalis Interior.
Reservation v. Thurston County, 724 on potential lessees, as well as on a
Tribe that, as a result, might refrain from ACTION: Notice.
F.3d 1153, 1157 (9th Cir. 2013) (citing
Mescalero Apache Tribe v. Jones, 411 exercising its own sovereign right to SUMMARY: On November 4, 2015, the
U.S. 145 (1973)). Similarly, section 465 impose a Tribal tax to support its Department of the Interior released the
preempts state taxation of rent payments infrastructure needs. See id. at 2043–44
2015 Status Report for the Land Buy-
by a lessee for leased trust lands, (finding that State and local taxes
Back Program for Tribal Nations (Buy-
because ‘‘tax on the payment of rent is greatly discourage Tribes from raising
Back Program or Program), which
indistinguishable from an impermissible tax revenue from the same sources
summarizes its implementation to date:
tax on the land.’’ See Seminole Tribe of because the imposition of double
https://www.doi.gov/buybackprogram/
Florida v. Stranburg, No. 14–14524, taxation would impede Tribal economic
about. Since December 2013, the
*13–*17, n.8 (11th Cir. 2015). In growth).
Just like BIA’s surface leasing Program has paid nearly $715 million to
addition, as explained in the preamble individual landowners and has restored
regulations, Tribal regulations under the
to the revised leasing regulations at 25 approximately 1.5 million acres of land
HEARTH Act pervasively cover all
CFR part 162, Federal courts have to tribal governments.
aspects of leasing. See Guidance for the
applied a balancing test to determine The Report highlights the Program’s
Approval of Tribal Leasing Regulations
whether State and local taxation of non- launch of two efforts to help determine
under the HEARTH Act, NPM–TRUS–
Indians on the reservation is preempted. its next implementation schedule. The
29 (effective Jan. 16, 2013) (providing
White Mountain Apache Tribe v. two-pronged planning initiative seeks
guidance on Federal review process to
Bracker, 448 U.S. 136, 143 (1980). The input from tribal governments and
ensure consistency of proposed tribal
Bracker balancing test, which is landowners who are interested in
regulations with part 162 regulations
conducted against a backdrop of and listing required Tribal regulatory participating in the Program. Eligible
‘‘traditional notions of Indian self- provisions). Furthermore, the Federal tribal governments not already
government,’’ requires a particularized government remains involved in the scheduled for implementation are
examination of the relevant State, Tribal land leasing process by approving invited to formally indicate their
Federal, and Tribal interests. We hereby the Tribal leasing regulations in the first interest in participating in the Program
adopt the Bracker analysis from the instance and providing technical no later than March 11, 2016. More
preamble to the surface leasing assistance, upon request by a Tribe, for information is available to tribal leaders
regulations, 77 FR at 72447–48, as the development of an environmental at: https://www.doi.gov/
supplemented by the analysis below. review process. The Secretary also buybackprogram/tribes. Additionally,
The strong Federal and Tribal retains authority to take any necessary the Program has launched a nationwide
interests against State and local taxation actions to remedy violations of a lease recruitment drive to identify and engage
of improvements, leaseholds, and or of the Tribal regulations, including landowners who are interested in
activities on land leased under the terminating the lease or rescinding learning more about this opportunity.
Department’s leasing regulations apply approval of the Tribal regulations and The Department also announced that
equally to improvements, leaseholds, reassuming lease approval Deputy Secretary Connor will host a
and activities on land leased pursuant to responsibilities. Moreover, the Secretary Listening Session on March 3, 2016, at
Tribal leasing regulations approved continues to review, approve, and the Albuquerque Convention Center in
under the HEARTH Act. Congress’s monitor individual Indian land leases Albuquerque, New Mexico, from 1:00–
overarching intent was to ‘‘allow Tribes and other types of leases not covered 5:00 p.m. MT.
to exercise greater control over their under the Tribal regulations according DATES: The Department will accept
own land, support self-determination, to the part 162 regulations. expressions of interest from eligible
and eliminate bureaucratic delays that Accordingly, the Federal and Tribal tribal governments that exercise
stand in the way of homeownership and interests weigh heavily in favor of jurisdiction over locations not on its
asabaliauskas on DSK5VPTVN1PROD with NOTICES

economic development in Tribal preemption of State and local taxes on current implementation schedule until
communities.’’ 158 Cong. Rec. H. 2682 lease-related activities and interests, March 11, 2016. Interested landowners
(May 15, 2012). The HEARTH Act was regardless of whether the lease is are strongly encouraged to contact the
intended to afford Tribes ‘‘flexibility to governed by Tribal leasing regulations Trust Beneficiary Call Center (Call
adapt lease terms to suit [their] business or part 162. Improvements, activities, Center) at 888–678–6836 to register their
and cultural needs’’ and to ‘‘enable and leasehold or possessory interests interest and confirm contact information
[Tribes] to approve leases quickly and may be subject to taxation by the Ohkay by that same deadline, in order for their
efficiently.’’ Id. at 5–6. Owingeh. interest to be incorporated as a factor as

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Document Created: 2016-01-13 01:00:35
Document Modified: 2016-01-13 01:00:35

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		81 FR 1638

81 FR 1638 - HEARTH Act Approval of Ohkay Owingeh Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 81, Issue 8 (January 13, 2016)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs