81 FR 40718 - HEARTH Act Approval of Oneida Nation of New York Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 81, Issue 120 (June 22, 2016)
Bureau of Indian Affairs
Federal Register Volume 81, Issue 120 (June 22, 2016)
| Page Range | 40718-40719 | |
| FR Document | 2016-14798 |
[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)] [Notices] [Pages 40718-40719] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14798] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [167A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of Oneida Nation of New York Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On June 14, 2016, the Bureau of Indian Affairs (BIA) approved the Oneida Nation of New York (Tribe) leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into residential leases without BIA approval. 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, telephone: (202) 208-3615. SUPPLEMENTARY INFORMATION: I. Summary of the HEARTH Act The HEARTH (Helping Expedite and Advance Responsible Tribal Homeownership) Act of 2012 (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 Secretary). 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 (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 [[Page 40719]] Secretary--Indian Affairs, has approved the tribal regulations for the Oneida Nation of New York. 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 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. See 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. See 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 Federal, state, 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 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). Similar to BIA's surface leasing regulations, tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See 25 U.S.C. 415(h)(3)(B)(i) (requiring tribal regulations be consistent with BIA surface leasing regulations). 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 Oneida Nation of New York. Dated: June 14, 2016. Ann Marie Bledsoe Downes, Deputy Assistant Secretary--Policy and Economic Development. [FR Doc. 2016-14798 Filed 6-21-16; 8:45 am] BILLING CODE 4337-15-P
![40718 Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Notices
promoting economic development, self- Assessment of state and local taxes Dated: June 14, 2016.
determination, and tribal sovereignty. would obstruct these express Federal Lawrence S. Roberts,
77 FR 72440, 72447–48 (December 5, policies supporting tribal economic Acting Assistant Secretary—Indian Affairs.
2012). The principles supporting the development and self-determination, [FR Doc. 2016–14796 Filed 6–21–16; 8:45 am]
Federal preemption of state law in the and also threaten substantial tribal BILLING CODE 4337–15–P
field of Indian leasing and the taxation interests in effective tribal government,
of lease-related interests and activities economic self-sufficiency, and territorial
applies with equal force to leases autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
entered into under tribal leasing Indian Community, 134 S. Ct. 2024,
regulations approved by the Federal Bureau of Indian Affairs
2043 (2014) (Sotomayor, J., concurring)
Government pursuant to the HEARTH (determining that ‘‘[a] key goal of the [167A2100DD/AAKC001030/
Act. Federal Government is to render tribes A0A501010.999900]
Section 5 of the Indian Reorganization more self-sufficient, and better
Act, 25 U.S.C. 465, preempts state and HEARTH Act Approval of Oneida
positioned to fund their own sovereign Nation of New York Regulations
local taxation of permanent
functions, rather than relying on Federal
improvements on trust land. AGENCY: Bureau of Indian Affairs,
funding’’). The additional costs of State
Confederated Tribes of the Chehalis Interior.
and local taxation have a chilling effect
Reservation v. Thurston County, 724
on potential lessees, as well as on a tribe ACTION: Notice.
F.3d 1153, 1157 (9th Cir. 2013) (citing
Mescalero Apache Tribe v. Jones, 411 that, as a result, might refrain from
SUMMARY: On June 14, 2016, the Bureau
U.S. 145 (1973)). Similarly, Section 465 exercising its own sovereign right to of Indian Affairs (BIA) approved the
preempts state taxation of rent payments impose a tribal tax to support its Oneida Nation of New York (Tribe)
by a lessee for leased trust lands, infrastructure needs. See id. at 2043–44 leasing regulations under the HEARTH
because ‘‘tax on the payment of rent is (finding that state and local taxes greatly Act. With this approval, the Tribe is
indistinguishable from an impermissible discourage tribes from raising tax authorized to enter into residential
tax on the land.’’ See Seminole Tribe of revenue from the same sources because leases without BIA approval.
Florida v. Stranburg, No. 14–14524, the imposition of double taxation would FOR FURTHER INFORMATION CONTACT: Ms.
*13–*17, n.8 (11th Cir. 2015). In impede Tribal economic growth). Sharlene Round Face, Bureau of Indian
addition, as explained in the preamble Similar to BIA’s surface leasing Affairs, Division of Real Estate Services,
to the revised leasing regulations at 25 regulations, tribal regulations under the MS–4642–MIB, 1849 C Street NW.,
CFR part 162, Federal courts have HEARTH Act pervasively cover all Washington, DC 20240, telephone: (202)
applied a balancing test to determine aspects of leasing. See 25 U.S.C. 208–3615.
whether state and local taxation of non- 415(h)(3)(B)(i) (requiring tribal SUPPLEMENTARY INFORMATION:
Indians on the reservation is preempted.
regulations be consistent with BIA I. Summary of the HEARTH Act
White Mountain Apache Tribe v.
surface leasing regulations).
Bracker, 448 U.S. 136, 143 (1980). The The HEARTH (Helping Expedite and
Furthermore, the Federal Government
Bracker balancing test, which is Advance Responsible Tribal
conducted against a backdrop of remains involved in the tribal land
Homeownership) Act of 2012 (Act)
‘‘traditional notions of Indian self- leasing process by approving the tribal
makes a voluntary, alternative land
government,’’ requires a particularized leasing regulations in the first instance leasing process available to tribes, by
examination of the relevant Federal, and providing technical assistance, amending the Indian Long-Term Leasing
state, and tribal interests. We hereby upon request by a tribe, for the Act of 1955, 25 U.S.C. 415. The Act
adopt the Bracker analysis from the development of an environmental authorizes tribes to negotiate and enter
preamble to the surface leasing review process. The Secretary also into agricultural and business leases of
regulations, 77 FR at 72447–48, as retains authority to take any necessary tribal trust lands with a primary term of
supplemented by the analysis below. actions to remedy violations of a lease 25 years, and up to two renewal terms
The strong Federal and tribal interests or of the tribal regulations, including of 25 years each, without the approval
against state and local taxation of terminating the lease or rescinding of the Secretary of the Interior (the
improvements, leaseholds, and approval of the tribal regulations and Secretary). The Act also authorizes
activities on land leased under the reassuming lease approval tribes to enter into leases for residential,
Department’s leasing regulations apply responsibilities. Moreover, the Secretary recreational, religious, or educational
equally to improvements, leaseholds, continues to review, approve, and purposes for a primary term of up to 75
and activities on land leased pursuant to monitor individual Indian land leases years without the approval of the
tribal leasing regulations approved and other types of leases not covered Secretary. Participating tribes develop
under the HEARTH Act. Congress’s under the tribal regulations according to tribal leasing regulations, including an
overarching intent was to ‘‘allow Tribes part 162 of the regulations. environmental review process, and then
to exercise greater control over their must obtain the Secretary’s approval of
Accordingly, the Federal and tribal
own land, support self-determination, those regulations prior to entering into
and eliminate bureaucratic delays that interests weigh heavily in favor of leases. The Act requires the Secretary to
stand in the way of homeownership and preemption of state and local taxes on approve tribal regulations if the tribal
economic development in Tribal lease-related activities and interests, regulations are consistent with the
mstockstill on DSK3G9T082PROD with NOTICES
communities.’’ 158 Cong. Rec. H. 2682 regardless of whether the lease is Department of the Interior’s
(May 15, 2012). The HEARTH Act was governed by tribal leasing regulations at (Department) leasing regulations at 25
intended to afford tribes ‘‘flexibility to part 162. Improvements, activities, and CFR part 162 and provide for an
adapt lease terms to suit [their] business leasehold or possessory interests may be environmental review process that
and cultural needs’’ and to ‘‘enable subject to taxation by the Twenty-Nine meets requirements set forth in the Act.
[Tribes] to approve leases quickly and Palms Band of Mission Indians of This notice announces that the
efficiently.’’ Id. at 5–6. California. Secretary, through the Assistant
VerDate Sep<11>2014 20:02 Jun 21, 2016 Jkt 238001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 E:\FR\FM\22JNN1.SGM 22JNN1](https://thefederalregister.org/doc/81_FR_40838/page/1.svg)
![Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Notices 40719
Secretary—Indian Affairs, has approved Department’s leasing regulations apply and other types of leases not covered
the tribal regulations for the Oneida equally to improvements, leaseholds, under the tribal regulations according to
Nation of New York. and activities on land leased pursuant to the part 162 regulations.
tribal leasing regulations approved Accordingly, the Federal and tribal
II. Federal Preemption of State and
under the HEARTH Act. Congress’s interests weigh heavily in favor of
Local Taxes
overarching intent was to ‘‘allow Tribes preemption of state and local taxes on
The Department’s regulations to exercise greater control over their lease-related activities and interests,
governing the surface leasing of trust own land, support self-determination, regardless of whether the lease is
and restricted Indian lands specify that, and eliminate bureaucratic delays that
subject to applicable Federal law, governed by tribal leasing regulations or
stand in the way of homeownership and part 162. Improvements, activities, and
permanent improvements on leased economic development in Tribal
land, leasehold or possessory interests, leasehold or possessory interests may be
communities.’’ 158 Cong. Rec. H. 2682 subject to taxation by the Oneida Nation
and activities under the lease are not (May 15, 2012). The HEARTH Act was
subject to state and local taxation and of New York.
intended to afford tribes ‘‘flexibility to
may be subject to taxation by the Indian adapt lease terms to suit [their] business Dated: June 14, 2016.
tribe with jurisdiction. See 25 CFR and cultural needs’’ and to ‘‘enable Ann Marie Bledsoe Downes,
162.017. As explained further in the [Tribes] to approve leases quickly and Deputy Assistant Secretary—Policy and
preamble to the final regulations, the efficiently.’’ Id. at 5–6. Economic Development.
Federal Government has a strong Assessment of state and local taxes [FR Doc. 2016–14798 Filed 6–21–16; 8:45 am]
interest in promoting economic would obstruct these express Federal BILLING CODE 4337–15–P
development, self-determination, and policies supporting tribal economic
tribal sovereignty. 77 FR 72,440, development and self-determination,
72,447–48 (December 5, 2012). The and also threaten substantial tribal DEPARTMENT OF THE INTERIOR
principles supporting the Federal interests in effective tribal government,
preemption of state law in the field of economic self-sufficiency, and territorial Bureau of Indian Affairs
Indian leasing and the taxation of lease- autonomy. See Michigan v. Bay Mills
related interests and activities applies Indian Community, 134 S. Ct. 2024, [167 A2100DD/AAKC001030/
with equal force to leases entered into 2043 (2014) (Sotomayor, J., concurring) A0A501010.999900]
under tribal leasing regulations (determining that ‘‘[a] key goal of the
approved by the Federal Government Federal Government is to render tribes Proclaiming Certain Lands as
pursuant to the HEARTH Act. more self-sufficient, and better Reservation for the Shakopee
Section 5 of the Indian Reorganization positioned to fund their own sovereign Mdewakanton Sioux Community of
Act, 25 U.S.C. 465, preempts state and functions, rather than relying on Federal Minnesota
local taxation of permanent funding’’). The additional costs of state
improvements on trust land. See and local taxation have a chilling effect AGENCY: Bureau of Indian Affairs,
Confederated Tribes of the Chehalis on potential lessees, as well as on a tribe Interior.
Reservation v. Thurston County, 724 that, as a result, might refrain from ACTION: Notice.
F.3d 1153, 1157 (9th Cir. 2013) (citing exercising its own sovereign right to
Mescalero Apache Tribe v. Jones, 411 impose a tribal tax to support its SUMMARY: This notice informs the public
U.S. 145 (1973)). Similarly, section 465 infrastructure needs. See id. at 2043–44 that the Assistant Secretary—Indian
preempts state taxation of rent payments (finding that state and local taxes greatly
by a lessee for leased trust lands, Affairs proclaimed approximately
discourage tribes from raising tax 128.30 acres, more or less, an addition
because ‘‘tax on the payment of rent is revenue from the same sources because
indistinguishable from an impermissible to the Reservation of the Shakopee
the imposition of double taxation would Mdewakanton Sioux Community of
tax on the land.’’ See Seminole Tribe of impede tribal economic growth).
Florida v. Stranburg, No. 14–14524, Minnesota on June 8, 2016.
Similar to BIA’s surface leasing
*13–*17, n.8 (11th Cir. 2015). In regulations, tribal regulations under the FOR FURTHER INFORMATION CONTACT: Ms.
addition, as explained in the preamble HEARTH Act pervasively cover all Sharlene Round Face, Bureau of Indian
to the revised leasing regulations at 25 aspects of leasing. See 25 U.S.C. Affairs, Division of Real Estate Services,
CFR part 162, Federal courts have 415(h)(3)(B)(i) (requiring tribal MS–4642–MIB, 1849 C Street NW.,
applied a balancing test to determine regulations be consistent with BIA Washington, DC 20240, telephone: (202)
whether state and local taxation of non- surface leasing regulations). 208–3615.
Indians on the reservation is preempted. Furthermore, the Federal Government
See White Mountain Apache Tribe v. remains involved in the tribal land SUPPLEMENTARY INFORMATION: This
Bracker, 448 U.S. 136, 143 (1980). The leasing process by approving the tribal notice is published in the exercise of
Bracker balancing test, which is leasing regulations in the first instance authority delegated by the Secretary of
conducted against a backdrop of and providing technical assistance, the Interior to the Assistant Secretary—
‘‘traditional notions of Indian self- upon request by a tribe, for the Indian Affairs by part 209 of the
government,’’ requires a particularized development of an environmental Departmental Manual.
examination of the relevant Federal, review process. The Secretary also A proclamation was issued according
state, and tribal interests. We hereby retains authority to take any necessary to the Act of June 18, 1934 (48 Stat. 984;
adopt the Bracker analysis from the actions to remedy violations of a lease 25 U.S.C. 467), for the land described
mstockstill on DSK3G9T082PROD with NOTICES
preamble to the surface leasing or of the tribal regulations, including below. The land was proclaimed to be
regulations, 77 FR at 72,447–48, as terminating the lease or rescinding Shakopee Mdewakanton Sioux
supplemented by the analysis below. approval of the tribal regulations and Community Reservation for the
The strong Federal and tribal interests reassuming lease approval exclusive use of Indians on that
against state and local taxation of responsibilities. Moreover, the Secretary Reservation who are entitled to reside at
improvements, leaseholds, and continues to review, approve, and the Reservation by enrollment or tribal
activities on land leased under the monitor individual Indian land leases membership.
VerDate Sep<11>2014 20:02 Jun 21, 2016 Jkt 238001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 E:\FR\FM\22JNN1.SGM 22JNN1](https://thefederalregister.org/doc/81_FR_40838/page/2.svg)
Document Created: 2016-06-22 01:05:34
Document Modified: 2016-06-22 01:05:34
| 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, telephone: (202) 208-3615. | |
| FR Citation | 81 FR 40718 |
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