81 FR 89015 - Traders With Indians

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 81, Issue 237 (December 9, 2016)

The Department of the Interior (Department) is considering whether to propose an administrative rule that would comprehensively update 25 CFR part 140 (Licensed Indian Traders) in an effort to modernize the implementation of the Indian Trader statutes consistent with the Federal policies of Tribal self-determination and self- governance. The current regulations were promulgated in 1957 and have not been comprehensively updated since 1965. The purpose of this advance notice of proposed rulemaking (ANPRM) is to solicit public comments on whether and how the Department should update 25 CFR part 140, including how the Indian Trader regulations might be updated to govern who trades on Indian land and how the regulations can better promote Tribal self-determination regarding trade on Indian lands. In this ANPRM, the Department also announces dates and locations for Tribal consultations and public meetings to consider this issue.

[Federal Register Volume 81, Number 237 (Friday, December 9, 2016)]
[Proposed Rules]
[Pages 89015-89017]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-29253]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 140

[178A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF30


Traders With Indians

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Advance notice of proposed rulemaking; solicitation of 
comments.

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SUMMARY: The Department of the Interior (Department) is considering 
whether to propose an administrative rule that would comprehensively 
update 25 CFR part 140 (Licensed Indian Traders) in an effort to 
modernize the implementation of the Indian Trader statutes consistent 
with the Federal policies of Tribal self-determination and self-
governance. The current regulations were promulgated in 1957 and have 
not been comprehensively updated since 1965. The purpose of this 
advance notice of proposed rulemaking (ANPRM) is to solicit public 
comments on whether and how the Department should update 25 CFR part 
140, including how the Indian Trader regulations might be updated to 
govern who trades on Indian land and how the regulations can better 
promote Tribal self-determination regarding trade on Indian lands. In 
this ANPRM, the Department also announces dates and locations for 
Tribal consultations and public meetings to consider this issue.

DATES: Comments must be submitted on or before April 10, 2017.

ADDRESSES: You may submit comments by any of the following methods:
    Federal rulemaking portal: http://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2016-0007.
    Mail or hand delivery: Elizabeth K. Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, Indian Affairs, U.S. 
Department of the Interior, 1849 C St. NW., Mail Stop 3642-MIB, 
Washington, DC 20240.
    Please see the SUPPLEMENTARY INFORMATION section of this document 
for information on Tribal consultation sessions.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs and Collaborative Action, Office of the Assistant 
Secretary--Indian Affairs; telephone (202) 273-4680, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Public Comment

    The Department is considering whether to propose an administrative 
rule that would comprehensively update 25 CFR part 140 (Licensed Indian 
Traders) in an effort to modernize the implementation of the Indian 
Trader statutes consistent with the Federal policies of Tribal self-
determination and self-governance. We are interested in hearing from 
federally recognized tribes. We also welcome comments and information 
from states and their agencies and from the public.
    To be most useful, and most likely to inform decisions on the 
content of a potential administrative rule, comments should:
    --Be specific;
    --Be substantive;
    --Explain the reasoning behind the comments; and
    --Address the issues outlined in the ANPRM.
    For the purpose of this ANPRM, we are seeking input solely on 
questions related to a potential administrative rule on whether and how 
the Department of the Interior should update 25 CFR part 140, including 
how the Indian Trader regulations might be updated to govern who trades 
on Indian land in a manner more consistent with Tribal self-governance 
and self-determination.
    We are seeking comments solely on following questions:
    1. Should the Federal government address trade occurring in Indian 
Country through an updated 25 CFR part 140, and why?
    2. Are there certain components of the existing rule that should be 
kept, and if so, why?
    3. How can revisions to the existing rule ensure that persons who 
conduct trade are reputable and that there are mechanisms in place to 
address traders who violate Federal or Tribal law?
    4. How do Tribes currently regulate trade in Indian Country and how 
might

[[Page 89016]]

revisions to 25 CFR part 140 help Tribes regulate trade in Indian 
Country?
    5. What types of trade should be regulated and what type of trader 
should be subject to regulation?
    6. How might revisions to the regulations promote economic 
viability and sustainability in Indian Country?
    7. What services do Tribes currently provide to individuals or 
entities doing business in Indian Country and what role do tax revenues 
play in providing those services?
    In addition to receiving comments through the Federal eRulemaking 
Portal, U.S. mail, courier services, and hand delivery (see ADDRESSES 
section above), we will conduct a series of in-person consultations 
with federally recognized Tribes, as listed below.
    Before including your address, phone number, email address, or 
other personal information in your comment--including personal 
identifying information--please be aware that your comment may be made 
publically available at any time. While you may ask in your comment 
that we withhold your personal identifying information from public 
review, we cannot guarantee we will be able to do so.

Tribal Consultations

    The Department of the Interior will be hosting consultation 
sessions with Indian Tribes on this ANPRM We will accept both oral and 
written communications at these consultation sessions.
    The following table lists dates and tentative locations for the 
consultations. Specifics on the venue for each location will be 
provided in a subsequent Federal Register notice.

----------------------------------------------------------------------------------------------------------------
                Date                  Time (local time zone)                       Location
----------------------------------------------------------------------------------------------------------------
Thursday, February 23, 2017.........  8:30 a.m.-12:00 p.m...  Seattle area.
Tuesday, February 28, 2017..........  8:30 a.m.-12:00 p.m...  Southeastern U.S.
Thursday, March 2, 2017.............  8:30 a.m.-12:00 p.m...  Southern California.
Tuesday, March 7, 2017..............  8:30 a.m.-12:00 p.m...  Billings, Montana.
Thursday, March 9, 2017.............  8:30 a.m.-12:00 p.m...  Rapid City, South Dakota.
Tuesday, March 14, 2017.............  8:30 a.m.-12:00 p.m...  Prior Lake, Minnesota.
Thursday, March 16, 2017............  8:30 a.m.-12:00 p.m...  Northeastern U.S.
----------------------------------------------------------------------------------------------------------------

Background

    The Department is considering whether to propose a rule that would 
comprehensively update 25 CFR part 140 (Licensed Indian Traders) to 
modernize the implementation of the Indian Trader statutes consistent 
with the Federal policies of Tribal self-government and self-
determination. The current Indian Trader regulations were promulgated 
in 1957, revised in 1965, and modified in 1984 in a piecemeal fashion. 
The current regulations largely reflect policies that ignore Tribal 
self-determination and the growth of Tribal economies.
    Congress granted the Department broad and comprehensive authority 
to regulate trade in Indian Country by determining the proper persons 
to be ``Indian traders.'' See 25 U.S.C. 261 et seq.; see also 25 U.S.C. 
9. The Department would seek to implement these responsibilities in a 
manner that reflects the current Nation-to-Nation relationship with 
Tribes should the Department propose a rule that updates 25 CFR part 
140. The Department recognizes that many Tribes have enacted 
comprehensive laws concerning economic activity occurring on Tribal 
lands and that Tribal courts often retain jurisdiction over Indian 
traders. This ANPRM solicits information regarding current Tribal 
regulatory activity over trade occurring within Indian Country.
    Additionally, the Department recognizes that dual taxation on 
Tribal lands can undermine the Federal policies supporting Tribal 
economic development, self-determination, and strong Tribal 
governments. Dual taxation of traders and activities conducted by 
traders and purchasers can impede a Tribe's ability to attract 
investment to Indian lands where such investment and participation are 
critical to the vitality of Tribal economies. Tribal communities 
continue to struggle with unmet needs, such as in their schools and 
housing, as well as economic development, to name a few. Moreover, 
beyond the operation of their governments, Tribes continually pursue 
funding for infrastructure, roads, dams, irrigation systems and water 
delivery. Thus, the Department solicits information under this ANPRM 
about how revisions to the regulations could promote economic viability 
and sustainability in Indian Country.

Description of the Information Requested

    We are particularly interested in receiving comments on the 
following questions relating to revisions of the 25 CFR part 140 we may 
develop concerning trade occurring in Indian Country:
    1. Should the Federal government address trade occurring in Indian 
Country through an updated 25 CFR part 140, and why?
    We are seeking views on whether there is a need in Indian Country 
for the Federal government to revise 25 CFR part 140. As mentioned, 
Congress granted the Department broad authority to regulate trade in 
Indian Country. Specifically, under 25 U.S.C. 261, Power to appoint 
traders with Indians, the Department of the Interior (previously the 
Commissioner of Indian Affairs) has authority to make rules specifying 
the kind and quantity of goods that may be sold to Indians and the 
prices at which such goods shall be sold. Under 25 U.S.C. 262, Persons 
permitted to trade with Indians, the Department has the authority to 
establish rules and regulations governing trade on Indian reservations 
for the protection of the Indians.
    The Department acknowledges the comprehensive Federal regulation of 
Indian traders in some areas of Indian Country, but also notes that 
many Tribes currently regulate trade occurring within their 
jurisdictions under Tribal laws and authority, often without Federal 
involvement. The Department also acknowledges its trust responsibility 
to Tribes and solicits information on whether there is a need for 
updated regulations addressing a modern approach to the Federal role 
concerning trade occurring in Indian Country.
    2. Are there certain components of the existing rule that should be 
kept, and if so, why?
    Should the Department conclude that there is a need for revisions 
to the existing rule, the Department seeks comments as to which parts, 
if any, of the existing rule should be kept. For instance, where the 
Department has issued licenses, should there be a grandfathering clause 
for currently valid licenses that the Department has issued under part 
140?
    Alternatively, if commenters believe there is a need to update 25 
CFR part 140, and that no components of the existing rule should be 
kept, the

[[Page 89017]]

Department requests information as to why this should be so. 
Additionally, the Department seeks views and proposals on what an 
entirely new proposed rule may look like. For instance, if the 
Department should no longer issue licenses, what do commenters envision 
Federal involvement to be?
    3. How can revisions to the existing rule ensure that persons who 
conduct trade are reputable and that there are mechanisms in place to 
address traders who violate Federal or Tribal law?
    If there is a need to update 25 CFR part 140, we solicit 
information and suggestions on how revisions to the existing rule can 
ensure that there are reputable actors in Indian Country. Further, the 
Department requests information and suggestions on revisions to the 
existing rule to ensure that violations of Federal or Tribal law are 
properly addressed. The Department acknowledges that many Tribes have 
comprehensive schemes in place regulating traders conducting business 
within their jurisdiction.
    4. How do Tribes currently regulate trade in Indian Country, and 
how might revisions to 25 CFR part 140 help Tribes regulate trade in 
Indian Country?
    As mentioned, the Department recognizes that many Tribes have 
enacted comprehensive laws concerning economic activity occurring on 
Tribal lands and that many Tribal courts retain jurisdiction over 
Indian traders. For example, the Department is aware that some Tribes 
have required disclosure of violations of business licenses and of 
enforcement actions taken by a Federal, Tribal, or State entity for 
trade-related activity. Tribes have also required the disclosure of any 
pending lawsuits involving the person and the business, and disclosure 
of tax liens against the business and other unsatisfied judgments. 
Other items that Tribes have required include a Federal employer 
identification number, a State registration number, insurance or 
bonding information, copies of all licenses (state, county, city or 
Tribal) currently held by the business, and affiliation with any other 
businesses.
    With this in mind, the Department requests information on how 
Tribes currently regulate trade within their jurisdiction. The 
Department requests specific information and suggestions, including 
language on how the Federal government can bolster those Tribes that 
currently comprehensively regulate trade, as well as those Tribes that 
do not do so presently.
    5. What types of trade should be regulated and what types of 
traders should be subject to regulation?
    The Department has received numerous proposals from various Tribes 
pertaining to Indian Trader regulation. Many of these proposals suggest 
that trade regulated under part 140 should include not only commercial 
activities, but also mineral and energy development and any form of 
natural-resources extraction or agriculture.
    Currently, section 140.5(a)(1) of the existing rule has the 
following definitions:
    (5) Contract means any agreement made or under negotiation with any 
Indian for the purchase, transportation or delivery of goods or 
supplies.
    (6) Trading means buying, selling, bartering, renting, leasing, 
permitting and any other transaction involving the acquisition of 
property or services.
    (7) Commercial trading means any trading transaction where an 
employee engages in the business of buying or selling services or items 
which he/she is trading.

The Department seeks comments on whether the definitions of contract, 
trading, and commercial trading should be revised, or struck in their 
entirety, and why.
    Additionally, the current definitions do not define the type of 
trader conducting business with an Indian Tribe. The draft proposals 
the Department has received recommend that the revised rule apply to 
any person conducting trade in Indian Country, including non-Indians. 
The Department solicits comments on whether an updated part 140 should 
define who the rule would apply to and whether or not this definition 
should broadly include any person conducting trade within Indian 
Country.
    6. How might revisions to the regulations promote economic 
viability and sustainability in Indian Country?
    The Department is interested in receiving feedback on how revisions 
to the trade regulations could facilitate economic activity in Indian 
country and tribal economic self-sufficiency.
    7. What services do Tribes currently provide to individuals or 
entities doing business in Indian Country and what role do tax revenues 
play in providing such services?
    The Department recognizes that Tribes provide a range of services 
to Indians and non-Indians doing business within their Indian Country. 
The Department seeks comments identifying the types of services 
offered, such as law enforcement, food sanitation and health 
inspections, transportation and other infrastructure, etc. The 
Department also seeks information on whether and to what extent Tribes 
are able to rely on tax revenues to provide such services.

    Dated: December 1, 2016.
Lawrence S. Roberts,
Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 2016-29253 Filed 12-8-16; 8:45 am]
BILLING CODE 4337-15-P