82_FR_42282 82 FR 42111 - HEARTH Act Approval of Stillaguamish Tribe of Indians' Leasing Regulations

82 FR 42111 - HEARTH Act Approval of Stillaguamish Tribe of Indians' Leasing Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 82, Issue 171 (September 6, 2017)

Page Range42111-42112
FR Document2017-18849

On July 17, 2017, the Bureau of Indian Affairs (BIA) approved the Stillaguamish Tribe of Indians' leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) Act. With this approval, the Tribe is authorized to enter into the following types of leases without BIA approval: Agricultural, residential, business, wind and solar, wind energy evaluation, and other authorized purposes.

Federal Register, Volume 82 Issue 171 (Wednesday, September 6, 2017) 
[Federal Register Volume 82, Number 171 (Wednesday, September 6, 2017)]
[Notices]
[Pages 42111-42112]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-18849]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[178A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Stillaguamish Tribe of Indians' Leasing 
Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On July 17, 2017, the Bureau of Indian Affairs (BIA) approved 
the Stillaguamish Tribe of Indians' leasing regulations under the 
Helping Expedite and Advance Responsible Tribal Homeownership (HEARTH) 
Act. With this approval, the Tribe is authorized to enter into the 
following types of leases without BIA approval: Agricultural, 
residential, business, wind and solar, wind energy evaluation, 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 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 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'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 Stillaguamish 
Tribe of Indians.

[[Page 42112]]

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. 5108, 
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 State, Federal, 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).
    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 
Snohomish County and the State of Washington.

    Dated: July 17, 2017.
Michael S. Black,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 2017-18849 Filed 9-5-17; 8:45 am]
 BILLING CODE 4337-15-P

Federal Register / Vol. 82, No. 171 / Wednesday, September 6, 2017 / Notices 42111 FOR FURTHER INFORMATION CONTACT: Ms. Level Datum, 1929 adjustment, AND that DEPARTMENT OF THE INTERIOR Sharlene M. Round Face, Bureau of part of the N1⁄2SE1⁄4SW1⁄4, lying westerly Indian Affairs, Division of Real Estate of the west flowage line of the Chippewa Bureau of Indian Affairs Services, 1849 C Street NW., MS–4642– Reservoir Flowage and lying above MIB, Washington, DC 20240, telephone elevation 1315′, Mean Sea Level Datum, [178A2100DD/AAKC001030/ (202) 208–3615. 1929 adjustment.—74.17 acres A0A501010.999900] SUPPLEMENTARY INFORMATION: This Sec.29, that part of the E1⁄2NE1⁄4 lying notice is published in the exercise of easterly of the most easterly flowage line HEARTH Act Approval of Stillaguamish authority delegated by the Secretary of of the Chippewa Reservoir Flowage and Tribe of Indians’ Leasing Regulations the Interior to the Assistant Secretary— lying above elevation 1315′, Mean Sea Level Datum, 1929 adjustment, AND that AGENCY: Bureau of Indian Affairs, Indian Affairs by part 209 of the Interior. part of the S1⁄2S1⁄2 and the NE1⁄4SE1⁄4, Departmental Manual. A proclamation was issued according lying above elevation 1315 ft., Mean Sea ACTION: Notice. to the Act of June 18, 1934 (48 Stat. 986; Level Datum, 1929 adjustment.—130.66 acres SUMMARY: On July 17, 2017, the Bureau 25 U.S.C. 5110) for the lands described Sec. 30, that part of Lot 1, the SW1⁄4SE1⁄4, of Indian Affairs (BIA) approved the below. These lands are proclaimed to be and the SE1⁄4SE1⁄4 lying above elevation Stillaguamish Tribe of Indians’ leasing part of the Lac Courte Oreilles Band of 1315′, Mean Sea Level Datum, 1929 regulations under the Helping Expedite Lake Superior Chippewa Indians of adjustment, AND that part of the and Advance Responsible Tribal Wisconsin Reservation, in Sawyer NE1⁄4SE1⁄4 lying southerly of the most Homeownership (HEARTH) Act. With County, Wisconsin. southern flowage line of the Chippewa this approval, the Tribe is authorized to Fourth Principal Meridian Reservoir Flowage, lying above elevation enter into the following types of leases 1315 ft., Mean Sea Level Datum, 1929 without BIA approval: Agricultural, Sawyer County, Wisconsin adjustment.—43.01 acres residential, business, wind and solar, Legal Description Containing 2012.77 Sec. 31, that part of Lots 1, 2, 3 and 4 lying wind energy evaluation, and other Acres, More or Less above elevation 1315 ft., Mean Sea Level authorized purposes. Datum, 1929 adjustment.—150.25 acres T. 40 N., R. 6 W., FOR FURTHER INFORMATION CONTACT: Ms. Sec. 33, that part of the SW1⁄4NE1⁄4, the Sec. 8, that part of the SW1⁄4SE1⁄4 lying Sharlene Round Face, Bureau of Indian above elevation 1315 ft., Mean Sea Level SW1⁄4NW1⁄4 and the SE1⁄4 lying above Affairs, Division of Real Estate Services, Datum, 1929 adjustment.—27.34 acres elevation 1315′, Mean Sea Level Datum, MS–4642–MIB, 1849 C Street NW., Sec. 10, NW1⁄4SW1⁄4.—40.00 acres 1929 adjustment—86.78 acres Washington, DC 20240, at (202) 208– Sec. 17, that part of the NW1⁄4NE1⁄4 and the Sec. 34, that part of the E1⁄2NW1⁄4 and the SW1⁄4NE1⁄4 lying above elevation 1315 3615. SW1⁄4 lying above elevation 1315′, Mean ft., Mean Sea Level Datum, 1929 Sea Level Datum, 1929 adjustment.— SUPPLEMENTARY INFORMATION: adjustment.—28.00 acres 104.10 acres Sec.18, that part of the SW1⁄4SE1⁄4 lying I. Summary of the HEARTH Act above elevation 1315 ft., Mean Sea Level T. 40 N., R. 8 W., Sec. 16, NE1⁄4NE1⁄4, W1⁄2NE1⁄4, NE1⁄4SW1⁄4, The HEARTH Act of 2012 (the Act) Datum, 1929 adjustment.—20.00 acres Sec. 21, that part of the SW1/4 lying and E 1⁄2NW1⁄4.—240.00 acres makes a voluntary, alternative land westerly of the west line of the T. 41 N., R. 8 W., leasing process available to Tribes, by Chippewa Reservoir Flowage, laying Sec. 33, NE1⁄4, NW1⁄4, SW1⁄4, EXCEPT that amending the Indian Long-Term Leasing above elevation 1315 ft., Mean Sea Level deeded to Sawyer County for highway Act of 1955, 25 U.S.C. 415. The Act Datum, 1929 adjustment.—73.90 acres purposes as described in Vol. 382 of authorizes Tribes to negotiate and enter Sec. 28, that part of the NW1⁄4, NW1⁄4SE1⁄4, into agricultural and business leases of Records, Page 172.—472.00 acres and the SE1⁄4 SE1⁄4, lying above elevation Tribal trust lands with a primary term 1315 ft., Mean Sea Level Datum, 1929 Sec. 35, S1⁄2SW1⁄4. 80.00 acres Situated in Sawyer County, State of of 25 years, and up to two renewal terms adjustment.—86.23 acres Sec 32, that part SE1⁄4 and the S1⁄2NE1⁄4 Wisconsin. Containing 2012.77 acres, more of 25 years each, without the approval lying above elevation 1315 ft., Mean Sea or less. of the Secretary of the Interior (the Level Datum, 1929 adjustment.—123.55 Secretary). The Act also authorizes acres The above-described lands contain a Tribes to enter into leases for T. 40 N., R. 7 W., total of 2012.77 acres, more or less, residential, recreational, religious or Sec. 24, that part of the SW1⁄4NW1⁄4, the which are subject to all valid rights, educational purposes for a primary term NW1⁄4SW1⁄4, and the NE1⁄4SW1⁄4, more reservations, rights-of-way, and of up to 75 years without the approval particularly described as Lots One (1) of the Secretary. Participating Tribes and Two (2) as recorded in Volume easements of record. develop Tribal leasing regulations, Twenty (20) of Certified Survey Maps, This proclamation does not affect title including an environmental review pages 225–227, Survey No. 5858.—26.00 to the lands described above, nor does acres process, and then must obtain the it affect any valid existing easements for Secretary’s approval of those regulations Sec. 26, that part of the NE1⁄4 and the public roads and highways, public prior to entering into leases. The Act E1⁄2NW1⁄4, lying southerly of the south line of the Chippewa Reservoir Flowage utilities and for railroads, and pipelines, requires the Secretary to approve Tribal and lying above elevation 1315 ft., Mean and any other valid easements or rights- regulations if the Tribal regulations are of-way or reservations of record. asabaliauskas on DSKBBXCHB2PROD with NOTICES Sea Level Datum, 1929 adjustment.— consistent with the Department’s leasing 104.35 acres regulations at 25 CFR part 162 and Dated: July 21, 2017. Sec. 27, that part of the S1⁄2NE1⁄4, provide for an environmental review NE1⁄4NE1⁄4, SE1⁄4NW1⁄4, and the SW1⁄4 Michael S. Black, process that meets requirements set lying above elevation 1315′, Mean Sea Acting Assistant Secretary—Indian Affairs. Level Datum, 1929 adjustment.—102.43 forth in the Act. This notice announces [FR Doc. 2017–18854 Filed 9–5–17; 8:45 am] that the Secretary, through the Assistant acres Sec. 28, that part of the NW1⁄4NW1⁄4, BILLING CODE 4337–15–P Secretary—Indian Affairs, has approved S1⁄2NW1⁄4, N1⁄2SW1⁄4, and the SW1⁄4SW1⁄4 the Tribal regulations for the lying above elevation 1315′, Mean Sea Stillaguamish Tribe of Indians. VerDate Sep<11>2014 17:37 Sep 05, 2017 Jkt 241001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\06SEN1.SGM 06SEN1

42112 Federal Register / Vol. 82, No. 171 / Wednesday, September 6, 2017 / Notices II. Federal Preemption of State and and activities on land leased pursuant to responsibilities. Moreover, the Secretary Local Taxes Tribal leasing regulations approved continues to review, approve, and The Department’s regulations under the HEARTH Act. Congress’s monitor individual Indian land leases governing the surface leasing of trust overarching intent was to ‘‘allow Tribes and other types of leases not covered and restricted Indian lands specify that, to exercise greater control over their under the Tribal regulations according subject to applicable Federal law, own land, support self-determination, to the Part 162 regulations. permanent improvements on leased and eliminate bureaucratic delays that Accordingly, the Federal and Tribal land, leasehold or possessory interests, stand in the way of homeownership and interests weigh heavily in favor of and activities under the lease are not economic development in Tribal preemption of State and local taxes on subject to State and local taxation and communities.’’ 158 Cong. Rec. H. 2682 lease-related activities and interests, may be subject to taxation by the Indian (May 15, 2012). The HEARTH Act was regardless of whether the lease is Tribe with jurisdiction. See 25 CFR intended to afford Tribes ‘‘flexibility to governed by Tribal leasing regulations adapt lease terms to suit [their] business or Part 162. Improvements, activities, 162.017. As explained further in the and cultural needs’’ and to ‘‘enable and leasehold or possessory interests preamble to the final regulations, the [Tribes] to approve leases quickly and may be subject to taxation by the Federal government has a strong interest efficiently.’’ Id. at 5–6. Snohomish County and the State of in promoting economic development, Assessment of State and local taxes self-determination, and Tribal Washington. would obstruct these express Federal sovereignty. 77 FR 72,440, 72,447–48 policies supporting Tribal economic Dated: July 17, 2017. (December 5, 2012). The principles development and self-determination, Michael S. Black, supporting the Federal preemption of and also threaten substantial Tribal Acting Assistant Secretary—Indian Affairs. State law in the field of Indian leasing interests in effective Tribal government, [FR Doc. 2017–18849 Filed 9–5–17; 8:45 am] and the taxation of lease-related economic self-sufficiency, and territorial BILLING CODE 4337–15–P interests and activities applies with autonomy. See Michigan v. Bay Mills equal force to leases entered into under Indian Community, 134 S. Ct. 2024, Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring) DEPARTMENT OF THE INTERIOR the Federal government pursuant to the (determining that ‘‘[a] key goal of the HEARTH Act. Federal Government is to render Tribes Bureau of Indian Affairs Section 5 of the Indian Reorganization more self-sufficient, and better [178A2100DD/AAKC001030/ Act, 25 U.S.C. 5108, preempts State and positioned to fund their own sovereign A0R9A1010.999900] local taxation of permanent functions, rather than relying on Federal improvements on trust land. See funding’’). The additional costs of State HEARTH Act Approval of the Osage Confederated Tribes of the Chehalis and local taxation have a chilling effect Nation Regulations Reservation v. Thurston County, 724 on potential lessees, as well as on a F.3d 1153, 1157 (9th Cir. 2013) (citing AGENCY: Bureau of Indian Affairs, Tribe that, as a result, might refrain from Interior. Mescalero Apache Tribe v. Jones, 411 exercising its own sovereign right to U.S. 145 (1973)). Similarly, section 465 impose a Tribal tax to support its ACTION: Notice. preempts State taxation of rent infrastructure needs. See id. at 2043–44 payments by a lessee for leased trust SUMMARY: On July 17, 2017, the Bureau (finding that State and local taxes of Indian Affairs (BIA) approved the lands, because ‘‘tax on the payment of greatly discourage Tribes from raising rent is indistinguishable from an Osage Nation (Nation) leasing tax revenue from the same sources regulations under the Helping Expedite impermissible tax on the land.’’ See because the imposition of double Seminole Tribe of Florida v. Stranburg, and Advance Responsible Tribal taxation would impede Tribal economic Homeownership Act of 2012 (HEARTH No. 14–14524, *13–*17, n.8 (11th Cir. growth). 2015). In addition, as explained in the Act). With this approval, the Nation is Just like BIA’s surface leasing preamble to the revised leasing authorized to enter into business site regulations, Tribal regulations under the regulations at 25 CFR part 162, Federal leases without further BIA approval. HEARTH Act pervasively cover all courts have applied a balancing test to aspects of leasing. See Guidance for the FOR FURTHER INFORMATION CONTACT: Ms. determine whether State and local Approval of Tribal Leasing Regulations Sharlene Round Face, Bureau of Indian taxation of non-Indians on the under the HEARTH Act, NPM–TRUS– Affairs, Division of Real Estate Services, reservation is preempted. See White 29 (effective Jan. 16, 2013) (providing MS–4642–MIB, 1849 C Street NW., Mountain Apache Tribe v. Bracker, 448 guidance on Federal review process to Washington, DC 20240, telephone: (202) U.S. 136, 143 (1980). The Bracker ensure consistency of proposed Tribal 208–3615. balancing test, which is conducted regulations with Part 162 regulations SUPPLEMENTARY INFORMATION: against a backdrop of ‘‘traditional and listing required Tribal regulatory notions of Indian self-government,’’ I. Summary of the HEARTH Act provisions). Furthermore, the Federal requires a particularized examination of government remains involved in the The HEARTH Act makes a voluntary, the relevant State, Federal, and Tribal Tribal land leasing process by approving alternative land leasing process interests. We hereby adopt the Bracker the Tribal leasing regulations in the first available to Tribes, by amending the analysis from the preamble to the instance and providing technical Indian Long-Term Leasing Act of 1955, asabaliauskas on DSKBBXCHB2PROD with NOTICES surface leasing regulations, 77 FR at assistance, upon request by a Tribe, for 25 U.S.C. 415. The HEARTH Act 72,447–48, as supplemented by the the development of an environmental authorizes Tribes to negotiate and enter analysis below. review process. The Secretary also into agricultural and business leases of The strong Federal and Tribal retains authority to take any necessary Tribal trust lands with a primary term interests against State and local taxation actions to remedy violations of a lease of 25 years, and up to two renewal terms of improvements, leaseholds, and or of the Tribal regulations, including of 25 years each, without the approval activities on land leased under the terminating the lease or rescinding of the Secretary of the Interior Department’s leasing regulations apply approval of the Tribal regulations and (Secretary). The HEARTH Act also equally to improvements, leaseholds, reassuming lease approval authorizes Tribes to enter into leases for VerDate Sep<11>2014 17:37 Sep 05, 2017 Jkt 241001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\06SEN1.SGM 06SEN1


Document Created: 2017-09-06 00:56:29
Document Modified: 2017-09-06 00:56:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactMs. 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 Citation82 FR 42111 
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