82 FR 42112 - HEARTH Act Approval of the Osage Nation Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 82, Issue 171 (September 6, 2017)
Bureau of Indian Affairs
Federal Register Volume 82, Issue 171 (September 6, 2017)
| Page Range | 42112-42113 | |
| FR Document | 2017-18852 |
[Federal Register Volume 82, Number 171 (Wednesday, September 6, 2017)] [Notices] [Pages 42112-42113] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-18852] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [178A2100DD/AAKC001030/A0R9A1010.999900] HEARTH Act Approval of the Osage Nation Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On July 17, 2017, the Bureau of Indian Affairs (BIA) approved the Osage Nation (Nation) leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Nation is authorized to enter into business site leases without further 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 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 HEARTH 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 (Secretary). The HEARTH Act also authorizes Tribes to enter into leases for [[Page 42113]] 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 HEARTH 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 HEARTH Act. This notice announces that the Secretary, through the Assistant Secretary--Indian Affairs, has approved the Tribal regulations for the Osage Nation. 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. 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 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 Osage Nation. Dated: July 17, 2017. Michael S. Black, Acting Assistant Secretary--Indian Affairs. [FR Doc. 2017-18852 Filed 9-5-17; 8:45 am] BILLING CODE 4337-15-P
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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
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![Federal Register / Vol. 82, No. 171 / Wednesday, September 6, 2017 / Notices 42113
residential, recreational, religious or applied a balancing test to determine 415(h)(3)(B)(i) (requiring Tribal
educational purposes for a primary term whether State and local taxation of non- regulations be consistent with BIA
of up to 75 years without the approval Indians on the reservation is preempted. surface leasing regulations).
of the Secretary. Participating Tribes White Mountain Apache Tribe v. Furthermore, the Federal government
develop Tribal leasing regulations, Bracker, 448 U.S. 136, 143 (1980). The remains involved in the Tribal land
including an environmental review Bracker balancing test, which is leasing process by approving the Tribal
process, and then must obtain the conducted against a backdrop of leasing regulations in the first instance
Secretary’s approval of those regulations ‘‘traditional notions of Indian self- and providing technical assistance,
prior to entering into leases. The government,’’ requires a particularized upon request by a Tribe, for the
HEARTH Act requires the Secretary to examination of the relevant State, development of an environmental
approve Tribal regulations if the Tribal Federal, and Tribal interests. We hereby review process. The Secretary also
regulations are consistent with the adopt the Bracker analysis from the retains authority to take any necessary
Department of the Interior’s preamble to the surface leasing actions to remedy violations of a lease
(Department) leasing regulations at 25 regulations, 77 FR at 72,447–48, as or of the Tribal regulations, including
CFR part 162 and provide for an supplemented by the analysis below. terminating the lease or rescinding
environmental review process that The strong Federal and Tribal approval of the Tribal regulations and
meets requirements set forth in the interests against State and local taxation reassuming lease approval
HEARTH Act. This notice announces of improvements, leaseholds, and responsibilities. Moreover, the Secretary
that the Secretary, through the Assistant activities on land leased under the continues to review, approve, and
Secretary—Indian Affairs, has approved Department’s leasing regulations apply monitor individual Indian land leases
the Tribal regulations for the Osage equally to improvements, leaseholds, and other types of leases not covered
Nation. and activities on land leased pursuant to under the Tribal regulations according
Tribal leasing regulations approved to the Part 162 regulations.
II. Federal Preemption of State and under the HEARTH Act. Congress’s
Local Taxes Accordingly, the Federal and Tribal
overarching intent was to ‘‘allow Tribes interests weigh heavily in favor of
The Department’s regulations to exercise greater control over their preemption of State and local taxes on
governing the surface leasing of trust own land, support self-determination, lease-related activities and interests,
and restricted Indian lands specify that, and eliminate bureaucratic delays that regardless of whether the lease is
subject to applicable Federal law, stand in the way of homeownership and governed by Tribal leasing regulations
permanent improvements on leased economic development in Tribal or Part 162. Improvements, activities,
land, leasehold or possessory interests, communities.’’ 158 Cong. Rec. H. 2682 and leasehold or possessory interests
and activities under the lease are not (May 15, 2012). The HEARTH Act was may be subject to taxation by the Osage
subject to State and local taxation and intended to afford Tribes ‘‘flexibility to Nation.
may be subject to taxation by the Indian adapt lease terms to suit [their] business
Tribe with jurisdiction. See 25 CFR and cultural needs’’ and to ‘‘enable Dated: July 17, 2017.
162.017. As explained further in the [Tribes] to approve leases quickly and Michael S. Black,
preamble to the final regulations, the efficiently.’’ Id. at 5–6. Acting Assistant Secretary—Indian Affairs.
Federal government has a strong interest Assessment of State and local taxes [FR Doc. 2017–18852 Filed 9–5–17; 8:45 am]
in promoting economic development, would obstruct these express Federal BILLING CODE 4337–15–P
self-determination, and Tribal policies supporting Tribal economic
sovereignty. 77 FR 72,440, 72,447–48 development and self-determination,
(December 5, 2012). The principles and also threaten substantial Tribal
supporting the Federal preemption of interests in effective Tribal government, INTERNATIONAL TRADE
State law in the field of Indian leasing economic self-sufficiency, and territorial COMMISSION
and the taxation of lease-related autonomy. See Michigan v. Bay Mills
interests and activities applies with Indian Community, 134 S. Ct. 2024, [Investigation Nos. 701–TA–583 and 731–
equal force to leases entered into under 2043 (2014) (Sotomayor, J., concurring) TA–1381 (Preliminary)]
Tribal leasing regulations approved by (determining that ‘‘[a] key goal of the
the Federal government pursuant to the Federal Government is to render Tribes Investigations: Cast Iron Soil Pipe
HEARTH Act. more self-sufficient, and better Fittings From China
Section 5 of the Indian Reorganization positioned to fund their own sovereign
Act, 25 U.S.C. 465, preempts State and functions, rather than relying on Federal Determinations
local taxation of permanent funding’’). The additional costs of State On the basis of the record 1 developed
improvements on trust land. and local taxation have a chilling effect in the subject investigations, the United
Confederated Tribes of the Chehalis on potential lessees, as well as on a States International Trade Commission
Reservation v. Thurston County, 724 Tribe that, as a result, might refrain from (‘‘Commission’’) determines, pursuant
F.3d 1153, 1157 (9th Cir. 2013) (citing exercising its own sovereign right to to the Tariff Act of 1930 (‘‘the Act’’),
Mescalero Apache Tribe v. Jones, 411 impose a Tribal tax to support its that there is a reasonable indication that
U.S. 145 (1973)). Similarly, section 465 infrastructure needs. See id. at 2043–44 an industry in the United States is
preempts state taxation of rent payments (finding that State and local taxes materially injured by reason of imports
asabaliauskas on DSKBBXCHB2PROD with NOTICES
by a lessee for leased trust lands, greatly discourage Tribes from raising of cast iron soil pipe fittings from China,
because ‘‘tax on the payment of rent is tax revenue from the same sources provided for in subheading 7307.11.00
indistinguishable from an impermissible because the imposition of double of the Harmonized Tariff Schedule of
tax on the land.’’ See Seminole Tribe of taxation would impede Tribal economic the United States, that are alleged to be
Florida v. Stranburg, No. 14–14524, growth). sold in the United States at less than fair
*13–*17, n.8 (11th Cir. 2015). In Similar to BIA’s surface leasing
addition, as explained in the preamble regulations, Tribal regulations under the 1 The record is defined in sec. 207.2(f) of the
to the revised leasing regulations at 25 HEARTH Act pervasively cover all Commission’s Rules of Practice and Procedure (19
CFR part 162, Federal courts have aspects of leasing. See 25 U.S.C. CFR 207.2(f)).
VerDate Sep<11>2014 17:37 Sep 05, 2017 Jkt 241001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\06SEN1.SGM 06SEN1](https://thefederalregister.org/doc/82_FR_42283/page/2.svg)
Document Created: 2017-09-06 00:56:33
Document Modified: 2017-09-06 00:56:33
| 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 | 82 FR 42112 |
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