83_FR_13352 83 FR 13292 - HEARTH Act Approval of Business Leasing Regulations

83 FR 13292 - HEARTH Act Approval of Business Leasing Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 83, Issue 60 (March 28, 2018)

Page Range13292-13293
FR Document2018-06235

On December 29, 2017, the Bureau of Indian Affairs (BIA) approved the Torres Martinez Desert Cahuilla Indians 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 and other authorized purposes.

Federal Register, Volume 83 Issue 60 (Wednesday, March 28, 2018) 
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)]
[Notices]
[Pages 13292-13293]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06235]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[189A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Business Leasing Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On December 29, 2017, the Bureau of Indian Affairs (BIA) 
approved the Torres Martinez Desert Cahuilla Indians 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 and other authorized purposes.

FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of 
Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-
4642-MIB, 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 (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 Torres Martinez Desert Cahuilla 
Indians.

II. Federal Preemption of State and Local Taxes

    The Department's regulations governing the surface leasing of trust 
and restricted Indian lands specify that,

[[Page 13293]]

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).
    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 
Torres Martinez Desert Cahuilla Indians.

    Dated: December 29, 2017.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising the 
Authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-06235 Filed 3-27-18; 8:45 am]
 BILLING CODE 4337-15-P

13292 Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices species unless a Federal permit is issued Submitting Comments: If you wish to Endangered Species Act of 1973, as that allows such activities. The ESA comment, you may submit comments by amended (16 U.S.C. 1531 et seq.; ESA), requires that we invite public comment any one of the following methods: and our regulations in the Code of before issuing these permits. • U.S. mail or hand-delivery: U.S. Federal Regulations (CFR) at 50 CFR Fish and Wildlife Service’s Regional part 17. With some exceptions, the ESA DATES: We must receive written data or Office (see above). prohibits activities with listed species comments on the applications at the • Email: permitsR4ES@fws.gov. unless a Federal permit is issued that address given in ADDRESSES by April 27, Please include your name and return allows such activities. The ESA requires 2018. address in your email message. If you do that we invite public comment before not receive a confirmation from the U.S. ADDRESSES: Reviewing Documents: issuing these permits. Fish and Wildlife Service that we have Documents and other information received your email message, contact us submitted with the applications are Public Availability of Comments directly at the telephone number listed available for review, subject to the in FOR FURTHER INFORMATION CONTACT. Before including your address, phone requirements of the Privacy Act and FOR FURTHER INFORMATION CONTACT: number, email address, or other Freedom of Information Act, by any Karen Marlowe, Permit Coordinator, personal identifying information in your party who submits a written request for 404–679–7097 (telephone) or 404–679– comment, you should be aware that a copy of such documents to the 7081 (fax). your entire comment—including your following office within 30 days of the SUPPLEMENTARY INFORMATION: We invite personal identifying information—may date of publication of this notice (see review and comment from local, State, be made publicly available at any time. DATES): U.S. Fish and Wildlife Service and Federal agencies and the public on While you can ask us in your comment Regional Office, Ecological Services, applications we have received for to withhold your personal identifying 1875 Century Boulevard, Atlanta, GA permits to conduct certain activities information from public review, we 30345 (Attn: Karen Marlowe, Permit with endangered and threatened species cannot guarantee that we will be able to Coordinator). under section 10(a)(1)(A) of the do so. PERMIT APPLICATIONS Permit application Applicant Species/Numbers Location Activity Type of take Permit action No. TE 22311A–4 Tennessee Blue shiner (Cyprinella caerulea), Alabama, Geor- Presence/ab- Capture, identify, take fin clips, Renewal and Aquarium, Amber darter (Percina gia, Kentucky, sence surveys, and release all of the identified Amendment. Chattanooga, antesella), Cumberland darter North Caro- tissue collection species, and capture, transport TN. (Etheostoma susanae), lina, Ten- for genetic and maintain in captivity up to Goldline darter (Percina nessee, and analysis, and 10 Conasauga logperch and up aurolineata), Conasauga Virginia. captive propa- to 80 laurel dace. logperch (Percina jenkinsi), gation research. Snail darter (Percina tanasi), and Laurel dace (Chrosomus saylori). Authority HEARTH Act. With this approval, the also authorizes tribes to enter into leases We provide this notice under section Tribe is authorized to enter into the for residential, recreational, religious or 10(c) of the Act. following type of leases without BIA educational purposes for a primary term approval: Business and other authorized of up to 75 years without the approval Leopoldo Miranda, purposes. of the Secretary. Participating tribes Assistant Regional Director, Ecological FOR FURTHER INFORMATION CONTACT: Ms. develop tribal leasing regulations, Services, Southeast Region. Sharlene Round Face, Bureau of Indian including an environmental review [FR Doc. 2018–06202 Filed 3–27–18; 8:45 am] Affairs, Division of Real Estate Services, process, and then must obtain the BILLING CODE 4333–15–P 1849 C Street NW, MS–4642–MIB, Secretary’s approval of those regulations Washington, DC 20240, telephone: (202) prior to entering into leases. The Act 208–3615. requires the Secretary to approve tribal DEPARTMENT OF THE INTERIOR regulations if the tribal regulations are SUPPLEMENTARY INFORMATION: consistent with the Department’s leasing Bureau of Indian Affairs I. Summary of the HEARTH Act regulations at 25 CFR part 162 and [189A2100DD/AAKC001030/ The HEARTH (Helping Expedite and provide for an environmental review A0A501010.999900] Advance Responsible Tribal process that meets requirements set Homeownership) Act of 2012 (the Act) forth in the Act. This notice announces HEARTH Act Approval of Business that the Secretary, through the Assistant makes a voluntary, alternative land Leasing Regulations Secretary—Indian Affairs, has approved leasing process available to tribes, by AGENCY: Bureau of Indian Affairs, amending the Indian Long-Term Leasing the tribal regulations for the Torres daltland on DSKBBV9HB2PROD with NOTICES Interior. Act of 1955, 25 U.S.C. 415. The Act Martinez Desert Cahuilla Indians. ACTION: Notice. authorizes tribes to negotiate and enter II. Federal Preemption of State and into agricultural and business leases of Local Taxes SUMMARY: On December 29, 2017, the tribal trust lands with a primary term of Bureau of Indian Affairs (BIA) approved 25 years, and up to two renewal terms The Department’s regulations the Torres Martinez Desert Cahuilla of 25 years each, without the approval governing the surface leasing of trust Indians leasing regulations under the of the Secretary of the Interior. The Act and restricted Indian lands specify that, VerDate Sep<11>2014 21:28 Mar 27, 2018 Jkt 244001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\28MRN1.SGM 28MRN1

Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices 13293 subject to applicable Federal law, stand in the way of homeownership and preemption of State and local taxes on permanent improvements on leased economic development in tribal lease-related activities and interests, land, leasehold or possessory interests, communities.’’ 158 Cong. Rec. H. 2682 regardless of whether the lease is and activities under the lease are not (May 15, 2012). The HEARTH Act was governed by tribal leasing regulations or subject to State and local taxation and intended to afford tribes ‘‘flexibility to Part 162. Improvements, activities, and may be subject to taxation by the Indian adapt lease terms to suit [their] business leasehold or possessory interests may be tribe with jurisdiction. See 25 CFR and cultural needs’’ and to ‘‘enable subject to taxation by the Torres 162.017. As explained further in the [Tribes] to approve leases quickly and Martinez Desert Cahuilla Indians. preamble to the final regulations, the efficiently.’’ Id. at 5–6. Dated: December 29, 2017. Federal government has a strong interest Assessment of State and local taxes John Tahsuda, in promoting economic development, would obstruct these express Federal self-determination, and tribal policies supporting tribal economic Principal Deputy Assistant Secretary—Indian Affairs, Exercising the Authority of the sovereignty. 77 FR 72,440, 72,447–48 development and self-determination, Assistant Secretary—Indian Affairs. (December 5, 2012). The principles and also threaten substantial tribal [FR Doc. 2018–06235 Filed 3–27–18; 8:45 am] supporting the Federal preemption of interests in effective tribal government, economic self-sufficiency, and territorial BILLING CODE 4337–15–P State law in the field of Indian leasing and the taxation of lease-related autonomy. See Michigan v. Bay Mills interests and activities applies with Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) DEPARTMENT OF THE INTERIOR equal force to leases entered into under tribal leasing regulations approved by (determining that ‘‘[a] key goal of the Bureau of Indian Affairs the Federal government pursuant to the Federal Government is to render Tribes HEARTH Act. more self-sufficient, and better [189A2100DD/AAKC001030/ Section 5 of the Indian Reorganization positioned to fund their own sovereign A0A501010.999900] Act, 25 U.S.C. 465, preempts State and functions, rather than relying on Federal local taxation of permanent funding’’). The additional costs of State HEARTH Act Approval of Ramona improvements on trust land. and local taxation have a chilling effect Band of Cahuilla’s Business Site Confederated Tribes of the Chehalis on potential lessees, as well as on a tribe Leasing Ordinance Reservation v. Thurston County, 724 that, as a result, might refrain from AGENCY: Bureau of Indian Affairs, F.3d 1153, 1157 (9th Cir. 2013) (citing exercising its own sovereign right to Interior. Mescalero Apache Tribe v. Jones, 411 impose a tribal tax to support its ACTION: Notice. U.S. 145 (1973)). Similarly, section 465 infrastructure needs. See id. at 2043–44 preempts state taxation of rent payments (finding that State and local taxes SUMMARY: On December 29, 2017, the by a lessee for leased trust lands, greatly discourage tribes from raising tax Bureau of Indian Affairs (BIA) approved because ‘‘tax on the payment of rent is revenue from the same sources because the Ramona Band of Cahuilla’s leasing indistinguishable from an impermissible the imposition of double taxation would regulations under the Helping Expedite tax on the land.’’ See Seminole Tribe of impede tribal economic growth). and Advance Responsible Tribal Florida v. Stranburg, No. 14–14524, Just like BIA’s surface leasing Homeownership Act of 2012 (HEARTH *13-*17, n.8 (11th Cir. 2015). In regulations, tribal regulations under the Act). With this approval, the Tribe is addition, as explained in the preamble HEARTH Act pervasively cover all authorized to enter into leases for to the revised leasing regulations at 25 aspects of leasing. See Guidance for the business purposes without further BIA CFR part 162, Federal courts have Approval of Tribal Leasing Regulations approval. applied a balancing test to determine under the HEARTH Act, NPM–TRUS– FOR FURTHER INFORMATION CONTACT: whether State and local taxation of non- 29 (effective Jan. 16, 2013) (providing guidance on Federal review process to Sharlene Round Face, Bureau of Indian Indians on the reservation is preempted. ensure consistency of proposed tribal Affairs, Division of Real Estate Services, White Mountain Apache Tribe v. regulations with Part 162 regulations 1849 C Street NW, MS–4642–MIB, Bracker, 448 U.S. 136, 143 (1980). The and listing required tribal regulatory Washington, DC 20240, at (202) 208– Bracker balancing test, which is provisions). Furthermore, the Federal 3615. conducted against a backdrop of ‘‘traditional notions of Indian self- government remains involved in the SUPPLEMENTARY INFORMATION: government,’’ requires a particularized tribal land leasing process by approving I. Summary of the HEARTH Act examination of the relevant State, the tribal leasing regulations in the first Federal, and tribal interests. We hereby instance and providing technical The HEARTH Act of 2012 makes a adopt the Bracker analysis from the assistance, upon request by a tribe, for voluntary, alternative land leasing preamble to the surface leasing the development of an environmental process available to tribes, by amending regulations, 77 FR at 72,447–48, as review process. The Secretary also the Indian Long-Term Leasing Act of supplemented by the analysis below. retains authority to take any necessary 1955, 25 U.S.C. 415. The Act authorizes The strong Federal and tribal interests actions to remedy violations of a lease Tribes to negotiate and enter into against State and local taxation of or of the tribal regulations, including agricultural and business leases of improvements, leaseholds, and terminating the lease or rescinding Tribal trust lands with a primary term activities on land leased under the approval of the tribal regulations and of 25 years, and up to two renewal terms Department’s leasing regulations apply reassuming lease approval of 25 years each, without the approval equally to improvements, leaseholds, responsibilities. Moreover, the Secretary of the Secretary of the Interior. The Act daltland on DSKBBV9HB2PROD with NOTICES and activities on land leased pursuant to continues to review, approve, and also authorizes Tribes to enter into tribal leasing regulations approved monitor individual Indian land leases leases for residential, recreational, under the HEARTH Act. Congress’s and other types of leases not covered religious or educational purposes for a overarching intent was to ‘‘allow tribes under the tribal regulations according to primary term of up to 75 years without to exercise greater control over their the Part 162 regulations. the approval of the Secretary. own land, support self-determination, Accordingly, the Federal and tribal Participating Tribes develop tribal and eliminate bureaucratic delays that interests weigh heavily in favor of leasing regulations, including an VerDate Sep<11>2014 20:30 Mar 27, 2018 Jkt 244001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\28MRN1.SGM 28MRN1


Document Created: 2018-11-01 08:55:41
Document Modified: 2018-11-01 08:55:41
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, 1849 C Street NW, MS- 4642-MIB, Washington, DC 20240, telephone: (202) 208-3615.
FR Citation83 FR 13292 
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