83 FR 13298 - HEARTH Act Approval of Cheyenne and Arapaho Tribe's Business Site Leasing Regulations
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 83, Issue 60 (March 28, 2018)
Bureau of Indian Affairs
Federal Register Volume 83, Issue 60 (March 28, 2018)
| Page Range | 13298-13299 | |
| FR Document | 2018-06225 |
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)] [Notices] [Pages 13298-13299] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06225] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of Cheyenne and Arapaho Tribe's Business Site Leasing Regulations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On November 9, 2017, the Bureau of Indian Affairs (BIA) approved the Cheyenne and Arapaho Tribes Business Site Leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business site leases without further BIA approval. FOR FURTHER INFORMATION CONTACT: Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-4642- MIB, Washington, DC 20240, at (202) 208-3615. SUPPLEMENTARY INFORMATION: I. Summary of the HEARTH Act The HEARTH Act of 2012 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 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 Cheyenne and Arapaho Tribes. 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 72440, 72447-48 (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 72447-48, 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 [[Page 13299]] 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 State of Oklahoma. Dated: November 9, 2017. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs, Exercising the Authority of the Acting Assistant Secretary--Indian Affairs. Editorial Note: This document was received at The Office of the Federal Register on March 23, 2018. [FR Doc. 2018-06225 Filed 3-27-18; 8:45 am] BILLING CODE 4337-15-P
![13298 Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices
continues to review, approve, and to two renewal terms of 25 years each, to the revised leasing regulations at 25
monitor individual Indian land leases without the approval of the Secretary of CFR part 162, Federal courts have
and other types of leases not covered the Interior. The Act also authorizes applied a balancing test to determine
under the Tribal regulations according Tribes to enter into leases for whether State and local taxation of non-
to the Part 162 regulations. residential, recreational, religious or Indians on the reservation is preempted.
Accordingly, the Federal and Tribal educational purposes for a primary term White Mountain Apache Tribe v.
interests weigh heavily in favor of of up to 75 years without the approval Bracker, 448 U.S. 136, 143 (1980). The
preemption of State and local taxes on of the Secretary. Participating Tribes Bracker balancing test, which is
lease-related activities and interests, develop Tribal leasing regulations, conducted against a backdrop of
regardless of whether the lease is including an environmental review ‘‘traditional notions of Indian self-
governed by Tribal leasing regulations process, and then must obtain the government,’’ requires a particularized
or part 162. Improvements, activities, Secretary’s approval of those regulations examination of the relevant State,
and leasehold or possessory interests prior to entering into leases. The Act Federal, and Tribal interests. We hereby
may be subject to taxation by the requires the Secretary to approve Tribal adopt the Bracker analysis from the
Kootenai Tribe of Idaho. regulations if the Tribal regulations are preamble to the surface leasing
Dated: November 9, 2017. consistent with the Department’s leasing regulations, 77 FR at 72447–48, as
regulations at 25 CFR part 162 and supplemented by the analysis below.
John Tahsuda,
provide for an environmental review The strong Federal and Tribal
Principal Deputy Assistant Secretary—Indian process that meets requirements set interests against State and local taxation
Affairs, Exercising the Authority of the Acting
forth in the Act. This notice announces of improvements, leaseholds, and
Assistant Secretary—Indian Affairs.
that the Secretary, through the Assistant activities on land leased under the
Editorial Note: This document was Secretary—Indian Affairs, has approved Department’s leasing regulations apply
received at The Office of the Federal Register the Tribal regulations for the Cheyenne equally to improvements, leaseholds,
on March 23, 2018. and Arapaho Tribes. and activities on land leased pursuant to
[FR Doc. 2018–06226 Filed 3–27–18; 8:45 am] Tribal leasing regulations approved
II. Federal Preemption of State and under the HEARTH Act. Congress’s
BILLING CODE 4337–15–P
Local Taxes overarching intent was to ‘‘allow Tribes
The Department’s regulations to exercise greater control over their
DEPARTMENT OF THE INTERIOR governing the surface leasing of trust own land, support self-determination,
and restricted Indian lands specify that, and eliminate bureaucratic delays that
Bureau of Indian Affairs subject to applicable Federal law, stand in the way of homeownership and
[189A2100DD/AAKC001030/ permanent improvements on leased economic development in Tribal
A0A501010.999900] land, leasehold or possessory interests, communities.’’ 158 Cong. Rec. H. 2682
and activities under the lease are not (May 15, 2012). The HEARTH Act was
HEARTH Act Approval of Cheyenne subject to State and local taxation and intended to afford Tribes ‘‘flexibility to
and Arapaho Tribe’s Business Site may be subject to taxation by the Indian adapt lease terms to suit [their] business
Leasing Regulations Tribe with jurisdiction. See 25 CFR and cultural needs’’ and to ‘‘enable
162.017. As explained further in the [Tribes] to approve leases quickly and
AGENCY: Bureau of Indian Affairs, preamble to the final regulations, the efficiently.’’ Id. at 5–6.
Interior. Federal government has a strong interest Assessment of State and local taxes
ACTION: Notice. in promoting economic development, would obstruct these express Federal
self-determination, and Tribal policies supporting Tribal economic
SUMMARY: On November 9, 2017, the
sovereignty. 77 FR 72440, 72447–48 development and self-determination,
Bureau of Indian Affairs (BIA) approved
(December 5, 2012). The principles and also threaten substantial Tribal
the Cheyenne and Arapaho Tribes
supporting the Federal preemption of interests in effective Tribal government,
Business Site Leasing regulations under
State law in the field of Indian leasing economic self-sufficiency, and territorial
the Helping Expedite and Advance
and the taxation of lease-related autonomy. See Michigan v. Bay Mills
Responsible Tribal Homeownership Act interests and activities applies with Indian Community, 134 S. Ct. 2024,
of 2012 (HEARTH Act). With this equal force to leases entered into under 2043 (2014) (Sotomayor, J., concurring)
approval, the Tribe is authorized to Tribal leasing regulations approved by (determining that ‘‘[a] key goal of the
enter into business site leases without the Federal government pursuant to the Federal Government is to render Tribes
further BIA approval. HEARTH Act. more self-sufficient, and better
FOR FURTHER INFORMATION CONTACT: Section 5 of the Indian Reorganization positioned to fund their own sovereign
Sharlene Round Face, Bureau of Indian Act, 25 U.S.C. 465, preempts State and functions, rather than relying on Federal
Affairs, Division of Real Estate Services, local taxation of permanent funding’’). The additional costs of State
1849 C Street NW, MS–4642–MIB, improvements on trust land. and local taxation have a chilling effect
Washington, DC 20240, at (202) 208– Confederated Tribes of the Chehalis on potential lessees, as well as on a
3615. Reservation v. Thurston County, 724 Tribe that, as a result, might refrain from
SUPPLEMENTARY INFORMATION: 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
I. Summary of the HEARTH Act U.S. 145 (1973)). Similarly, section 465 infrastructure needs. See id. at 2043–44
The HEARTH Act of 2012 makes a preempts state taxation of rent payments (finding that State and local taxes
daltland on DSKBBV9HB2PROD with NOTICES
voluntary, alternative land leasing by a lessee for leased trust lands, greatly discourage Tribes from raising
process available to Tribes, by amending because ‘‘tax on the payment of rent is tax revenue from the same sources
the Indian Long-Term Leasing Act of indistinguishable from an impermissible because the imposition of double
1955, 25 U.S.C. 415. The Act authorizes tax on the land.’’ See Seminole Tribe of taxation would impede Tribal economic
Tribes to negotiate and enter into Florida v. Stranburg, No. 14–14524, growth).
business leases of Tribal trust lands *13–*17, n.8 (11th Cir. 2015). In Similar to BIA’s surface leasing
with a primary term of 25 years, and up addition, as explained in the preamble regulations, Tribal regulations under the
VerDate Sep<11>2014 20:30 Mar 27, 2018 Jkt 244001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\28MRN1.SGM 28MRN1](https://thefederalregister.org/doc/83_FR_13358/page/1.svg)
![Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices 13299
HEARTH Act pervasively cover all FOR FURTHER INFORMATION CONTACT: Ms. equal force to leases entered into under
aspects of leasing. See 25 U.S.C. Sharlene Round Face, Bureau of Indian Tribal leasing regulations approved by
415(h)(3)(B)(i) (requiring Tribal Affairs, Division of Real Estate Services, the Federal government pursuant to the
regulations be consistent with BIA 1849 C Street NW, MS–4642–MIB, HEARTH Act.
surface leasing regulations). Washington, DC 20240, at (202) 208– Section 5 of the Indian Reorganization
Furthermore, the Federal government 3615. Act, 25 U.S.C. 465, preempts State and
remains involved in the Tribal land local taxation of permanent
SUPPLEMENTARY INFORMATION:
leasing process by approving the Tribal improvements on trust land.
leasing regulations in the first instance I. Summary of the HEARTH Act Confederated Tribes of the Chehalis
and providing technical assistance, Reservation v. Thurston County, 724
The HEARTH Act makes a voluntary,
upon request by a Tribe, for the F.3d 1153, 1157 (9th Cir. 2013) (citing
alternative land leasing process
development of an environmental Mescalero Apache Tribe v. Jones, 411
available to Tribes, by amending the
review process. The Secretary also U.S. 145 (1973)). Similarly, section 465
Indian Long-Term Leasing Act of 1955,
retains authority to take any necessary preempts state taxation of rent payments
25 U.S.C. 415. The HEARTH Act
actions to remedy violations of a lease by a lessee for leased trust lands,
authorizes Tribes to negotiate and enter
or of the Tribal regulations, including because ‘‘tax on the payment of rent is
into agricultural and business leases of
terminating the lease or rescinding indistinguishable from an impermissible
Tribal trust lands with a primary term
approval of the Tribal regulations and tax on the land.’’ See Seminole Tribe of
of 25 years, and up to two renewal terms Florida v. Stranburg, No. 14–14524,
reassuming lease approval
of 25 years each, without the approval *13–*17, n.8 (11th Cir. 2015). In
responsibilities. Moreover, the Secretary
of the Secretary of the Interior addition, as explained in the preamble
continues to review, approve, and
(Secretary). The HEARTH Act also to the revised leasing regulations at 25
monitor individual Indian land leases
authorizes Tribes to enter into leases for CFR part 162, Federal courts have
and other types of leases not covered
residential, recreational, religious or applied a balancing test to determine
under the Tribal regulations according
educational purposes for a primary term whether State and local taxation of non-
to the Part 162 regulations.
Accordingly, the Federal and Tribal of up to 75 years without the approval Indians on the reservation is preempted.
interests weigh heavily in favor of of the Secretary. Participating Tribes White Mountain Apache Tribe v.
preemption of State and local taxes on develop Tribal leasing regulations, Bracker, 448 U.S. 136, 143 (1980). The
lease-related activities and interests, including an environmental review Bracker balancing test, which is
regardless of whether the lease is process, and then must obtain the conducted against a backdrop of
governed by Tribal leasing regulations Secretary’s approval of those regulations ‘‘traditional notions of Indian self-
or part 162. Improvements, activities, prior to entering into leases. The government,’’ requires a particularized
and leasehold or possessory interests HEARTH Act requires the Secretary to examination of the relevant State,
may be subject to taxation by the State approve Tribal regulations if the Tribal Federal, and Tribal interests. We hereby
of Oklahoma. regulations are consistent with the adopt the Bracker analysis from the
Department of the Interior’s preamble to the surface leasing
Dated: November 9, 2017.
(Department) leasing regulations at 25 regulations, 77 FR at 72,447–48, as
John Tahsuda, CFR part 162 and provide for an supplemented by the analysis below.
Principal Deputy Assistant Secretary—Indian environmental review process that
Affairs, Exercising the Authority of the Acting
The strong Federal and Tribal
meets requirements set forth in the interests against State and local taxation
Assistant Secretary—Indian Affairs.
HEARTH Act. This notice announces of improvements, leaseholds, and
Editorial Note: This document was that the Secretary, through the Assistant activities on land leased under the
received at The Office of the Federal Register Secretary—Indian Affairs, has approved Department’s leasing regulations apply
on March 23, 2018. the Tribal regulations for the Coquille equally to improvements, leaseholds,
[FR Doc. 2018–06225 Filed 3–27–18; 8:45 am] Indian Tribe. and activities on land leased pursuant to
BILLING CODE 4337–15–P
II. Federal Preemption of State and Tribal leasing regulations approved
Local Taxes under the HEARTH Act. Congress’s
overarching intent was to ‘‘allow tribes
DEPARTMENT OF THE INTERIOR The Department’s regulations to exercise greater control over their
governing the surface leasing of trust own land, support self-determination,
Bureau of Indian Affairs and restricted Indian lands specify that, and eliminate bureaucratic delays that
[189A2100DD/AAKC001030/ subject to applicable Federal law, stand in the way of homeownership and
A0A501010.999900] permanent improvements on leased economic development in tribal
land, leasehold or possessory interests, communities.’’ 158 Cong. Rec. H. 2682
HEARTH Act Approval of Coquille and activities under the lease are not (May 15, 2012). The HEARTH Act was
Indian Tribe Ordinance subject to State and local taxation and intended to afford Tribes ‘‘flexibility to
AGENCY: Bureau of Indian Affairs, may be subject to taxation by the Indian adapt lease terms to suit [their] business
Interior. Tribe with jurisdiction. See 25 CFR and cultural needs’’ and to ‘‘enable
ACTION: Notice.
162.017. As explained further in the [Tribes] to approve leases quickly and
preamble to the final regulations, the efficiently.’’ Id. at 5–6.
SUMMARY: On November 9, 2017, the Federal government has a strong interest Assessment of State and local taxes
Bureau of Indian Affairs (BIA) approved in promoting economic development, would obstruct these express Federal
daltland on DSKBBV9HB2PROD with NOTICES
the Coquille Indian Tribe leasing self-determination, and Tribal policies supporting Tribal economic
regulations under the Helping Expedite sovereignty. 77 FR 72,440, 72,447–48 development and self-determination,
and Advance Responsible Tribal (December 5, 2012). The principles and also threaten substantial Tribal
Homeownership Act of 2012 (HEARTH supporting the Federal preemption of interests in effective Tribal government,
Act). With this approval, the Tribe is State law in the field of Indian leasing economic self-sufficiency, and territorial
authorized to enter into business site and the taxation of lease-related autonomy. See Michigan v. Bay Mills
leases without further BIA approval. interests and activities applies with Indian Community, 134 S. Ct. 2024,
VerDate Sep<11>2014 20:30 Mar 27, 2018 Jkt 244001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\28MRN1.SGM 28MRN1](https://thefederalregister.org/doc/83_FR_13358/page/2.svg)
Document Created: 2018-11-01 08:56:27
Document Modified: 2018-11-01 08:56:27
| 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 | Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street NW, MS-4642- MIB, Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 83 FR 13298 |
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