83 FR 13299 - HEARTH Act Approval of Coquille Indian Tribe Ordinance
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 | 13299-13300 | |
| FR Document | 2018-06228 |
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)] [Notices] [Pages 13299-13300] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06228] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of Coquille Indian Tribe Ordinance AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On November 9, 2017, the Bureau of Indian Affairs (BIA) approved the Coquille Indian Tribe 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: Ms. 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 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 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 Coquille Indian Tribe. 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, [[Page 13300]] 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 Coquille Indian Tribe. Dated: November 9, 2017. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs, Exercising the Authority of the Assistant Secretary--Indian Affairs. Editorial Note: This document was received at The Office of the Federal Register on March 23, 2018. [FR Doc. 2018-06228 Filed 3-27-18; 8:45 am] BILLING CODE 4337-15-P
![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,
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![13300 Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices
2043 (2014) (Sotomayor, J., concurring) DEPARTMENT OF THE INTERIOR Meridian, Texas County, Oklahoma, being
(determining that ‘‘[a] key goal of the more particularly described in TRUE NORTH
Federal Government is to render Tribes Bureau of Indian Affairs bearings as follows:
Beginning at the Southwest Corner of the
more self-sufficient, and better [189A2100DD/AAKC001030/ SW/4 of said Section 11; thence N 00°18′19″
positioned to fund their own sovereign A0A501010.999900 253G] E, a distance of 1,291.19 feet to the
functions, rather than relying on Federal intersection between said West line of the
funding’’). The additional costs of State Land Acquisitions: The Shawnee Tribe SW/4 and the South line of a tract of land
and local taxation have a chilling effect as described and filed in Book 983 at Page
AGENCY: Bureau of Indian Affairs, 434 in the Office of the Texas County Clerk;
on potential lessees, as well as on a
Interior. thence along the South line of said tract as
Tribe that, as a result, might refrain from
ACTION: Notice. filed in Book 983 at Page 434 for the
exercising its own sovereign right to
impose a Tribal tax to support its following seven (7) courses:
SUMMARY: The Secretary of the Interior 1. Thence S 89°36′25″ E, a distance of
infrastructure needs. See id. at 2043–44 made a final agency determination to 41.40 feet;
(finding that State and local taxes acquire 102.98 acres, more or less, of 2. Thence N 00°23′35″ E, a distance of 8.74
greatly discourage Tribes from raising land near the City of Guymon, Texas feet;
tax revenue from the same sources County, Oklahoma, in trust for the 3. Thence with a curve turning to the Right
because the imposition of double Shawnee Tribe for gaming and other with an arc length of 81.63 feet, with a radius
taxation would impede Tribal economic purposes on January 19, 2018. of 162.00 feet, with a chord bearing of N
growth). 14°49′42″ E, with a chord length of 80.77 feet;
FOR FURTHER INFORMATION CONTACT: Ms. 4. Thence N 29°15′47″ E, a distance of
Similar to BIA’s surface leasing Paula L. Hart, Director, Office of Indian 211.01 feet;
regulations, Tribal regulations under the Gaming, Office of the Assistant 5. Thence with a curve turning to the Left
HEARTH Act pervasively cover all Secretary—Indian Affairs, MS–3657, with an arc length of 106.48 feet, with a
aspects of leasing. See 25 U.S.C. 1849 C Street NW, Washington, DC radius of 238.00 feet, with a chord bearing of
415(h)(3)(B)(i) (requiring Tribal 20240, telephone (202) 219–4066. N 16°26′47″ E, with a chord length of 105.59
regulations be consistent with BIA feet;
SUPPLEMENTARY INFORMATION: This
surface leasing regulations). 6. Thence N 24°40′53″ E, a distance of
notice is published in the exercise of 179.39 feet;
Furthermore, the Federal government authority delegated by the Secretary of 7. Thence N 54°15′23″ E, a distance of
remains involved in the Tribal land the Interior to the Assistant Secretary— 1,305.47 feet to a point common with the
leasing process by approving the Tribal Indian Affairs by 209 Departmental West line of the NE/4 SW/4; Thence S
leasing regulations in the first instance Manual 8.1, and is published to comply 00°21′54″ W, along the West line of the NE/
and providing technical assistance, with the requirements of 25 CFR 4 SW/4, a distance of 1,270.87 feet to the
upon request by a Tribe, for the 151.12(c)(2)(ii) that notice of the Southwest Corner thereof; thence S 89°45′32″
development of an environmental decision to acquire land in trust be E, along the South line of the NE/4 SW/4, a
review process. The Secretary also distance of 1,321.40 feet to the Southeast
promptly provided in the Federal
retains authority to take any necessary Corner thereof; thence S 00°25′29″ W, along
Register. the East line of the S/2 SW/4, a distance of
actions to remedy violations of a lease On January 19, 2018, the Secretary of 1,323.96 feet to the Southeast Corner thereof;
or of the Tribal regulations, including the Interior issued a decision to accept thence N 89°44′49″ W, along the South line
terminating the lease or rescinding approximately 102.98 acres, more or of the SW/4, a distance of 2,640.03 feet to the
approval of the Tribal regulations and less, of land near the City of Guymon, True Point of Beginning, having an area of
reassuming lease approval Texas County, Oklahoma, (Site) in trust 102.98 Acres, more or less. Basis of Bearings
responsibilities. Moreover, the Secretary for the Shawnee Tribe (Tribe), under the are True North. Said being described by
continues to review, approve, and authority of the Indian Reorganization Obert D. Bennett, PLS. No. 1471 on October
monitor individual Indian land leases Act, 25 U.S.C. 5108. The Department 6, 2014. Surface Only.
and other types of leases not covered previously determined on January 19, Dated: March 12, 2018.
under the Tribal regulations according 2017, that the Tribe is eligible to John Tahsuda,
to the Part 162 regulations. conduct gaming on the Site pursuant to Principal Deputy Assistant Secretary—Indian
Accordingly, the Federal and Tribal Section 20 of the Indian Gaming Affairs Exercising the Authority of the
interests weigh heavily in favor of Regulatory Act, 25 U.S.C. 2719(b)(1)(A). Assistant Secretary—Indian Affairs.
preemption of State and local taxes on On March 3, 2017, the Governor of the [FR Doc. 2018–06230 Filed 3–27–18; 8:45 am]
lease-related activities and interests, State of Oklahoma concurred with the BILLING CODE 4337–15–P
regardless of whether the lease is Department’s finding.
governed by Tribal leasing regulations The Principal Deputy Assistant
or Part 162. Improvements, activities, Secretary—Indian Affairs, on behalf of DEPARTMENT OF THE INTERIOR
and leasehold or possessory interests the Secretary of the Interior, will
may be subject to taxation by the immediately acquire title to the Guymon Bureau of Indian Affairs
Coquille Indian Tribe. Site in the name of the United States of
America in trust for the Tribe upon [189A2100DD/AAKC001030/
Dated: November 9, 2017. A0A501010.999900]
fulfillment of Departmental
John Tahsuda, requirements. The 102.98 acres, more or HEARTH Act Approval of Little
Principal Deputy Assistant Secretary—Indian less, are located in Texas County, Traverse Bay Bands of Odawa Indians
Affairs, Exercising the Authority of the Oklahoma, and are described as follows:
daltland on DSKBBV9HB2PROD with NOTICES
Assistant Secretary—Indian Affairs.
Business, Agricultural, Residential,
All that part of the Northwest Quarter Wind and Solar Resource, and Wind
Editorial Note: This document was (NW/4) of the Southwest Quarter (SW/4) and Energy Evaluation Leases
received at The Office of the Federal Register the South Half (S/2) of the Southwest Quarter
on March 23, 2018. (SW/4) lying South of the South Right-of- AGENCY: Bureau of Indian Affairs,
Way line of U.S. Highway 54 in Section Interior.
[FR Doc. 2018–06228 Filed 3–27–18; 8:45 am] Eleven (11), Township Two (2) North, Range ACTION: Notice.
BILLING CODE 4337–15–P Fourteen (14) East, Cimarron Base and
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Document Created: 2018-11-01 08:55:38
Document Modified: 2018-11-01 08:55:38
| 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, 1849 C Street NW, MS- 4642-MIB, Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 83 FR 13299 |
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