83 FR 13774 - HEARTH Act Approval of Lummi Tribe of the Lummi Indian Reservation Code of Laws, Trust Lands Leasing Code
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 83, Issue 62 (March 30, 2018)
Bureau of Indian Affairs
Federal Register Volume 83, Issue 62 (March 30, 2018)
| Page Range | 13774-13775 | |
| FR Document | 2018-06443 |
[Federal Register Volume 83, Number 62 (Friday, March 30, 2018)] [Notices] [Pages 13774-13775] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06443] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of Lummi Tribe of the Lummi Indian Reservation Code of Laws, Trust Lands Leasing Code AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On November 9, 2017, the Bureau of Indian Affairs (BIA) approved the Lummi Tribe of the Lummi Indian Reservation's leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into leases for business and residential purposes without 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 (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 Lummi Tribe of the Lummi Indian Reservation. 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, 77 FR 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, [[Page 13775]] 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 Lummi Tribe of the Lummi Indian Reservation. Dated: November 9, 2017. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs, Exercising the Authority of the Assistant Secretary--Indian Affairs. [FR Doc. 2018-06443 Filed 3-29-18; 8:45 am] BILLING CODE 4337-15-P
![13774 Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Notices
retain jurisdiction over Indians, respond to a collection of information leases. The Act requires the Secretary to
exclusive of State jurisdiction, but unless it displays a currently valid OMB approve Tribal regulations if the Tribal
where tribal courts have not been control number. regulations are consistent with the
established to exercise that jurisdiction The authority for this action is the Department’s leasing regulations at 25
and the tribes has, by resolution or Paperwork Reduction Act of 1995 (44 CFR part 162 and provide for an
constitutional amendment, chosen to U.S.C. 3501 et seq). environmental review process that
use the Court of Indian Offenses. Dated: March 26, 2018. meets requirements set forth in the Act.
Accordingly, Courts of Indian Offenses Elizabeth K. Appel,
This notice announces that the
exercise jurisdiction under 25 CFR 11. Secretary, through the Assistant
Director, Office of Regulatory Affairs and
Domestic relations are governed by 25 Secretary—Indian Affairs, has approved
Collaborative Action—Indian Affairs.
CFR 11.600, which authorizes the Court the Tribal regulations for the Lummi
[FR Doc. 2018–06440 Filed 3–29–18; 8:45 am]
of Indian Offenses to conduct and Tribe of the Lummi Indian Reservation.
BILLING CODE 4337–15–P
dissolve marriages. II. Federal Preemption of State and
In order to obtain a marriage licenses Local Taxes
in a Court of Indian Offenses, applicants
DEPARTMENT OF THE INTERIOR The Department’s regulations
must provide the six items of
information listed in 25 CFR 11.600(c), governing the surface leasing of trust
Bureau of Indian Affairs
including identifying information, such and restricted Indian lands specify that,
a Social Security number, information [189A2100DD/AAKC001030/ subject to applicable Federal law,
on previous marriage, relationship to A0A501010.999900] permanent improvements on leased
the other applicant, and a certificate of land, leasehold or possessory interests,
HEARTH Act Approval of Lummi Tribe and activities under the lease are not
the results of any medical examination of the Lummi Indian Reservation Code
required by applicable tribal ordinances subject to State and local taxation and
of Laws, Trust Lands Leasing Code may be subject to taxation by the Indian
or the laws of the State in which the
Indian country under the jurisdiction of AGENCY: Bureau of Indian Affairs, Tribe with jurisdiction. See 25 CFR
the Court of Indian Offenses is located. Interior. 162.017. As explained further in the
To dissolve a marriage, applicants must preamble to the final regulations, the
ACTION: Notice.
provide the six items of information Federal government has a strong interest
listed in 25 CFR 11.606(c), including SUMMARY: On November 9, 2017, the in promoting economic development,
information on occupation and Bureau of Indian Affairs (BIA) approved self-determination, and Tribal
residency (to establish jurisdiction), the Lummi Tribe of the Lummi Indian sovereignty. 77 FR 72,440, 77 FR
information on whether the parties have Reservation’s leasing regulations under 72,447–48 (December 5, 2012). The
lives apart for at least 180 days or if the HEARTH Act. With this approval, principles supporting the Federal
there is serious marital discord the Tribe is authorized to enter into preemption of State law in the field of
warranting dissolution, and information leases for business and residential Indian leasing and the taxation of lease-
purposes without BIA approval. related interests and activities applies
on the children of the marriage and
with equal force to leases entered into
whether the wife is pregnant (for the FOR FURTHER INFORMATION CONTACT: Ms.
under tribal leasing regulations
court to determine the appropriate level Sharlene Round Face, Bureau of Indian
approved by the Federal government
of support that may be required from the Affairs, Division of Real Estate Services,
pursuant to the HEARTH Act.
non-custodial parent). (25 CFR 11.601) 1849 C Street NW, MS–4642–MIB, Section 5 of the Indian Reorganization
Two forms are used as part of this Washington, DC 20240, at (202) 208– Act, 25 U.S.C. 465, preempts State and
information collection, the Marriage 3615. local taxation of permanent
License Application and the Dissolution SUPPLEMENTARY INFORMATION: improvements on trust land.
of Marriage Application. Confederated Tribes of the Chehalis
Title of Collection: Law and Order on I. Summary of the HEARTH Act
Reservation v. Thurston County, 724
Indian Reservations—Marriage & The HEARTH (Helping Expedite and F.3d 1153, 1157 (9th Cir. 2013) (citing
Dissolution Applications. Advance Responsible Tribal Mescalero Apache Tribe v. Jones, 411
OMB Control Number: 1076–0094. Homeownership) Act of 2012 (the Act) U.S. 145 (1973)). Similarly, section 465
Form Number: None. makes a voluntary, alternative land
Type of Review: Extension of a preempts state taxation of rent payments
leasing process available to Tribes, by by a lessee for leased trust lands,
currently approved collection.
Respondents/Affected Public: amending the Indian Long-Term Leasing because ‘‘tax on the payment of rent is
Individuals. Act of 1955, 25 U.S.C. 415. The Act indistinguishable from an impermissible
Total Estimated Number of Annual authorizes Tribes to negotiate and enter tax on the land.’’ See Seminole Tribe of
Respondents: 260 per year, on average. into agricultural and business leases of Florida v. Stranburg, No. 14–14524,
Total Estimated Number of Annual Tribal trust lands with a primary term *13–*17, n.8 (11th Cir. 2015). In
Responses: 260 per year, on average. of 25 years, and up to two renewal terms addition, as explained in the preamble
Estimated Completion Time per of 25 years each, without the approval to the revised leasing regulations at 25
Response: 15 minutes. of the Secretary of the Interior. The Act CFR part 162, Federal courts have
Total Estimated Number of Annual also authorizes Tribes to enter into applied a balancing test to determine
Burden Hours: 65 hours. leases for residential, recreational, whether State and local taxation of non-
Respondent’s Obligation: Required to religious or educational purposes for a Indians on the reservation is preempted.
amozie on DSK30RV082PROD with NOTICES
Obtain or Retain a Benefit. primary term of up to 75 years without White Mountain Apache Tribe v.
Frequency of Collection: On occasion. the approval of the Secretary. Bracker, 448 U.S. 136, 143 (1980). The
Total Estimated Annual Nonhour Participating Tribes develop tribal Bracker balancing test, which is
Burden Cost: $6,500 (approximately $25 leasing regulations, including an conducted against a backdrop of
per application for processing fees). environmental review process, and then ‘‘traditional notions of Indian self-
An agency may not conduct or must obtain the Secretary’s approval of government,’’ requires a particularized
sponsor and a person is not required to those regulations prior to entering into examination of the relevant State,
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![Federal Register / Vol. 83, No. 62 / Friday, March 30, 2018 / Notices 13775
Federal, and Tribal interests. We hereby review process. The Secretary also Affairs, Office of Trust Services,
adopt the Bracker analysis from the retains authority to take any necessary Division of Probate Services, 2600 N
preamble to the surface leasing actions to remedy violations of a lease Central Ave., STE MS 102, Phoenix, AZ
regulations, 77 FR at 72,447–48, as or of the Tribal regulations, including 85004: or email to Charlene.Toledo@
supplemented by the analysis below. terminating the lease or rescinding bia.gov. Please reference OMB Control
The strong Federal and Tribal approval of the Tribal regulations and Number 1076–0169 in the subject line of
interests against State and local taxation reassuming lease approval your comments.
of improvements, leaseholds, and responsibilities. Moreover, the Secretary FOR FURTHER INFORMATION CONTACT: To
activities on land leased under the continues to review, approve, and request additional information about
Department’s leasing regulations apply monitor individual Indian land leases this ICR, contact Ms. Charlene Toledo
equally to improvements, leaseholds, and other types of leases not covered by telephone at (505) 563–3371.You
and activities on land leased pursuant to under the Tribal regulations according may also view the ICR at http://
Tribal leasing regulations approved to the part 162 regulations. www.reginfo.gov/public/do/PRAMain.
under the HEARTH Act. Congress’s Accordingly, the Federal and Tribal SUPPLEMENTARY INFORMATION: In
overarching intent was to ‘‘allow Tribes interests weigh heavily in favor of accordance with the Paperwork
to exercise greater control over their preemption of State and local taxes on Reduction Act of 1995, we provide the
own land, support self-determination, lease-related activities and interests,
and eliminate bureaucratic delays that general public and other Federal
regardless of whether the lease is agencies with an opportunity to
stand in the way of homeownership and governed by Tribal leasing regulations
economic development in Tribal comment on new, proposed, revised,
or part 162. Improvements, activities, and continuing collections of
communities.’’ 158 Cong. Rec. H. 2682 and leasehold or possessory interests
(May 15, 2012). The HEARTH Act was information. This helps us assess the
may be subject to taxation by the Lummi impact of our information collection
intended to afford Tribes ‘‘flexibility to Tribe of the Lummi Indian Reservation.
adapt lease terms to suit [their] business requirements and minimize the public’s
and cultural needs’’ and to ‘‘enable Dated: November 9, 2017. reporting burden. It also helps the
[Tribes] to approve leases quickly and John Tahsuda, public understand our information
efficiently.’’ Id. at 5–6. Principal Deputy Assistant Secretary—Indian collection requirements and provide the
Assessment of State and local taxes Affairs, Exercising the Authority of the requested data in the desired format.
would obstruct these express Federal Assistant Secretary—Indian Affairs. A Federal Register notice with a 60-
policies supporting Tribal economic [FR Doc. 2018–06443 Filed 3–29–18; 8:45 am] day public comment period soliciting
development and self-determination, BILLING CODE 4337–15–P comments on this collection of
and also threaten substantial Tribal information was published on
interests in effective Tribal government, November 16, 2017. (82 FR 53516) No
economic self-sufficiency, and territorial DEPARTMENT OF THE INTERIOR comments were received.
autonomy. See Michigan v. Bay Mills We are again soliciting comments on
Indian Community, 134 S. Ct. 2024, Bureau of Indian Affairs the proposed ICR that is described
2043 (2014) (Sotomayor, J., concurring) [189A2100DD/AAKC001030/ below. We are especially interested in
(determining that ‘‘[a] key goal of the A0A501010.999900 253G; OMB Control public comment addressing the
Federal Government is to render Tribes Number 1076–0169] following issues: (1) Is the collection
more self-sufficient, and better necessary to the proper functions of the
positioned to fund their own sovereign Agency Information Collection BIA; (2) will this information be
functions, rather than relying on Federal Activities; Submission to the Office of processed and used in a timely manner;
funding’’). The additional costs of State Management and Budget for Review (3) is the estimate of burden accurate;
and local taxation have a chilling effect and Approval; Probate of Indian (4) how might the BIA enhance the
on potential lessees, as well as on a Estates, Except for Members of the quality, utility, and clarity of the
Tribe that, as a result, might refrain from Osage Nation and Five Civilized Tribes information to be collected; and (5) how
exercising its own sovereign right to might the BIA minimize the burden of
AGENCY: Bureau of Indian Affairs,
impose a Tribal tax to support its this collection on the respondents,
Interior.
infrastructure needs. See id. at 2043–44 including through the use of
ACTION: Notice of information collection; information technology.
(finding that State and local taxes
greatly discourage Tribes from raising request for comment. Comments that you submit in
tax revenue from the same sources SUMMARY: In accordance with the response to this notice are a matter of
because the imposition of double Paperwork Reduction Act of 1995, we, public record. Before including your
taxation would impede Tribal economic the Bureau of Indian Affairs (BIA), are address, phone number, email address,
growth). proposing to renew an information or other personal identifying
Similar to BIA’s surface leasing collection. information in your comment, you
regulations, Tribal regulations under the should be aware that your entire
HEARTH Act pervasively cover all DATES: Interested persons are invited to comment—including your personal
aspects of leasing. See 25 U.S.C. submit comments on or before April 30, identifying information—may be made
415(h)(3)(B)(i) (requiring Tribal 2018. publicly available at any time. While
regulations be consistent with BIA ADDRESSES: Send written comments on you can ask us in your comment to
surface leasing regulations). this information collection request (ICR) withhold your personal identifying
amozie on DSK30RV082PROD with NOTICES
Furthermore, the Federal government to the Office of Management and information from public review, we
remains involved in the Tribal land Budget’s Desk Officer for the cannot guarantee that we will be able to
leasing process by approving the Tribal Department of the Interior by email at do so.
leasing regulations in the first instance OIRA_Submission@omb.eop.gov; or via Abstract: The Secretary of the Interior
and providing technical assistance, facsimile to (202) 395–5806. Please probates the estates of individual
upon request by a Tribe, for the provide a copy of your comments to Ms. Indians owning trust or restricted
development of an environmental Charlene Toledo, Bureau of Indian property in accordance with 25 U.S.C.
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Document Created: 2018-11-01 08:58:14
Document Modified: 2018-11-01 08:58:14
| 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 13774 |
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