83 FR 17430 - HEARTH Act Approval of the Oneida Nation of Wisconsin's Regulation
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 83, Issue 76 (April 19, 2018)
Bureau of Indian Affairs
Federal Register Volume 83, Issue 76 (April 19, 2018)
| Page Range | 17430-17431 | |
| FR Document | 2018-08218 |
[Federal Register Volume 83, Number 76 (Thursday, April 19, 2018)] [Notices] [Pages 17430-17431] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-08218] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of the Oneida Nation of Wisconsin's Regulation AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On January 23, 2018, the Bureau of Indian Affairs (BIA) approved the Oneida Nation of Wisconsin (previously listed as Oneida Tribe of Indians of Wisconsin) (Nation) leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Nation is authorized to enter into business, agricultural and residential 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, MS- 4642-MIB, NW, 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 Oneida Nation of Wisconsin. 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 [[Page 17431]] 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. 5108, preempts State and local taxation of permanent improvements on trust land. Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)). Similarly, section 465 preempts State taxation of rent payments by a lessee for leased trust lands, because ``tax on the payment of rent is indistinguishable from an impermissible tax on the land.'' See Seminole Tribe of Florida v. Stranburg, No. 14-14524, *13-*17, n.8 (11th Cir. 2015). In addition, as explained in the preamble to the revised leasing regulations at 25 CFR part 162, Federal courts have applied a balancing test to determine whether State and local taxation of non-Indians on the reservation is preempted. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing test, which is conducted against a backdrop of ``traditional notions of Indian self-government,'' requires a particularized examination of the relevant State, Federal, and Tribal interests. We hereby adopt the Bracker analysis from the preamble to the surface leasing regulations, 77 FR at 72,447-48, as supplemented by the analysis below. The strong Federal and Tribal interests against State and local taxation of improvements, leaseholds, and activities on land leased under the Department's leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congress's overarching intent was to ``allow tribes to exercise greater control over their own land, support self-determination, and eliminate bureaucratic delays that stand in the way of homeownership and economic development in tribal communities.'' 158 Cong. Rec. H. 2682 (May 15, 2012). The HEARTH Act was intended to afford Tribes ``flexibility to adapt lease terms to suit [their] business and cultural needs'' and to ``enable [Tribes] to approve leases quickly and efficiently.'' Id. at 5-6. Assessment of State and local taxes would obstruct these express Federal policies supporting Tribal economic development and self- determination, and also threaten substantial Tribal interests in effective Tribal government, economic self-sufficiency, and territorial autonomy. See Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ``[a] key goal of the Federal Government is to render Tribes more self- sufficient, and better positioned to fund their own sovereign functions, rather than relying on Federal funding''). The additional costs of State and local taxation have a chilling effect on potential lessees, as well as on a Tribe that, as a result, might refrain from exercising its own sovereign right to impose a Tribal tax to support its infrastructure needs. See id. at 2043-44 (finding that State and local taxes greatly discourage Tribes from raising tax revenue from the same sources because the imposition of double taxation would impede Tribal economic growth). Similar to BIA's surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See 25 U.S.C. 415(h)(3)(B)(i) (requiring Tribal regulations be consistent with BIA surface leasing regulations). Furthermore, the Federal government remains involved in the Tribal land leasing process by approving the Tribal leasing regulations in the first instance and providing technical assistance, upon request by a Tribe, for the development of an environmental review process. The Secretary also retains authority to take any necessary actions to remedy violations of a lease or of the Tribal regulations, including terminating the lease or rescinding approval of the Tribal regulations and reassuming lease approval responsibilities. Moreover, the Secretary continues to review, approve, and monitor individual Indian land leases and other types of leases not covered under the Tribal regulations according to the Part 162 regulations. Accordingly, the Federal and Tribal interests weigh heavily in favor of preemption of State and local taxes on lease-related activities and interests, regardless of whether the lease is governed by Tribal leasing regulations or Part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Oneida Nation of Wisconsin. Dated: January 23, 2018. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs Exercising the Authority of the Assistant Secretary--Indian Affairs. [FR Doc. 2018-08218 Filed 4-18-18; 8:45 am] BILLING CODE 4337-15-P
![17430 Federal Register / Vol. 83, No. 76 / Thursday, April 19, 2018 / Notices
information was published on October information on the population’s status, Indians of Wisconsin) (Nation) leasing
13, 2017 (82 FR 47763). We received we might promulgate hunting regulations under the Helping Expedite
one comment in response to that notice regulations that: and Advance Responsible Tribal
but it did not address the information • Are not sufficiently restrictive, Homeownership Act of 2012 (HEARTH
collection requirements. No changes to which could cause harm to the Act). With this approval, the Nation is
the information collection were made as woodcock population, or authorized to enter into business,
a result of this comment. • Are too restrictive, which would agricultural and residential leases
We are again soliciting comments on unduly restrict recreational without further BIA approval.
the proposed ICR that is described opportunities afforded by woodcock FOR FURTHER INFORMATION CONTACT: Ms.
below. We are especially interested in hunting. Sharlene Round Face, Bureau of Indian
public comment addressing the The Service, State conservation Affairs, Division of Real Estate Services,
following issues: (1) Is the collection agencies, university associates, and 1849 C Street, MS–4642–MIB, NW,
necessary to the proper functions of the other interested parties use the data for Washington, DC 20240, at (202) 208–
Service; (2) will this information be various research and management 3615.
processed and used in a timely manner; projects.
Title of Collection: North American SUPPLEMENTARY INFORMATION:
(3) is the estimate of burden accurate;
(4) how might the Service enhance the Woodcock Singing Ground Survey. I. Summary of the HEARTH Act
quality, utility, and clarity of the OMB Control Number: 1018–0019.
Form Number: FWS Form 3–156. The HEARTH Act makes a voluntary,
information to be collected; and (5) how alternative land leasing process
might the Service minimize the burden Type of Review: Renewal of a
currently approved collection. available to Tribes, by amending the
of this collection on the respondents, Indian Long-Term Leasing Act of 1955,
including through the use of Respondents/Affected Public: State,
Provincial, local, and Tribal employees. 25 U.S.C. 415. The HEARTH Act
information technology. authorizes Tribes to negotiate and enter
Comments that you submit in Total Estimated Number of Annual
Respondents: 808. into agricultural and business leases of
response to this notice are a matter of Tribal trust lands with a primary term
public record. Before including your Total Estimated Number of Annual
Responses: 808. of 25 years, and up to two renewal terms
address, phone number, email address, of 25 years each, without the approval
or other personal identifying Estimated Completion Time per
Response: Varies from 1.75 hours to of the Secretary of the Interior
information in your comment, you (Secretary). The HEARTH Act also
should be aware that your entire 1.88 hours, depending on activity.
Total Estimated Number of Annual authorizes Tribes to enter into leases for
comment—including your personal residential, recreational, religious or
Burden Hours: 1,515.
identifying information—may be made educational purposes for a primary term
Respondent’s Obligation: Voluntary.
publicly available at any time. While of up to 75 years without the approval
Frequency of Collection: Annually.
you can ask us in your comment to Total Estimated Annual Nonhour of the Secretary. Participating Tribes
withhold your personal identifying Burden Cost: None. develop Tribal leasing regulations,
information from public review, we An agency may not conduct or including an environmental review
cannot guarantee that we will be able to sponsor and a person is not required to process, and then must obtain the
do so. respond to a collection of information Secretary’s approval of those regulations
Abstract: The Migratory Bird Treaty unless it displays a currently valid OMB prior to entering into leases. The
Act (16 U.S.C. 703–712) and the Fish control number. HEARTH Act requires the Secretary to
and Wildlife Act of 1956 (16 U.S.C. The authority for this action is the approve Tribal regulations if the Tribal
742a–754j–2) designate the Department Paperwork Reduction Act of 1995 (44 regulations are consistent with the
of the Interior as the primary agency U.S.C. 3501 et seq.). Department of the Interior’s
responsible for: (Department) leasing regulations at 25
• Managing migratory bird Dated: April 16, 2018.
CFR part 162 and provide for an
populations frequenting the United Madonna Baucum,
environmental review process that
States, and Information Collection Clearance Officer, U.S.
meets requirements set forth in the
• Setting hunting regulations that Fish and Wildlife Service.
HEARTH Act. This notice announces
allow for the well-being of migratory [FR Doc. 2018–08189 Filed 4–18–18; 8:45 am]
that the Secretary, through the Assistant
bird populations. BILLING CODE 4333–15–P
Secretary—Indian Affairs, has approved
These responsibilities dictate that we the Tribal regulations for the Oneida
gather accurate data on various Nation of Wisconsin.
characteristics of migratory bird DEPARTMENT OF THE INTERIOR
populations. II. Federal Preemption of State and
Bureau of Indian Affairs Local Taxes
The North American Woodcock
Singing Ground Survey is an essential [189A2100DD/AAKC001030/ The Department’s regulations
part of the migratory bird management A0A501010.999900] governing the surface leasing of trust
program. State, Federal, Provincial, and restricted Indian lands specify that,
local, and tribal conservation agencies HEARTH Act Approval of the Oneida subject to applicable Federal law,
conduct the survey annually to provide Nation of Wisconsin’s Regulation permanent improvements on leased
the data necessary to determine the AGENCY: Bureau of Indian Affairs, land, leasehold or possessory interests,
daltland on DSKBBV9HB2PROD with NOTICES
population status of the woodcock. In Interior. and activities under the lease are not
addition, the information is vital in ACTION: Notice. subject to State and local taxation and
assessing the relative changes in the may be subject to taxation by the Indian
geographic distribution of the SUMMARY: On January 23, 2018, the Tribe with jurisdiction. See 25 CFR
woodcock. We use the information Bureau of Indian Affairs (BIA) approved 162.017. As explained further in the
primarily to develop recommendations the Oneida Nation of Wisconsin preamble to the final regulations, the
for hunting regulations. Without (previously listed as Oneida Tribe of Federal government has a strong interest
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![Federal Register / Vol. 83, No. 76 / Thursday, April 19, 2018 / Notices 17431
in promoting economic development, Assessment of State and local taxes Dated: January 23, 2018.
self-determination, and Tribal would obstruct these express Federal John Tahsuda,
sovereignty. 77 FR 72440, 72447–48 policies supporting Tribal economic Principal Deputy Assistant Secretary—Indian
(December 5, 2012). The principles development and self-determination, Affairs Exercising the Authority of the
supporting the Federal preemption of and also threaten substantial Tribal Assistant Secretary—Indian Affairs.
State law in the field of Indian leasing interests in effective Tribal government, [FR Doc. 2018–08218 Filed 4–18–18; 8:45 am]
and the taxation of lease-related economic self-sufficiency, and territorial BILLING CODE 4337–15–P
interests and activities applies with autonomy. See Michigan v. Bay Mills
equal force to leases entered into under Indian Community, 134 S. Ct. 2024,
Tribal leasing regulations approved by DEPARTMENT OF THE INTERIOR
2043 (2014) (Sotomayor, J., concurring)
the Federal government pursuant to the
(determining that ‘‘[a] key goal of the National Park Service
HEARTH Act.
Section 5 of the Indian Reorganization Federal Government is to render Tribes
[NPS–WASO–NAGPRA–NPS0025286;
Act, 25 U.S.C. 5108, preempts State and more self-sufficient, and better PPWOCRADN0–PCU00RP14.R50000]
local taxation of permanent positioned to fund their own sovereign
improvements on trust land. functions, rather than relying on Federal Notice of Inventory Completion:
Confederated Tribes of the Chehalis funding’’). The additional costs of State Wisconsin Historical Society,
Reservation v. Thurston County, 724 and local taxation have a chilling effect Madison, WI
F.3d 1153, 1157 (9th Cir. 2013) (citing on potential lessees, as well as on a
AGENCY: National Park Service, Interior.
Mescalero Apache Tribe v. Jones, 411 Tribe that, as a result, might refrain from
U.S. 145 (1973)). Similarly, section 465 exercising its own sovereign right to ACTION: Notice.
preempts State taxation of rent impose a Tribal tax to support its SUMMARY: The Wisconsin Historical
payments by a lessee for leased trust infrastructure needs. See id. at 2043–44 Society has completed an inventory of
lands, because ‘‘tax on the payment of (finding that State and local taxes human remains, in consultation with
rent is indistinguishable from an greatly discourage Tribes from raising the appropriate Indian Tribes or Native
impermissible tax on the land.’’ See tax revenue from the same sources Hawaiian organizations, and has
Seminole Tribe of Florida v. Stranburg, because the imposition of double determined that there is no cultural
No. 14–14524, *13–*17, n.8 (11th Cir. taxation would impede Tribal economic affiliation between the human remains
2015). In addition, as explained in the growth). and any present-day Indian Tribes or
preamble to the revised leasing Native Hawaiian organizations.
regulations at 25 CFR part 162, Federal Similar to BIA’s surface leasing
Representatives of any Indian Tribe or
courts have applied a balancing test to regulations, Tribal regulations under the Native Hawaiian organization not
determine whether State and local HEARTH Act pervasively cover all identified in this notice that wish to
taxation of non-Indians on the aspects of leasing. See 25 U.S.C. request transfer of control of these
reservation is preempted. White 415(h)(3)(B)(i) (requiring Tribal human remains should submit a written
Mountain Apache Tribe v. Bracker, 448 regulations be consistent with BIA request to the Wisconsin Historical
U.S. 136, 143 (1980). The Bracker surface leasing regulations). Society. If no additional requestors
balancing test, which is conducted Furthermore, the Federal government come forward, transfer of control of the
against a backdrop of ‘‘traditional remains involved in the Tribal land human remains to the Indian Tribes or
notions of Indian self-government,’’ leasing process by approving the Tribal Native Hawaiian organizations stated in
requires a particularized examination of leasing regulations in the first instance this notice may proceed.
the relevant State, Federal, and Tribal and providing technical assistance, DATES: Representatives of any Indian
interests. We hereby adopt the Bracker upon request by a Tribe, for the Tribe or Native Hawaiian organization
analysis from the preamble to the development of an environmental not identified in this notice that wish to
surface leasing regulations, 77 FR at request transfer of control of these
review process. The Secretary also
72,447–48, as supplemented by the human remains should submit a written
retains authority to take any necessary
analysis below. request with information in support of
The strong Federal and Tribal actions to remedy violations of a lease
or of the Tribal regulations, including the request to the Wisconsin Historical
interests against State and local taxation
terminating the lease or rescinding Society at the address in this notice by
of improvements, leaseholds, and
approval of the Tribal regulations and May 21, 2018.
activities on land leased under the
reassuming lease approval ADDRESSES: Jennifer Kolb, Wisconsin
Department’s leasing regulations apply
equally to improvements, leaseholds, responsibilities. Moreover, the Secretary Historical Society, 816 State Street,
and activities on land leased pursuant to continues to review, approve, and Madison, WI 53706, telephone (608)
Tribal leasing regulations approved monitor individual Indian land leases 264–6434, email Jennifer.Kolb@
under the HEARTH Act. Congress’s and other types of leases not covered wisconsinhistory.org.
overarching intent was to ‘‘allow tribes under the Tribal regulations according SUPPLEMENTARY INFORMATION: Notice is
to exercise greater control over their to the Part 162 regulations. here given in accordance with the
own land, support self-determination, Native American Graves Protection and
Accordingly, the Federal and Tribal
and eliminate bureaucratic delays that Repatriation Act (NAGPRA), 25 U.S.C.
stand in the way of homeownership and interests weigh heavily in favor of
3003, of the completion of an inventory
economic development in tribal preemption of State and local taxes on of human remains under the control of
daltland on DSKBBV9HB2PROD with NOTICES
communities.’’ 158 Cong. Rec. H. 2682 lease-related activities and interests, the Wisconsin Historical Society,
(May 15, 2012). The HEARTH Act was regardless of whether the lease is Madison, WI. The human remains were
intended to afford Tribes ‘‘flexibility to governed by Tribal leasing regulations removed from the Pleasant Plain Group
adapt lease terms to suit [their] business or Part 162. Improvements, activities, site, Barron County, and the Mertig Site,
and cultural needs’’ and to ‘‘enable and leasehold or possessory interests Sawyer County, WI.
[Tribes] to approve leases quickly and may be subject to taxation by the Oneida This notice is published as part of the
efficiently.’’ Id. at 5–6. Nation of Wisconsin. National Park Service’s administrative
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Document Created: 2018-04-19 00:40:35
Document Modified: 2018-04-19 00:40:35
| 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, MS- 4642-MIB, NW, Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 83 FR 17430 |
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