83_FR_17506 83 FR 17430 - HEARTH Act Approval of the Oneida Nation of Wisconsin's Regulation

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)

Page Range17430-17431
FR Document2018-08218

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.

Federal Register, Volume 83 Issue 76 (Thursday, April 19, 2018)
[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]


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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,
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                                               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
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactMs. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street, MS- 4642-MIB, NW, Washington, DC 20240, at (202) 208-3615.
FR Citation83 FR 17430 

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