83 FR 31562 - HEARTH Act Approval of San Manuel Band of Mission Indians, California Business Site Leasing Code
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs Federal Register Volume 83, Issue 130 (July 6, 2018)
Bureau of Indian Affairs
Federal Register Volume 83, Issue 130 (July 6, 2018)
| Page Range | 31562-31563 | |
| FR Document | 2018-14520 |
[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)] [Notices] [Pages 31562-31563] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-14520] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of San Manuel Band of Mission Indians, California Business Site Leasing Code AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On June 11, 2018, the Bureau of Indian Affairs (BIA) approved the San Manuel Band of Mission Indians, California, leasing regulations under the HEARTH Act. With this approval, the Band is authorized to enter into business leases without BIA approval. FOR FURTHER INFORMATION CONTACT: Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street, NW, MS-4642- MIB, Washington, DC 20240, at (202) 208-3615. SUPPLEMENTARY INFORMATION: I. Summary of the HEARTH Act The HEARTH (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 [[Page 31563]] 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 San Manuel Band of Mission Indians, California. 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. 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 5108 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 San Manuel Band of Mission Indians, California. Dated: June 11, 2018. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs, Exercising the Authority of the Assistant Secretary--Indian Affairs. [FR Doc. 2018-14520 Filed 7-5-18; 8:45 am] BILLING CODE 4337-15-P
![31562 Federal Register / Vol. 83, No. 130 / Friday, July 6, 2018 / Notices
involves surveying travelers to measure surveys are administered using an burden is 800 hours (9,600 responses ×
customer satisfaction with their aviation intercept methodology. The intercept 0.083 hours).
security screening experience in an methodology uses TSA personnel who Dated: June 28, 2018.
effort to manage TSA’s performance at are not in uniform to hand deliver Christina A. Walsh,
the airport more efficiently. business card style forms to passengers
TSA Paperwork Reduction Act Officer, Office
DATES: Send your comments by immediately following the passenger’s of Information Technology.
September 4, 2018. experience with TSA’s checkpoint
[FR Doc. 2018–14480 Filed 7–5–18; 8:45 am]
ADDRESSES: Comments may be emailed security functions. Passengers are
BILLING CODE 9110–05–P
to TSAPRA@tsa.dhs.gov or delivered to invited, though not required, to
the TSA PRA Officer, Office of complete and return the survey using
Information Technology (OIT), TSA–11, either an online portal or by responding
in writing to the survey questions on the DEPARTMENT OF THE INTERIOR
Transportation Security Administration,
601 South 12th Street, Arlington, VA customer satisfaction card and
Bureau of Indian Affairs
20598–6011. depositing the card in a drop-box at the
airport or using U.S. mail. Prior to each [189A2100DD/AAKC001030/
FOR FURTHER INFORMATION CONTACT: A0A501010.999900]
survey collection at an airport, TSA
Christina A. Walsh at the above address,
personnel select the method by which
or by telephone (571) 227–2062. HEARTH Act Approval of San Manuel
all passengers surveyed on that
SUPPLEMENTARY INFORMATION: particular occasion will be asked to Band of Mission Indians, California
complete and return the survey. TSA Business Site Leasing Code
Comments Invited
uses the intercept methodology to AGENCY: Bureau of Indian Affairs,
In accordance with the Paperwork
randomly select passengers to complete Interior.
Reduction Act of 1995 (44 U.S.C. 3501
the survey in an effort to gain survey ACTION: Notice.
et seq.), an agency may not conduct or
data representative of all passenger
sponsor, and a person is not required to SUMMARY: On June 11, 2018, the Bureau
demographics—including passengers
respond to, a collection of information of Indian Affairs (BIA) approved the San
who—
unless it displays a valid OMB control
• Travel on weekdays or weekends; Manuel Band of Mission Indians,
number. The ICR documentation will be
available at http://www.reginfo.gov • Travel in the morning, mid-day, or California, leasing regulations under the
evening; HEARTH Act. With this approval, the
upon its submission to OMB. Therefore,
in preparation for OMB review and • Pass through each of the different Band is authorized to enter into
security screening locations in the business leases without BIA approval.
approval of the following information
airport; FOR FURTHER INFORMATION CONTACT:
collection, TSA is soliciting comments
to— • Are subject to more intensive Sharlene Round Face, Bureau of Indian
(1) Evaluate whether the proposed screening of their baggage or person; Affairs, Division of Real Estate Services,
information requirement is necessary for and 1849 C Street, NW, MS–4642–MIB,
the proper performance of the functions • Experience different volume Washington, DC 20240, at (202) 208–
of the agency, including whether the conditions and wait times as they 3615.
information will have practical utility; proceed through the security SUPPLEMENTARY INFORMATION:
(2) Evaluate the accuracy of the checkpoints.
Each survey includes 10 to 15 I. Summary of the HEARTH Act
agency’s estimate of the burden;
(3) Enhance the quality, utility, and questions, and each question promotes The HEARTH (Helping Expedite and
clarity of the information to be a quality response so that TSA can Advance Responsible Tribal
collected; and identify areas in need of improvement. Homeownership) Act of 2012 (the Act)
(4) Minimize the burden of the All questions concern aspects of the makes a voluntary, alternative land
collection of information on those who passenger’s security screening leasing process available to Tribes, by
are to respond, including using experience. amending the Indian Long-Term Leasing
appropriate automated, electronic, TSA collects this information in order Act of 1955, 25 U.S.C. 415. The Act
mechanical, or other technological to continue to assess customer authorizes Tribes to negotiate and enter
collection techniques or other forms of satisfaction in an effort to manage TSA into agricultural and business leases of
information technology. employee performance more efficiently. Tribal trust lands with a primary term
Consistent with the requirements of OMB has previously approved a total of of 25 years, and up to two renewal terms
Executive Order (E.O.) 13771, Reducing 82 questions from which the 10 to 15 of 25 years each, without the approval
Regulation and Controlling Regulatory questions are selected. TSA is of the Secretary of the Interior. The Act
Costs, and E.O. 13777, Enforcing the requesting an extension of the approval also authorizes Tribes to enter into
Regulatory Reform Agenda, TSA is also for the information collection. leases for residential, recreational,
requesting comments on the extent to TSA personnel have the capability to religious or educational purposes for a
which this request for information could conduct this survey at 25 airports each primary term of up to 75 years without
be modified to reduce the burden on year. Based on prior survey data and the approval of the Secretary.
respondents. research, TSA estimates 384 responses Participating Tribes develop Tribal
from the passengers at each airport. The leasing regulations, including an
Information Collection Requirement average number of respondents is environmental review process, and then
daltland on DSKBBV9HB2PROD with NOTICES
OMB Control Number 1652–0013; estimated to be 9,600 per year (384 must obtain the Secretary’s approval of
Aviation Security Customer Satisfaction passengers × 25 airports). TSA estimates those regulations prior to entering into
Performance Measurement Passenger that the time it takes to complete the leases. The Act requires the Secretary to
Survey. TSA, with OMB’s approval, has survey either online or by writing on the approve Tribal regulations if the Tribal
conducted surveys of passengers at form ranges from 3 to 7 minutes, with regulations are consistent with the
airports nationwide and now seeks an average of 5 minutes (0.083 hours) Department’s leasing regulations at 25
approval to continue this effort. The per respondent. Therefore, the annual CFR part 162 and provide for an
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![Federal Register / Vol. 83, No. 130 / Friday, July 6, 2018 / Notices 31563
environmental review process that 72,447–48, as supplemented by the or of the Tribal regulations, including
meets requirements set forth in the Act. analysis below. terminating the lease or rescinding
This notice announces that the The strong Federal and Tribal approval of the Tribal regulations and
Secretary, through the Assistant interests against State and local taxation reassuming lease approval
Secretary—Indian Affairs, has approved of improvements, leaseholds, and responsibilities. Moreover, the Secretary
the Tribal regulations for the San activities on land leased under the continues to review, approve, and
Manuel Band of Mission Indians, Department’s leasing regulations apply monitor individual Indian land leases
California. equally to improvements, leaseholds, and other types of leases not covered
and activities on land leased pursuant to under the Tribal regulations according
II. Federal Preemption of State and tribal leasing regulations approved
Local Taxes to the part 162 regulations.
under the HEARTH Act. Congress’s Accordingly, the Federal and Tribal
The Department’s regulations overarching intent was to ‘‘allow tribes interests weigh heavily in favor of
governing the surface leasing of trust to exercise greater control over their preemption of State and local taxes on
and restricted Indian lands specify that, own land, support self-determination, lease-related activities and interests,
subject to applicable Federal law, and eliminate bureaucratic delays that regardless of whether the lease is
permanent improvements on leased stand in the way of homeownership and governed by Tribal leasing regulations
land, leasehold or possessory interests, economic development in tribal or part 162. Improvements, activities,
and activities under the lease are not communities.’’ 158 Cong. Rec. H. 2682 and leasehold or possessory interests
subject to State and local taxation and (May 15, 2012). The HEARTH Act was may be subject to taxation by the San
may be subject to taxation by the Indian intended to afford Tribes ‘‘flexibility to Manuel Band of Mission Indians,
Tribe with jurisdiction. See 25 CFR adapt lease terms to suit [their] business California.
162.017. As explained further in the and cultural needs’’ and to ‘‘enable
preamble to the final regulations, the Dated: June 11, 2018.
[Tribes] to approve leases quickly and
Federal government has a strong interest efficiently.’’ Id. at 5–6. John Tahsuda,
in promoting economic development, Assessment of State and local taxes Principal Deputy Assistant Secretary—Indian
self-determination, and Tribal would obstruct these express Federal Affairs, Exercising the Authority of the
sovereignty. 77 FR 72,440, 72,447–48 policies supporting Tribal economic Assistant Secretary—Indian Affairs.
(December 5, 2012). The principles development and self-determination, [FR Doc. 2018–14520 Filed 7–5–18; 8:45 am]
supporting the Federal preemption of and also threaten substantial Tribal BILLING CODE 4337–15–P
State law in the field of Indian leasing interests in effective Tribal government,
and the taxation of lease-related economic self-sufficiency, and territorial
interests and activities applies with autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
equal force to leases entered into under Indian Community, 134 S. Ct. 2024,
Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring) Bureau of Indian Affairs
the Federal government pursuant to the (determining that ‘‘[a] key goal of the [189A2100DD/AAKC001030/
HEARTH Act. Federal Government is to render Tribes A0A501010.999900]
Section 5 of the Indian Reorganization more self-sufficient, and better
Act, 25 U.S.C. 5108, preempts State and positioned to fund their own sovereign HEARTH Act Approval of the
local taxation of permanent functions, rather than relying on Federal Confederated Tribes of the Warm
improvements on trust land. funding’’). The additional costs of State Springs Reservation of Oregon’s Tribal
Confederated Tribes of the Chehalis and local taxation have a chilling effect Code
Reservation v. Thurston County, 724 on potential lessees, as well as on a AGENCY: Bureau of Indian Affairs,
F.3d 1153, 1157 (9th Cir. 2013) (citing Tribe that, as a result, might refrain from Interior.
Mescalero Apache Tribe v. Jones, 411 exercising its own sovereign right to
ACTION: Notice.
U.S. 145 (1973)). Similarly, Section impose a Tribal tax to support its
5108 preempts State taxation of rent infrastructure needs. See id. at 2043–44 SUMMARY: On June 11, 2018, the Bureau
payments by a lessee for leased trust (finding that State and local taxes of Indian Affairs (BIA) approved the
lands, because ‘‘tax on the payment of greatly discourage Tribes from raising Confederated Tribes of the Warm
rent is indistinguishable from an tax revenue from the same sources Springs Reservation of Oregon (Tribe)
impermissible tax on the land.’’ See because the imposition of double leasing regulations under the Helping
Seminole Tribe of Florida v. Stranburg, taxation would impede Tribal economic Expedite and Advance Responsible
No. 14–14524, *13–*17, n.8 (11th Cir. growth). Tribal Homeownership Act of 2012
2015). In addition, as explained in the Similar to BIA’s surface leasing (HEARTH Act). With this approval, the
preamble to the revised leasing regulations, Tribal regulations under the Tribe is authorized to enter into
regulations at 25 CFR part 162, Federal HEARTH Act pervasively cover all business leases without further BIA
courts have applied a balancing test to aspects of leasing. See 25 U.S.C. approval.
determine whether State and local 415(h)(3)(B)(i) (requiring Tribal
taxation of non-Indians on the regulations be consistent with BIA FOR FURTHER INFORMATION CONTACT: Ms.
reservation is preempted. White surface leasing regulations). Sharlene Round Face, Bureau of Indian
Mountain Apache Tribe v. Bracker, 448 Furthermore, the Federal government Affairs, Division of Real Estate Services,
U.S. 136, 143 (1980). The Bracker remains involved in the Tribal land 1849 C Street, NW, MS–4642–MIB,
balancing test, which is conducted leasing process by approving the Tribal Washington, DC 20240, at (202) 208–
daltland on DSKBBV9HB2PROD with NOTICES
against a backdrop of ‘‘traditional leasing regulations in the first instance 3615.
notions of Indian self-government,’’ and providing technical assistance, SUPPLEMENTARY INFORMATION:
requires a particularized examination of upon request by a Tribe, for the
the relevant State, Federal, and Tribal development of an environmental I. Summary of the HEARTH Act
interests. We hereby adopt the Bracker review process. The Secretary also The HEARTH Act makes a voluntary,
analysis from the preamble to the retains authority to take any necessary alternative land leasing process
surface leasing regulations, 77 FR at actions to remedy violations of a lease available to Tribes, by amending the
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Document Created: 2018-07-06 00:46:39
Document Modified: 2018-07-06 00:46:39
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice. | |
| Contact | Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street, NW, MS-4642- MIB, Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 83 FR 31562 |
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