83 FR 31563 - HEARTH Act Approval of the Confederated Tribes of the Warm Springs Reservation of Oregon's Tribal 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 | 31563-31564 | |
| FR Document | 2018-14519 |
[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)] [Notices] [Pages 31563-31564] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-14519] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189A2100DD/AAKC001030/A0A501010.999900] HEARTH Act Approval of the Confederated Tribes of the Warm Springs Reservation of Oregon's Tribal Code AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: On June 11, 2018, the Bureau of Indian Affairs (BIA) approved the Confederated Tribes of the Warm Springs Reservation of Oregon (Tribe) leasing regulations under the Helping Expedite and Advance Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this approval, the Tribe is authorized to enter into business leases without further BIA approval. FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, 1849 C Street, NW, MS-4642-MIB, Washington, DC 20240, at (202) 208-3615. SUPPLEMENTARY INFORMATION: I. Summary of the HEARTH Act The HEARTH Act makes a voluntary, alternative land leasing process available to Tribes, by amending the [[Page 31564]] 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 Confederated Tribes of the Warm Springs Reservation of Oregon. 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 [T]ribes 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 [T]ribal 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 Confederated Tribes of the Warm Springs Reservation of Oregon. Dated: June 11, 2018. John Tahsuda, Principal Deputy Assistant Secretary--Indian Affairs, Exercising the Authority of the Assistant Secretary--Indian Affairs. [FR Doc. 2018-14519 Filed 7-5-18; 8:45 am] BILLING CODE 4337-15-P
![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
VerDate Sep<11>2014 18:25 Jul 05, 2018 Jkt 244001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\06JYN1.SGM 06JYN1](https://thefederalregister.org/doc/83_FR_31693/page/1.svg)
![31564 Federal Register / Vol. 83, No. 130 / Friday, July 6, 2018 / Notices
Indian Long-Term Leasing Act of 1955, U.S. 145 (1973)). Similarly, section 5108 exercising its own sovereign right to
25 U.S.C. 415. The HEARTH Act preempts State taxation of rent impose a Tribal tax to support its
authorizes Tribes to negotiate and enter payments by a lessee for leased trust infrastructure needs. See id. at 2043–44
into agricultural and business leases of lands, because ‘‘tax on the payment of (finding that State and local taxes
Tribal trust lands with a primary term rent is indistinguishable from an greatly discourage Tribes from raising
of 25 years, and up to two renewal terms impermissible tax on the land.’’ See tax revenue from the same sources
of 25 years each, without the approval Seminole Tribe of Florida v. Stranburg, because the imposition of double
of the Secretary of the Interior No. 14–14524, *13–*17, n.8 (11th Cir. taxation would impede Tribal economic
(Secretary). The HEARTH Act also 2015). In addition, as explained in the growth).
authorizes Tribes to enter into leases for preamble to the revised leasing Similar to BIA’s surface leasing
residential, recreational, religious or regulations at 25 CFR part 162, Federal regulations, Tribal regulations under the
educational purposes for a primary term courts have applied a balancing test to HEARTH Act pervasively cover all
of up to 75 years without the approval determine whether State and local aspects of leasing. See 25 U.S.C.
of the Secretary. Participating tribes taxation of non-Indians on the 415(h)(3)(B)(i) (requiring Tribal
develop Tribal leasing regulations, reservation is preempted. White regulations be consistent with BIA
including an environmental review Mountain Apache Tribe v. Bracker, 448 surface leasing regulations).
process, and then must obtain the U.S. 136, 143 (1980). The Bracker Furthermore, the Federal government
Secretary’s approval of those regulations balancing test, which is conducted remains involved in the Tribal land
prior to entering into leases. The against a backdrop of ‘‘traditional leasing process by approving the Tribal
HEARTH Act requires the Secretary to notions of Indian self-government,’’ leasing regulations in the first instance
approve Tribal regulations if the Tribal requires a particularized examination of and providing technical assistance,
regulations are consistent with the the relevant State, Federal, and Tribal upon request by a Tribe, for the
Department of the Interior’s interests. We hereby adopt the Bracker development of an environmental
(Department) leasing regulations at 25 analysis from the preamble to the review process. The Secretary also
CFR part 162 and provide for an surface leasing regulations, 77 FR at retains authority to take any necessary
environmental review process that 72,447–48, as supplemented by the actions to remedy violations of a lease
meets requirements set forth in the analysis below. or of the Tribal regulations, including
HEARTH Act. This notice announces The strong Federal and Tribal terminating the lease or rescinding
that the Secretary, through the Assistant interests against State and local taxation approval of the Tribal regulations and
Secretary—Indian Affairs, has approved of improvements, leaseholds, and reassuming lease approval
the Tribal regulations for the activities on land leased under the responsibilities. Moreover, the Secretary
Confederated Tribes of the Warm Department’s leasing regulations apply continues to review, approve, and
Springs Reservation of Oregon. equally to improvements, leaseholds, monitor individual Indian land leases
and activities on land leased pursuant to and other types of leases not covered
II. Federal Preemption of State and Tribal leasing regulations approved
Local Taxes under the Tribal regulations according
under the HEARTH Act. Congress’s to the part 162 regulations.
The Department’s regulations overarching intent was to ‘‘allow Accordingly, the Federal and Tribal
governing the surface leasing of trust [T]ribes to exercise greater control over interests weigh heavily in favor of
and restricted Indian lands specify that, their own land, support self- preemption of State and local taxes on
subject to applicable Federal law, determination, and eliminate lease-related activities and interests,
permanent improvements on leased bureaucratic delays that stand in the regardless of whether the lease is
land, leasehold or possessory interests, way of homeownership and economic governed by Tribal leasing regulations
and activities under the lease are not development in [T]ribal communities.’’ or part 162. Improvements, activities,
subject to State and local taxation and 158 Cong. Rec. H. 2682 (May 15, 2012). and leasehold or possessory interests
may be subject to taxation by the Indian The HEARTH Act was intended to may be subject to taxation by the
Tribe with jurisdiction. See 25 CFR afford Tribes ‘‘flexibility to adapt lease Confederated Tribes of the Warm
162.017. As explained further in the terms to suit [their] business and Springs Reservation of Oregon.
preamble to the final regulations, the cultural needs’’ and to ‘‘enable [Tribes]
Federal government has a strong interest to approve leases quickly and Dated: June 11, 2018.
in promoting economic development, efficiently.’’ Id. at 5–6. John Tahsuda,
self-determination, and Tribal Assessment of State and local taxes Principal Deputy Assistant Secretary—Indian
sovereignty. 77 FR 72,440, 72,447–48 would obstruct these express Federal Affairs, Exercising the Authority of the
(December 5, 2012). The principles policies supporting Tribal economic Assistant Secretary—Indian Affairs.
supporting the Federal preemption of development and self-determination, [FR Doc. 2018–14519 Filed 7–5–18; 8:45 am]
State law in the field of Indian leasing and also threaten substantial Tribal BILLING CODE 4337–15–P
and the taxation of lease-related interests in effective Tribal government,
interests and activities applies with economic self-sufficiency, and territorial
equal force to leases entered into under autonomy. See Michigan v. Bay Mills DEPARTMENT OF THE INTERIOR
Tribal leasing regulations approved by Indian Community, 134 S. Ct. 2024,
the Federal government pursuant to the 2043 (2014) (Sotomayor, J., concurring) Bureau of Land Management
HEARTH Act. (determining that ‘‘[a] key goal of the [LLOR957000.L63100000.HD0000.
Section 5 of the Indian Reorganization Federal Government is to render Tribes 18XL1116AF.HAG 18–0123]
daltland on DSKBBV9HB2PROD with NOTICES
Act, 25 U.S.C. 5108, preempts State and more self-sufficient, and better
local taxation of permanent positioned to fund their own sovereign Filing of Plats of Survey: Oregon/
improvements on trust land. functions, rather than relying on Federal Washington
Confederated Tribes of the Chehalis funding’’). The additional costs of State AGENCY: Bureau of Land Management,
Reservation v. Thurston County, 724 and local taxation have a chilling effect Interior.
F.3d 1153, 1157 (9th Cir. 2013) (citing on potential lessees, as well as on a
ACTION: Notice.
Mescalero Apache Tribe v. Jones, 411 Tribe that, as a result, might refrain from
VerDate Sep<11>2014 18:25 Jul 05, 2018 Jkt 244001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\06JYN1.SGM 06JYN1](https://thefederalregister.org/doc/83_FR_31693/page/2.svg)
Document Created: 2018-07-06 00:46:35
Document Modified: 2018-07-06 00:46:35
| 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, NW, MS-4642-MIB, Washington, DC 20240, at (202) 208-3615. | |
| FR Citation | 83 FR 31563 |
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