83 FR 61164 - HEARTH Act Approval of Quinault Indian Nation's Business and Residential Leasing Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs

Federal Register Volume 83, Issue 229 (November 28, 2018)

Page Range		61164-61165
FR Document		2018-25942

On October 31, 2018, the Bureau of Indian Affairs (BIA) approved the Quinault Indian Nation's (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 residential and business leases without further BIA approval.

Federal Register, Volume 83 Issue 229 (Wednesday, November 28, 2018)

[Federal Register Volume 83, Number 229 (Wednesday, November 28, 2018)]
[Notices]
[Pages 61164-61165]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-25942]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[190A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Quinault Indian Nation's Business and 
Residential Leasing Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On October 31, 2018, the Bureau of Indian Affairs (BIA) 
approved the Quinault Indian Nation's (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 residential and 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 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

[[Page 61165]]

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 Quinault Indian Nation.

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 
Quinault Indian Nation.

    Dated: October 31, 2018.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2018-25942 Filed 11-27-18; 8:45 am]
 BILLING CODE 4337-15-P

61164 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

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8339 for TTY assistance. authorizes the permittee to conduct before issuing this permit. Accordingly,
SUPPLEMENTARY INFORMATION: We, the activities with endangered or threatened we invite local, State, Tribal, and
U.S. Fish and Wildlife Service, invite species for scientific purposes that Federal agencies and the public to
the public to comment on an promote recovery or for enhancement of submit written data, views, or
application for a permit under section propagation or survival of the species. arguments with respect to this
10(a)(1)(A) of the Endangered Species These activities often include such application. The comments and
Act, as amended (ESA; 16 U.S.C. 1531 prohibited actions as capture and recommendations that will be most
et seq.). The requested permit would collection. Our regulations useful and likely to influence agency
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Public Availability of Comments 1973, as amended (16 U.S.C. 1531 et FOR FURTHER INFORMATION CONTACT: Ms.
seq.). Sharlene Round Face, Bureau of Indian
Written comments we receive become Affairs, Division of Real Estate Services,
part of the administrative record Sarah B. Hall,
1849 C Street NW, MS–4642–MIB,
associated with this action. Before Acting Assistant Regional Director— Washington, DC 20240, at (202) 208–
including your address, phone number, Ecological Services, Pacific Region.
3615.
email address, or other personal [FR Doc. 2018–25915 Filed 11–27–18; 8:45 am]
SUPPLEMENTARY INFORMATION:
identifying information in your BILLING CODE 4333–15–P

comment, you should be aware that I. Summary of the HEARTH Act
your entire comment—including your The HEARTH Act makes a voluntary,
DEPARTMENT OF THE INTERIOR
personal identifying information—may alternative land leasing process
be made publicly available at any time. Bureau of Indian Affairs available to Tribes, by amending the
While you can request in your comment Indian Long-Term Leasing Act of 1955,
that we withhold your personal [190A2100DD/AAKC001030/ 25 U.S.C. 415. The HEARTH Act
identifying information from public A0A501010.999900] authorizes Tribes to negotiate and enter
review, we cannot guarantee that we into agricultural and business leases of
will be able to do so. All submissions HEARTH Act Approval of Quinault Tribal trust lands with a primary term
from organizations or businesses, and Indian Nation’s Business and of 25 years, and up to two renewal terms
from individuals identifying themselves Residential Leasing Regulations of 25 years each, without the approval
as representatives or officials of of the Secretary of the Interior
organizations or businesses, will be AGENCY: Bureau of Indian Affairs, (Secretary). The HEARTH Act also
Interior. authorizes Tribes to enter into leases for
made available for public disclosure in
their entirety. ACTION: Notice. residential, recreational, religious, or
educational purposes for a primary term
Next Steps SUMMARY: On October 31, 2018, the of up to 75 years without the approval
Bureau of Indian Affairs (BIA) approved of the Secretary. Participating Tribes
If we decide to issue a permit to the the Quinault Indian Nation’s (Tribe) develop Tribal leasing regulations,
applicant listed in this notice, we will leasing regulations under the Helping including an environmental review
publish a notice in the Federal Register. Expedite and Advance Responsible process, and then must obtain the
Authority Tribal Homeownership Act of 2012 Secretary’s approval of those regulations
(HEARTH Act). With this approval, the prior to entering into leases. The
We publish this notice under section Tribe is authorized to enter into HEARTH Act requires the Secretary to
10(c) of the Endangered Species Act of residential and business leases without approve Tribal regulations if the Tribal
further BIA approval. regulations are consistent with the

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Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61165

Department of the Interior’s analysis from the preamble to the retains authority to take any necessary
(Department) leasing regulations at 25 surface leasing regulations, 77 FR at actions to remedy violations of a lease
CFR part 162 and provide for an 72,447–48, as supplemented by the or of the Tribal regulations, including
environmental review process that analysis below. terminating the lease or rescinding
meets requirements set forth in the The strong Federal and Tribal approval of the Tribal regulations and
HEARTH Act. This notice announces interests against State and local taxation reassuming lease approval
that the Secretary, through the Assistant of improvements, leaseholds, and responsibilities. Moreover, the Secretary
Secretary—Indian Affairs, has approved activities on land leased under the continues to review, approve, and
the Tribal regulations for the Quinault Department’s leasing regulations apply monitor individual Indian land leases
Indian Nation. 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
may be subject to taxation by the Indian intended to afford Tribes ‘‘flexibility to Quinault Indian Nation.
Tribe with jurisdiction. See 25 CFR adapt lease terms to suit [their] business
162.017. As explained further in the and cultural needs’’ and to ‘‘enable Dated: October 31, 2018.
preamble to the final regulations, the [Tribes] to approve leases quickly and Tara Sweeney,
Federal government has a strong interest efficiently.’’ Id. at 5–6. Assistant Secretary—Indian Affairs.
in promoting economic development, Assessment of State and local taxes [FR Doc. 2018–25942 Filed 11–27–18; 8:45 am]
self-determination, and Tribal would obstruct these express Federal BILLING CODE 4337–15–P
sovereignty. 77 FR 72,440, 72,447–48 policies supporting Tribal economic
(December 5, 2012). The principles development and self-determination,
supporting the Federal preemption of and also threaten substantial Tribal DEPARTMENT OF THE INTERIOR
State law in the field of Indian leasing interests in effective Tribal government,
and the taxation of lease-related economic self-sufficiency, and territorial Bureau of Land Management
interests and activities applies with autonomy. See Michigan v. Bay Mills [L11100000 DS0000 LXSS036E0000
equal force to leases entered into under Indian Community, 134 S. Ct. 2024, LLWY1610000]
Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring)
the Federal government pursuant to the (determining that ‘‘[a] key goal of the Notice of Intent for the Potential
HEARTH Act. Federal Government is to render Tribes Amendment to the Approved Resource
Section 5 of the Indian Reorganization more self-sufficient, and better Management Plan for the Buffalo Field
Act, 25 U.S.C. 5108, preempts State and positioned to fund their own sovereign Office, Wyoming, and To Prepare an
local taxation of permanent functions, rather than relying on Federal Associated Supplemental
improvements on trust land. funding’’). The additional costs of State Environmental Impact Statement
Confederated Tribes of the Chehalis and local taxation have a chilling effect
Reservation v. Thurston County, 724 on potential lessees, as well as on a AGENCY: Bureau of Land Management,
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 of intent.
U.S. 145 (1973)). Similarly, section 5108 impose a Tribal tax to support its
preempts State taxation of rent infrastructure needs. See id. at 2043–44 SUMMARY: In accordance with the
payments by a lessee for leased trust (finding that State and local taxes National Environmental Policy Act of
lands, because ‘‘tax on the payment of greatly discourage Tribes from raising 1969, as amended (NEPA), and the
rent is indistinguishable from an tax revenue from the same sources Federal Land Policy and Management
impermissible tax on the land.’’ See because the imposition of double Act of 1976, as amended (FLPMA), the
Seminole Tribe of Florida v. Stranburg, taxation would impede Tribal economic Bureau of Land Management (BLM)
No. 14–14524, *13–*17, n.8 (11th Cir. growth). Wyoming Buffalo Field Office intends to
2015). In addition, as explained in the Similar to BIA’s surface leasing prepare a Supplemental Environmental
preamble to the revised leasing regulations, Tribal regulations under the Impact Statement (EIS) and potential
regulations at 25 CFR part 162, Federal HEARTH Act pervasively cover all amendment for the 2015 Buffalo Field
courts have applied a balancing test to aspects of leasing. See 25 U.S.C. Office Approved Resource Management
determine whether State and local 415(h)(3)(B)(i) (requiring Tribal Plan (RMP). The Supplemental EIS is in
taxation of non-Indians on the regulations be consistent with BIA response to a United States District
reservation is preempted. White surface leasing regulations). Court, District of Montana, opinion and
Mountain Apache Tribe v. Bracker, 448 Furthermore, the Federal government order (Western Organization of Resource
U.S. 136, 143 (1980). The Bracker remains involved in the Tribal land Councils, et al vs BLM). This notice
balancing test, which is conducted leasing process by approving the Tribal announces the beginning of the scoping
against a backdrop of ‘‘traditional leasing regulations in the first instance process to solicit public comments and
notions of Indian self-government,’’ and providing technical assistance, identify issues presented in the opinion
requires a particularized examination of upon request by a Tribe, for the and order.
the relevant State, Federal, and Tribal development of an environmental DATES: To ensure that we can
interests. We hereby adopt the Bracker review process. The Secretary also adequately consider all comments, the

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Document Created: 2018-11-27 23:48:37
Document Modified: 2018-11-27 23:48:37

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 61164

83 FR 61164 - HEARTH Act Approval of Quinault Indian Nation's Business and Residential Leasing Regulations

DEPARTMENT OF THE INTERIORBureau of Indian Affairs

Federal Register Volume 83, Issue 229 (November 28, 2018)

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs