[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)]
[Notices]
[Pages 31563-31564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14519]
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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.
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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