[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Notices]
[Pages 4906-4907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01870]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[222A2100DD/AAKC001030/A0A501010.999900]
HEARTH Act Approval of Northern Cheyenne Tribe of the Northern
Cheyenne Indian Reservation, Montana Leasing Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: The Bureau of Indian Affairs (BIA) approved the Northern
Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana
Lands Leasing Ordinance under the Helping Expedite and Advance
Responsible Tribal Homeownership Act of 2012 (HEARTH Act). With this
approval, the Tribe is authorized to enter business and wind and solar
leases without further BIA approval.
DATES: BIA issued the approval on January 24, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of
Indian Affairs, Division of Real Estate Services, 1001 Indian School
Road NW, Albuquerque, NM 87104, [email protected], (505) 563-
3132.
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 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 Northern
Cheyenne Tribe of the Northern Cheyenne Indian Reservation, Montana.
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 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.
[[Page 4907]]
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, 799 F.3d
1324, 1331, 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 72447-48, 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.'' H. Rep.
112-427 at 6 (2012).
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, 572 U.S. 782, 810
(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 810-11 (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
Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation,
Montana.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-01870 Filed 1-28-22; 8:45 am]
BILLING CODE 4337-15-P