HEARTH Act Approval of Oneida Nation of New York Regulations, 40718-40719 [2016-14798]

Download as PDF mstockstill on DSK3G9T082PROD with NOTICES 40718 Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Notices promoting economic development, selfdetermination, 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. 465, 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 465 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 nonIndians 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 selfgovernment,’’ requires a particularized examination of the relevant Federal, state, 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.’’ Id. at 5–6. VerDate Sep<11>2014 20:02 Jun 21, 2016 Jkt 238001 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 part 162 of the 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 at part 162. Improvements, activities, and leasehold or possessory interests may be subject to taxation by the Twenty-Nine Palms Band of Mission Indians of California. PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 Dated: June 14, 2016. Lawrence S. Roberts, Acting Assistant Secretary—Indian Affairs. [FR Doc. 2016–14796 Filed 6–21–16; 8:45 am] BILLING CODE 4337–15–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [167A2100DD/AAKC001030/ A0A501010.999900] HEARTH Act Approval of Oneida Nation of New York Regulations Bureau of Indian Affairs, Interior. ACTION: Notice. AGENCY: On June 14, 2016, the Bureau of Indian Affairs (BIA) approved the Oneida Nation of New York (Tribe) leasing regulations under the HEARTH Act. With this approval, the Tribe is authorized to enter into residential leases without BIA approval. FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS–4642–MIB, 1849 C Street NW., Washington, DC 20240, telephone: (202) 208–3615. SUPPLEMENTARY INFORMATION: SUMMARY: I. Summary of the HEARTH Act The HEARTH (Helping Expedite and Advance Responsible Tribal Homeownership) Act of 2012 (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 Secretary). 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 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 Act. This notice announces that the Secretary, through the Assistant E:\FR\FM\22JNN1.SGM 22JNN1 Federal Register / Vol. 81, No. 120 / Wednesday, June 22, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES Secretary—Indian Affairs, has approved the tribal regulations for the Oneida Nation of New York. 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 leaserelated 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. 465, preempts state and local taxation of permanent improvements on trust land. See 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 465 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 nonIndians on the reservation is preempted. See 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 selfgovernment,’’ requires a particularized examination of the relevant Federal, state, 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 VerDate Sep<11>2014 20:02 Jun 21, 2016 Jkt 238001 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 PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 40719 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 Oneida Nation of New York. Dated: June 14, 2016. Ann Marie Bledsoe Downes, Deputy Assistant Secretary—Policy and Economic Development. [FR Doc. 2016–14798 Filed 6–21–16; 8:45 am] BILLING CODE 4337–15–P DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [167 A2100DD/AAKC001030/ A0A501010.999900] Proclaiming Certain Lands as Reservation for the Shakopee Mdewakanton Sioux Community of Minnesota AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. This notice informs the public that the Assistant Secretary—Indian Affairs proclaimed approximately 128.30 acres, more or less, an addition to the Reservation of the Shakopee Mdewakanton Sioux Community of Minnesota on June 8, 2016. SUMMARY: Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS–4642–MIB, 1849 C Street NW., Washington, DC 20240, telephone: (202) 208–3615. FOR FURTHER INFORMATION CONTACT: This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary— Indian Affairs by part 209 of the Departmental Manual. A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. 467), for the land described below. The land was proclaimed to be Shakopee Mdewakanton Sioux Community Reservation for the exclusive use of Indians on that Reservation who are entitled to reside at the Reservation by enrollment or tribal membership. SUPPLEMENTARY INFORMATION: E:\FR\FM\22JNN1.SGM 22JNN1

Agencies

[Federal Register Volume 81, Number 120 (Wednesday, June 22, 2016)]
[Notices]
[Pages 40718-40719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14798]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[167A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of Oneida Nation of New York Regulations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: On June 14, 2016, the Bureau of Indian Affairs (BIA) approved 
the Oneida Nation of New York (Tribe) leasing regulations under the 
HEARTH Act. With this approval, the Tribe is authorized to enter into 
residential leases without BIA approval.

FOR FURTHER INFORMATION CONTACT: Ms. Sharlene Round Face, Bureau of 
Indian Affairs, Division of Real Estate Services, MS-4642-MIB, 1849 C 
Street NW., Washington, DC 20240, telephone: (202) 208-3615.

SUPPLEMENTARY INFORMATION:

I. Summary of the HEARTH Act

    The HEARTH (Helping Expedite and Advance Responsible Tribal 
Homeownership) Act of 2012 (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 Secretary). 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 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 Act. This notice announces that the Secretary, through the 
Assistant

[[Page 40719]]

Secretary--Indian Affairs, has approved the tribal regulations for the 
Oneida Nation of New York.

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. 465, preempts 
state and local taxation of permanent improvements on trust land. See 
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 465 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. See 
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 Federal, state, 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 
Oneida Nation of New York.

    Dated: June 14, 2016.
Ann Marie Bledsoe Downes,
Deputy Assistant Secretary--Policy and Economic Development.
[FR Doc. 2016-14798 Filed 6-21-16; 8:45 am]
 BILLING CODE 4337-15-P