HEARTH Act Approval of Apache Tribe of Oklahoma Indian Lands Leasing Act of 2017 Regulations, 13295-13297 [2018-06227]
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Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices
daltland on DSKBBV9HB2PROD with NOTICES
Homeownership) Act of 2012 (the 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 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’s 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
Secretary—Indian Affairs, has approved
the Tribal regulations for the Pechanga
Band of Luiseno Mission Indians.
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
VerDate Sep<11>2014
20:30 Mar 27, 2018
Jkt 244001
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 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 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
PO 00000
Frm 00074
Fmt 4703
Sfmt 4703
13295
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
Pechanga Band of Luiseno Mission
Indians.
Dated: December 28, 2017.
John Tahusda,
Principal Deputy Assistant Secretary—Indian
Affairs Exercising the Authority of the
Assistant Secretary—Indian Affairs.
[FR Doc. 2018–06231 Filed 3–27–18; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/
A0A501010.999900]
HEARTH Act Approval of Apache Tribe
of Oklahoma Indian Lands Leasing Act
of 2017 Regulations
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
E:\FR\FM\28MRN1.SGM
28MRN1
13296
Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices
On December 28, 2017, the
Bureau of Indian Affairs (BIA) approved
the Apache Tribe of Oklahoma Indian
Lands Leasing Act of 2017 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, wind
and solar, wind energy evaluation, and
other authorized purposes 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.
SUMMARY:
SUPPLEMENTARY INFORMATION:
daltland on DSKBBV9HB2PROD with NOTICES
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
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 Apache
Tribe of Oklahoma.
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
VerDate Sep<11>2014
20:30 Mar 27, 2018
Jkt 244001
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. 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 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
PO 00000
Frm 00075
Fmt 4703
Sfmt 4703
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
Apache Tribe of Oklahoma.
E:\FR\FM\28MRN1.SGM
28MRN1
Federal Register / Vol. 83, No. 60 / Wednesday, March 28, 2018 / Notices
Dated: December 28, 2017.
John Tahsuda,
Principal Deputy Assistant Secretary—Indian
Affairs, Exercising the Authority of the
Assistant Secretary—Indian Affairs.
[FR Doc. 2018–06227 Filed 3–27–18; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/
A0A501010.999900]
HEARTH Act Approval of Kootenai
Tribe of Idaho’s Regulations
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
On November 9, 2017, the
Bureau of Indian Affairs (BIA) approved
the Kootenai Tribe of Idaho’s 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:
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:
daltland on DSKBBV9HB2PROD with NOTICES
SUMMARY:
I. Summary of the HEARTH Act
The HEARTH (Helping Expedite and
Advance Responsible Tribal
Homeownership) Act of 2012 (the 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 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’s 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
VerDate Sep<11>2014
20:30 Mar 27, 2018
Jkt 244001
Secretary, through the Assistant
Secretary—Indian Affairs, has approved
the Tribal regulations for the Kootenai
Tribe of Idaho.
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.
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 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
PO 00000
Frm 00076
Fmt 4703
Sfmt 4703
13297
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
E:\FR\FM\28MRN1.SGM
28MRN1
]]>Agencies
[Federal Register Volume 83, Number 60 (Wednesday, March 28, 2018)]
[Notices]
[Pages 13295-13297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06227]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/A0A501010.999900]
HEARTH Act Approval of Apache Tribe of Oklahoma Indian Lands
Leasing Act of 2017 Regulations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
[[Page 13296]]
SUMMARY: On December 28, 2017, the Bureau of Indian Affairs (BIA)
approved the Apache Tribe of Oklahoma Indian Lands Leasing Act of 2017
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, wind and solar, wind energy
evaluation, and other authorized purposes 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 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 Apache Tribe of Oklahoma.
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. 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 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.'' 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
Apache Tribe of Oklahoma.
[[Page 13297]]
Dated: December 28, 2017.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising the
Authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-06227 Filed 3-27-18; 8:45 am]
BILLING CODE 4337-15-P
