HEARTH Act Approval of Kootenai Tribe of Idaho Business Leasing Ordinance, 11086-11088 [2022-04090]
Download as PDF
<![CDATA[
11086
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Notices
khammond on DSKJM1Z7X2PROD with NOTICES
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 Table
Mountain Rancheria.
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 CF
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.
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
VerDate Sep<11>2014
17:23 Feb 25, 2022
Jkt 256001
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
PO 00000
Frm 00049
Fmt 4703
Sfmt 4703
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 Table
Mountain Rancheria.
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2022–04093 Filed 2–25–22; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[223A2100DD/AAKC001030/
A0A501010.999900]
HEARTH Act Approval of Kootenai
Tribe of Idaho Business Leasing
Ordinance
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
The Bureau of Indian Affairs
(BIA) approved the Kootenai Tribe of
Idaho Business Leasing Ordinance
under the Helping Expedite and
Advance Responsible Tribal
Homeownership Act of 2012 (HEARTH
SUMMARY:
E:\FR\FM\28FEN1.SGM
28FEN1
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Notices
Act). With this approval, the Tribe is
authorized to enter into business leases
without further BIA approval.
DATES: BIA issued the approval on
February 1, 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,
sharlene.roundface@bia.gov, (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 Kootenai
Tribe of Idaho.
khammond on DSKJM1Z7X2PROD with NOTICES
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
VerDate Sep<11>2014
17:23 Feb 25, 2022
Jkt 256001
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.
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).
PO 00000
Frm 00050
Fmt 4703
Sfmt 4703
11087
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
E:\FR\FM\28FEN1.SGM
28FEN1
11088
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Notices
may be subject to taxation by the
Kootenai Tribe of Idaho.
Wizipan Garriott,
Principal Deputy Assistant Secretary—Indian
Affairs, Exercising by delegation the authority
of the Assistant Secretary—Indian Affairs.
[FR Doc. 2022–04090 Filed 2–25–22; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
National Park Service
[NPS–WASO–NAGPRA–NPS0033436;
PPWOCRADN0–PCU00RP14.R50000]
Notice of Intent To Repatriate Cultural
Items: U.S. Department of the Interior,
Bureau of Indian Affairs, Washington,
DC, and Pueblo Grande Museum, City
of Phoenix, AZ
National Park Service, Interior.
Notice.
AGENCY:
ACTION:
The U.S. Department of the
Interior, Bureau of Indian Affairs (BIA),
Washington, DC, assisted by the Pueblo
Grande Museum (PGM), in consultation
with the appropriate Indian Tribes or
Native Hawaiian organizations, have
determined that the cultural items listed
in this notice meet the definition of
either unassociated funerary objects or
sacred objects. Lineal descendants or
representatives of any Indian Tribe or
Native Hawaiian organization not
identified in this notice that wish to
claim these cultural items should
submit a written request to the BIA
through PGM. If no additional claimants
come forward, transfer of control of the
cultural items to the lineal descendants,
Indian Tribes, or Native Hawaiian
organizations stated in this notice may
proceed.
DATES: Lineal descendants or
representatives of any Indian Tribe or
Native Hawaiian organization not
identified in this notice that wish to
claim these cultural items should
submit a written request with
information in support of the claim to
the BIA through PGM at the address in
this notice by March 30, 2022.
FOR FURTHER INFORMATION CONTACT:
Lindsey Vogel-Teeter, Pueblo Grande
Museum, 4619 E Washington Street,
Phoenix, AZ 85034, telephone (602)
534–1572, email lindsey.vogel-teeter@
phoenix.gov.
SUPPLEMENTARY INFORMATION: Notice is
here given in accordance with the
Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C.
3005, of the intent to repatriate cultural
items under the control of the U.S.
Department of the Interior, Bureau of
khammond on DSKJM1Z7X2PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
17:23 Feb 25, 2022
Jkt 256001
Indian Affairs, Washington, DC, and in
the physical custody of the Pueblo
Grande Museum, City of Phoenix, AZ,
that meet the definition of either
unassociated funerary objects or sacred
objects under 25 U.S.C. 3001.
This notice is published as part of the
National Park Service’s administrative
responsibilities under NAGPRA, 25
U.S.C. 3003(d)(3). The determinations in
this notice are the sole responsibility of
the museum, institution, or Federal
agency that has control of the Native
American cultural items. The National
Park Service is not responsible for the
determinations in this notice.
History and Description of the Cultural
Items
In December of 1939, 184 cultural
items were removed from site AZ
T:12:3(PGM)/AZ T:12:9(ASM)/SRVSS
Site 6/Villa Buena, located within the
boundaries of the Gila River Indian
Reservation, Maricopa County, AZ.
These items were excavated by
personnel from the Salt River Valley
Stratigraphic Survey (SRVSS), who were
working out of PGM under a permit
issued by the U.S. Department of the
Interior. The cultural items, comprising
12 unassociated funerary objects and
172 sacred objects, have been housed at
PGM since they were excavated. The 12
unassociated funerary items are one
ceramic bowl, one ceramic disk, two
ceramic jars, one lot of ceramic sherds,
one grinding stone, three lots of shell
beads, two shells, and one stone
projectile point/drill. The 172 sacred
objects are two ceramic censer
fragments, three ceramic figurine
fragments, one ceramic thick-walled
vessel fragment, three crystal/quartz
objects, seven worked faunal bones, 39
lots of shell beads, three shell bracelets,
37 lots of shell fragments, 48 shell
ornaments, three shell tinklers, two
stone mortars/stones with depression,
two stone ornaments, one stone
plummet, six stone rings, and 15 stone
projectile points.
Site AZ T:12:3(PGM)/AZ
T:12:9(ASM)/SRVSS Site 6/Villa Buena
contained ballcourts, house mounds,
and a compound. Based on ceramic
types and architectural forms, the site
was likely occupied during the
Sweetwater through Civano phases of
the Hohokam cultural sequence (A.D.
550–1450).
In October of 1939, 14 cultural items
were removed from site AZ
U:9:13(ASM)/AZ U:9:15(PGM)/SRVSS
Site 23, located within the exterior
boundaries of the Salt River Indian
Reservation, Maricopa County, AZ.
These items were excavated by
personnel from the SRVSS, who were
PO 00000
Frm 00051
Fmt 4703
Sfmt 4703
working out of PGM under a permit
issued by the U.S. Department of the
Interior. The cultural items have been
housed at PGM since they were
excavated. The 14 sacred objects are one
ceramic figurine fragment, two shell
bracelets, four shell ornaments, one
stone canopas or medicine stone, three
stone palettes, one stone ornament, one
stone projectile point, and one worked
stone.
Site AZ U:9:13(ASM)/AZ
U:9:15(PGM)/SRVSS Site 23 contained
nine trash mounds, multiple burials,
and a canal. The material culture
spanned the Estrella through Civano
phases of the Hohokam cultural
sequence (A.D. 450–1450).
In October of 1939, 24 cultural items
were removed from site AZ
U:9:16(PGM)/SRVSS Site 24, located
within the exterior boundaries of the
Salt River Indian Reservation, Maricopa
County, AZ. These items were
excavated by personnel from the
SRVSS, who were working out of PGM
under a permit issued by the U.S.
Department of the Interior. The cultural
items have been housed at PGM since
they were excavated. The 24 sacred
objects are 10 ceramic figurine
fragments, eight ceramic bracelets, one
shell ornament, four stone palettes, and
one dog burial.
Site AZ U:9:16(PGM)/SRVSS Site 24
contained a compound, a house mound,
21 trash mounds, and a burial area.
Based on architectural morphology and
ceramic types, occupation spanned the
Estrella through Civano phases of the
Hohokam cultural sequence (A.D. 450–
1450).
In 1939, one cultural item was
removed from site AZ U:9:18(PGM)/
SRVSS Site 26, located within the
exterior boundaries of the Salt River
Indian Reservation, Maricopa County,
AZ. This item was excavated by
personnel from the SRVSS, who were
working out of PGM under a permit
issued by the U.S. Department of the
Interior. The cultural item has been
housed at PGM since it was excavated.
The one sacred object is a dog burial.
Site AZ U:9:18(PGM)/SRVSS Site 26
contained a compound, two trash
mounds, a sherd area, and a burial area.
Based on the material culture,
occupation spanned the Sacaton
through Civano phases of the Hohokam
cultural sequence (A.D. 900–1450).
In June through August of 1939, 28
cultural items were removed from site
AZ U:9:28(PGM)/SRVSS Site 62, located
within the exterior boundaries of the
Salt River Indian Reservation, Maricopa
County, AZ. The items were excavated
by personnel from the SRVSS, who were
working out of PGM under a permit
E:\FR\FM\28FEN1.SGM
28FEN1
]]>Agencies
[Federal Register Volume 87, Number 39 (Monday, February 28, 2022)]
[Notices]
[Pages 11086-11088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04090]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[223A2100DD/AAKC001030/A0A501010.999900]
HEARTH Act Approval of Kootenai Tribe of Idaho Business Leasing
Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) approved the Kootenai Tribe
of Idaho Business Leasing Ordinance under the Helping Expedite and
Advance Responsible Tribal Homeownership Act of 2012 (HEARTH
[[Page 11087]]
Act). With this approval, the Tribe is authorized to enter into
business leases without further BIA approval.
DATES: BIA issued the approval on February 1, 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 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 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. 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
[[Page 11088]]
may be subject to taxation by the Kootenai Tribe of Idaho.
Wizipan Garriott,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising by
delegation the authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2022-04090 Filed 2-25-22; 8:45 am]
BILLING CODE 4337-15-P
