HEARTH Act Approval of Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado Leasing Ordinance, 19665-19666 [2023-06875]
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Federal Register / Vol. 88, No. 63 / Monday, April 3, 2023 / Notices
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[FR Doc. 2023–06759 Filed 3–31–23; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[234A2100DD/AAKC001030/
A0A501010.999900]
HEARTH Act Approval of Southern Ute
Indian Tribe of the Southern Ute
Reservation, Colorado Leasing
Ordinance
Bureau of Indian Affairs,
Interior.
ACTION: Notice.
AGENCY:
The Bureau of Indian Affairs
(BIA) approved the Southern Ute Indian
Tribe of the Southern Ute Reservation,
Colorado 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 into agriculture, business,
residential, and wind and solar leases
without further BIA approval.
DATES: BIA issued the approval on
March 28, 2023.
FOR FURTHER INFORMATION CONTACT: Ms.
Carla Clark, Bureau of Indian Affairs,
lotter on DSK11XQN23PROD with NOTICES1
SUMMARY:
VerDate Sep<11>2014
17:14 Mar 31, 2023
Jkt 259001
Division of Real Estate Services, 1001
Indian School Road NW, Albuquerque,
NM 87104, carla.clark@bia.gov, (702)
484–3233.
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 Southern
Ute Indian Tribe of the Southern Ute
Reservation, Colorado.
PO 00000
Frm 00061
Fmt 4703
Sfmt 4703
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
E:\FR\FM\03APN1.SGM
03APN1
lotter on DSK11XQN23PROD with NOTICES1
19666
Federal Register / Vol. 88, No. 63 / Monday, April 3, 2023 / Notices
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).
VerDate Sep<11>2014
17:14 Mar 31, 2023
Jkt 259001
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
Southern Ute Indian Tribe of the
Southern Ute Reservation, Colorado.
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2023–06875 Filed 3–31–23; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[234A2100DD/AAKC001030/A0A501010.
999900]
Self-Governance PROGRESS Act
Negotiated Rulemaking Committee;
Notice of Meeting
Bureau of Indian Affairs,
Interior.
ACTION: Notice of public meeting.
AGENCY:
In accordance with the
Federal Advisory Committee Act, the
Self-Governance PROGRESS Act
Negotiated Rulemaking Committee
(Committee), will hold the eighth public
meeting to negotiate and advise the
Secretary of the Interior (Secretary) on a
proposed rule to implement the
Practical Reforms and Other Goals To
Reinforce the Effectiveness of Self-
SUMMARY:
PO 00000
Frm 00062
Fmt 4703
Sfmt 4703
Governance and Self-Determination for
Indian Tribes Act of 2019 (PROGRESS
Act).
DATES:
• Meeting: The meeting is open to the
public and to be held both in-person
and virtually on Thursday, April 20,
2023, from 9:00 a.m. to 5:00 p.m.
Eastern Standard Time. Please see
SUPPLEMENTARY INFORMATION below for
details on how to participate.
• Comments: Interested persons are
invited to submit comments on or before
May 21, 2023. Please see ADDRESSES
below for details on how to submit
written comments.
ADDRESSES: Send your written
comments to the Designated Federal
Officer, Vickie Hanvey, by any of the
following methods:
• Preferred method: Email to
comments@bia.gov with ‘‘PROGRESS
Act’’ in subject line.
• Mail, hand-carry or use an
overnight courier service to the
Designated Federal Officer, Ms. Vickie
Hanvey, Office of Self-Governance,
Office of the Assistant Secretary—
Indian Affairs, 1849 C Street NW, Mail
Stop 3624, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT:
Vickie Hanvey, Designated Federal
Officer, comments@bia.gov, (918) 931–
0745.
SUPPLEMENTARY INFORMATION: This
meeting is being held under the
authority of the PROGRESS Act (Pub. L.
116–180), the Negotiated Rulemaking
Act (5 U.S.C. 561 et seq.), and the
Federal Advisory Committee Act (5
U.S.C. Appendix 10). The Committee is
to negotiate and reach consensus on
recommendations for a proposed rule
that will replace the existing regulations
at 25 CFR part 1000. The Committee
will be charged with developing
proposed regulations for the Secretary’s
implementation of the PROGRESS Act’s
provisions regarding the Department of
the Interior’s (DOI) Self-Governance
Program. See Public Law 116–180.
The PROGRESS Act amends
subchapter I of the Indian SelfDetermination and Education
Assistance Act (ISDEAA), 25 U.S.C.
5301 et seq., which addresses Indian
Self-Determination, and subchapter IV
of the ISDEAA, which addresses DOI’s
Tribal Self-Governance Program. The
PROGRESS Act also authorizes the
Secretary to adapt negotiated
rulemaking procedures to the unique
context of self-governance and the
government-to-government relationship
between the United States and Indian
Tribes. The Federal Register notice
published on May 18, 2022 (87 FR
30256) discussed the issues to be
E:\FR\FM\03APN1.SGM
03APN1
]]>Agencies
[Federal Register Volume 88, Number 63 (Monday, April 3, 2023)]
[Notices]
[Pages 19665-19666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06875]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[234A2100DD/AAKC001030/A0A501010.999900]
HEARTH Act Approval of Southern Ute Indian Tribe of the Southern
Ute Reservation, Colorado Leasing Ordinance
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) approved the Southern Ute
Indian Tribe of the Southern Ute Reservation, Colorado 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 into agriculture, business, residential, and
wind and solar leases without further BIA approval.
DATES: BIA issued the approval on March 28, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Carla Clark, Bureau of Indian
Affairs, Division of Real Estate Services, 1001 Indian School Road NW,
Albuquerque, NM 87104, [email protected], (702) 484-3233.
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 Southern
Ute Indian Tribe of the Southern Ute Reservation, Colorado.
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
[[Page 19666]]
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
Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2023-06875 Filed 3-31-23; 8:45 am]
BILLING CODE 4337-15-P
