[Federal Register Volume 83, Number 130 (Friday, July 6, 2018)]
[Notices]
[Pages 31563-31564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14519]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[189A2100DD/AAKC001030/A0A501010.999900]


HEARTH Act Approval of the Confederated Tribes of the Warm 
Springs Reservation of Oregon's Tribal Code

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: On June 11, 2018, the Bureau of Indian Affairs (BIA) approved 
the Confederated Tribes of the Warm Springs Reservation of Oregon 
(Tribe) 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 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

[[Page 31564]]

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 Confederated Tribes of the Warm 
Springs Reservation of Oregon.

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 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 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 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 [T]ribes 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 [T]ribal 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 
Confederated Tribes of the Warm Springs Reservation of Oregon.

    Dated: June 11, 2018.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising the 
Authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-14519 Filed 7-5-18; 8:45 am]
 BILLING CODE 4337-15-P