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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Notices
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 Secretarys 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 Interiors 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 SecretaryIndian Affairs, has approved the Tribal regulations for the Confederated Tribes of the Colville Reservation.
II. Federal Preemption of State and Local Taxes The Departments 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, 7244748
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
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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 7244748, 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 Departments leasing regulations apply equally to improvements, leaseholds, and activities on land leased pursuant to Tribal leasing regulations approved under the HEARTH Act. Congresss 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. 112427 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
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infrastructure needs. See id. at 81011
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 BIAs surface leasing regulations, Tribal regulations under the HEARTH Act pervasively cover all aspects of leasing. See 25 U.S.C.
415h3Bi 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 Colville Reservation.
Bryan Newland, Principal Deputy Assistant SecretaryIndian Affairs.
FR Doc. 202109691 Filed 5621; 8:45 am BILLING CODE 433715P

DEPARTMENT OF THE INTERIOR
Bureau of Land Management LLORV00000.L10200000.
XZ0000.LXSSH1060000.212.HAG 210032

Notice of Public Meetings for the John Day-Snake Resource Advisory Council Planning Subcommittee, Oregon Bureau of Land Management, Interior.
ACTION: Notice of public meetings.
AGENCY:

In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory
SUMMARY:

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