[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Notices]
[Pages 69692-69693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28476]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[156A2100DD/AAKC001030/A0A501010.999900 253G]
Navajo Nation Trust Leasing Act of 2000 Approval of Navajo Nation
Regulations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: On May 16, 2014, the Bureau of Indian Affairs (BIA) approved
the Navajo Nation General Leasing Regulations under the Navajo Nation
Trust Leasing Act of 2000. With this approval, the Tribe is authorized
to enter into leases without BIA approval.
FOR FURTHER INFORMATION CONTACT: Ms. Cynthia Morales, Office of Trust
Services--Division of Realty, Bureau of Indian Affairs; Telephone (202)
768-4166; Email [email protected].
SUPPLEMENTARY INFORMATION:
I. Summary of the Navajo Nation Trust Leasing Act of 2000
The Navajo Nation Trust Leasing Act authorizes the Nation to issue
leases for purposes authorized under 25 U.S.C. 415(a) without the
approval of the Secretary, provided the lease is executed under tribal
regulations approved by the Secretary. Congress enacted the Leasing Act
in 2000, to ``establish a streamlined process for the Navajo Nation to
lease trust lands without having the approval of the Secretary of the
Interior for individual leases,'' and ``[t]o maintain, strengthen, and
protect the Navajo Nation's leasing power over Navajo trust lands.''
Public Law 106-568 Sec. 1202, 114 Stat. 2933 (Dec. 27, 2000). See also
S. Rpt. 106-511 (Oct. 31, 2000). The Navajo Nation Trust Leasing 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 Navajo Nation.
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 Navajo
Nation Trust Leasing 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)). 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 Navajo Nation Trust
Leasing Act. The Navajo Nation Trust Leasing Act was intended to
``revitalize the distressed Navajo Reservation by promoting political
self-determination, and encouraging economic self-sufficiency,
including economic development that increases productivity and the
standard of living for members of the Navajo Nation.'' Public Law 106-
568 Sec. 1202, 114 Stat. 2933 (Dec. 27, 2000). Moreover, the Navajo
Nation Trust Leasing Act was the model for the HEARTH (Helping Expedite
and Advance Responsible Tribal Homeownership) Act of 2012, for which
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).
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).
Just like BIA's surface leasing regulations, tribal regulations
under the Navajo Nation Trust Leasing Act pervasively cover all aspects
of leasing. Furthermore, the Federal government remains involved in the
tribal land leasing process by approving the tribal leasing regulations
in the first instance. The Secretary also retains authority to take
``all appropriate actions . . . in furtherance of the trust obligation
of the United States to the Navajo Nation'' and necessary actions
remedy violations of tribal regulations, including cancelling the lease
or rescinding approval of the tribal regulations and reassuming lease
approval responsibilities. 25 U.S.C. 415(e). Moreover, the Secretary
continues to review, approve, and
[[Page 69693]]
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
Navajo Nation.
Dated: November 2, 2015.
Kevin K. Washburn,
Assistant Secretary, Indian Affairs.
[FR Doc. 2015-28476 Filed 11-9-15; 8:45 am]
BILLING CODE 4337-15-P