Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Notices 67343 

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 25 CFR 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 25 CFR part 162. Improvements, 

activities, and leasehold or possessory 

interests may be subject to taxation by 

the Soboba Band of Luisen ̃ o Indians, 

California. 

Bryan Newland, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2023–21298 Filed 9–28–23; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

[234A2100DD/AAKC001030/ 

A0A501010.999900] 

HEARTH Act Approval of Prairie Band 

Potawatomi Nation Agricultural 

Leasing Ordinance Leasing Ordinance 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Notice. 

SUMMARY: The Bureau of Indian Affairs 

(BIA) approved the Prairie Band 

Potawatomi Nation 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 agricultural 

leases without further BIA approval. 

DATES: BIA issued the approval on 

September 21, 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, carla.clark@bia.gov, (702) 

484–3233. 

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 Prairie 

Band Potawatomi 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 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 


lotter on DSK11XQN23PROD with NOTICES1
67344 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Notices 

Tribal leasing regulations approved by 

the Federal government pursuant to the 

HEARTH Act. Section 5 of the Indian 

Reorganization Act (IRA), 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 of the IRA 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 25 CFR 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 25 CFR part 162. Improvements, 

activities, and leasehold or possessory 

interests may be subject to taxation by 

the Prairie Band Potawatomi Nation. 

Bryan Newland, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2023–21299 Filed 9–28–23; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

[BLM_CA_FRN_MO4500173171] 

Notice of Availability of the Draft 

Resource Management Plan and 

Environmental Impact Statement for 

the Redding and Arcata Field Offices 

and an Associated Environmental 

Impact Statement, California 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Notice of availability. 

SUMMARY: In accordance with the 

National Environmental Policy Act of 

1969, as amended (NEPA), and the 

Federal Land Policy and Management 

Act of 1976, as amended (FLPMA), the 

Bureau of Land Management (BLM) has 

prepared a Northwest California 

Integrated Draft Resource Management 

Plan and Draft Environmental Impact 

Statement (Draft RMP/EIS) for the 

Redding Field Office and Arcata Field 

Office. By this notice, the BLM is 

providing information announcing the 

opening of the comment period on the 

Draft RMP/EIS and is announcing the 

comment period on the BLM’s proposed 

areas of critical environmental concern 

(ACECs). 

DATES: This notice announces the 

opening of a 90-day comment period for 

the Draft RMP/EIS beginning with the 

date following the Environmental 

Protection Agency’s (EPA) publication 

of its Notice of Availability (NOA) in the 

Federal Register. The EPA usually 

publishes its NOAs on Fridays. 

To afford the BLM the opportunity to 

consider comments in the Proposed 

RMP/Final EIS, please ensure that the 

BLM receives your comments prior to 

the close of the 90-day public comment 

period or 15 days after the last public 

meeting, whichever is later. 

In addition, this notice also 

announces the opening of a concurrent 

60-day comment period for ACECs. The 

BLM must receive your ACEC-related 

comments by November 28, 2023. 

The BLM plans to hold at least one 

virtual and at least two in-person public 

meetings, in Redding and Arcata, 

California during the 90-day public 

comment period. The dates and 

locations of the meetings will be 

announced at least 15 days in advance 

through local media, social media, 

newspaper, and the ePlanning website 

(see ADDRESSES section). 

ADDRESSES: The Draft RMP/EIS is 

available for review on the BLM 

National NEPA Register project website 

at https://eplanning.blm.gov/eplanningui/project/2012803/510. 


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