42112 Federal Register / Vol. 82, No. 171 / Wednesday, September 6, 2017 / Notices 

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. See 

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 465 

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. See 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 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.’’ 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). 

Just like BIA’s surface leasing 

regulations, Tribal regulations under the 

HEARTH Act pervasively cover all 

aspects of leasing. See Guidance for the 

Approval of Tribal Leasing Regulations 

under the HEARTH Act, NPM–TRUS– 

29 (effective Jan. 16, 2013) (providing 

guidance on Federal review process to 

ensure consistency of proposed Tribal 

regulations with Part 162 regulations 

and listing required Tribal regulatory 

provisions). 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 

Snohomish County and the State of 

Washington. 

Dated: July 17, 2017. 

Michael S. Black, 

Acting Assistant Secretary—Indian Affairs. 

[FR Doc. 2017–18849 Filed 9–5–17; 8:45 am] 

BILLING CODE 4337–15–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

[178A2100DD/AAKC001030/ 

A0R9A1010.999900] 

HEARTH Act Approval of the Osage 

Nation Regulations 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Notice. 

SUMMARY: On July 17, 2017, the Bureau 

of Indian Affairs (BIA) approved the 

Osage Nation (Nation) leasing 

regulations under the Helping Expedite 

and Advance Responsible Tribal 

Homeownership Act of 2012 (HEARTH 

Act). With this approval, the Nation is 

authorized to enter into business site 

leases without further BIA approval. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sharlene Round Face, Bureau of Indian 

Affairs, Division of Real Estate Services, 

MS–4642–MIB, 1849 C Street NW., 

Washington, DC 20240, telephone: (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 

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 


asabaliauskas on DSKBBXCHB2PROD with NOTICES
Federal Register / Vol. 82, No. 171 / Wednesday, September 6, 2017 / Notices 42113 

1The record is defined in sec. 207.2(f) of the 

Commission’s Rules of Practice and Procedure (19 

CFR 207.2(f)). 

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 Osage 

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 

HEARTH 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)). Similarly, section 465 

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 nonIndians 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 selfgovernment,’’ 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 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.’’ 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 Osage 

Nation. 

Dated: July 17, 2017. 

Michael S. Black, 

Acting Assistant Secretary—Indian Affairs. 

[FR Doc. 2017–18852 Filed 9–5–17; 8:45 am] 

BILLING CODE 4337–15–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 701–TA–583 and 731– 

TA–1381 (Preliminary)] 

Investigations: Cast Iron Soil Pipe 

Fittings From China 

Determinations 

On the basis of the record 1 developed 

in the subject investigations, the United 

States International Trade Commission 

(‘‘Commission’’) determines, pursuant 

to the Tariff Act of 1930 (‘‘the Act’’), 

that there is a reasonable indication that 

an industry in the United States is 

materially injured by reason of imports 

of cast iron soil pipe fittings from China, 

provided for in subheading 7307.11.00 

of the Harmonized Tariff Schedule of 

the United States, that are alleged to be 

sold in the United States at less than fair 


asabaliauskas on DSKBBXCHB2PROD with NOTICES