John Tahsuda, the Principal Deputy Assistant Secretary for Indian Affairs, center left, and Secretary of the Interior Ryan Zinke, center right, are seen with students at the Riverside Indian School, a Bureau of Indian Education institution, in Anadarko, Oklahoma, on January 25, 2018. Photo: Office of Public Affairs - Indian Affairs

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HEARTH Act remains popular as tribes assert more control on homelands

Tuesday, April 24, 2018

Tribes continue to take advantage of the Helping Expedite and Advance Responsible Tribal Homeownership Act, a self-determination law that helps them exert more control over their homelands.

Since last fall, 10 tribes have secured federal approval for their HEARTH Act regulations. That brings the total number of participants to 39, representing nearly every region of Indian Country for a law that is barely five years old.

“I congratulate these tribes on joining the growing family of tribal governments with approved land leasing authority under the HEARTH Act,” John Tahsuda, who is the highest-ranking official at the Bureau of Indian Affairs, said in announcing the latest batch of approvals. “The act provides tribal nations with the means to achieve greater control over their economic futures. With each step forward, Indian Country demonstrates its ability to guide the economic progress of its people now and into the future.”

With approved HEARTH Act regulations, tribes are able to enter into agricultural, business, housing and other types of leases without going to the BIA for each agreement. That helps the federal government "get out of your way," as Secretary of the Interior Ryan Zinke, who is Tahsuda's boss, often tells tribes when it comes to their sovereignty.

"I've always said that I believe the nations are sovereign," Zinke said during an appearance on Capitol Hill earlier this month. "It's a partnership, it's a relationship."

The HEARTH Act became law in 2012 and has been seen as a way to exert sovereignty in more than one way. With each approval, the BIA has confirmed that tribal lands are exempt from state and local taxation.

According to the HEARTH Act notice Tahsuda signed for the Oneida Nation, for example, the "the federal government has a strong interest in promoting economic development, self-determination, and tribal sovereignty."

"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," the notice, which was published in the Federal Register last week, reads.

Tribes have been hoping the Trump administration will live up to Zinke's words by approving a long-overdue update to the so-called Indian Trader regulations. The proposed rule, which was first unveiled near the end of the Obama era, again confirms that tribal lands are exempt from state and local taxation.

But the regulations have been declared all but dead by tribal advocates. Though the comment period closed more than six months ago, top officials at the Department of the Interior haven't taken any concrete steps to finalize a rule that otherwise enjoys strong support in Indian Country.

"Our view in the big picture is to get out of the way, let you do the thinking, and then if we can be helpful, be there to help," Tahsuda said at the very last consultation on the Indian Traders (25 CFR 140) rule, right before the comment period closed on October 30, 2017.

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Just a couple of weeks prior, Deputy Secretary David Bernhardt, another one of Tahsuda's bosses, threw cold water on the rule when press by a tribal leader about the need to pre-empt state and local taxation in Indian Country.

"I'm not convinced that we are moving forward with those," Bernhardt told the National Congress of American Indians during its annual convention last October in Milwaukee, Wisconsin.

He quickly added: "I'm not convinced that we won't."

The 10 tribes that recently joined the HEARTH Act gained approval of their regulations starting last fall. Tahsuda signed 9 of the official notices in November and December 2017 but the documents weren't published in the Federal Register until March 28 and, in the case of the Lummi Nation, on March 30. The 10th notice, for the Oneida Nation, was signed in January but wasn't published until April 19.

The list of 10 tribes, and the types of leases their HEARTH Act regulations cover, follows:
• Cheyenne and Arapaho Tribes, Oklahoma (Business Site leases) • Lummi Tribe of the Lummi Reservation, Washington (Business and Residential leases)
• Kootenai Tribe of Idaho (Residential leases)
• Coquille Indian Tribe, Oregon (Business Site leases)
• Torres Martinez Desert Cahuilla Indians, California (Business leases and other authorized purposes)
• Little Traverse Bay Bands of Odawa Indians, Michigan (Business, Agricultural, Residential, Wind and Solar Resource, and Wind Energy Evaluation leases)
• Ramona Band of Cahuilla, California (Business purposes)
• Apache Tribe of Oklahoma (Business, Wind and Solar, Wind Energy Evaluation, and other authorized purpose leases)
• Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California (Business leases)
• Oneida Nation, Wisconsin (Business, Agricultural and Residential leases)