The Osage Nation broke ground on a new home for the Women, Infants, and Children (WIC) program in Tulsa, Oklahoma, on August 24, 2017. Photo: Osage Nation

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Bureau of Indian Affairs approves first HEARTH Act regulations of Trump era

Wednesday, September 6, 2017

Two more tribes are taking advantage of the Helping Expedite and Advance Responsible Tribal Homeownership Act, a self-determination law that has proven popular in Indian Country.

The Osage Nation and the Stillaguamish Tribe are the latest to win federal approval of their HEARTH Act regulations. The tribes will be able to enter into agriculture, business, housing and other types of leases without going to the Bureau of Indian Affairs for each agreement, effectively streamlining economic development in their respective communities.

More significantly, the two tribes represent the first HEARTH Act regulations of the Trump era. The last approval occurred nearly a year ago so there's been somewhat of a lull at the BIA.

And even more importantly, the BIA is standing by a policy developed during the Obama administration that addresses a big issue for tribes: dual taxation of economic activity on their reservations. State and local taxation hinders tribal development and goes against federal policies, the agency reaffirmed in the HEARTH Act notices published in the Federal Register.

"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," the BIA wrote in the notice for the Osage Nation. Identical language was included in the announcement for the Stillaguamish Tribe.

Dual taxation is also at play as tribe push for an update to the Indian Trader regulations. They have been asking the BIA to outlaw state and local taxation, citing millions and millions of dollars in lost economic opportunities.

"The Three Affiliated Tribes lost one billion dollars to date, one billion in tax revenue, to the state of North Dakota, which I believe is criminal," President Brian Cladoosby of the National Congress of American Indians said earlier this year, referring to the Mandan, Hidatsa and Arikara Nation, whose energy resources are taxed by the state.

Just last week, the BIA concluded a series of tribal consultations where similar messages were heard. Now it's up to the Trump team to finalize the new regulations, a process that that started toward the end of the Obama administration.

But there's no guarantee dual taxation will be included once a new rule is proposed. While a senior Trump hire at the BIA made a big promise to help the Mandan, Hidatsa and Arikara Nation with its tax situation, an even higher-ranking official at the Department of the Interior was less committed.

"At this point in time, I don't know what's going to go in it, but I do know it's something we'll have to tread very carefully on and have a lot of consultation with the various parties," Jim Cason, the Associate Deputy Secretary at Interior, said during a June 13 hearing in Washington, D.C. after a key Republican warned him not to include dual taxation in the Indian Trader regulations.

Since the HEARTH Act became law in 2012, more than two dozen tribes have taken advantage of the law. In the case of the Osage Nation, the tribe developed regulations to address business site leases on its lands in Oklahoma. The Stillaguamish Tribe's regulations govern agricultural, residential, business, wind and solar, wind energy evaluation and similar leases in Washington state.

HEARTH Act Federal Register Notices:
HEARTH Act Approval of Stillaguamish Tribe of Indians' Leasing Regulations (September 6, 2016)
HEARTH Act Approval of the Osage Nation Regulations (September 6, 2016)

Indian Trader Federal Register Notices:
Traders With Indians (February 8, 2017)
Traders With Indians (December 9, 2017)