Indian and Tribal Preference for Mixed Finance Projects on Non-Indian Land - PowerPoint Presentation

Indian and Tribal Preference for Mixed Finance Projects on Non-Indian Land Sol Kim, Trial Attorney Chicago Regional Office US Dept of HUD November 19, 2019

Disclaimer This presentation does not constitute an official statement of the U.S. Department of Housing and Urban Development. The views expressed therein do not constitute an official recommendation or legal advice. Furthermore, the examples in the presentation are hypotheticals used to help explain the materials and the concepts and should be relied upon strictly at own risk. The U.S. Department of Housing and Urban Development is not in any way responsible for the use of the information contained in this presentation.

Civil Rights Statutes Relevant to Mixed-Finance Housing Activities The Fair Housing Act (“Title VIII” or “FHA,” 42 USC 3601) FHA is a federal statute that prohibits any housing discrimination based on “race, color, national origin, religion, sex, disability, familial status.” Title VI of the Civil Rights Act of 1968 (25 USC 2000d) Title VI prohibits discrimination based on race, color and national origin in programs and activities receiving federal financial assistance. Section 504 of the Rehabilitation Act of 1973 (29 USC 794) Section 504 prohibits discrimination against people with disabilities in programs that receive federal financial assistance. Age Discrimination Act of 1975 (42 USC 6101) Age Discrimination Act prohibits discrimination on the basis of age in programs and activities receiving federal financial assistance. Indian Civil Rights Act (25 USC 1301) Sets out certain fundamental rights as inalienable for tribes.

General Applicability of the Fair Housing Act to Tribal/Indian Housing Activities “Indian Lands” Lands under some restriction because of, or with some attribute peculiar to, the Indian status Not restricted to reservation land Generally, land over which tribes and federal government, rather than state or local government, has jurisdiction. FHA Generally Has Broad Applicability “It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” – Section 1 of the FHA “[Title VIII] reflects a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.” Trafficante v. Metropolitan Life Insurance Co. , 409 US 205 (1972) Unclear whether FHA Abrogates States’ Sovereign Immunity SCOTUS found state sovereign immunity abrogated for Title VII of the Civil Rights Act, known as Title VIII’s “sister” legislation. Even assuming sovereign immunity, Individual government officials may still be sued under ex parte Young for injunctive reliefs, including specific performance. Many states have passed equivalent state laws, some of which have been read as waivers of sovereign immunity. Under the FHA, Discrimination or Preference Based on Native American or Tribal Status Is Illegal US v. Blackpipe State Bank, 93-5115 ( https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-186 ) (race) Doe v. LoanDepot.com, LLC, 08-17-5267-8 ( https://www.hud.gov/sites/dfiles/FHEO/documents/18CA.pdf ) (race and national origin)

NAHASDA Allows Recipients to Limit Assistance to Low-Income Indians and to Give Tribal Preference Section 201 generally limits assistance to “low-income Indian families” Additionally, NAHASDA allows recipients to have tribal preference in contracting, employment, training, and housing assistance. 24 CFR 1000.48 & 1000.120 Section 201(b)(6) of NAHASDA “Title VI … and Title VIII … shall not apply to actions by federally recognized tribes and the tribally designated housing entities of those tribes under this Act.” HUD via regulations allow state recognized tribes to give preference to tribal members and enrolled Native Americans. HUD Interpretation “Because the exemption from Title VI and the Fair Housing Act is in the subsection of NAHASDA (201(b)) which governs eligible families, we construe [201(b)(6)] to mean limiting assistance to low-income Indian families and preferring tribal members over other Indian families. This interpretation means that recipients that would otherwise be fully subject to Title VI and the Fair Housing Act…must limit assistance in accordance with Section 201(b) of NAHASDA” Weidenfeller Memorandum dated June 4, 2001.

Mixed Finance Projects I Federal funds are combined with other federal funds, state funds, and/or private funds to obtain, construct, rehabilitate, or maintain housing projects. The resulting housing project is often subject to all of the (sometimes conflicting) restrictions and regulations that come with different funding sources Because funding agreements are voluntary, supremacy clause does not usually apply to override other grants “NAHASDA encourages using IHBG funding with other funds for affordable housing activities.” PIH 2010-32 (August 6, 2010) Tribal Sovereignty within Indian Lands For projects located within Indian land, no matter the source of funding, HUD will allow the tribe to limit housing to Indians or give preference to tribal members (PIH 2012-32) This does not mean state/local authorities will necessarily feel the same about mixed-finance projects involving state/local funds

Mixed Finance Projects II Outside Indian Land Leveraged Funds “When IHBG funds and other funds are used for affordable housing in accordance with NAHASDA”—i.e. the whole project will follow NAHASDA rules Check the rules for other funding sources to see if leveraging is allowed Combined Funds When “other funds are combined with IHBG funds but are not used for eligible affordable housing for low-income Indian families.”—i.e. the whole project will not follow NAHASDA rules Must follow Proportionality Rule for number of units For other non-pro-ratable expenses, NAHASDA-rules may be applicable for the entire project (example, procurement). Check for conflict with other funding source rules. If combined with federal funds that have statutory program-specific non-discrimination requirements (for example, HOME or CDBG), the project will always be considered “combined” if located on non-Indian land

Mixed Finance Projects Involving Non-NAHASDA Public Funds Many federal and state funds come with their own non-discrimination requirements. Some non-discrimination requirements are waivable by agencies, others are not. Usually these non-discrimination requirements are interpreted to apply to the whole project, even in mixed projects. Agencies and offices handling those funds should be informed of the mixed-finance projects at early stages. They may demand specific annual waivers even if they agree that NAHASDA requires housing to be limited to low-income Indians. Because receipt of public funds serves to bind the recipient contractually, agencies may not approve mixed-finance projects if the tribe will violate terms of the funding, including non-discrimination requirements. State/local authorities have their own say regarding state funds involved.

Recap Funding Source\Location of the Activity Within Indian Land Outside Indian Land 100% NAHASDA Low-Income Indians Only Tribal Preference Allowed Low-Income Indians Only Tribal Preference Allowed Mixed “Leveraged” Low-Income Indians Only Tribal Preference Allowed Check with other federal sources to be safe Low-Income Indians Only Tribal Preference Allowed Check with other federal source to be safe “Combined” With Private Funding Low-Income Indians Only Tribal Preference Allowed Proportionality Rule With Public Funding Low-Income Indians Only Tribal Preference Allowed Waivers may be necessary from other public funding sources (incl. state) Proportionality Rule Waivers may be necessary from other public funding sources (incl. state) 0% NAHASDA Open question as to whether Fair Housing Act applies in Indian Lands without waiver given by NAHASDA Follow state and federal Non-Discrimination Laws. May not limit/prefer Housing to Indians and May not give Tribal preference.

Caveats NAHASDA recipients must remember to always comply with Section 504 and the Age Discrimination Act Accessible design and construction Minimum accessible unit requirement Reasonable Accommodation, including Emotional Support Animals Reasonable Modification, with Costs Borne by NAHASDA Recipient States Usually Have Their Own Non-Discrimination Laws and Enforcement Mechanisms Federalism probably will prevail if within Indian land (but not on grant agreement issues). Outside Indian land, state law may prevail, and the litigation process may be slow and costly even if victorious May need to obtain waivers/acknowledgments from relevant federal/state program offices supplying other funds or assistances Private partners, Indian or non-Indian, are not specifically immune under any source. Buyer Beware!

References Weidenfeller Memorandum, June 4, 2001 HUD PIH Guidance 2010-32 (August 6, 2010) titled “Limiting Housing to Indian Families or Tribal Members when using Indian Housing Block Grant (IHBG) Funds” June 11, 2019 Letter from Minneapolis Public Housing Authority June 13, 2016 Letter from Region VIII Office of Public Housing Fair Housing Act Text ( https://www.justice.gov/crt/fair-housing-act-2 ) NAHASDA Text ( https://www.hud.gov/sites/documents/DOC_8141.PDF )

Questions? Sol Kim, Trial Attorney Office of Regional Counsel, Region V US Dept. of HUD Sol.t.kim@hud.gov