APPENDIX VIII Series of HUD Circulars and Legal Memoranda Forming the Basis for Tribal Government Participation in Public Housing Programs PUBLIC HOUSING ADMINISTRATION, Washington, D.C. To: Central Office Division and Branch Heads, Regional Directors. Subject: Low-rent housing for Indian tribes on Indian reservations. 1. Basis of Eligibility of Indian Tribes.-Where an Indian Tribe has an established governing body with police power for the Reservation (that is, the legislative power to promote peace, health, safety, and morals on the Reservation), the governing body is analagous to a State legislature. Such a governing body (usually the Tribal Council) is legally competent to enact an ordinance creating a housing authority with the necessary powers to participate in the low-rent housing program. Such a situation usually exists where the Tribe is organized under a constitution adopted pursuant to Section 16 of the Indian Reorganization Act of 1934, provided that the police power jurisdiction has not been transferred to the State by or pursuant to an act of Congress. 2. Eligibility Determinations for Specific Tribes.-So far, the Bureau of Indian Affairs has not issued any legal opinion as to the eligibility of tribes in general, but has been following a practice of making such legal determinations on a case basis. Formal determinations are normally made when the tribal ordinance establishing a housing authority is submitted to the Bureau of Indian Affairs for its approval. However, to preclude the possibility of an ineligible tribe going through the steps of organizing a housing authority, advice as to eligibility should be requested at an early stage from the Central Office Legal Division, which maintains liaison with the Bureau of Indian Affairs. In some cases where preliminary examination indicates a tribe to be ineligible, the legal deficiencies may be corrected by amendment of the tribal constitution, and early submission of the question of eligibility makes it possible for such amendments to be considered and acted upon promptly. 3. Regional Office Responsibility. Subject to provisions contained in the Circular dated 11-24-61, Coordination of Central Office-Regional Office Actions With Respect to Housing Program for Low-Income Families on Indian Reservations, and the question of legal eligibility, applications for financial aid for low-rent housing from Indian Tribes are to be processed by the Regional Office in the same manner as other applications. 4. Forms of Tribal Ordinance and Organization Documents.(a) Attached to this Circular are the following:1 (1) Form PHA-2904, Tribal Ordinance. (2) Form PHA-2905, Model Transcript for the Organization and establishment of Housing Authorities on Indian Reservations. (3) Form PHA-2906, Outline of Documents Required for Complete Organization Transcript for Housing Authorities on Indian Reservations, (including instructions as to the submittal of various documents). 1 See pp. 247-82. These documents must be examined in each case to see that language which is inapplicable or inappropriate for the particular case is properly modified. Where changes of substance are proposed, they should be cleared with the Legal Division in the Central Office. (b) In general, a cooperation agreement in the usual form will not be necessary because all the essential points of cooperation required of a governing body are included in Section VIII of the Ordinance. The following features of this section of the Ordinance warrant some comment: (1) No provision is made for payments in lieu of taxes because there is usually no property tax applicable to any property on an Indian Reservation. (2) No mandatory provision for equivalent elimination is included because communities on Indian Reservations are usually considered as rural non-farm areas. There is included a declaration of intention on the part of the Tribe to use its lawful powers to the extent feasible to eliminate substandard units as additional dwellings are provided by the low-rent program. (3) The provision in paragraph 1(e) of Section VIII that the Tribe "will join in any disposition of project property... where such action is required in order to grant the maximum interest therein permitted by law" is needed where, as is usually the case, the housing authority constructs the dwellings on tribal lands leased to it by the Tribe. Under limitations of Federal law, a Tribe cannot convey title to tribal lands, but can only give a lease for 25 years with an agreement to renew the lease for a second term of 25 years. 5. Economic and Social Characteristics. (a) Experience so far indicates that housing conditions on the Indian Reservations are at the lowest level of substandardness. There is no question, therefore, as to the need for low-rent housing. There is a serious question relating to the number of low-income families who have sufficient income to enable them to pay the rents needed to cover operating costs including necessary reserves. This problem may be alleviated by taking into consideration welfare payments and, where occupancy by the elderly is involved, the additional subsidy for the elderly. (b) Before providing guidance or initiating a program, it would be well for a Regional Office to ascertain the salient social and economic characteristics of the Reservation. (c) In some instances, tribes have indicated a willingness to make financial contributions to meet operating deficits if thereby a larger number of low-rent units can be allocated. Where the Tribe has capital funds for this purpose it may be possible to create a trust fund, the principal and income of which would be pledged for the 40-year period for the purpose of meeting deficits. Where the Tribe has income, but not sufficient capital funds, the question of a tribal agreement to meet deficits would be posed. Since the PHA commitment to pay annual contributions for the protection of bond holders is irrevocable, a trust fund created by the Tribe, which would be similarly irrevocable, would be the appropriate vehicle for the tribal contribution. Therefore, in cases where the Tribe has income, it should be encouraged to consider means of converting such resources into a capital fund, as by obtaining a loan from another source. Forms of contract documents for such special cases will be developed by the Central Office Legal Division on the basis of future experience. 6. Workable Program.-Indian Tribes must meet the usual requirements of obtaining a workable program determination and certification by the Housing and Home Finance Administrator before any loan contract may be executed. 7. Approval of Contracts.-As indicated by Section IX of the form of ordinance, the authority is required to obtain the approval of the Secretary of Interior or his designee with respect to any financial assistance contract with the PHA. MARIE C. MCGUIRE, Commissioner. |