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10th Circuit Court of Appeals Weekly Roundup – October 10 – 16

Creek/HUD Issues Argued

A tribal nation is going head-to-head with a federal agency over the allocation of investment money following a lower court ruling against its position.

The Muscogee (Creek) Nation division of housing charges that the U.S. Department of Housing and Urban Development (HUD) is incorrect in practices under the Native American Housing and Self-Determination Act (NAHASDA).

Its contention is part of a brief filed in the U.S. 10th Circuit Court of Appeals after a District Court last year dismissed the Nation’s complaint, agreeing with HUD that the agency was immune from lawsuit under the federal Administrative Procedure Act.

The Nation said some HUD regulations were issued without complying with NAHASDA and it challenged HUD’s authority to restrict Indian housing officials in their retaining interest accrued on money in investment accounts.

The Nation also challenges the lifting of an injunction that would have prohibited HUD from recouping $1.3 million of investment income the Nation had paid the federal agency.

HUD does not have the unlimited discretion it claims to have, the brief contends, and in fact lacks the discretion to implement a 2-year investment income restriction.

In its reply, HUD said a 2-year cap on investments is “fully consistent” with NAHASDA and its requirement is permissible for interest earned to be returned to the U.S.

Among the points raised by the government is whether investment terms can be limited to ensure grants are used for affordable housing rather than income generation.

The Nation requested oral argument before the federal appeals court to allow the justices to seek clarification.