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Court supports opposition to HUD cutbacks in Oklahoma tribal housing

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DENVER – The United Keetoowah Band of Cherokee Indians of Oklahoma successfully challenged a federal agency’s funding cutback for UKB housing when the 10th Circuit Court ruled June 5 that the agency had acted incorrectly.

The UKB’s Indian Housing Block Grant funding under the Native American Housing Assistance and Self-Determination Act was reduced after the Department of Housing and Urban Development decided only the Cherokee Nation of Oklahoma had jurisdiction over the area within which tribal housing needs had been determined by the UKB.

HUD was arbitrary when it gave the UKB only the minimum housing funds available to tribes without a specific kind of “formula area” because the practice “leads to funding allocations based on factors that do not reflect tribal housing needs,” the court ruled.

Congress intended that HUD based NAHASDA allocations “solely on need-based criteria” and the zeroing-out of UKB’s need-based funding in 2006 over the formula-area issue was inconsistent with the statute’s clear intent, it ruled.

Of the three-judge panel, one jurist dissented, saying NAHASDA is ambiguous when it addresses the requirements a tribe must satisfy in order to receive funding.

Under administrative law, if a statute is ambiguous, the implementing agency’s interpretation, if reasonable, stands; however, if a statute is clear, as the two other circuit judges asserted in this case, and the agency’s interpretation seems to contradict it, the interpretation can be considered unreasonable.

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HUD can issue NAHASDA funds only when tribal housing plans are submitted that would “serve the needs of the low income families in the jurisdiction of the Indian tribe,” but it is not clear whether tribes must exercise jurisdiction over the land before receiving housing assistance, the dissenting opinion notes.

The majority agreed with the UKB that HUD’s implementation was contrary to the clear language of NAHASDA and related Congressional mandates. Overall, the “formula area” requirement conflicts with NAHASDA’s plain language, according to the ruling, and NAHASDA did not suggest HUD is free to require “court jurisdiction” over an area for a tribe to assess need.

The Indian area within which housing needs are to be assessed means the area in which a tribe provides assistance under the act for affordable housing and HUD cannot exclude a tribe from receiving funds simply because the tribe does not exercise court jurisdiction over the area, the ruling states.

Although the Cherokee Nation of Oklahoma asserted authority over the Tribal Jurisdictional Statistical Area to the exclusion of the UKB, the court expressed “grave concerns with the fact that the CNO was permitted to appeal when there was no regulation granting a right to do so.”

The court’s decision sent the matter back to the federal District Court of Eastern Oklahoma for action consistent with the ruling in favor of UKB.

The case is one of a number filed in recent years by tribal nations against HUD for alleged violations of block grant programs.