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Eight more tribal housing agencies suing HUD

WASHINGTON – Eight more Indian housing agencies have sued the U.S. Department of Housing & Urban Development and its Office of Native American Programs in federal court.

They claim the department illegally reduced the amount of annual block grant funding they’re entitled to under federal law.

The tribes have joined more than 25 other reservation-based housing agencies in suing HUD to recover money that the federal agency had allocated to tribal housing programs and then took back after conducting internal financial audits.

The first tribal housing agency to sue HUD over the issue was the Fort Peck Housing Authority in January 2005. That case is currently in the appeals process before the 10th Circuit Court of Appeals in Colorado.

The latest spate of suits occurred after Congress this fall passed reauthorization of the Native American Housing and Self-Determination Act. The legislation, which was signed into law by President George W. Bush on Oct. 13, placed a deadline on when any program had to file suit against HUD for its prior actions. That deadline was Nov. 28.

In the new suit, filed Nov. 26, the tribal agencies asserted that HUD has unfairly “recaptured” funds and did so in an arbitrary way, hurting their ability to address housing needs on their reservations. The plaintiffs said HUD recaptured funds by reducing future NAHASDA allocations to tribal housing agencies after it conducted internal reviews in the early 2000s.

According to lawyers for the plaintiffs, the housing entities have ended up losing millions of dollars that are badly needed to manage existing Indian housing and build new housing.

“We want these funds paid back to the housing programs,” said Jim Wagenlander, a lawyer with Wagenlander & Heisterkamp, LLC of Denver, Colo., which is representing the eight tribal housing entities in the new case.

“It’s also important that the judgments are paid from sources other than future NAHASDA allocations. The plaintiffs do not wish to see that any repayment to them comes out of their future allocation pot, which is available to them and other tribes in subsequent years.

“They want the federal government to pay this with separate funds, so it does not impact their allocations in the future.”

Lawyers said the lawsuit was filed because HUD, often years after the housing funds were allocated to and spent by the tribal agencies, challenged its own housing counts of existing units that are used in HUD’s annual allocation of federal Indian housing funds.

The plaintiffs also claim that under federal law, HUD cannot stop counting existing housing units just because units have not been transferred to homebuyers within a certain number of years.

The tribal entities are arguing that once NAHASDA housing block grant funds are both allocated by HUD and spent by tribal housing entities, HUD is expressly prohibited by that statute from recapturing those funds from recipients.

“Our clients and, to varying degrees, the other plaintiffs in these actions are challenging HUD for not only its decision, but for how it implemented this recapturing of funds,” said Wagenlander.

Donna White, a spokeswoman for HUD, said the department could not offer comment on the ongoing litigation. Based on arguments from the Fort Peck case, however, it is clear that HUD officials believe they had been overpaying tribal housing agencies.

The eight new plaintiffs suing the department are: Sicangu Wicoti Awanyakapi Corporation, Rosebud, S.D.; Oglala Sioux (Lakota) Housing, Pine Ridge, S.D.; Turtle Mountain Housing Authority, Belcourt, N.D.; Winnebago Housing & Development Commission, Winnebago, Neb.; Lower Brule Housing Authority, Lower Brule, S.D.; Metlakatla Housing Authority, Annette Island, Alaska; Spirit Lake Housing Corporation, Ft. Totten, N.D.; Trenton Indian Housing Authority, Trenton, N.D.

The suit was filed in the United States District Court of Colorado. The suit indicates it was filed in Colorado because HUD’s Denver-based National Office of Native American Programs’ Grants Management Office oversaw many of the contentious retractions.

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