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Federal Tribal Housing obligation said to go back to treaty days

NEW YORK - The United States owes American Indian tribes housing assistance in return for land cessions made by tribes in the 19th century, not as a matter of charity decided on by the federal government in the 20th century, according to an impressive piece of historical research published recently in a prestigious legal journal.

And, according to tribal attorneys referenced in the article, correcting this routine misperception of history could give tribes standing to sue the United States for what the article calls the inadequate job the U.S. has done delivering on this obligation over the past 150 years.

The article, by 2002 Harvard Law School graduate Virginia Davis, was published late last year in the Harvard Black Letter Law Journal. Davis conducted her research with the assistance of the National American Indian Housing Council.

According to Davis, "law review articles, judicial opinions, federal commissions and congressional reports all incorrectly report that no federal consideration of housing needs occurred before 1961," which was when federal Indian housing assistance commenced under authorization of the 1937 United States Housing Act."

Davis' research, however, turned up evidence of housing promises and housing programs in the 19th century treaties themselves, in the discussions leading up to the treaties (even if they were not eventually included in them), and in the 19th century records of federal Indian officers.

Davis also has compiled records of houses built for Indians by the federal government from Commissioner of Indian Affairs Annual Reports from 1874 to 1901. The total of 35,241 is even more impressive since, as Davis points out, the Indian population during those years was declining to its nadir of 230,000.

Davis has found treaty language promising money for houses in the Treaty with the Ponca, of 1858, the Treaty with the Sauk and Foxes of Missouri of 1855, the Treaty with the Osage of 1865 and the Treaty with the Winnebago of 1855. The Treaty with the Yakima of 1855 and other treaties promised a carpenter and sawmill for construction.

She also found evidence of promises for housing in the negotiations for other treaties, even though the final treaty language did not include them.

"Reports from treaty negotiations confirm that housing promises sometimes played an integral role in the negotiation process," the article says, citing the Treaty with the Nisqualli, Puyallup and Other Indian Nations of 1854 and the Treaty with the Dwamish, Suquamish and Other Indians of 1855.

Gov. Isaac I. Stevens, according to documents Davis saw, told the Nisqualli, "The Great Father wishes you to have homes ? and he now wants me to make a bargain with you, in which you will sell your lands and in return be provided with all these things."

Gov. Stevens in a further letter proposed to build houses for the tribes "as a peace measure."

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According to Davis, final language in both treaties does not include promises of housing assistance but rather more vague promises that money paid for land cession will be used "for the benefit of the Indians."

At least one modern-day court, according to Davis, has interpreted those vague promises as including a housing obligation. She says a 1992 case, the White Mountain Apache tribe versus the state of Arizona, produced a finding "that implicit promises of housing assistance can be inferred from general treaty language or language in the negotiations."

Indian agents' reports from the 19th century, according to Davis, also sometimes confirm that treaty housing promises were broken, and that the housing that was built could be substandard and inadequate. And, she has documented instances in which Indians complained that housing promises made to them had not been kept.

Federal housing programs for Indians existed, although often on an ad-hoc basis, the article claims. It cites a 1912 Bureau of Indian Affairs circular, which called for each BIA superintendent "to submit reports outlining their plan to improve reservation housing conditions."

A more substantial program, the Revolving Loan Fund, was established in 1934 by the Indian Reorganization Act. This fund was set up "to provide capital for long-term improvements, sawmills, and homes." The RLF set up a large-scale housing project for the Mescalero Apache tribe, but apparently had little other impact due to insufficient appropriations.

In 1935, the Emergency Relief Appropriation Acts appropriated $1,396,750 to the Office of Indian Affairs to construct or repair houses. Other appropriations were made in succeeding years, making this, according to Davis, "the first major federally funded program specifically aimed at improving housing conditions of reservation Indians."

All these things, according to Davis, precede the Housing Act of 1937, which authorized affordable housing assistance to all Americans, although Indians did not begin to benefit until the 1960s.

But the widespread belief that the federal Indian housing effort began with the 1937 Act and its impetus as a housing relief act engendered as a moral outreach of the federal government ignores the previous hundred years of housing history, she argues - one which argues for Indian housing assistance as a legal mandate.

The difference is not merely a matter for scholars to debate. As Davis notes in a footnote, while she has not studied the possibility of a lawsuit against the government for failure to provide adequate housing, some tribal attorneys are investigating and feel there could be grounds for such a claim.

"One tribe has determined that based on the number of tribal members who should have received housing assistance at the time it was promised, the number of houses that were actually built, and the current cost of building a house on the reservation, the federal government owes the tribe $300-500 million."

Current funding under the 1996 Native American Housing Assistance and Self Determination Act (the first legislation to confirm a federal housing obligation) has been steady at $650 million per year, although that may well be cut for fiscal 2003. NAIHC has said that at least $1 billion a year is needed.