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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 11-108

General Memorandum 11-108
FY 2012 THUD Appropriations Marked Up in Subcommittee with Restrictions on Funding of Indian Housing Block Grant Program

On September 8, 2011, the House Appropriations Subcommittee on Transportation, Housing and Urban Development marked up the Fiscal Year (FY) 2012 Transportation, Housing and Urban Development (THUD) funding bill. This bill, among other things, contains the appropriations for the Indian housing programs.

The FY 2012 THUD bill proposes $648 million for the Indian Housing Block Grant (IHBG) for FY 2012, which is $52 million below the administration's request and $2 million below current funding. The bill sets aside $2 million of the IHBG for the Department of Housing and Urban Development (HUD) to carry out "inspection of Indian housing units, contract expertise, training, and technical assistance in the oversight and management of such Indian housing assistance." It also sets aside $1.62 million for the Title VI loan guarantee program, with a cap on such guarantees set at $15 million. It does not include funding for training and technical assistance (which was funded at $3.5 million in FY 2011 and provided a substantial portion of the National American Indian Housing Council's (NAIHC) programs). A separate provision of the bill proposes $6 million for the Section 184 loan guarantee program, with a cap of $360 million.

Significantly, the bill contains three new provisions which would affect Indian housing programs. The first provision is that the IHBG funds would be available for only three years and any part of the $648 million that is not spent by the end of three years would return to the Treasury. The second provision, as stated in the original bill, is that no funds shall be awarded to a tribe that has over $10,000,000 in unexpended balances at the beginning of the fiscal year, excluding unexpended balances from fiscal year 2011. At the markup, the Subcommittee accepted an amendment offered by Representative Ed Pastor (D-AZ) that raised this threshold to $20 million. It is our understanding that only the Navajo Nation currently has more than $20 million in unexpended funds. These two provisions were the subject of an NAIHC alert which stated:

This proposed language concerns NAIHC for several reasons including our longstanding opposition to legislative changes to IHBG funds received by tribes that would lower any allocation beyond what is determined through IHBG funding formula. All funding decisions should be a matter for negotiated rulemaking between tribes. We have made this position known on Capitol Hill.
Each of these provisions would affect an extremely large population of native people by cutting appropriations for larger tribal housing programs and shortening the timeframe to expend FY 2012 funds for all tribes. The second provision requiring tribes to expend FY 2012 funding within a 3-year timeframe would hurt many smaller and mid-size tribes that pool their yearly allocations in order to fund housing projects.

The third provision requires that HUD notify grantees of their formula allocation within 60 days of enactment of the Act.

If you would like further information regarding the FY 2012 Transportation, Housing and Urban Development funding bill, please contact us at the information below.

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Inquiries may be directed to:
Ed Goodman (egoodman@hobbsstraus.com)
Greg Smith (gsmith@hobbsstraus.com)

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