Title VI and Urban Indian Housing ( 1982 )

Title VI and Urban Indian Housing
The D epartm ent of H ousing and Urban Development is not authorized by statute or regulation to
provide tenant rental assistance lo an urban housing program whose occupancy is limited to
Indians, and such assistance to a program with a racially or ethnically exclusive tenant policy is
affirm atively prohibited by Titles VI and VIII of the Civil Rights Act of 1964 and by the Fifth
A m endm ent.
Legislation affecting Indians should be construed in their interest; however, if Congress does not
explicitly single out Indians for preferential treatm ent, courts should not imply an intent to treat
Indians more favorably o r differently from all other citizens.
W hile C ongress has approved special aid for Indians in connection with housing on reservations and
Indian areas, neither the Housing Act of 1937 nor long-settled and congressionally ratified
adm inistrative practice under that A ct sanction off-reservation Indian housing preferences which
would otherw ise violate statutory o r constitutional nondiscrimination requirements
June 8, 1982
MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION
This responds to your request for our opinion whether the Department of
Housing and Urban Development (HUD) may make available federal funds for a
24-unit scattered site, detached rental housing program open only to Indians
residing in St. Paul, Minnesota. You ask specifically whether federal funding for
tenant rental assistance pursuant to HUD’s Section 8 Moderate Rehabilitation
Program, 42 U.S.C. § 1437f (hereinafter Section 8); 24 C.F.R. § 882 (1982),
under the United States Housing Act of 1937, 42 U.S.C. § 1437 (hereinafter
Housing Act), is permissible in light of the nondiscrimination requirements that
Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, and Title VIII of the
Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631, imposed on recipients of
federal financial assistance.
In the course of considering the various issues raised by this particular plan, we
have identified a threshold legal issue which, as we have resolved it, is necessary
to the disposition of the matter. That issue is whether the Secretary of HUD has
discretion under Section 8 to make funds available to an off-reservation housing
project that conditions tenant eligibility on at least one-fourth Indian blood, as
determined by tribal membership. Once this question is resolved, the Title VI
issue is considerably simplified. For reasons stated below, we conclude, first, that
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although Congress expressed an intent to assist Indians under the Housing Act, it
did not indicate that special treatment of Indians was to extend beyond Indian
reservations and Indian areas. Second, nothing in Section 8 of the Housing Act or
its accompanying regulations authorizes HUD to provide tenant rental assistance
under its Moderate Rehabilitation Program to an urban housing program avail­
able only to Indians. Thus, absent express congressional approval for, or admin­
istrative acceptance of, off-reservation Indian-only Section 8 housing, Titles VI
and VIII and the Fifth Amendment prohibit federal assistance for a program with
a racially or ethnically exclusive tenant policy. An affirmative legislative intent to
aid urban Indian housing or to treat urban Indians specially would, of course,
alter the Title VI, Title VIII, and constitutional analysis. See Fullilove v.
Klutznick, 448 U.S. 448, 492 n.77 (1980) (later, specific preference provision
supersedes earlier, general nondiscrimination statute); Morton v. Mancari, 417
U.S. 535, 550-551 (1974) (specific statutory preference for Indians would
supersede general nondiscrimination statute, regardless of the priority of
enactment).
I. Facts
As we understand the facts, the St. Paul Inter-Tribal Housing Board is a
coalition of the four major Indian organizations serving St. Paul: the St. Paul
American Indian Center; the Red School House, Inc.; the St. Raul American
Indian Movement, Inc.; and the St. Paul Urban Indian Health Board Clinic.
Three different Tribes are represented on its five-member Board of Directors.
The Board has applied to be the nonprofit sponsor of 24 scattered sites, detached
rental housing units of three and four bedrooms, for low-income Indian families.
The contemplated sites are six central St. Paul neighborhoods with high Indian
concentrations.' Only Indian families whose head of household has at least “ one-
quarter degree Indian blood, as verified by tribal enrollment,” would be eligible
for the housing.2 The local Tribes have endorsed the Inter-Tribal Housing Board
and its plans as fulfilling a need of their members.3
The Minnesota Housing Finance Agency would provide a 30-year no interest
loan of $820,000 under the state’s Urban Indian Housing Loan Program (UIHLP)
1 We do nol know whether these St. Paul Indians are tribal members or not We have not been asked, and therefore
have nol considered, whether locating the housing units in areas with high Indian concentration would be consistent
with federal policies of integration in housing See Hills v Gautreaux, 425 U.S 284(1976), Otero v New York City
Housing Authority, 484 F 2d 1122, 1134 (2d Cir 1 9 7 3 ),2 4 C F R § 882 503(a)(9)(i) (objective of “ deconcentra­
tion” for Section 8 program).
2 This classification is similar to the Bureau of Indian Affairs employment preference at issue m Morton v
Mancari, which required that an individual be “ one-fourth or more degree Indian blood and be a member of a
federally recognized tnbe ” 417 U S. al 553 n 24 The Supreme Court characterized that preference as follows:
The preference is not directed towards a “ racial” group consisting of “ Indians” ; instead, it applies
only lo members of “ federally recognized” tribes. This operates to exclude many individuals who
are racially to be classified as “ Indians ” In this sense, the preference is political rather than racial in
nature
3 Letter from Donna Follstad. Chairperson. Urban Indian Advisory Council, to Minnesota Housing Finance
Agency Board Members (Mar 23. 1981), Resolution 15-81, Minnesota Sioux Tribe, Inc (Aug 19, 1981); U S.C
Resolution 27-81, Upper Sioux Community (Aug 25, 1981)
299
to purchase the units. The UIHLP is apparently established pursuant to a state law
that permits the State Housing Agency to “ engage in housing programs for low
and moderate income American Indians. . . .” Minn. Stat. Ann. § 462A.07(15)
(West Supp. 1981).4 A $360,000 low interest loan from the city and a private
foundation would cover rehabilitation of the units. The purchase and rehabilita­
tion loans have been obtained, contingent upon approval by HUD of Section 8
housing assistance payments.
HUD would provide tenant rental assistance to the St. Paul Public Housing
Agency (PHA) on behalf of families who would then lease the units pursuant to
the provisions of Section 8 of the Housing Act. 42 U.S.C. § 1437f; 24 C.F.R.
§ 882 (1981) (Section 8 Moderate Rehabilitation Program). To ensure that only
Indians would benefit from the proposed project, the PHA would maintain a
separate list of eligible Indian applicants for initial occupancy and vacancies as
they occur. The basis for this Indian preference is the PHA’s findings that the St.
Paul American Indian population has not been well-served by the existing Section
8 program; that the state has been unsuccessful in implementing its Section 8
program, for which 75 units are allotted; and that the 24-unit project would
enable the St. Paul Inter-Tribal Housing Board to make use of special state funds
for urban Indians which have been largely unused.5
II. Analysis: May HUD Provide Section 8 Moderate Rehabilitation
Funds for a Program Conditioning Eligibility on Membership in an
Indian IHbe?
A. Section 8 and its Legislative History.
The Housing Act of 1937 is the basic statutory authority for low-income
housing programs. Its provisions cover public housing projects, congregate
housing for the displaced, elderly, or handicapped, and the Section 8 housing
assistance program. 42 U.S.C. § 1437d, e, f. The Section 8 assistance program
was developed by Congress in 1974 in an effort “ to give private developers the
4 Subdivision 15 of M inn. Stat Ann § 462A 07 provides in full:
It [the Housing Finance Agency] may engage in housing programs for low and moderate income
American Indians as that term is defined in § 254A 02, subdivision 11, residing in the metropolitan
area defined in § 473.121, subdivision 2 , and cities with a population greater than 50,000 persons.
The program shall demonstrate innovative methods of providing housing for urban Indians, may
involve the construction, purchase and rehabilitation of residential housing, and may be admin­
istered through any other provision o f this chapter. To the extent possible, the programs shall
combine appropriated money with other money from both public and private sources. . . The
agency shall consult with the advisory council on urban Indians created pursuant to § 3 922,
subdivision 8, in the development of programs pursuant to this subdivision
Subdivision 14 o f the same section states in pertinent part:
It [the Minn Housing Finance Agency] may engage in housing programs for low and moderate
income American Indians developed and administered separately or in combination by the
M innesota Chippewa tn b e, the Red Lake band of Chippewa Indians, and the Sioux communities as
determined by such tribe, band, or communities. In developing such housing programs the tnbe,
band, or communities shall take into account the housing needs of all American Indians residing both
on and off reservations within the state.
5 Letter to HUD from Marshall D. Anderson, Executive Director, PHA (Jan 23, 1981)
300
incentive for profit and the risk of loss in the construction and management of
housing developed for low income families.” S. Rep. No. 693, 93d Cong., 2d
Sess. 43 (1974). Section 8 continued, in a substantially modified form, the leased
housing assistance program Congress had enacted in 1965 to-provide private
accommodations for sublease to low-income families. S. Rep. No. 693, 93d
Cong., 2d Sess. 43 (1974); H.R. Conf. Rep. No. 1279, 93d Cong., 2d Sess. 138
(1974); Housing and Community Development Act of 1974, Pub. L. No.
93-383, 88 Stat. 653, 662, 42 U.S.C. § 1437f.
Section 8 authorizes the payment of lower-income housing assistance “ [f]or
the purpose of aiding lower-income families in obtaining a decent place to live
and of promoting economically mixed housing. . . .” 42 U.S.C. § 1437f(a). It
empowers the Secretary “ to enter into annual contributions contracts with public
housing agencies pursuant to which such agencies may enter into contracts to
make assistance payments to owners of existing dwelling units in accordance
with this section.” 42 U.S.C. § 1437f(b)(l). It also establishes limitations on the
maximum monthly rent and the percentage of assistance allocated, for example,
to very low-income families. See 42 U.S.C. § 1437f(c)(l)-(8).
For purposes of tenant selection, the relevant subsection of Section 8 provides:
(d)(1) Contracts to make assistance payments entered into by a
public housing agency with an owner of existing housing units
shall provide (with respect to any unit) that
(A) the selection of tenants for such unit shall be the function
of the owner, subject to the provisions of the annual contribu­
tions contract between the Secretary and the agency, [6] except
that the tenant selection criteria used by the owner shall give
preference to families which occupy substandard housing or
are involuntarily displaced at the time they are seeking assist­
ance under this section.
42 U.S.C. § 1437f(d)(l)-(A).
On its face, this provision indicates only that preferences are permissible for
“ families which occupy substandard housing or are involuntarily displaced at the
time they are seeking assistance. . . .” However, it also places the responsibility
for selecting tenants on the owner, which suggests that an individual owner has
some discretion to devise eligibility priorities on his own. Moreover, the excep­
tion mandating preferences for involuntarily displaced families is a recent 1979
6 The provisions of the annual contributions contract establish, inter alia:
(1) the maximum monthly rent which “ shall not exceed by more than 10 per centum the fair market
rental established by the Secretary periodically
(2) provisions for adjustment “ annually or more frequently in the maximum monthly rents” that
“ reflect changes in the fair market rentals or, if the Secretary determines, on the basis of a
reasonable formula ”
42 U S.C. § 1437f(c)(l), (2)(A) Aside from the provision that “At least 30 per centum of the families assisted
under this section with annual allocations of contract authority shall be very low-mcome families at the time of the
initial renting of dwelling units,” there is no express qualification, other than qualifying as a “ lower income
family,” on whom an owner may select as tenants. 42 U S C § 1437f(c)(7), (0(1).
301
amendment. See Pub. L. No. 96—153, § 206(b)(1), 93 Stat. 1101, 1108. Prior to
1979, Section 8 had simply provided that “ the selection of tenants . . . shall be
the function of the owner, subject to the provisions of the annual contributions
contract between the Secretary and the agency.” 42 U.S.C. § 1437f(d)(l)(A)
(1976) (prior to 1979 amendment).
The legislative history accompanying the 1979 change explained the nature of
the preference:
The Committee has provided a priority in the selection of
tenants in public housing and section 8 for families who occupy
substandard housing or have been involuntarily displaced at the
time they apply for assistance. The Committee believes that in a
period of reduced funding for assisted housing, the programs
should be directed toward those families who have housing needs
which require more urgent attention. . . . The priority is not
intended nor should it be used to allow the Department to direct an
owner or PHA to select certain tenants. It would be unacceptable
and clearly not authorized by this provision for the Department to
require a PHA or owner to select tenants from a list developed by
the Department. This provision is not intended to alter the basic
responsibility over tenant selection which, under current law,
rests solely with the PHA and owner. It is simply intended to have
owners and PHAs give priority to meeting the urgent housing
needs of those families living in substandard conditions or being
involuntarily displaced.
H.R. Rep. No. 154, 96th Cong., 1st Sess. 16 (1979); Housing and Community
Development Amendments of 1979, Pub. L. No. 96-153, 93 Stat. 1101. Section
8 and its legislative history offer no additional guidance on the rationales behind,
and the permissibility of, tenant preferences.
B. Rules o f Statutory Construction Relative to Legislation Affecting Indians.
Section 8 and its legislative history give no clear indication of the extent of
discretion that a PHA or owner may exercise in selecting tenants and, more
specifically, whether an Indian preference is permissible. The answers to these
questions must be evaluated in light of two rules of statutory interpretation
relevant to statutes that arguably affect the legal rights of Indians. One is the
familiar rule that “ legislation affecting the Indians is to be construed in their
interest and a purpose to make a radical departure is not lightly to be inferred.”
U nited States v. Nice, 241 U.S. 591, 599 (1916). This policy of generously
construing any ambiguities in favor of Indians would be applicable if either
language in the Housing Act generally, or Section 8 interpreted in light of
administrative practice, indicated an intention to permit an Indian housing
preference in the present circumstances.
302
However, a second rule of statutory construction prescribes that if Congress
does not explicitly single out Indians for preferential treatment, courts should not
imply an intent to treat Indians more favorably or differently from all other
citizens. The Supreme Court has often noted that if Congress intends to aid or
protect Indians in a manner different from others, “ it should say so in plain
words. Such a conclusion cannot rest on dubious inferences.” Oklahoma Tax
Comm’n v. United States, 319 U.S. 598,607 (1943) (no express intent to exempt
restricted Indian lands from state estate taxation); F.P.C. v. Tuscarora Indian
Nation, 362 U.S. 99, 117 (1960) (no intent to exempt Indian reservations beyond
those specially defined in the statute). Thus, if further scrutiny reveals an absence
of legislative intent to treat specially off-reservation Indian housing programs,
there is no basis for inferring preferential treatment simply because Indians have
been favored in some other context. Faced with congressional silence, we could
not find that Indians, simply by being Indians, should be excluded from the
legislative and administrative rules that generally govern Section 8 housing
programs. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 116.
Third, unless the Housing Act of 1937 contains an Indian preference, to infer
that Congress intended to exempt Indians from the general requirements of the
nondiscrimination statutes that apply to federal housing assistance, without
specifically indicating such an intent, would constitute a repeal by implication.
Because Congress is presumed to be aware of the entire body of law, and thus
aware of prior statutes when it enacts later ones, courts strongly disfavor any
repeals by implication. See Watt v. Alaska, 451 U.S. 259, 267 (1981); Morton v.
Mancari, 417 U.S. at 549; Universal Interpretative Shuttle Corp. v. Washington
Metropolitan Area Transit Comm’n, 339 U.S. 186, 193 (1968).
As is well-known, § 601 of Title VI of the Civil Rights Act of 1964 provides
that
No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d. Title VIII of the Civil Rights Act of 1968, 42 U.S.C.
§§ 3601-3631 more specifically bans discrimination in the sale or rental of
housing “ because of race, color, religion, sex or national origin.” 42 U.S.C.
§ 3604. This prohibition applies to public housing authorities like the St. Raul
agency involved here that receive federal financial assistance. 42 U .S.C .
§ 3603(a).
Were the Housing Act of 1937, or long-settled and congressionally ratified
administrative practice thereunder, found to have sanctioned an Indian housing
preference, then the subsequently enacted nondiscrimination statutes would not
impliedly repeal such a specific preference. See Radzanower v. Touche Ross &
Co., 426 U.S. 148, 153 (1976) (“statute dealing with a narrow, precise, and
specific subject is not submerged by a later enacted statute covering a more
generalized spectrum” ); Morton v. Mancari (rejecting contention that Equal
303
Employment Opportunity Act impliedly repealed Indian preference provisions
of Indian Reorganization Act). But if the 1937 Act was silent with respect to
Indian preferences, converse presumptions apply. When Congress amended the
Housing Act in 1974 to provide for Section 8 housing assistance, and in all
subsequent amendments to Section 8, Congress was legislating against the
backdrop of Titles VI and VIII. Presumably, if Congress intended to exempt
Indians from the nondiscrimination statutes, it would make express its desire to
modify or preclude the applicability of these existing statutes that would other­
wise affect the later enactments. This is especially so when major public statutes
reflecting important national policy, such as Titles VI and VIII, are involved. See
Watt v. Alaska, 451 U.S. at 281 n.5 (Stewart, J., dissenting) (“it would be
unreasonable to assume Congress would alter fundamental policy without an
unambiguous expression of its intent to do so” ); 1A, C. Sands, Sutherland on
Statutory Construction § 23.10 (3d ed. 1972). Indeed, there is no question about
Congress’ awareness of Title VI: it expressly incorporated Title VI requirements
into the housing regulations. See n.15 infra. Thus, if Congress had been
previously silent concerning urban Indian housing, it would require an explicit
Indian exemption or equivalent “ clear and manifest” intent to effect a partial
amendment of Title VI. See U nited States v. Borden C o., 308 U.S. 188, 198
(1939).
C. Application c f Rules of Statutory Construction.
(1) Congress Did Not Intend to Permit an Indian Only Off-Reservation Section
8 Housing Program Under the Housing Act.
First, we must determine whether the Housing Act is legislation enacted for the
benefit of Indians and therefore should be construed generously in their favor. We
conclude that with respect to off-reservation housing the statute contains no
evidence of an intent to treat Indians specially.
The Housing Act is a general statute and not legislation specifically designed
to benefit Indians.7 In the opening declaration of policy, the Housing Act states
“ [i]t is the policy of the United States to promote the general welfare of the nation
by employing its funds and credit, as provided in this chapter, to assist the several
States and their political subdivisions to remedy the unsafe and unsanitary
housing conditions and the acute shortage of decent, safe, and sanitary dwellings
for families of lower income. . . .” 42 U.S.C. § 1437.
The Act refers explicitly to Indians on only two occasions. The primary
reference to Indians is in a definition, rather than substantive, section of the Act.8
7 Cf. The Bartlett Act, 42 U .S C § 3371 (assistance for housing for Alaskan natives) In E ric v S e c 'y c f Housing
and Urban Development, 464 F. Supp 44 (D . Alaska 1978), the court held that the legislative history of the Bartlett
Act indicated that an Indian preference was intended.
8 The other reference appears in 42 U .S.C . § 1437d, which excepts projects on Indian reservations or in Alaskan
Native villages from the general rules binding the Secretary in assessing prototype costs See p 15 infra. The 1974
Amendments had also contained a provision targeting funds to Indians for certain types of housing from 1974 to
1976 4 2 U S C § 1437c(c) See p 23 infra. After 1976, Congress did not make explicit reference to Indian funds
in the Housing Act and the 1978 Housing and Community Development Amendments specifically rejected the
concept of set-asides Congress concluded that “ (djeletion of the set-asides would provide the Secretary maximum
flexibility in utilizing the funds made available for public housing and section 8 housing assistance payments ” S
Rep. No 871, 95th Cong.. 2d Sess 14, 73 (1978).
304
Section 1437a provides that when used in this chapter “ [t]he term ‘State’
includes the several States, the District of Columbia, the Commonwealth of
Puerto Rico, the territories and possessions of the United States, the Trust
Territory of the Pacific Islands, and Indian Tribes, bands, groups, and Nations,
including Alaska Indians, Aleuts, and Eskimos, of the United States.” 42 U.S.C.
§ 1437a(7). No legislative history explains this 1974 amendment which included
“ Indian Tribes, bands, groups, and Nations” within the reach of the statute. Pub.
L. No. 93-383, 88 Stat. 653; S. Rep. No. 693, 93d Cong., 2d Sess. 119 (1974).
We believe that the inclusion of Indians in this general definitional section, as
opposed to a substantive section of the Act, suggests only that Congress intended
to establish that HUD can have the same type of administrative relationship with
Indian Tribes as it does with the states or the District of Columbia. See Alexander
v. U.S. D ept, c f Housing <5 Urban Development, 441 U.S. 39, 50-53 (1979)
(short, general statement of purpose not intended to be substantive departure
from Congress’ statutory design). In treating Indian Tribes as essentially equiv­
alent to political subdivisions, Congress would be dealing with Indians as
members of quasi-sovereign tribal entities, not as individuals of a particular
race.9 This interpretation comports with the prevailing rationale underlying
Congress’ plenary power to legislate specially with respect to Indians: that
Indians are a separate people with their own institutions. See United States v.
Antelope, 430 U.S. 641, 646 (1977); Morton v. Mancari, 417 U.S. at 555.
That Congress intended by the Act to direct housing assistance exclusively to
Indian Tribes only insofar as they functioned as governmental authorities with
discrete jurisdictions is supported by earlier legislation and existing regulations.
Prior to the 1974 A m endm ent which included “ Indian Tribes, bands,
groups . . .” within the categories of eligible recipients, Congress had infre­
quently addressed Indian housing problems. The initial 1937 legislation provid­
ing housing for low-income families did not specifically include Indians as
beneficiaries of governmental largesse. See United States Housing Act of 1937,
§ 1, 50 Stat. 888, 42 U.S.C. § 1401. In 1968, Congress amended Section 1 of
the Act by adding “ Indian areas” to the previously designated urban and rural
nonfarm areas targeted for federal assistance. Housing and Urban Development
Act of 1968, § 206(a), 82 Stat. 504; 42 U.S.C. § 1401. This reference to “ Indian
9 The Senate Report to the Housing and Community Development Act of 1974 gave a more extensive definition of
the Indian tribal groups which Congress intended to be eligible for planning assistance under an amendment to
another housing statute, the Housing Act of 1954 Insofar as the amendment, similar to the amendment in
§ 1437a(7), redefined the list of eligible recipients, the description of Indian recipients is enlightening but not
dispositive1
The amendments would, however, authorize the Secretary to make planning assistance available to
Indian tribal groups, or bodies which represent Indians living as a community and owning
contiguous lands for which planning assistance is sought, whether or not these tribal groups or
Indians are eligible to receive grants under other Federal assistance programs. The term “ Indian
tribal group or body” is intended to mean any tribe, band or other organized group of Indians,
including those tribes, bands, or groups terminated since 1940 and those recognized by the State in
which they reside and any tribe, band or groups of Eskimos, Aleuts, or Alaskan natives (emphasis
added)
S Rep. No 693, 93d Cong , 2d Sess 60 (1974).
305
areas” was the predecessor of the 1974 Amendment that defined “ Indian Tribes,
bands, groups, and Nations,” as potential recipients of assistance under the Act.
The legislative history explained the 1968 change which first mentioned
Indians, as follows:
Section 206 of the bill would amend the U.S. Housing Act of
1937 so as to permit public housing assistance for Indian families
without regard to the present limitation which does not permit
public housing programs to include a site which is on a farm or is
an appurtenance to a farm. The existing limitation has presented
difficulties in connection with conventional low-rent housing and
mutual-help housing programs for Indians. . . . In some cases,
the present limitation has the effect of permitting the use of certain
sites, and prohibiting others, in connection with the same project
on an Indian reservation. This amendment is intended to apply to
all Indian reservations, whether they be State or National.
S. Rep. No. 1123, 90th Cong., 2d Sess. 32 (1968). By expressly stating that the
amendment applied to Indian areas— which the legislative history described as
reservations— Congress presumably intended to direct such federal aid that far
but not necessarily any further.
The Supreme Court reached an analogous conclusion in F.P.C. v. Tuscarora
Indian Nation, 362 U.S. 99, which presented the question whether lands owned
by the Tuscarora Indian Nation could be taken, with just compensation, for the
storage reservoir of a hydroelectric power project by the New York Power
Authority under a license from the Federal Power Commission. The statute at
issue exempted “ reservations” c f the United States, including “ tribal lands
embraced within Indian reservations,” from the lands that could be condemned,
if the taking would interfere with the purpose of the reservation. 362 U.S. at 112.
Yet the Court held that lands owned in fee simple by the Indian Nation were “ not
within a ‘reservation’ as that term is defined and used in the [statute].” 362 U.S.
at 115. The Court distinguished the extent to which Congress dealt specially with
Indians— excluding tribal lands within federally owned reservations from the
statute’s scope— and the extent to which Congress “ intended to include lands
owned or occupied by any person or persons, including Indians . . .” within the
takings power of the statute. 362 U.S. at 118.
Interpreting Congress’ intent in the Housing Act to limit special aid to Indians
to Indian areas10 is further supported by a recent amendment to the Act. Section
1437d(b)— the other express statutory reference to Indians— excepts “ projects to
be constructed as a result of assistance provided under this chapter and which are
to be located on Indian reservations or in Alaskan Native villages” from the
general rules that bind the Secretary’s determination of prototype costs. The
10 "Indian areas” is a term o f art used both in the 1968 Housing Act and in existing regulations. 24 C F.R.
§ 805.102 (1981). Essentially coterminous w ith the word “ reservation,” the word is also intended to include the
similarly owned Indian lands that cover large sections of Oklahoma and Indian areas in Alaska, neither of which fall
technically within the term “ reservation ”
306
subsection notes that “ with respect to remote areas such as may be found in
connection with projects developed under the Indian and Alaskan Native housing
program assisted under this chapter, the extensive transportation required to
provide the necessary labor, materials, and equipment to the project site and any
additional conditions that the Secretary determines should be taken into consid­
eration . . shall be accounted for in determining the prototype costs. 42
U.S.C. § 1437d(b)(8). The statutory language implies that Indian program
assistance is targeted to Indian lands which may not be well-integrated into the
state’s transportation network or which simply may be remote from sources of
materials, equipment, and supplies. Nowhere is there a congressional indication
that the Indian program is operative in the cities, for Congress most likely found
no reason to differentiate Indians from other citizens in urban areas.
(2) HUD Regulations Supply no Suggestion of Legislative Intent to Treat Off-
Reservation Indians Specially.
The HUD regulations that define the Indian Housing Program under the
Housing Act also buttress the conclusion that no special treatment of Indians was
intended outside Indian areas. The Indian housing regulations set forth at 24
C.F.R. § 805 (1981) are applicable “ to such projects which are developed or
operated by an Indian Housing Authority [(1HA)] in the area within which such
Indian Housing Authority is authorized to operate” (emphasis added). 24 C.F.R.
§ 805.101(a)(1). If the IHA is established by a tribal ordinance enacted “ by
exercise of a tribe’s powers of self-government,” it operates over “ all areas
within the jurisdiction of the tribe.” 24 C.F.R. § 805.108(a); App. 1 (tribal
ordinance). If the IHA is established pursuant to a state law, it must have “ all
necessary legal powers to carry out low income housing projects for Indians.” 24
C.F.R. § 805.108(b).'' That is, even an IHA created by state law must function as
a governing body with respect to housing matters within a particular region or
area.12
11 Alaska, Maine, Oklahoma, and Texas have enacted laws to permit the establishment of IHAs to provide
housing in Indian areas in those states See, e.g ,6 3 Okla. Stat Ann. § 1054. As the HUD Interim Indian Housing
Handbook 7440-1, amended 1979, explains, "[a] public housing agency which serves Indians as well as other low
income families is not eligible as an IHA since the statute creating such as authority is not a statute providing
specifically for housing authorities for Indians.” Chapt. I-1(C) at 1-3
12 In addition, HUD indicated that federal funds for Indian Housing projects were restricted to Indian areas when
it first published its Indian housing regulations in 1976. HUD explained the possibility of Section 8 housing as
follows*
Several comments objected to the mention of the Section 8 Housing Assistance ftayments program
as a type of housing available to IHAs. While the Section 8 Program has not yet been utilized in
Indian areas, HUD has not ruled out the possibility o f providing this type of housing assistance as
beneficial to Indians because it is possible to provide homeownership opportunity housing under it.
The provision therefore has been retained (§ 805.103(c).)
41 Fed Reg. 10152 (Mar 9, 1976). In promulgating the 1979 amendments to these regulations, HUD again
explained that
[tjhe basic obstacle so far to the use of the Section 8 Program on Indian reservations has been the
problem of obtaining private financing by an owner (whether it be a private owner or an IHA) for the
construction or acquisition o r rehabilitation of a project
44 Fed. Reg. 64204 (Nov 6, 1979) (Indian housing, final rule). These regulations simply assume that Indian
housing will be situated in Indian areas
307
Thus, the Housing Act, its legislative history, and the accompanying Indian
housing regulations all indicate that insofar as Congress intended to treat Indians
specially under the Act, federal assistance would be directed to Indian areas. The
Act is silent on the possibility of Indian-only off-reservation housing. If Congress
has not authorized preferential treatment as part of the unique relationship
between the federal government and the Indian Tribes, the Court has found that to
interpret the law specially for Indians is “ not shown to be necessary to the
fulfillment of the policy of Congress to protect a less-favored people against their
own improvidence or the over-reaching of others; nor is it conceivable that it is
necessary, for the Indians are subjected only to the same rule of law as are others
in this state. . . .” United States v. Oklahoma Gas C o., 318 U.S. 206, 211
(1943). Indeed, if the special treatment of Indians cannot be grounded in their
unique status as political entities— formerly sovereign nations which still retain a
measure of inherent sovereignty over their people— and if no federal statute or
practice exists that reflects this determination in regard to urban housing, to treat
Indians other than as ordinary citizens would constitute impermissible discrimi­
nation. See F ishery. D istrict Court, 424 U.S. 382, 390 (1976); Superintendent of
Five C ivilized Tribes v. Commissioner o f Internal Revenue, 295 U.S. 418, 421
(1935). Cf. M orton v. Mancari, 417 U.S. at 548 (exemptions in Title VII for
tribal employment and preferential treatment by business on or near a reservation
reveal “ clear congressional sentiment that an Indian preference in the narrow
context of tribal or reservation-related employment did not constitute racial
discrimination of the type otherwise proscribed” ). Here, in the absence of an
express congressional indication specifically referring to Indian preferences in
urban housing programs, “ Indians are subject only to the same rule of law as are
others.” F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 119; Oklahoma Tax
Com m ’n v. United States, 319 U .S. 598, 607 (1944); United States v. Oklahoma
G as C o ., 318 U.S. at 211.
Because the Housing Act, and administrative practice thereunder have not
established off-reservation Indian housing preferences, Titles VI and VIII cannot
be read to impliedly repeal such a preference. Cf. Morton v. Mancari, 417 U.S. at
550-551 (Equal Employment Opportunity Act of 1972 did not supersede specific
statutory preference for Indians). The only remaining question is whether the
extent of discretion over tenant selection authorized by Section 8 would enable a
PHA or owner to condition tenant eligibility on membership in a recognized
tribe. That is, has Congress sanctioned any preference concepts in the Section 8
regulations that could conceivably cover an Indian-exclusive tenant policy? Such
a preference must either be consistent with Titles VI and VIII or be expressly
accepted by Congress as superseding the general nondiscrimination require­
ments of those earlier statutes. See Fullilove v. Klutznick, 448 U.S. 448,492 n.77
(1980) (later, specific preference provision supersedes earlier general non­
discrimination statute).
D . Section 8 and HUD Regulations fo r Tenant Selection in Section 8
Housing Permit No Specific Preferences That Could be Read to Include an
Indian Preference.
(1) As noted above in Section II. A, Section 8 itself places the duty of tenant
selection on the housing owner and creates an express statutory preference only
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for families which occupy substandard housing or are involuntarily displaced.
The regulations describing the policies and procedures applicable to Section 8
Moderate Rehabilitation Programs under the Housing Act are set forth at 24
C.F.R. § 882, with special procedures for moderate rehabilitation in subparts D
and E (1981).13 On the one hand, the regulations explicitly single out certain
groups for attention. For example, in submitting an application for a moderate
rehabilitation program, the PHA must certify that it will take “ affirmative action
to provide opportunities to participate in the Program to those elderly persons
expected to reside in the locality and those Familys [sic] expected to reside in the
community as a result of current or planned employment. . . .” 24 C.F.R.
§ 882.503(b)(l)(ii). The PHA must further certify “ that the PHA will provide a
preference for . . . Families displaced as a result of Moderate Rehabilita­
tion. . . 24 C.F.R. § 882.503(a)(2)(ii)(C). On the other hand, they provide no
indication that the Secretary of HUD could make funds available to an Urban
Housing program open only to Indians who are enrolled tribal members. Indeed,
a PHA applying for federal funds under Section 8 must include an equal
opportunity housing plan in its submission. 24 C.F.R. § 882.503(b).
While the somewhat circular nature of the regulations makes it difficult to
determine what an equal opportunity plan entails,14 there is no reason to believe
that the language does not mean what it says: no discrimination. The only
preferential treatment expressly permitted by the regulations defining the equal
opportunity plan is that “ the PHA may establish a preference for applicants
currently residing in that neighborhood who are being directly displaced by HUD
programs.” 24 C.F.R. § 882.517(b). This preference both reflects the Section 8
statutory language and does not conflict with Title VI and VIII or the Fifth
Amendment.
Significantly, the permissibility of any preferences is circumscribed by the
requirement that the equal opportunity plan must include “ signed certification of
the applicant’s intention to comply with Title VI of the Civil Rights Act of 1964;
Title VIII of the Civil Rights Act of 1968; [and] Executive Order 11246. . . .” 24
C.F.R. § 882.503(b)( 1)(ii).15 In contrast to other legislation and^regulations that
expressly authorize agencies to take affirmative action which favors members of
certain disadvantaged racial or ethnic groups to the exclusion of other persons,
nothing in the regulations for Section 8 sanctions a racially or ethnically ex­
clusive tenant policy. Cf. Fullilove v. Klutznick, 448 U.S. 448 (upholding Public
13 The special procedures for moderate rehabilitation programs were promulgated m 1979. See 44 Fed Reg.
26670 (May 4, 1979)
14 The plan must describe the PHA’s policies for “ [sjelecting from among eligible applicant Families those to be
referred to O w ners including any provisions e stab lish in g p references for sele c tio n .” 24 C F.R
§ 882.503(b)(1)(C) The only indication of what those preferences might encompass appears in 24 C.F.R
§ 882 517(b). But § 882.517(b) refers back to § 882 503 in stating that “ [t]he PHA must select Families for
participation in accordance with the provisions of the Program and in accordance with the PHA’s application,
including any PHA requirements or preferences as approved by HUD. (See 24 C F.R § 882 503(b)(l)(i)(C)).’’
13 HUD has also issued specific regulations effectuating the provisions of Title VI 24 C F R . § 1.1 (1981)
Analogous to the Section 8 regulations, the Title VI regulations permit recipients of federal financial assistance
operating low-rent housing under the Housing Act of 1937 to assign applicants to dwelling units based on
preferences or priorities established by the recipient’s regulations and approved by HUD But these preferences may
not be “ inconsistent with the objectives of Title VI of the Civil Rights Act of 1964 and this Part I ” 24 C F R . § 1.4
The HUD regulations effectuating Title VI were issued in 1973 See Fed Reg 17949 (July 5, 1973).
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Works Employment Act of 1977, 42 U.S.C. §§ 6701-6710 which establishes in
§ 103(f)(2) a minority business enterprise set-aside). Pub. L. No. 95-28,91 Stat.
116, 117 (1977). In light of the express protections for the elderly, the handi­
capped, or displaced families, the absence of explicit preferences for racial or
ethnic groups, and the nondiscrimination obligations imposed on HUD by Titles
VI and VIII, HUD would appear to have no discretion to direct Section 8 funds to
programs exclusively designed for a special racial or ethnic group, including
urban Indians.
E. N o Sufficiently Explicit Tenant Preference Provision Exists to Constitute
an Exception to Title VI Requirement.
Having determined that neither Section 8 of the Housing Act nor the Section 8
regulations expressly sanction any preference that conceivably could cover urban
Indians, two rules of statutory construction are relevant. First, in the absence of
any legislative indication or administrative practice, there is no basis for inter­
preting the word “ preference” in the regulations, 24 C.F.R. § 882.503(b), to
include an urban “ Indian only” policy. C f M orton v. Mancari, 417 U.S. 535. As
we concluded in II. C. (1) and (2) above, with respect to urban housing, Indians
stand on no different footing than do other minorities in our pluralistic society.
Congress has expressed no intent to treat urban Indians preferentially, and, in
light of the congressional silence, such a determination “ cannot rest on dubious
inferences.” Oklahoma Tax Comm'n v. United States, 319 U.S. at 607.
Second, C ongress enacted Section 8 against the backdrop of the non­
discrimination statutes. HUD regulations specifically incorporated Title VI re­
quirements. See n.15 infra. Congress cannot have been unaware of these laws
and therefore its silence concerning urban Indian housing preferences cannot be
interpreted as an implied repeal of the earlier nondiscrimination provisions. See
Watt v. Alaska, 451 U.S. at 267—213, Morton v. Mancari, 417 U.S. at 549-550.
The presumption against implied repeals requires that the legislature’s intention
to repeal must be “ clear and manifest.” United States v. Borden C o., 308 U.S.
188, 198 (1939). Nothing in the legislative history of Section 8 indicates
affirmatively a congressional intent to exempt urban Indians from the existing
prohibitions on discrimination. The absence of a statutory preference for Indian-
only urban housing and the lack of administrative precedent for providing
Section 8 funds to Indian-only urban programs clearly do not constitute such a
manifest intent to exempt Indians from the otherwise applicable requirements of
Title VI and VIII. We conclude that HUD has no discretion to direct Section 8
funds to programs exclusively designed for urban Indians.
In reaching this conclusion, we would add that the present situation differs
from that in M orton v. Ruiz, 415 U.S. 199 (1974), which involved a conflict
between a congressional intent to benefit Indians near the reservation and an
agency’s conviction that it was not authorized to provide benefits to off-reserva-
tion Indians. In Ruiz, the Bureau of Indian Affairs (BIA) asserted that under its
regulations it had no discretion to provide general assistance to off-reservation
310
Indians. 415 U.S. at 204. But the Court noted that the BIA had represented to
Congress that Indians “ on or near” reservations were eligible for benefits, and
Congress accordingly had appropriated funds to cover welfare services for
Indians residing at least “ on or near” reservations. 415 U.S. at 229-30. The
Court, therefore, found the agency’s position that it could not provide off-
reservation benefits inconsistent with the congressional intent to benefit Indians
“ on or near” a reservation.
Here, however, Congress has evinced an intent to provide “ Indian only”
housing solely on reservations or similarly owned Indian areas. See Indian and
Alaskan Native Housing Programs, Hearings Before the Subcommittee on H ous­
ing and Community Developments c f the Comm, on Banking, Finance and
Urban Affairs, House c f Representatives, 96th Cong., 2d Sess. (1980) (no
indication throughout hearings that “ Indian only” programs are intended for off-
reservation Indians). Moreover, the one time that Congress explicitly targeted
funds for Indian housing, it expressly prohibited the use of such funds for Section
8 housing. S e e 42 U.S.C. § 1437c(c) (1976);16 H.R. Rep. No. 1114, 93dC ong.,
2d Sess. 25 (1974). Notwithstanding the general rule of statutory construction
that legislation involving Indians is to be construed in their favor, we find no
evidence whatsoever that Congress intended to provide Section 8 rental assist­
ance specially for Indians in an off-reservation context. Therefore, the policy of
construing any ambiguities to the benefit of Indians does not even come into play.
See Cramer v. United States, 261 U.S. 219, 229 (1923) (government protects
rights of Indians if such rights are recognized in statute or flow from settled
governmental policy).
III. Conclusion
Section 8 provides no authority for HUD to make federal funds available to an
urban Moderate Rehabilitation Program whose occupancy is limited to Indian
tribal members. Nor do the Indian housing regulations envisage “ Indian only”
housing programs in urban areas with respect to which Indian tribes have no
unique, semi-sovereign relationship. In the absence of any federal legislation or
regulations recognizing Congress’ special relationship to the Indians with respect
to urban housing or authorizing HUD to assist specially urban Indian housing, we
conclude that Congress intended to treat Indians in the same manner as all other
citizens for purposes of Section 8 Moderate Rehabilitation Housing in urban
16 In pertinent part, § 1437c(c) stated:
In addition, the Secretary shall enter into contracts for annual contributions, out of the aggregate
amount of contracts for annual contributions authorized under this section to be entered into on or
after July 1, 1974, aggregating at least $15,000,000 per annum, which amount shall be increased by
not less than $ 15,000,000 per annum , on July 1, 1975, and by not less than $ 17,000,000 per annum
on October 1, 1976, to assist in financing the development acquisition cost of low-income housing
for families who are members of any Indian tribe, band, pueblo, group, or community of Indians or
Alaska Natives which is recognized by the Federal Government as eligible for service from the
Bureau of Indian Affairs, or who are wards of any State government, except that none of the funds
made available under this sentence shall be available for use under section 1437f of this title.
Later amendments did not specifically target funds to Indians
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areas. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 118. HUD, therefore,
has no discretion to provide tenant rental assistance to a Section 8 program with
an exclusive occupancy policy.
We would add that nothing in this opinion is intended to suggest that a housing
project intended to serve the particular needs identified by St. Paul authorities in
this case could not be approximated by developing tenant occupancy policies
based on the various types of preferences which are authorized under the Housing
Act and Section 8. We conclude only that HUD is presently without statutory
authority to grant Section 8 funds to an urban rehabilitation program restricted in
its occupancy exclusively to Indians.
T heodore B . O lso n
Assistant Attorney General
Office c f Legal Counsel
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