(CN) – Government funding of tribal housing must be based on need and not geographic factors, the 10th Circuit ruled on a 2-1 vote. The ruling is a victory for the United Keetoowah Band of Cherokee Indians, who argued that an arbitrary decision by the U.S. Department of Housing and Urban Development had drastically reduced their federally funded housing.
Congress passed a law in 1996 with the goal of “helping tribes and their members … improve their housing conditions and socioeconomic status.” The law established a housing-assistance program available to all federally and state-recognized tribes.
Lawmakers instructed HUD to create the allocation formula, but specified that the formula must be “based on factors that reflect the need of Indian tribes and the Indian areas of tribes for assistance for affordable housing activities.”
The agency came up with a program that disbursed funding based on a tribe’s existing housing assistance and its need. Need was determined by seven criteria, including the number of tribal households with income below a median level and the number of households without kitchens and plumbing.
But the HUD added another requirement: In order to qualify for need-based assistance, a tribe had to show that it possessed a “geographic area” over which it could exercise court jurisdiction or where it currently provides housing services under its agreement with the U.S. government.
These crucial areas include former reservations in Oklahoma, including the Cherokee Nation’s former reservation.
From 1997 to 2005, the Keetoowahs received funding on the basis that they shared a reservation with the Cherokee Nation of Oklahoma. But in 2004, the Cherokee Nation wrote a letter to the HUD, arguing, essentially, that the Keetoowahs were sponging off the Cherokees’ need-based funding.
After a series of decisions and reversals on whether the Keetoowahs had jurisdiction over the land, the HUD sided with the Cherokee Nation and reduced the tribe’s need-based funding to the minimal legal amount.
The Keetoowahs argued that the decision was not based on any lack of need, but on geographic and jurisdictional considerations not stipulated by law.
Judge Kelly of the Denver-based federal appeals court agreed.
The law’s language “makes it clear that Congress did not open the door for a requirement of court jurisdiction when it used the term ‘Indian area,'” Kelly wrote.
“Accordingly, while HUD may create a funding formula and may exercise significant discretion in doing so, the factors it adopts must reflect the need of the applicant tribe.”
In a dissenting opinion, Judge Briscoe said the law’s ambiguity requires deference to governmental regulations.