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General Memorandum 17-048

General Memorandum 17-048
NAHASDA Reauthorization Bills Introduced

On September 28, 2017, Representative Pearce (R-NM), along with co-sponsors Moore (D-WI), Young (R-AK), Nolan (D-MN), Gabbard (D-HI), Hanabusa (D-HI), Heck (D-WA), Cole (R-OK), and McCollum (D-MN), introduced HR 3864, legislation to reauthorize the Native American Housing Assistance and Self Determination Act (NAHASDA). A Senate bill, S 1895, a companion bill with nearly identical language, was introduced by Senate Committee on Indian Affairs Vice Chairman Udall (D-NM), along with co-sponsors Tester (D-MT); Franken (D-MN) and Schatz (D-HI). Representative Pearce's press release is attached.

Context. The last NAHASDA reauthorization was in 2008, and that legislation expired in October of 2013. Despite the law's expired authorization, Congress has continued appropriating funding pursuant to it, as well as appropriating funding pursuant to many other expired and unrelated authorizations. In the two subsequent Congresses, the House – through a similar bi-partisan effort – was able to pass a NAHASDA reauthorization bill. However, each time, the reauthorization effort failed in the Senate due to opposition from a small number of Senators who used the Senate's procedural rules to block its consideration.

HR 3864 and S 1895 are very similar to the NAHASDA bills that the House previously adopted and contain many of the provisions that tribes requested through the draft bill submitted by the National American Indian Housing Council in early 2013, including provisions setting timelines by which the Department of Housing and Urban Development (HUD) must act on certain requests as well as provisions simplifying the environmental review process when projects are built with several funding sources. Below we describe a handful of provisions which have garnered particular interest or may impact the legislation's chances of enactment.

Native Hawaiian NAHASDA. Both bills contain language to continue to authorize funding of the Native Hawaiian NAHASDA provisions and loan guarantees. A small number of Senators consider these provisions to be controversial, and their inclusion in past NAHSDA bills was one of the main reasons that the legislation was not able to move through the Senate during the last two Congresses.

Cherokee Freedmen issue. There is no language in this bill regarding the Cherokee Freedmen, as there had been in previous years, since the issue has been resolved through the courts. (See our General Memorandum 17-046 of September 11, 2017.)

Rep. Pearce's Alternative Privatization Demonstration Project. This language appears in both the House and Senate bills. It has been included in the two previous House bills, and would establish a demonstration project, modeled on the Military Housing Privatization Initiative (MHPI). The underlying concept is to provide a mechanism to leverage NAHASDA funds to bring substantial private investment into Indian Country for the construction of homes and infrastructure, with the goal of building enough homes to meet all a participating tribe's affordable housing needs in a 24-month period. Participation in the demonstration project would be optional; however it would be an all-or-nothing proposition: a tribe that opts in would be required to commit all of its Indian Housing Block Grant (IHBG) funding to the project.

Indian Veterans' Housing Assistance Demonstration Project. This provision appears in both bills (but with minor differences) and would authorize HUD to take up to 5 percent of the rental assistance amounts appropriated under the 1937 Act to establish an Indian Veteran-specific housing assistance voucher program for the benefit of Indian veterans who are homeless or at-risk of homelessness and who are residing on or near Indian lands. The program would be operated by IHBG recipients. This amendment builds on a demonstration project already under way with certain tribes that involves HUD and the Veterans Administration, termed HUD-VASH. The Senate NAHASDA bill incorporates language from a standalone HUD-VASH bill already marked up by the Senate Committee on Indian Affairs (S 1333) while House's NAHASDA bill contains slightly different HUD-VASH provisions. The most significant difference is that in the House bill, the vouchers could be used for veterans housed in Formula Current Assisted Stock (FCAS) units managed by a tribe or Tribally Designated Housing Entity (TDHE).

Key Difference: Authorization Levels. The most marked difference between the pending House and Senate bills is that the House bill would authorize $650 million for the IHBG for each of the next five fiscal years, while the Senate bill would not set an authorization level. The Senate bill instead reads that Congress shall appropriate "such sums as may be necessary" (which is how NAHASDA currently reads). The practical effect of specifying a certain authorization level is that it would likely serve as a cap but not a floor on future IHBG appropriations. Both the House and Senate bills contain language that would cap the Section 184 loan guarantee program at $12.2 million for the next five fiscal years.

Second Senate Bill. There is one other NAHASDA reauthorization bill: the BUIILD Act (S 1275) introduced by Senate Committee on Indian Affairs Chairman Hoeven (R-ND) earlier this year. Like S 1895, the BUILD Act would: reauthorize NAHASDA for the next five fiscal years, avoid setting a cap on IHBG appropriations and cap the Section 184 program at $12.2 million. The difference is that the BUILD Act contains only a few NAHASDA amendments and avoids any of the controversial provisions that might lead to the bill stalling (such as a continuation of the authorization for the Native Hawaiian NAHASDA provisions).

Please let us know if we may provide additional information about efforts to reauthorize the Native American Housing Assistance and Self Determination Act.

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

Available Documents for Download ( any referenced attachments are included in download )


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