By Rob Capriccioso
(NAHASDA)--a bipartisan piece of legislation that is widely popular with tribes and legislators--was supposed to pass Congress last year.
And then it didn't.
"You don't know how many times I stood in front of hundreds of people saying we were getting close to having a bill introduced in the House," says Shawn Pensoneau, a governmental affairs specialist with the National American Indian Housing Council (NAIHC). "I said that month after month, based on what our congressional contacts were telling us--but at a point I kind of got embarrassed. I just couldn't say it anymore."
The law, first passed by Congress in 1996, provides nearly $700 million per year in discretionary formula block grants to eligible tribal housing authorities for the building and maintaining of reservation houses. It officially expired September 30, but Congress, realizing its utility to American Indian citizens, continued funding it while reauthorization talks have slowly proceeded.
What's the Hold Up?
Key legislators on the Hill, including former chair of the Senate Committee on Indian Affairs (SCIA) Maria Cantwell (D-Washington), gave their blessings later into 2013 than tribal advocates would have liked, with Cantwell getting her bill passed through her own committee in December, nearly three months after the law had already expired. The Senate Banking Committee could have then asked for oversight, given its jurisdiction over this matter, but the time for the committee to do so expired in mid-March.
New chair of SCIA, Jon Tester (D-Montana), supports Cantwell's legislation, and he has vowed to strengthen it if the opportunity arises. As it stands, the bill is widely expected to be able to pass the upper chamber by unanimous consent, as it did when last reauthorized in 2008. Senate Majority Leader Harry Reid (D-Nevada) has not said when he plans to move the bill.
In comparison, there have been more complications and debate on the House side, although, ironically, the two pieces of legislation now being seriously considered in the lower chamber are perceived by tribal housing advocates as somewhat stronger for tribes than Cantwell's offering.
"Maybe the wait has been worth it," says Pensoneau, who takes pride in the number of calls, meetings, and strategy sessions his organization has led on this issue. "But it has been frustrating."
A House Divided
One House division was on display in early March when Steve Pearce (R-New Mexico) floated a draft reauthorization bill only to be followed days later by the introduction of a NAHASDA bill by Rep. Don Young (R-Alaska), chairman of the Subcommittee on Indian and Alaska Native Affairs. Young's bill included bipartisan support and a nod from Rep. Tom Cole (R-Oklahoma), one of two Native Americans in Congress. Days later, Pearce introduced his legislation with Cole as a co-sponsor.
Young's office says his bill is not meant as competition to Pearce's. "Congressman Young's bipartisan bill is part of an overarching, coordinated strategy to navigate the complicated political dynamic surrounding the NAHASDA reauthorization process and secure final passage of legislation down the road," says Young spokesman Matt Shuckerow. "Congressman Young believes his bill, part of a dual approach alongside Congressman Pearce's bill, provides the necessary legislative tools for achieving the overall goal of NAHASDA reauthorization."
For the most part the Pearce/Young bills are the same, but Young's advances previous congressional authorization for Native Hawaiian housing programs. These provisions concern Pearce, according to sources familiar with his deliberation on this matter, because he thinks they cannot ultimately make it through the House Financial Services Committee, which oversees the Department of Housing and Urban Development (HUD). Still, money would not be taken away from tribes in the lower 48 states or in Alaska under Young's Native Hawaiian plan if it were to become law, and it could still be authorized separately if it could not pass muster from within his bill.
Pearce's bill also includes support for a Department of Defense-inspired demonstration project, which would help tribes have greater ability to partner with private industry on housing matters. "It's aimed at getting private investment into tribal communities using housing as the tool," Paul Moorehead, an Indian affairs lawyer with Powers Pyles Sutter & Vervill who represents NAIHC, said at a February meeting of the organization regarding a draft of the provision he had seen by that time.
Young's bill, meanwhile, includes language related to tribally-determined wages for work on all NAHASDA-related projects and access to a drug elimination program, which were not included in Pearce's legislation.
In contrast to Cantwell's bill, both House bills allow tribes to have greater control over their housing block grants in some respects, and they both streamline for tribes the federal government's environmental review standards involving NAHASDA. These provisions have been fervently supported by NAIHC, but federal agencies have expressed some misgivings toward relinquishing their power.
The Hidden Division
Of note, a major division in House thinking on reauthorization has not been included in the Young/Pearce bills to date, but legislative staffers say they still expect the issue to be addressed as the bill progresses, perhaps via an amendment.
Some House members--including Rep. Jeb Hensarling (R-Texas), chairman of Financial Services Committee, strongly believe that any reauthorization should address what they see as a current problem under NAHASDA whereby a relatively small number of tribes have been able to carry over a large amount of unexpended funds year-to-year granted to them under the law.
The Navajo Nation has received special attention from both Congress and from the Obama administration because as of July 2013 it had carried over nearly $500 million in unexpended NAHASDA funds dating from as far back as 1998, according to a March 2014 Government Accountability Office (GAO) report. There are other tribes with long-term unexpended funds, but none nearly as large Navajo's.
The tribe has countered that it receives a substantial amount of money under the program because it has many citizens with great housing needs, and it has blamed HUD for the tribe's inability to more quickly spend the money. Navajo leaders have also highlighted a multi-year spend-down plan, while noting the tribe's unique infrastructure needs to federal officials. And they have hired Mellor Willie, former executive director of NAIHC, to help address this issue.
"If it was so easy to spend that much, as some people think, then it would have been done a long time ago," Aneva Yazzie, CEO of the Navajo Housing Authority, was quoted as saying in a recent newsletter issued by the organization. "It's difficult because we have to go through layers of bureaucracy and approvals, all the way down to inspections, land withdrawals, environmental clearances, and then comply with the meticulous procurement process. Our sheer size in program implementation is makes housing challenges unique to Navajo."
Yazzie tells Indian Country Today Media Network that it is "not fair or just" for the federal government to be so focused on Navajo's unexpended funds. "It is well known and seen throughout Native American communities that a lack of adequate housing exists and development takes longer on Indian reservations than off reservations," she says, pointing to HUD and GAO findings that back up her claim. There has also been turmoil within the Navajo Housing Authority regarding staffing issues, which has been dealt with, according to statements from the tribe.
Not wanting to single out one tribe, Financial Services Committee staffers came up with a plan last year that would allow Congress to put limits on the amounts of unexpended funds for all tribes and that would require past unexpended funds to be returned to the federal government.
Tribal advocates did not like that plan, because they feared it could harm Indian country as a whole in unforeseen ways in the future.
"We had to work with Mr. Pearce and other members of the committee to tone back that language," Pensoneau says. "We are happy with the current language."
A Growing Conflict
While Pearce and Young did not include any language in their bills focusing on unexpended funds--nor did Cantwell--the issue has not gone away. Rather, it came to a head during a February meeting between Navajo Nation President Ben Shelly and HUD's Assistant Secretary for Public and Indian Housing Sandra Brooks Henriquez. Before the meeting, the Navajo Nation issued a press release blaming HUD for the tribe's inability to draw down its money, and HUD officials had been seeking authorization from Congress to take back unexpended Navajo funds after three years.
Henriquez, according to sources familiar with the meeting, asked what HUD could be doing better to help the tribe to spend its money. Shelly, according to sources, was displeased with the question, and he made his displeasure verbally known to Henriquez, who, in turn, responded by yelling at him.
HUD officials have not responded for requests for comment on the encounter, but one person who attended the meeting said it was "one of the most uncomfortable situations" they had ever seen happen between a tribal and federal official.
After the meeting, the Navajo Nation issued more press releases indicating they have a new plan to spend more of the unused funds, but HUD has since questioned about $60 million in spending under the tribe's plan, saying it does not conform to the law.
As a result of the confrontational Navajo-HUD meeting, legislative staffers and tribal housing advocates say they would not be surprised to see a legislator insert language regarding unexpended housing funds into one of the pending House bills as the legislative process progresses.
Yazzie cautions that such a maneuver could be bad for everyone. "Congressional action to address unexpended funds may have unintended consequences that will negatively impact all tribes, including those who do not have unexpended funds," she says.
Wait & See
Despite that possibility, there are now three strong, real bills on the table, which is a whole lot more than Pensoneau had last year when he was telling tribal housing officials that they were close. He and tribal housing advocates nationwide eagerly await a hearing to be scheduled before the Financial Services Committee.
"It's hard to estimate when it will all get passed," Pensoneau says. "I am confident, though, that all our hard work will pay off by the end of the year."
If it does not, the work would have to begin all over again in the new Congress in 2015.