![](media/image1.png){width="1.5in" height="1.15in"}**Puyallup Tribal
Housing Authority**

*["A Drug & Alcohol free Housing Program"]{.underline}*

January 26, 2007

Regulations Division, Office of General Counsel

Department of Housing and Urban Development

451 Seventh St., SW, Room 10276

Washington, DC 20410-0500

RE: Comments on "Use of Census Data in the IHBG Program"

Docket No. FR-5055-N-01

71 Fed. Reg. 74748 (December 12, 2006)

FROM: Puyallup Tribal Housing Authority

2806 E. Portland Ave

PO Box 1844

Tacoma WA 98404-1844

To Secretary Orlando J. Cabrera:

On behalf of Puyallup Tribal Housing Authority, I am submitting these
comments on the Federal Register Notice concerning "Use of Census Data
in the IHBG Program." We hereby express our disagreement with HUD's
decision to change the IHBG allocation formula from relying on "single
race" census data to "multi-race" census data in the IHBG allocation
formula, for the reasons set out below.

First, HUD's decision to change from single race to multi-race census
data is inconsistent with NAHASDA. The statute requires that HUD
calculate the relevant part of the "need" portion of the formula based
on "the number of *Indian* families within Indian areas of the tribe."
25 USC § 4152(b)(2) (emphasis added). The statute defines "Indian" to
mean "any person who is a member of an Indian tribe," and defines
"Indian tribe" to mean a federally or state-recognized tribe. 25 U.S.C.
§§ 4103(9), (12). Thus, the statutory criteria for counting a person or
family as "Indian" for purposes of the IHBG formula require a
methodology that captures tribal *members*. When the negotiated
rulemaking committee first met, it decided to use census data since at
that time the census collected data for those persons who
self-identified as American Indian/Alaska Native only (since
participants could choose only one racial identifier). The figures
generated, while inaccurate, tracked the relative proportion of actual
tribal membership among tribes closely enough to meet the statutory
requirement. The single race census data from the 2000 Census data is
similar -- it is inaccurate, but it tracks the relative proportions of
actual membership closely enough, and certainly closer than any
alternative (including multi-race). In unilaterally deciding to abandon
the use of the single-race data in favor of the multi-race data, HUD
provides no evidence to demonstrate that the use of multi-race data
meets the statutory requirement, or that it comes closer than the use of
single-race data. Many persons who identify themselves as members of
multiple races do not meet the definition of "Indian" under NAHASDA
(i.e., they are not tribal members), and should not therefore be counted
in the formula. HUD's determination is arbitrary and capricious and is
contrary to law, and it would therefore appear to be vulnerable to a
legal challenge.

Second, as a practical matter, multi-race census data is a less accurate
methodology for counting AIAN population figures. All participants at
the original and second round of negotiated rulemaking on the formula
acknowledge and agree that the census does not accurately reflect the
population to be served in the Indian areas. It is an imprecise
approach, but was agreed to because it was the most uniform and least
inaccurate means of analyzing the populations. The goal, therefore,
should be to minimize the inaccuracies inherent in the use of the
census. Due to the nature of self-reporting, it follows that individuals
who report themselves as AIAN only are much more likely to be tribal
members than those who report themselves to be members of various races.
The implementing regulations for the allocation formula were intended to
collect data in a manner that can be controlled and verified;
single-race data is more consistent with this regulatory requirement
than multi-race.

Third, the unilateral process by which HUD made this determination was
itself contrary to law. We disagree with HUD's statement in the Federal
Register notice that HUD had the "discretion" to make such a
determination without negotiated rulemaking. The IHBG formula is a key
element for funding tribal housing programs under NAHASDA. The statute
requires negotiated rulemaking for developing regulations that impact
the implementation of such key elements. 25 U.S.C. § 4116(b)(2). HUD's
decision to use multi-race census data should have gone through
negotiated rulemaking. Because it was not decided through negotiated
rulemaking, it is unlawful.

Fourth, HUD's process was not simply contrary to law, but
counterproductive. HUD's decision to exercise discretion that it does
not possess is particularly disturbing given that at the time the
decision was made there was already rulemaking under way on the formula
itself. HUD's announcement of its determination as a done deal at the
negotiated rulemaking derailed the discussions and pitted tribe against
tribe. HUD's action created a vested interest in a particular approach,
and had the effect of hardening tribes into positions on one side or the
other. The appropriate method would have been for HUD to present the
issue as an item for discussion at the negotiated rulemaking, to allow
tribes and HUD to work through the issues and come to a consensus
approach.

We hereby call on HUD to repair this situation by abandoning its use of
multi-race census data in the IHBG allocation formula and returning to
the use of single-race census data as the more accurate and the legally
required approach.\
\
Sincerely,

Annette M. Bryan

Executive Director

Puyallup Tribal Housing Authority