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Special Attention of Notice PIH 2004-19 (HA)

Administrators,

Offices of Native American Programs; Issued: September 29, 2004

Tribal Government Leaders;

Tribally Designated Housing Entities Expired: September 29, 2005

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**SUBJECT:** Notice on Designating an Indian Area for the Section 184
Indian Housing Loan Guarantee (Section 184) Program.

**[PURPOSE:]{.underline}** This notice outlines the procedures that an
Indian tribe should follow to designate its Indian area under the
Section 184 program.

**[BACKGROUND:]{.underline}** The Section 184 program, authorized by the
Housing and Community Development (HCD) Act of 1992, as amended,
provides loan guarantees to Indian tribes, tribally designated housing
entities (TDHE) as that term is defined in the Native American Housing
Assistance and Self-Determination Act of 1996, as amended (NAHASDA), and
individual Indian families. Section 184(a), "Authority," provides that
assistance is available to Indian tribes, Indian housing authorities,
TDHEs and individual Indian families on "Indian lands." Section
184(b)(2), "Eligible Housing," refers to housing located "on trust land
or land located in an Indian or Alaska Native area." Section 184(l)(4),
"Definitions," defines the term "Indian area" to mean "the area within
which an Indian housing authority or Indian tribe is authorized to
provide housing." The latter is a cross-reference to the term "Indian
area" as defined in NAHASDA and its predecessor, the United States
Housing Act of 1937, as amended. The term "Indian lands" is not further
defined in either the HCD or the Section 184 program regulations.

HUD's Government-to-Government Tribal Consultation Policy, which was
signed by former Secretary Mel Martinez on June 28, 2001, has as one of
its primary objectives, increasing flexibility for Indian tribal waivers
of statutory and regulatory requirements. This Administration is
committed to taking steps to streamline those processes.

Many affordable housing activities that are eligible under the IHBG
program are integrally related to other programs, especially the Section
184 program. For example, an Indian tribe or TDHE is an eligible Section
184 program borrower, and down payment assistance or interest buy-downs
are an eligible affordable housing activity under NAHASDA, so long as
the family is otherwise qualified to participate in the IHBG program and
can ultimately qualify for a home mortgage under the Section 184
guidelines.

Therefore, it is logical to have consistency of definitions between the
two programs whenever possible. One such area is the use of consistent
definitions to quantify the Indian areas where tribes and their TDHEs
wish to use the Section 184 program to serve Native American families.

Distribution: W-3-1, R-3-1, (PIH), R-6, R-7, 138-2

**[PROCEDURE:]{.underline}** For purposes of the Section 184 program,
Indian tribes that are IHBG grant recipients may use their IHBG Formula
Area, as defined in 24 CFR 1000.302, as their Indian area without
additional justification. Any area that meets the requirements for
"reservation," "near reservation," or "service area," as those terms are
defined by the Bureau of Indian Affairs (BIA) in 25 CFR Part 20, may
declare those areas as their Indian area, for purposes of the Section
184 program, by furnishing HUD with evidence of such a determination
made by the BIA.

Any area that meet the definition of "Indian Country," as that term is
defined in 18 U.S.C. 1151, may be declared by a tribe as its Indian
area, for purposes of the Section 184 program, by furnishing HUD with
evidence of such a determination made by an agency or agencies of the
Federal government responsible for making those determinations in order
to qualify such areas as eligible areas for services to Indians.

If a tribe wishes to designate an Indian area, for purposes of the
Section 184 program, that is not included in the above categories, the
tribe must make a claim that it has authority to act in such area by
doing the following:

-   Provide a description of such area(s), along with any historical
    documentation, data or other information or evidence that they deem
    necessary to justify why they wish to provide tribal members or
    other Indians that reside in the area claimed with access to the
    Section 184 program;

-   Provide a tribal ordinance, resolution, certification or other
    documentation memorializing official tribal action, signed by the
    appropriate tribal government official, declaring that the tribe
    wishes to provide Native Americans residing in the area(s) claimed
    with access to the Section 184 program (note that a certification
    would be in addition to any certification provided in an IHP); and

-   Otherwise comply with all requirements for participation in the
    Section 184 program.

Indian tribes that are former IHBG recipients, but no longer participate
in that program, and Indian tribes that are eligible for the IHBG
program but choose not to participate in the IHBG program, shall use the
IHBG Formula Area that was or would have been assigned to them, and they
would be required to comply with the other criteria and use the
methodologies described above to assert their Indian area.

**[APPROVAL]{.underline}:** Requests should be submitted to the
Director, Office of Loan Guarantee, in the Office of Native American
Programs. HUD will review each tribal request on a case-by-case basis,
and make a determination as to whether or not the tribe's request to
include an Indian area is approved, approvable with additional
documentation, or not approvable. HUD will make its determination within
30 days of submission.

[/s/]{.underline}

Michael Liu, Assistant Secretary

for Public and Indian Housing