AQUINNAH WAMPANOAG TRIBAL HOUSING AUTHORITY

P. O. Box 479, Chilmark, MA 02535 Phone (508) 645-2711 Fax (508)
645-2992

November 14, 2023

Regulations Division

Office of General Counsel

Department of Housing and Urban Development

451 Seventh Street, SW

Room 10276

Washington DC 20410-0500

Re: Docket Number FR-5055-N-01

Use of Census Data in the IHBG Program

Thank you for providing us the opportunity to comment on the proposed
use of multi-race data in the computation of the need component of the
Indian Housing Block Grant (IHBG) program allocation formula. Though
this commenter initially felt that providing funding at the higher of
the two population counts -- multi-race or single race -- might be the
fairest way to distribute the funds, it is in violation of the Native
American Housing Assistance and Self Determination Act of 1996
(NAHASDA).

Though Congress approved hold harmless language for FY 2006 to ensure
that no tribe would suffer from this division of the Block Grant funds,
the final appropriation did not include this funding. More Tribes lost
funding under the use of Single race / Multi race data than those that
benefited (approximately 407 tribes lost funds while only 148 tribes
funding increased). Some tribes lost more than one hundred thousand
dollars with this change in the formula.

It is our belief that the use of single/multi race 2000 Census data is
contrary to NAHASDA's definition of Indians for the following reasons.

NAHASDA defines an "Indian" as a member of an Indian tribe; an "Indian
Tribe" is defined as a tribe that is federally recognized or a State
recognized tribe. According to the definitions in the Act a "Federally
Recognized Tribe -- The term "federally recognized tribe" means any
Indian tribe, band, nation, or other organized group or community of
Indians, including any Alaska Native Villager or regional or village
corporation as defined in or established pursuant to the Alaska Native
Claims Settlement Act, that is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians pursuant to the Indian Self-Determination and
Education Assistance Act of 1975." NAHASDA goes on to define a "State
Recognized Tribe, In General -- the term "State recognized tribe" means
any tribe, band, nation , pueblo, village or community -- (I) that has
been recognized as an Indian tribe by any State; and (II) for which an
Indian Housing Authority has, before the effective date under section
705, entered into a contract with the Secretary pursuant to the United
States Housing Act of 1937 for such housing for Indian families and has
received funding pursuant to such contract within the 5-year period
ending upon such effective date."

The Census Bureau did not define an Indian in the same manner as NAHASDA
in 2000. In fact the current Census information on *American Indian
Population: 2000*, the webpage *Percent of Population for One or More
Races* makes the following statement as to how the Census defines how
they counted Indians for purposes of the 2000 Census. "The term
"American Indian and Alaska Native " refers to people having origins in
any of the original peoples of North and South America (including
Central America) and who maintain tribal affiliation or community
attachment. It includes people who reported "American Indian and Alaska
Native" or wrote in their principal or enrolled tribes."

In fact, this definition allowed for anyone who wanted to identify
themselves with a tribe to do so whether the affiliation was with a
tribe from Canada or South America. If a person of Latino descent also
identified that they had a community attachment to a tribe whether it
was in the US or not they were counted as American Indians. These
numbers do not reflect the number of Indians as defined by NAHASDA in
the US; further this information is based upon self-certifying ones
affiliation or community attachment and does not meet the requirements
of federally or state-recognized tribes as required by NAHASDA. As the
Census definition does not solely include Indians as defined by NAHASDA,
and the Census allows for self identification there is no way to count
those AIAN who legally qualify for assistance under the Act.

In 2005 The Senate Report 109-109 -- Transportation, Treasury, the
Judiciary, Housing and Urban Development, and related Agencies
Appropriation Bill, 2006 stated the following: "The Committee is very
concerned with both the policy and the method by which HUD revised the
eligibility requirements under which HUD allocates the Native American
Housing Assistance Block Grant \[NAHASDA\]. On April 19, 2004, HUD
issued its NAHASDA funding for fiscal year 2004 by using 'multi-race'
census data for making funding allocations as opposed to funding tribes
based on members of a 'single race'. While this may be a legitimate
approach, HUD's allocation is based on census data that relies on
self-certification. Equally troubling is the fact that HUD has failed to
use 'notice and comment' rulemaking in making such a substantial policy
change. This concern is reinforced by the fact that HUD was unable to
reach consensus among tribal groups on this policy change. Consequently,
while the Committee is not looking to challenge the policy change at
this time*, the Committee does direct HUD to reassess this decision
through notice and comment rulemaking. The Committee also directs HUD to
establish oversight procedures to ensure that tribal members are
qualified for purposes of NAHASDA tribal funding allocations.*"
(emphasis added)

While HUD has clearly followed part of the Senate Committee's directive
by using notice and comment rule making (hence this Comment), they have
not established procedures to ensure that funding is being used for
qualified members of tribes by continuing to use the single/multi-race
data as defined by the Census. By virtue of the fact that the present
proposed use of Multi-Race data from the 2000 U.S. Census is in
violation of NAHASDA it is clear that HUD has chosen to ignore the
Senate Report 109-109 and rather than ensuring that the count of
American Indians/Alaskan Natives (AIAN) is qualified for purposes of
funding allocations..

This commenter sat on the first Negotiated Rulemaking Committee for the
development of the regulations under NAHASDA. At that time we struggled
with the fact that there is no data set that accurately counts AIAN as
defined by NAHASDA. The Committee reluctantly adopted the use of the
1990 Census data for lack of a better data set. At that time we noted
that the Census numbers were not accurate but they were the best we
could come up with at that time. We also noted in the Regulations that
the Census data would only be used until such time as we could identify
an alternative and better count of American Indians.

A Sub-Committee of the National American Indian Housing Council, the
Formula Task Force, worked long and hard to identify better ways of
counting AIAN. The Task Force recommended a universal tribal survey to
count qualified Indians rather than to continue to use the U.S. Census.
This survey would ensure that funds are allocated to the tribes using
accurate counts of Indians as defined by NAHASDA.

In summary, this commenter does not believe that HUD can use multi-race
data when running the formula for the allocation of NAHASDA funds
without violating the requirements of NAHASDA by using the 2000 Census
Data Sets for multi-race. HUD should return to using the single race
numbers from the 2000 U.S. Census. Further, HUD should be required to
provide tribes the opportunity to comment on the "oversight procedures
to ensure that tribal members are qualified for the purposes of NAHASDA
tribal funding allocations" as directed by the Senate Committee in 2005.

Should you have any questions regarding any of the above please feel
free to contact me. Thank you for allow us to comment on the use of
*improper* data for the formula allocation under NAHASDA.

Sincerely,

Jennie Greene

Housing Administrator