Title VI and Urban Indian Housing

The Department of Housing and Urban Development is not authorized by statute or regulation to 

provide tenant rental assistance lo an urban housing program whose occupancy is limited to 

Indians, and such assistance to a program with a racially or ethnically exclusive tenant policy is 

affirmatively prohibited by Titles VI and VIII of the Civil Rights Act of 1964 and by the Fifth 

Amendment.

Legislation affecting Indians should be construed in their interest; however, if Congress does not 

explicitly single out Indians for preferential treatment, courts should not imply an intent to treat 

Indians more favorably or differently from all other citizens.

W hile Congress has approved special aid for Indians in connection with housing on reservations and 

Indian areas, neither the Housing Act of 1937 nor long-settled and congressionally ratified 

administrative practice under that A ct sanction off-reservation Indian housing preferences which 

would otherwise violate statutory o r constitutional nondiscrimination requirements

June 8, 1982

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY 

GENERAL, CIVIL RIGHTS DIVISION

This responds to your request for our opinion whether the Department of 

Housing and Urban Development (HUD) may make available federal funds for a 

24-unit scattered site, detached rental housing program open only to Indians 

residing in St. Paul, Minnesota. You ask specifically whether federal funding for 

tenant rental assistance pursuant to HUD’s Section 8 Moderate Rehabilitation 

Program, 42 U.S.C. § 1437f (hereinafter Section 8); 24 C.F.R. § 882 (1982), 

under the United States Housing Act of 1937, 42 U.S.C. § 1437 (hereinafter 

Housing Act), is permissible in light of the nondiscrimination requirements that 

Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, and Title VIII of the 

Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631, imposed on recipients of 

federal financial assistance.

In the course of considering the various issues raised by this particular plan, we 

have identified a threshold legal issue which, as we have resolved it, is necessary 

to the disposition of the matter. That issue is whether the Secretary of HUD has 

discretion under Section 8 to make funds available to an off-reservation housing 

project that conditions tenant eligibility on at least one-fourth Indian blood, as 

determined by tribal membership. Once this question is resolved, the Title VI 

issue is considerably simplified. For reasons stated below, we conclude, first, that

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although Congress expressed an intent to assist Indians under the Housing Act, it 

did not indicate that special treatment of Indians was to extend beyond Indian 

reservations and Indian areas. Second, nothing in Section 8 of the Housing Act or 

its accompanying regulations authorizes HUD to provide tenant rental assistance 

under its Moderate Rehabilitation Program to an urban housing program available only to Indians. Thus, absent express congressional approval for, or administrative acceptance of, off-reservation Indian-only Section 8 housing, Titles VI 

and VIII and the Fifth Amendment prohibit federal assistance for a program with 

a racially or ethnically exclusive tenant policy. An affirmative legislative intent to 

aid urban Indian housing or to treat urban Indians specially would, of course, 

alter the Title VI, Title VIII, and constitutional analysis. See Fullilove v. 

Klutznick, 448 U.S. 448, 492 n.77 (1980) (later, specific preference provision 

supersedes earlier, general nondiscrimination statute); Morton v. Mancari, 417 

U.S. 535, 550-551 (1974) (specific statutory preference for Indians would 

supersede general nondiscrimination statute, regardless of the priority of 

enactment).

I. Facts

As we understand the facts, the St. Paul Inter-Tribal Housing Board is a 

coalition of the four major Indian organizations serving St. Paul: the St. Paul 

American Indian Center; the Red School House, Inc.; the St. Raul American 

Indian Movement, Inc.; and the St. Paul Urban Indian Health Board Clinic. 

Three different Tribes are represented on its five-member Board of Directors. 

The Board has applied to be the nonprofit sponsor of 24 scattered sites, detached 

rental housing units of three and four bedrooms, for low-income Indian families. 

The contemplated sites are six central St. Paul neighborhoods with high Indian 

concentrations.' Only Indian families whose head of household has at least “ onequarter degree Indian blood, as verified by tribal enrollment,” would be eligible 

for the housing.2 The local Tribes have endorsed the Inter-Tribal Housing Board 

and its plans as fulfilling a need of their members.3

The Minnesota Housing Finance Agency would provide a 30-year no interest 

loan of $820,000 under the state’s Urban Indian Housing Loan Program (UIHLP)

1 We do nol know whether these St. Paul Indians are tribal members or not We have not been asked, and therefore 

have nol considered, whether locating the housing units in areas with high Indian concentration would be consistent 

with federal policies of integration in housing See Hills v Gautreaux, 425 U.S 284(1976), Otero v New York City

Housing Authority, 484 F 2d 1122, 1134 (2d Cir 1973),24C FR § 882 503(a)(9)(i) (objective of “ deconcentration” for Section 8 program).

2 This classification is similar to the Bureau of Indian Affairs employment preference at issue m Morton v 

Mancari, which required that an individual be “ one-fourth or more degree Indian blood and be a member of a 

federally recognized tnbe ” 417 U S. al 553 n 24 The Supreme Court characterized that preference as follows:

The preference is not directed towards a “ racial” group consisting of “ Indians” ; instead, it applies 

only lo members of “ federally recognized” tribes. This operates to exclude many individuals who 

are racially to be classified as “ Indians ” In this sense, the preference is political rather than racial in 

nature

3 Letter from Donna Follstad. Chairperson. Urban Indian Advisory Council, to Minnesota Housing Finance 

Agency Board Members (Mar 23. 1981), Resolution 15-81, Minnesota Sioux Tribe, Inc (Aug 19, 1981); U S.C 

Resolution 27-81, Upper Sioux Community (Aug 25, 1981)

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to purchase the units. The UIHLP is apparently established pursuant to a state law 

that permits the State Housing Agency to “ engage in housing programs for low 

and moderate income American Indians. . . .” Minn. Stat. Ann. § 462A.07(15) 

(West Supp. 1981).4 A $360,000 low interest loan from the city and a private 

foundation would cover rehabilitation of the units. The purchase and rehabilitation loans have been obtained, contingent upon approval by HUD of Section 8 

housing assistance payments.

HUD would provide tenant rental assistance to the St. Paul Public Housing 

Agency (PHA) on behalf of families who would then lease the units pursuant to 

the provisions of Section 8 of the Housing Act. 42 U.S.C. § 1437f; 24 C.F.R. 

§ 882 (1981) (Section 8 Moderate Rehabilitation Program). To ensure that only 

Indians would benefit from the proposed project, the PHA would maintain a 

separate list of eligible Indian applicants for initial occupancy and vacancies as 

they occur. The basis for this Indian preference is the PHA’s findings that the St. 

Paul American Indian population has not been well-served by the existing Section 

8 program; that the state has been unsuccessful in implementing its Section 8 

program, for which 75 units are allotted; and that the 24-unit project would 

enable the St. Paul Inter-Tribal Housing Board to make use of special state funds 

for urban Indians which have been largely unused.5

II. Analysis: May HUD Provide Section 8 Moderate Rehabilitation

Funds for a Program Conditioning Eligibility on Membership in an

Indian IHbe?

A. Section 8 and its Legislative History.

The Housing Act of 1937 is the basic statutory authority for low-income 

housing programs. Its provisions cover public housing projects, congregate 

housing for the displaced, elderly, or handicapped, and the Section 8 housing 

assistance program. 42 U.S.C. § 1437d, e, f. The Section 8 assistance program 

was developed by Congress in 1974 in an effort “ to give private developers the

4 Subdivision 15 of Minn. Stat Ann § 462A 07 provides in full:

It [the Housing Finance Agency] may engage in housing programs for low and moderate income 

American Indians as that term is defined in § 254A 02, subdivision 11, residing in the metropolitan 

area defined in § 473.121, subdivision 2, and cities with a population greater than 50,000 persons. 

The program shall demonstrate innovative methods of providing housing for urban Indians, may 

involve the construction, purchase and rehabilitation of residential housing, and may be administered through any other provision of this chapter. To the extent possible, the programs shall 

combine appropriated money with other money from both public and private sources. . . The 

agency shall consult with the advisory council on urban Indians created pursuant to § 3 922, 

subdivision 8, in the development of programs pursuant to this subdivision

Subdivision 14 of the same section states in pertinent part:

It [the Minn Housing Finance Agency] may engage in housing programs for low and moderate 

income American Indians developed and administered separately or in combination by the 

Minnesota Chippewa tnbe, the Red Lake band of Chippewa Indians, and the Sioux communities as 

determined by such tribe, band, or communities. In developing such housing programs the tnbe, 

band, or communities shall take into account the housing needs of all American Indians residing both 

on and off reservations within the state.

5 Letter to HUD from Marshall D. Anderson, Executive Director, PHA (Jan 23, 1981)

300
incentive for profit and the risk of loss in the construction and management of 

housing developed for low income families.” S. Rep. No. 693, 93d Cong., 2d 

Sess. 43 (1974). Section 8 continued, in a substantially modified form, the leased 

housing assistance program Congress had enacted in 1965 to-provide private 

accommodations for sublease to low-income families. S. Rep. No. 693, 93d 

Cong., 2d Sess. 43 (1974); H.R. Conf. Rep. No. 1279, 93d Cong., 2d Sess. 138 

(1974); Housing and Community Development Act of 1974, Pub. L. No.

93-383, 88 Stat. 653, 662, 42 U.S.C. § 1437f.

Section 8 authorizes the payment of lower-income housing assistance “ [f]or 

the purpose of aiding lower-income families in obtaining a decent place to live 

and of promoting economically mixed housing. . . .” 42 U.S.C. § 1437f(a). It 

empowers the Secretary “ to enter into annual contributions contracts with public 

housing agencies pursuant to which such agencies may enter into contracts to 

make assistance payments to owners of existing dwelling units in accordance 

with this section.” 42 U.S.C. § 1437f(b)(l). It also establishes limitations on the 

maximum monthly rent and the percentage of assistance allocated, for example, 

to very low-income families. See 42 U.S.C. § 1437f(c)(l)-(8).

For purposes of tenant selection, the relevant subsection of Section 8 provides:

(d)(1) Contracts to make assistance payments entered into by a 

public housing agency with an owner of existing housing units 

shall provide (with respect to any unit) that

(A) the selection of tenants for such unit shall be the function 

of the owner, subject to the provisions of the annual contributions contract between the Secretary and the agency, [6] except 

that the tenant selection criteria used by the owner shall give 

preference to families which occupy substandard housing or 

are involuntarily displaced at the time they are seeking assistance under this section.

42 U.S.C. § 1437f(d)(l)-(A).

On its face, this provision indicates only that preferences are permissible for 

“ families which occupy substandard housing or are involuntarily displaced at the 

time they are seeking assistance. . . .” However, it also places the responsibility 

for selecting tenants on the owner, which suggests that an individual owner has 

some discretion to devise eligibility priorities on his own. Moreover, the exception mandating preferences for involuntarily displaced families is a recent 1979

6 The provisions of the annual contributions contract establish, inter alia:

(1) the maximum monthly rent which “ shall not exceed by more than 10 per centum the fair market 

rental established by the Secretary periodically

(2) provisions for adjustment “ annually or more frequently in the maximum monthly rents” that 

“ reflect changes in the fair market rentals or, if the Secretary determines, on the basis of a 

reasonable formula ”

42 U S.C. § 1437f(c)(l), (2)(A) Aside from the provision that “At least 30 per centum of the families assisted 

under this section with annual allocations of contract authority shall be very low-mcome families at the time of the 

initial renting of dwelling units,” there is no express qualification, other than qualifying as a “ lower income 

family,” on whom an owner may select as tenants. 42 U S C § 1437f(c)(7), (0(1).

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amendment. See Pub. L. No. 96—153, § 206(b)(1), 93 Stat. 1101, 1108. Prior to 

1979, Section 8 had simply provided that “ the selection of tenants . . . shall be 

the function of the owner, subject to the provisions of the annual contributions 

contract between the Secretary and the agency.” 42 U.S.C. § 1437f(d)(l)(A) 

(1976) (prior to 1979 amendment).

The legislative history accompanying the 1979 change explained the nature of 

the preference:

The Committee has provided a priority in the selection of 

tenants in public housing and section 8 for families who occupy 

substandard housing or have been involuntarily displaced at the 

time they apply for assistance. The Committee believes that in a 

period of reduced funding for assisted housing, the programs 

should be directed toward those families who have housing needs 

which require more urgent attention. . . . The priority is not 

intended nor should it be used to allow the Department to direct an 

owner or PHA to select certain tenants. It would be unacceptable 

and clearly not authorized by this provision for the Department to 

require a PHA or owner to select tenants from a list developed by 

the Department. This provision is not intended to alter the basic 

responsibility over tenant selection which, under current law, 

rests solely with the PHA and owner. It is simply intended to have 

owners and PHAs give priority to meeting the urgent housing 

needs of those families living in substandard conditions or being 

involuntarily displaced.

H.R. Rep. No. 154, 96th Cong., 1st Sess. 16 (1979); Housing and Community 

Development Amendments of 1979, Pub. L. No. 96-153, 93 Stat. 1101. Section 

8 and its legislative history offer no additional guidance on the rationales behind, 

and the permissibility of, tenant preferences.

B. Rules of Statutory Construction Relative to Legislation Affecting Indians.

Section 8 and its legislative history give no clear indication of the extent of 

discretion that a PHA or owner may exercise in selecting tenants and, more 

specifically, whether an Indian preference is permissible. The answers to these 

questions must be evaluated in light of two rules of statutory interpretation 

relevant to statutes that arguably affect the legal rights of Indians. One is the 

familiar rule that “ legislation affecting the Indians is to be construed in their 

interest and a purpose to make a radical departure is not lightly to be inferred.” 

United States v. Nice, 241 U.S. 591, 599 (1916). This policy of generously 

construing any ambiguities in favor of Indians would be applicable if either 

language in the Housing Act generally, or Section 8 interpreted in light of 

administrative practice, indicated an intention to permit an Indian housing 

preference in the present circumstances.

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However, a second rule of statutory construction prescribes that if Congress 

does not explicitly single out Indians for preferential treatment, courts should not 

imply an intent to treat Indians more favorably or differently from all other 

citizens. The Supreme Court has often noted that if Congress intends to aid or 

protect Indians in a manner different from others, “ it should say so in plain 

words. Such a conclusion cannot rest on dubious inferences.” Oklahoma Tax

Comm’n v. United States, 319 U.S. 598,607 (1943) (no express intent to exempt 

restricted Indian lands from state estate taxation); F.P.C. v. Tuscarora Indian

Nation, 362 U.S. 99, 117 (1960) (no intent to exempt Indian reservations beyond 

those specially defined in the statute). Thus, if further scrutiny reveals an absence 

of legislative intent to treat specially off-reservation Indian housing programs, 

there is no basis for inferring preferential treatment simply because Indians have 

been favored in some other context. Faced with congressional silence, we could 

not find that Indians, simply by being Indians, should be excluded from the 

legislative and administrative rules that generally govern Section 8 housing 

programs. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 116.

Third, unless the Housing Act of 1937 contains an Indian preference, to infer 

that Congress intended to exempt Indians from the general requirements of the 

nondiscrimination statutes that apply to federal housing assistance, without 

specifically indicating such an intent, would constitute a repeal by implication. 

Because Congress is presumed to be aware of the entire body of law, and thus 

aware of prior statutes when it enacts later ones, courts strongly disfavor any 

repeals by implication. See Watt v. Alaska, 451 U.S. 259, 267 (1981); Morton v. 

Mancari, 417 U.S. at 549; Universal Interpretative Shuttle Corp. v. Washington

Metropolitan Area Transit Comm’n, 339 U.S. 186, 193 (1968).

As is well-known, § 601 of Title VI of the Civil Rights Act of 1964 provides 

that

No person in the United States shall, on the ground of race, 

color, or national origin, be excluded from participation in, be 

denied the benefits of, or be subjected to discrimination under any 

program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d. Title VIII of the Civil Rights Act of 1968, 42 U.S.C. 

§§ 3601-3631 more specifically bans discrimination in the sale or rental of 

housing “ because of race, color, religion, sex or national origin.” 42 U.S.C. 

§ 3604. This prohibition applies to public housing authorities like the St. Raul 

agency involved here that receive federal financial assistance. 42 U .S.C. 

§ 3603(a).

Were the Housing Act of 1937, or long-settled and congressionally ratified 

administrative practice thereunder, found to have sanctioned an Indian housing 

preference, then the subsequently enacted nondiscrimination statutes would not 

impliedly repeal such a specific preference. See Radzanower v. Touche Ross &

Co., 426 U.S. 148, 153 (1976) (“statute dealing with a narrow, precise, and 

specific subject is not submerged by a later enacted statute covering a more 

generalized spectrum” ); Morton v. Mancari (rejecting contention that Equal

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Employment Opportunity Act impliedly repealed Indian preference provisions 

of Indian Reorganization Act). But if the 1937 Act was silent with respect to 

Indian preferences, converse presumptions apply. When Congress amended the 

Housing Act in 1974 to provide for Section 8 housing assistance, and in all 

subsequent amendments to Section 8, Congress was legislating against the 

backdrop of Titles VI and VIII. Presumably, if Congress intended to exempt 

Indians from the nondiscrimination statutes, it would make express its desire to 

modify or preclude the applicability of these existing statutes that would otherwise affect the later enactments. This is especially so when major public statutes 

reflecting important national policy, such as Titles VI and VIII, are involved. See

Watt v. Alaska, 451 U.S. at 281 n.5 (Stewart, J., dissenting) (“it would be 

unreasonable to assume Congress would alter fundamental policy without an 

unambiguous expression of its intent to do so” ); 1A, C. Sands, Sutherland on 

Statutory Construction § 23.10 (3d ed. 1972). Indeed, there is no question about 

Congress’ awareness of Title VI: it expressly incorporated Title VI requirements 

into the housing regulations. See n.15 infra. Thus, if Congress had been 

previously silent concerning urban Indian housing, it would require an explicit 

Indian exemption or equivalent “ clear and manifest” intent to effect a partial 

amendment of Title VI. See United States v. Borden Co., 308 U.S. 188, 198 

(1939).

C. Application cf Rules of Statutory Construction.

(1) Congress Did Not Intend to Permit an Indian Only Off-Reservation Section 

8 Housing Program Under the Housing Act.

First, we must determine whether the Housing Act is legislation enacted for the 

benefit of Indians and therefore should be construed generously in their favor. We 

conclude that with respect to off-reservation housing the statute contains no 

evidence of an intent to treat Indians specially.

The Housing Act is a general statute and not legislation specifically designed 

to benefit Indians.7 In the opening declaration of policy, the Housing Act states 

“ [i]t is the policy of the United States to promote the general welfare of the nation 

by employing its funds and credit, as provided in this chapter, to assist the several 

States and their political subdivisions to remedy the unsafe and unsanitary 

housing conditions and the acute shortage of decent, safe, and sanitary dwellings 

for families of lower income. . . .” 42 U.S.C. § 1437.

The Act refers explicitly to Indians on only two occasions. The primary 

reference to Indians is in a definition, rather than substantive, section of the Act.8

7 Cf. The Bartlett Act, 42 U.S C § 3371 (assistance for housing for Alaskan natives) In E ricv S e c'ycf Housing

and Urban Development, 464 F. Supp 44 (D. Alaska 1978), the court held that the legislative history of the Bartlett 

Act indicated that an Indian preference was intended.

8 The other reference appears in 42 U.S.C. § 1437d, which excepts projects on Indian reservations or in Alaskan 

Native villages from the general rules binding the Secretary in assessing prototype costs See p 15 infra. The 1974 

Amendments had also contained a provision targeting funds to Indians for certain types of housing from 1974 to 

1976 42USC § 1437c(c) See p 23 infra. After 1976, Congress did not make explicit reference to Indian funds 

in the Housing Act and the 1978 Housing and Community Development Amendments specifically rejected the 

concept of set-asides Congress concluded that “ (djeletion of the set-asides would provide the Secretary maximum 

flexibility in utilizing the funds made available for public housing and section 8 housing assistance payments ” S 

Rep. No 871, 95th Cong.. 2d Sess 14, 73 (1978).

304
Section 1437a provides that when used in this chapter “ [t]he term ‘State’ 

includes the several States, the District of Columbia, the Commonwealth of 

Puerto Rico, the territories and possessions of the United States, the Trust 

Territory of the Pacific Islands, and Indian Tribes, bands, groups, and Nations, 

including Alaska Indians, Aleuts, and Eskimos, of the United States.” 42 U.S.C. 

§ 1437a(7). No legislative history explains this 1974 amendment which included 

“ Indian Tribes, bands, groups, and Nations” within the reach of the statute. Pub. 

L. No. 93-383, 88 Stat. 653; S. Rep. No. 693, 93d Cong., 2d Sess. 119 (1974).

We believe that the inclusion of Indians in this general definitional section, as 

opposed to a substantive section of the Act, suggests only that Congress intended 

to establish that HUD can have the same type of administrative relationship with 

Indian Tribes as it does with the states or the District of Columbia. See Alexander

v. U.S. Dept, cf Housing <5 Urban Development, 441 U.S. 39, 50-53 (1979) 

(short, general statement of purpose not intended to be substantive departure 

from Congress’ statutory design). In treating Indian Tribes as essentially equivalent to political subdivisions, Congress would be dealing with Indians as 

members of quasi-sovereign tribal entities, not as individuals of a particular 

race.9 This interpretation comports with the prevailing rationale underlying 

Congress’ plenary power to legislate specially with respect to Indians: that 

Indians are a separate people with their own institutions. See United States v. 

Antelope, 430 U.S. 641, 646 (1977); Morton v. Mancari, 417 U.S. at 555.

That Congress intended by the Act to direct housing assistance exclusively to 

Indian Tribes only insofar as they functioned as governmental authorities with 

discrete jurisdictions is supported by earlier legislation and existing regulations. 

Prior to the 1974 Amendment which included “ Indian Tribes, bands, 

groups . . .” within the categories of eligible recipients, Congress had infrequently addressed Indian housing problems. The initial 1937 legislation providing housing for low-income families did not specifically include Indians as 

beneficiaries of governmental largesse. See United States Housing Act of 1937, 

§ 1, 50 Stat. 888, 42 U.S.C. § 1401. In 1968, Congress amended Section 1 of 

the Act by adding “ Indian areas” to the previously designated urban and rural 

nonfarm areas targeted for federal assistance. Housing and Urban Development 

Act of 1968, § 206(a), 82 Stat. 504; 42 U.S.C. § 1401. This reference to “ Indian

9 The Senate Report to the Housing and Community Development Act of 1974 gave a more extensive definition of 

the Indian tribal groups which Congress intended to be eligible for planning assistance under an amendment to 

another housing statute, the Housing Act of 1954 Insofar as the amendment, similar to the amendment in 

§ 1437a(7), redefined the list of eligible recipients, the description of Indian recipients is enlightening but not 

dispositive1

The amendments would, however, authorize the Secretary to make planning assistance available to 

Indian tribal groups, or bodies which represent Indians living as a community and owning

contiguous lands for which planning assistance is sought, whether or not these tribal groups or 

Indians are eligible to receive grants under other Federal assistance programs. The term “ Indian 

tribal group or body” is intended to mean any tribe, band or other organized group of Indians, 

including those tribes, bands, or groups terminated since 1940 and those recognized by the State in 

which they reside and any tribe, band or groups of Eskimos, Aleuts, or Alaskan natives (emphasis 

added)

S Rep. No 693, 93d Cong , 2d Sess 60 (1974).

305
areas” was the predecessor of the 1974 Amendment that defined “ Indian Tribes, 

bands, groups, and Nations,” as potential recipients of assistance under the Act.

The legislative history explained the 1968 change which first mentioned 

Indians, as follows:

Section 206 of the bill would amend the U.S. Housing Act of 

1937 so as to permit public housing assistance for Indian families 

without regard to the present limitation which does not permit 

public housing programs to include a site which is on a farm or is 

an appurtenance to a farm. The existing limitation has presented 

difficulties in connection with conventional low-rent housing and 

mutual-help housing programs for Indians. . . . In some cases, 

the present limitation has the effect of permitting the use of certain 

sites, and prohibiting others, in connection with the same project 

on an Indian reservation. This amendment is intended to apply to 

all Indian reservations, whether they be State or National.

S. Rep. No. 1123, 90th Cong., 2d Sess. 32 (1968). By expressly stating that the 

amendment applied to Indian areas— which the legislative history described as 

reservations— Congress presumably intended to direct such federal aid that far 

but not necessarily any further.

The Supreme Court reached an analogous conclusion in F.P.C. v. Tuscarora

Indian Nation, 362 U.S. 99, which presented the question whether lands owned 

by the Tuscarora Indian Nation could be taken, with just compensation, for the 

storage reservoir of a hydroelectric power project by the New York Power 

Authority under a license from the Federal Power Commission. The statute at 

issue exempted “ reservations” c f the United States, including “ tribal lands 

embraced within Indian reservations,” from the lands that could be condemned, 

if the taking would interfere with the purpose of the reservation. 362 U.S. at 112. 

Yet the Court held that lands owned in fee simple by the Indian Nation were “ not 

within a ‘reservation’ as that term is defined and used in the [statute].” 362 U.S. 

at 115. The Court distinguished the extent to which Congress dealt specially with 

Indians— excluding tribal lands within federally owned reservations from the 

statute’s scope— and the extent to which Congress “ intended to include lands 

owned or occupied by any person or persons, including Indians . . .” within the 

takings power of the statute. 362 U.S. at 118.

Interpreting Congress’ intent in the Housing Act to limit special aid to Indians 

to Indian areas10 is further supported by a recent amendment to the Act. Section 

1437d(b)— the other express statutory reference to Indians—excepts “ projects to 

be constructed as a result of assistance provided under this chapter and which are 

to be located on Indian reservations or in Alaskan Native villages” from the 

general rules that bind the Secretary’s determination of prototype costs. The

10 "Indian areas” is a term of art used both in the 1968 Housing Act and in existing regulations. 24 C F.R. 

§ 805.102 (1981). Essentially coterminous with the word “ reservation,” the word is also intended to include the 

similarly owned Indian lands that cover large sections of Oklahoma and Indian areas in Alaska, neither of which fall 

technically within the term “ reservation ”

306
subsection notes that “ with respect to remote areas such as may be found in 

connection with projects developed under the Indian and Alaskan Native housing 

program assisted under this chapter, the extensive transportation required to 

provide the necessary labor, materials, and equipment to the project site and any 

additional conditions that the Secretary determines should be taken into consideration . . shall be accounted for in determining the prototype costs. 42 

U.S.C. § 1437d(b)(8). The statutory language implies that Indian program 

assistance is targeted to Indian lands which may not be well-integrated into the 

state’s transportation network or which simply may be remote from sources of 

materials, equipment, and supplies. Nowhere is there a congressional indication 

that the Indian program is operative in the cities, for Congress most likely found 

no reason to differentiate Indians from other citizens in urban areas.

(2) HUD Regulations Supply no Suggestion of Legislative Intent to Treat OffReservation Indians Specially.

The HUD regulations that define the Indian Housing Program under the 

Housing Act also buttress the conclusion that no special treatment of Indians was 

intended outside Indian areas. The Indian housing regulations set forth at 24 

C.F.R. § 805 (1981) are applicable “ to such projects which are developed or 

operated by an Indian Housing Authority [(1HA)] in the area within which such 

Indian Housing Authority is authorized to operate” (emphasis added). 24 C.F.R. 

§ 805.101(a)(1). If the IHA is established by a tribal ordinance enacted “ by 

exercise of a tribe’s powers of self-government,” it operates over “ all areas 

within the jurisdiction of the tribe.” 24 C.F.R. § 805.108(a); App. 1 (tribal 

ordinance). If the IHA is established pursuant to a state law, it must have “ all 

necessary legal powers to carry out low income housing projects for Indians.” 24

C.F.R. § 805.108(b).'' That is, even an IHA created by state law must function as 

a governing body with respect to housing matters within a particular region or 

area.12

11 Alaska, Maine, Oklahoma, and Texas have enacted laws to permit the establishment of IHAs to provide 

housing in Indian areas in those states See, e.g ,63 Okla. Stat Ann. § 1054. As the HUD Interim Indian Housing 

Handbook 7440-1, amended 1979, explains, "[a] public housing agency which serves Indians as well as other low 

income families is not eligible as an IHA since the statute creating such as authority is not a statute providing 

specifically for housing authorities for Indians.” Chapt. I-1(C) at 1-3

12 In addition, HUD indicated that federal funds for Indian Housing projects were restricted to Indian areas when 

it first published its Indian housing regulations in 1976. HUD explained the possibility of Section 8 housing as 

follows*

Several comments objected to the mention of the Section 8 Housing Assistance ftayments program 

as a type of housing available to IHAs. While the Section 8 Program has not yet been utilized in 

Indian areas, HUD has not ruled out the possibility of providing this type of housing assistance as 

beneficial to Indians because it is possible to provide homeownership opportunity housing under it.

The provision therefore has been retained (§ 805.103(c).)

41 Fed Reg. 10152 (Mar 9, 1976). In promulgating the 1979 amendments to these regulations, HUD again 

explained that

[tjhe basic obstacle so far to the use of the Section 8 Program on Indian reservations has been the 

problem of obtaining private financing by an owner (whether it be a private owner or an IHA) for the 

construction or acquisition or rehabilitation of a project

44 Fed. Reg. 64204 (Nov 6, 1979) (Indian housing, final rule). These regulations simply assume that Indian 

housing will be situated in Indian areas

307
Thus, the Housing Act, its legislative history, and the accompanying Indian 

housing regulations all indicate that insofar as Congress intended to treat Indians 

specially under the Act, federal assistance would be directed to Indian areas. The 

Act is silent on the possibility of Indian-only off-reservation housing. If Congress 

has not authorized preferential treatment as part of the unique relationship 

between the federal government and the Indian Tribes, the Court has found that to 

interpret the law specially for Indians is “ not shown to be necessary to the 

fulfillment of the policy of Congress to protect a less-favored people against their 

own improvidence or the over-reaching of others; nor is it conceivable that it is 

necessary, for the Indians are subjected only to the same rule of law as are others 

in this state. . . .” United States v. Oklahoma Gas Co., 318 U.S. 206, 211 

(1943). Indeed, if the special treatment of Indians cannot be grounded in their 

unique status as political entities— formerly sovereign nations which still retain a 

measure of inherent sovereignty over their people—and if no federal statute or 

practice exists that reflects this determination in regard to urban housing, to treat 

Indians other than as ordinary citizens would constitute impermissible discrimination. See Fishery. District Court, 424 U.S. 382, 390 (1976); Superintendent of

Five Civilized Tribes v. Commissioner of Internal Revenue, 295 U.S. 418, 421 

(1935). Cf. Morton v. Mancari, 417 U.S. at 548 (exemptions in Title VII for 

tribal employment and preferential treatment by business on or near a reservation 

reveal “ clear congressional sentiment that an Indian preference in the narrow 

context of tribal or reservation-related employment did not constitute racial 

discrimination of the type otherwise proscribed” ). Here, in the absence of an 

express congressional indication specifically referring to Indian preferences in 

urban housing programs, “ Indians are subject only to the same rule of law as are 

others.” F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 119; Oklahoma Tax

Comm’n v. United States, 319 U.S. 598, 607 (1944); United States v. Oklahoma

Gas C o., 318 U.S. at 211.

Because the Housing Act, and administrative practice thereunder have not 

established off-reservation Indian housing preferences, Titles VI and VIII cannot 

be read to impliedly repeal such a preference. Cf. Morton v. Mancari, 417 U.S. at 

550-551 (Equal Employment Opportunity Act of 1972 did not supersede specific 

statutory preference for Indians). The only remaining question is whether the 

extent of discretion over tenant selection authorized by Section 8 would enable a 

PHA or owner to condition tenant eligibility on membership in a recognized 

tribe. That is, has Congress sanctioned any preference concepts in the Section 8 

regulations that could conceivably cover an Indian-exclusive tenant policy? Such 

a preference must either be consistent with Titles VI and VIII or be expressly 

accepted by Congress as superseding the general nondiscrimination requirements of those earlier statutes. See Fullilove v. Klutznick, 448 U.S. 448,492 n.77 

(1980) (later, specific preference provision supersedes earlier general nondiscrimination statute).

D . Section 8 and HUD Regulations for Tenant Selection in Section 8

Housing Permit No Specific Preferences That Could be Read to Include an

Indian Preference.

(1) As noted above in Section II. A, Section 8 itself places the duty of tenant 

selection on the housing owner and creates an express statutory preference only

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for families which occupy substandard housing or are involuntarily displaced. 

The regulations describing the policies and procedures applicable to Section 8 

Moderate Rehabilitation Programs under the Housing Act are set forth at 24 

C.F.R. § 882, with special procedures for moderate rehabilitation in subparts D 

and E (1981).13 On the one hand, the regulations explicitly single out certain 

groups for attention. For example, in submitting an application for a moderate 

rehabilitation program, the PHA must certify that it will take “ affirmative action 

to provide opportunities to participate in the Program to those elderly persons 

expected to reside in the locality and those Familys [sic] expected to reside in the 

community as a result of current or planned employment. . . .” 24 C.F.R. 

§ 882.503(b)(l)(ii). The PHA must further certify “ that the PHA will provide a 

preference for . . . Families displaced as a result of Moderate Rehabilitation. . . 24 C.F.R. § 882.503(a)(2)(ii)(C). On the other hand, they provide no 

indication that the Secretary of HUD could make funds available to an Urban 

Housing program open only to Indians who are enrolled tribal members. Indeed, 

a PHA applying for federal funds under Section 8 must include an equal 

opportunity housing plan in its submission. 24 C.F.R. § 882.503(b).

While the somewhat circular nature of the regulations makes it difficult to 

determine what an equal opportunity plan entails,14 there is no reason to believe 

that the language does not mean what it says: no discrimination. The only 

preferential treatment expressly permitted by the regulations defining the equal 

opportunity plan is that “ the PHA may establish a preference for applicants 

currently residing in that neighborhood who are being directly displaced by HUD 

programs.” 24 C.F.R. § 882.517(b). This preference both reflects the Section 8 

statutory language and does not conflict with Title VI and VIII or the Fifth 

Amendment.

Significantly, the permissibility of any preferences is circumscribed by the 

requirement that the equal opportunity plan must include “ signed certification of 

the applicant’s intention to comply with Title VI of the Civil Rights Act of 1964; 

Title VIII of the Civil Rights Act of 1968; [and] Executive Order 11246. . . .” 24

C.F.R. § 882.503(b)( 1 )(ii).15 In contrast to other legislation and^regulations that 

expressly authorize agencies to take affirmative action which favors members of 

certain disadvantaged racial or ethnic groups to the exclusion of other persons, 

nothing in the regulations for Section 8 sanctions a racially or ethnically exclusive tenant policy. Cf. Fullilove v. Klutznick, 448 U.S. 448 (upholding Public

13 The special procedures for moderate rehabilitation programs were promulgated m 1979. See 44 Fed Reg. 

26670 (May 4, 1979)

14 The plan must describe the PHA’s policies for “ [sjelecting from among eligible applicant Families those to be 

referred to O w ners including any provisions establishing preferences for selection.” 24 C F.R 

§ 882.503(b)(1)(C) The only indication of what those preferences might encompass appears in 24 C.F.R 

§ 882 517(b). But § 882.517(b) refers back to § 882 503 in stating that “ [t]he PHA must select Families for 

participation in accordance with the provisions of the Program and in accordance with the PHA’s application, 

including any PHA requirements or preferences as approved by HUD. (See 24 C F.R § 882 503(b)(l)(i)(C)).’’

13 HUD has also issued specific regulations effectuating the provisions of Title VI 24 C F R . § 1.1 (1981) 

Analogous to the Section 8 regulations, the Title VI regulations permit recipients of federal financial assistance 

operating low-rent housing under the Housing Act of 1937 to assign applicants to dwelling units based on 

preferences or priorities established by the recipient’s regulations and approved by HUD But these preferences may 

not be “ inconsistent with the objectives of Title VI of the Civil Rights Act of 1964 and this Part I ” 24 C FR . § 1.4 

The HUD regulations effectuating Title VI were issued in 1973 See Fed Reg 17949 (July 5, 1973).

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Works Employment Act of 1977, 42 U.S.C. §§ 6701-6710 which establishes in 

§ 103(f)(2) a minority business enterprise set-aside). Pub. L. No. 95-28,91 Stat. 

116, 117 (1977). In light of the express protections for the elderly, the handicapped, or displaced families, the absence of explicit preferences for racial or 

ethnic groups, and the nondiscrimination obligations imposed on HUD by Titles 

VI and VIII, HUD would appear to have no discretion to direct Section 8 funds to 

programs exclusively designed for a special racial or ethnic group, including 

urban Indians.

E. No Sufficiently Explicit Tenant Preference Provision Exists to Constitute

an Exception to Title VI Requirement.

Having determined that neither Section 8 of the Housing Act nor the Section 8 

regulations expressly sanction any preference that conceivably could cover urban 

Indians, two rules of statutory construction are relevant. First, in the absence of 

any legislative indication or administrative practice, there is no basis for interpreting the word “ preference” in the regulations, 24 C.F.R. § 882.503(b), to 

include an urban “Indian only” policy. C f Morton v. Mancari, 417 U.S. 535. As 

we concluded in II. C. (1) and (2) above, with respect to urban housing, Indians 

stand on no different footing than do other minorities in our pluralistic society. 

Congress has expressed no intent to treat urban Indians preferentially, and, in 

light of the congressional silence, such a determination “ cannot rest on dubious 

inferences.” Oklahoma Tax Comm'n v. United States, 319 U.S. at 607.

Second, Congress enacted Section 8 against the backdrop of the nondiscrimination statutes. HUD regulations specifically incorporated Title VI requirements. See n.15 infra. Congress cannot have been unaware of these laws 

and therefore its silence concerning urban Indian housing preferences cannot be 

interpreted as an implied repeal of the earlier nondiscrimination provisions. See

Watt v. Alaska, 451 U.S. at 267—213, Morton v. Mancari, 417 U.S. at 549-550. 

The presumption against implied repeals requires that the legislature’s intention 

to repeal must be “ clear and manifest.” United States v. Borden Co., 308 U.S. 

188, 198 (1939). Nothing in the legislative history of Section 8 indicates 

affirmatively a congressional intent to exempt urban Indians from the existing 

prohibitions on discrimination. The absence of a statutory preference for Indianonly urban housing and the lack of administrative precedent for providing 

Section 8 funds to Indian-only urban programs clearly do not constitute such a 

manifest intent to exempt Indians from the otherwise applicable requirements of 

Title VI and VIII. We conclude that HUD has no discretion to direct Section 8 

funds to programs exclusively designed for urban Indians.

In reaching this conclusion, we would add that the present situation differs 

from that in Morton v. Ruiz, 415 U.S. 199 (1974), which involved a conflict 

between a congressional intent to benefit Indians near the reservation and an 

agency’s conviction that it was not authorized to provide benefits to off-reservation Indians. In Ruiz, the Bureau of Indian Affairs (BIA) asserted that under its 

regulations it had no discretion to provide general assistance to off-reservation

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Indians. 415 U.S. at 204. But the Court noted that the BIA had represented to 

Congress that Indians “ on or near” reservations were eligible for benefits, and 

Congress accordingly had appropriated funds to cover welfare services for 

Indians residing at least “ on or near” reservations. 415 U.S. at 229-30. The 

Court, therefore, found the agency’s position that it could not provide offreservation benefits inconsistent with the congressional intent to benefit Indians 

“ on or near” a reservation.

Here, however, Congress has evinced an intent to provide “ Indian only” 

housing solely on reservations or similarly owned Indian areas. See Indian and

Alaskan Native Housing Programs, Hearings Before the Subcommittee on Housing and Community Developments cf the Comm, on Banking, Finance and

Urban Affairs, House cf Representatives, 96th Cong., 2d Sess. (1980) (no 

indication throughout hearings that “ Indian only” programs are intended for offreservation Indians). Moreover, the one time that Congress explicitly targeted 

funds for Indian housing, it expressly prohibited the use of such funds for Section 

8 housing. See42 U.S.C. § 1437c(c) (1976);16 H.R. Rep. No. 1114, 93dCong., 

2d Sess. 25 (1974). Notwithstanding the general rule of statutory construction 

that legislation involving Indians is to be construed in their favor, we find no 

evidence whatsoever that Congress intended to provide Section 8 rental assistance specially for Indians in an off-reservation context. Therefore, the policy of 

construing any ambiguities to the benefit of Indians does not even come into play. 

See Cramer v. United States, 261 U.S. 219, 229 (1923) (government protects 

rights of Indians if such rights are recognized in statute or flow from settled 

governmental policy).

III. Conclusion

Section 8 provides no authority for HUD to make federal funds available to an 

urban Moderate Rehabilitation Program whose occupancy is limited to Indian 

tribal members. Nor do the Indian housing regulations envisage “ Indian only” 

housing programs in urban areas with respect to which Indian tribes have no 

unique, semi-sovereign relationship. In the absence of any federal legislation or 

regulations recognizing Congress’ special relationship to the Indians with respect 

to urban housing or authorizing HUD to assist specially urban Indian housing, we 

conclude that Congress intended to treat Indians in the same manner as all other 

citizens for purposes of Section 8 Moderate Rehabilitation Housing in urban

16 In pertinent part, § 1437c(c) stated:

In addition, the Secretary shall enter into contracts for annual contributions, out of the aggregate 

amount of contracts for annual contributions authorized under this section to be entered into on or 

after July 1, 1974, aggregating at least $15,000,000 per annum, which amount shall be increased by 

not less than $ 15,000,000 per annum, on July 1, 1975, and by not less than $ 17,000,000 per annum 

on October 1, 1976, to assist in financing the development acquisition cost of low-income housing 

for families who are members of any Indian tribe, band, pueblo, group, or community of Indians or 

Alaska Natives which is recognized by the Federal Government as eligible for service from the 

Bureau of Indian Affairs, or who are wards of any State government, except that none of the funds 

made available under this sentence shall be available for use under section 1437f of this title.

Later amendments did not specifically target funds to Indians

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areas. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 118. HUD, therefore, 

has no discretion to provide tenant rental assistance to a Section 8 program with 

an exclusive occupancy policy.

We would add that nothing in this opinion is intended to suggest that a housing 

project intended to serve the particular needs identified by St. Paul authorities in 

this case could not be approximated by developing tenant occupancy policies 

based on the various types of preferences which are authorized under the Housing 

Act and Section 8. We conclude only that HUD is presently without statutory 

authority to grant Section 8 funds to an urban rehabilitation program restricted in 

its occupancy exclusively to Indians.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office cf Legal Counsel

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