b'Title VI and Urban Indian Housing\nThe D epartm ent of H ousing and Urban Development is not authorized by statute or regulation to\nprovide tenant rental assistance lo an urban housing program whose occupancy is limited to\nIndians, and such assistance to a program with a racially or ethnically exclusive tenant policy is\naffirm atively prohibited by Titles VI and VIII of the Civil Rights Act of 1964 and by the Fifth\nA m endm ent.\nLegislation affecting Indians should be construed in their interest; however, if Congress does not\nexplicitly single out Indians for preferential treatm ent, courts should not imply an intent to treat\nIndians more favorably o r differently from all other citizens.\nW hile C ongress has approved special aid for Indians in connection with housing on reservations and\nIndian areas, neither the Housing Act of 1937 nor long-settled and congressionally ratified\nadm inistrative practice under that A ct sanction off-reservation Indian housing preferences which\nwould otherw ise violate statutory o r constitutional nondiscrimination requirements\n\nJune 8, 1982\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, CIVIL RIGHTS DIVISION\nThis responds to your request for our opinion whether the Department of\nHousing and Urban Development (HUD) may make available federal funds for a\n24-unit scattered site, detached rental housing program open only to Indians\nresiding in St. Paul, Minnesota. You ask specifically whether federal funding for\ntenant rental assistance pursuant to HUD\xe2\x80\x99s Section 8 Moderate Rehabilitation\nProgram, 42 U.S.C. \xc2\xa7 1437f (hereinafter Section 8); 24 C.F.R. \xc2\xa7 882 (1982),\nunder the United States Housing Act of 1937, 42 U.S.C. \xc2\xa7 1437 (hereinafter\nHousing Act), is permissible in light of the nondiscrimination requirements that\nTitle VI of the Civil Rights Act of 1964,42 U.S.C. \xc2\xa7 2000d, and Title VIII of the\nCivil Rights Act of 1968, 42 U.S.C. \xc2\xa7\xc2\xa7 3601-3631, imposed on recipients of\nfederal financial assistance.\nIn the course of considering the various issues raised by this particular plan, we\nhave identified a threshold legal issue which, as we have resolved it, is necessary\nto the disposition of the matter. That issue is whether the Secretary of HUD has\ndiscretion under Section 8 to make funds available to an off-reservation housing\nproject that conditions tenant eligibility on at least one-fourth Indian blood, as\ndetermined by tribal membership. Once this question is resolved, the Title VI\nissue is considerably simplified. For reasons stated below, we conclude, first, that\n298\n\n\x0calthough Congress expressed an intent to assist Indians under the Housing Act, it\ndid not indicate that special treatment of Indians was to extend beyond Indian\nreservations and Indian areas. Second, nothing in Section 8 of the Housing Act or\nits accompanying regulations authorizes HUD to provide tenant rental assistance\nunder its Moderate Rehabilitation Program to an urban housing program avail\xc2\xad\nable only to Indians. Thus, absent express congressional approval for, or admin\xc2\xad\nistrative acceptance of, off-reservation Indian-only Section 8 housing, Titles VI\nand VIII and the Fifth Amendment prohibit federal assistance for a program with\na racially or ethnically exclusive tenant policy. An affirmative legislative intent to\naid urban Indian housing or to treat urban Indians specially would, of course,\nalter the Title VI, Title VIII, and constitutional analysis. See Fullilove v.\nKlutznick, 448 U.S. 448, 492 n.77 (1980) (later, specific preference provision\nsupersedes earlier, general nondiscrimination statute); Morton v. Mancari, 417\nU.S. 535, 550-551 (1974) (specific statutory preference for Indians would\nsupersede general nondiscrimination statute, regardless of the priority of\nenactment).\nI. Facts\nAs we understand the facts, the St. Paul Inter-Tribal Housing Board is a\ncoalition of the four major Indian organizations serving St. Paul: the St. Paul\nAmerican Indian Center; the Red School House, Inc.; the St. Raul American\nIndian Movement, Inc.; and the St. Paul Urban Indian Health Board Clinic.\nThree different Tribes are represented on its five-member Board of Directors.\nThe Board has applied to be the nonprofit sponsor of 24 scattered sites, detached\nrental housing units of three and four bedrooms, for low-income Indian families.\nThe contemplated sites are six central St. Paul neighborhoods with high Indian\nconcentrations.\' Only Indian families whose head of household has at least \xe2\x80\x9c onequarter degree Indian blood, as verified by tribal enrollment,\xe2\x80\x9d would be eligible\nfor the housing.2 The local Tribes have endorsed the Inter-Tribal Housing Board\nand its plans as fulfilling a need of their members.3\nThe Minnesota Housing Finance Agency would provide a 30-year no interest\nloan of $820,000 under the state\xe2\x80\x99s Urban Indian Housing Loan Program (UIHLP)\n1 We do nol know whether these St. Paul Indians are tribal members or not We have not been asked, and therefore\nhave nol considered, whether locating the housing units in areas with high Indian concentration would be consistent\nwith federal policies of integration in housing See Hills v Gautreaux, 425 U.S 284(1976), Otero v New York City\nHousing Authority, 484 F 2d 1122, 1134 (2d Cir 1 9 7 3 ),2 4 C F R \xc2\xa7 882 503(a)(9)(i) (objective of \xe2\x80\x9c deconcentra\xc2\xad\ntion\xe2\x80\x9d for Section 8 program).\n2 This classification is similar to the Bureau of Indian Affairs employment preference at issue m Morton v\nMancari, which required that an individual be \xe2\x80\x9c one-fourth or more degree Indian blood and be a member of a\nfederally recognized tnbe \xe2\x80\x9d 417 U S. al 553 n 24 The Supreme Court characterized that preference as follows:\nThe preference is not directed towards a \xe2\x80\x9c racial\xe2\x80\x9d group consisting of \xe2\x80\x9c Indians\xe2\x80\x9d ; instead, it applies\nonly lo members of \xe2\x80\x9c federally recognized\xe2\x80\x9d tribes. This operates to exclude many individuals who\nare racially to be classified as \xe2\x80\x9c Indians \xe2\x80\x9d In this sense, the preference is political rather than racial in\nnature\n3 Letter from Donna Follstad. Chairperson. Urban Indian Advisory Council, to Minnesota Housing Finance\nAgency Board Members (Mar 23. 1981), Resolution 15-81, Minnesota Sioux Tribe, Inc (Aug 19, 1981); U S.C\nResolution 27-81, Upper Sioux Community (Aug 25, 1981)\n\n299\n\n\x0cto purchase the units. The UIHLP is apparently established pursuant to a state law\nthat permits the State Housing Agency to \xe2\x80\x9c engage in housing programs for low\nand moderate income American Indians. . . .\xe2\x80\x9d Minn. Stat. Ann. \xc2\xa7 462A.07(15)\n(West Supp. 1981).4 A $360,000 low interest loan from the city and a private\nfoundation would cover rehabilitation of the units. The purchase and rehabilita\xc2\xad\ntion loans have been obtained, contingent upon approval by HUD of Section 8\nhousing assistance payments.\nHUD would provide tenant rental assistance to the St. Paul Public Housing\nAgency (PHA) on behalf of families who would then lease the units pursuant to\nthe provisions of Section 8 of the Housing Act. 42 U.S.C. \xc2\xa7 1437f; 24 C.F.R.\n\xc2\xa7 882 (1981) (Section 8 Moderate Rehabilitation Program). To ensure that only\nIndians would benefit from the proposed project, the PHA would maintain a\nseparate list of eligible Indian applicants for initial occupancy and vacancies as\nthey occur. The basis for this Indian preference is the PHA\xe2\x80\x99s findings that the St.\nPaul American Indian population has not been well-served by the existing Section\n8 program; that the state has been unsuccessful in implementing its Section 8\nprogram, for which 75 units are allotted; and that the 24-unit project would\nenable the St. Paul Inter-Tribal Housing Board to make use of special state funds\nfor urban Indians which have been largely unused.5\nII. Analysis: May HUD Provide Section 8 Moderate Rehabilitation\nFunds for a Program Conditioning Eligibility on Membership in an\nIndian IHbe?\nA. Section 8 and its Legislative History.\nThe Housing Act of 1937 is the basic statutory authority for low-income\nhousing programs. Its provisions cover public housing projects, congregate\nhousing for the displaced, elderly, or handicapped, and the Section 8 housing\nassistance program. 42 U.S.C. \xc2\xa7 1437d, e, f. The Section 8 assistance program\nwas developed by Congress in 1974 in an effort \xe2\x80\x9c to give private developers the\n4 Subdivision 15 of M inn. Stat Ann \xc2\xa7 462A 07 provides in full:\nIt [the Housing Finance Agency] may engage in housing programs for low and moderate income\nAmerican Indians as that term is defined in \xc2\xa7 254A 02, subdivision 11, residing in the metropolitan\narea defined in \xc2\xa7 473.121, subdivision 2 , and cities with a population greater than 50,000 persons.\nThe program shall demonstrate innovative methods of providing housing for urban Indians, may\ninvolve the construction, purchase and rehabilitation of residential housing, and may be admin\xc2\xad\nistered through any other provision o f this chapter. To the extent possible, the programs shall\ncombine appropriated money with other money from both public and private sources. . . The\nagency shall consult with the advisory council on urban Indians created pursuant to \xc2\xa7 3 922,\nsubdivision 8, in the development of programs pursuant to this subdivision\nSubdivision 14 o f the same section states in pertinent part:\nIt [the Minn Housing Finance Agency] may engage in housing programs for low and moderate\nincome American Indians\ndeveloped and administered separately or in combination by the\nM innesota Chippewa tn b e, the Red Lake band of Chippewa Indians, and the Sioux communities as\ndetermined by such tribe, band, or communities. In developing such housing programs the tnbe,\nband, or communities shall take into account the housing needs of all American Indians residing both\non and off reservations within the state.\n5 Letter to HUD from Marshall D. Anderson, Executive Director, PHA (Jan 23, 1981)\n\n300\n\n\x0cincentive for profit and the risk of loss in the construction and management of\nhousing developed for low income families.\xe2\x80\x9d S. Rep. No. 693, 93d Cong., 2d\nSess. 43 (1974). Section 8 continued, in a substantially modified form, the leased\nhousing assistance program Congress had enacted in 1965 to-provide private\naccommodations for sublease to low-income families. S. Rep. No. 693, 93d\nCong., 2d Sess. 43 (1974); H.R. Conf. Rep. No. 1279, 93d Cong., 2d Sess. 138\n(1974); Housing and Community Development Act of 1974, Pub. L. No.\n93-383, 88 Stat. 653, 662, 42 U.S.C. \xc2\xa7 1437f.\nSection 8 authorizes the payment of lower-income housing assistance \xe2\x80\x9c [f]or\nthe purpose of aiding lower-income families in obtaining a decent place to live\nand of promoting economically mixed housing. . . .\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1437f(a). It\nempowers the Secretary \xe2\x80\x9c to enter into annual contributions contracts with public\nhousing agencies pursuant to which such agencies may enter into contracts to\nmake assistance payments to owners of existing dwelling units in accordance\nwith this section.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1437f(b)(l). It also establishes limitations on the\nmaximum monthly rent and the percentage of assistance allocated, for example,\nto very low-income families. See 42 U.S.C. \xc2\xa7 1437f(c)(l)-(8).\nFor purposes of tenant selection, the relevant subsection of Section 8 provides:\n(d)(1) Contracts to make assistance payments entered into by a\npublic housing agency with an owner of existing housing units\nshall provide (with respect to any unit) that\n(A) the selection of tenants for such unit shall be the function\nof the owner, subject to the provisions of the annual contribu\xc2\xad\ntions contract between the Secretary and the agency, [6] except\nthat the tenant selection criteria used by the owner shall give\npreference to families which occupy substandard housing or\nare involuntarily displaced at the time they are seeking assist\xc2\xad\nance under this section.\n42 U.S.C. \xc2\xa7 1437f(d)(l)-(A).\nOn its face, this provision indicates only that preferences are permissible for\n\xe2\x80\x9c families which occupy substandard housing or are involuntarily displaced at the\ntime they are seeking assistance. . . .\xe2\x80\x9d However, it also places the responsibility\nfor selecting tenants on the owner, which suggests that an individual owner has\nsome discretion to devise eligibility priorities on his own. Moreover, the excep\xc2\xad\ntion mandating preferences for involuntarily displaced families is a recent 1979\n6 The provisions of the annual contributions contract establish, inter alia:\n(1) the maximum monthly rent which \xe2\x80\x9c shall not exceed by more than 10 per centum the fair market\nrental established by the Secretary periodically\n(2) provisions for adjustment \xe2\x80\x9c annually or more frequently in the maximum monthly rents\xe2\x80\x9d that\n\xe2\x80\x9c reflect changes in the fair market rentals\nor, if the Secretary determines, on the basis of a\nreasonable formula \xe2\x80\x9d\n42 U S.C. \xc2\xa7 1437f(c)(l), (2)(A) Aside from the provision that \xe2\x80\x9cAt least 30 per centum of the families assisted\nunder this section with annual allocations of contract authority shall be very low-mcome families at the time of the\ninitial renting of dwelling units,\xe2\x80\x9d there is no express qualification, other than qualifying as a \xe2\x80\x9c lower income\nfamily,\xe2\x80\x9d on whom an owner may select as tenants. 42 U S C \xc2\xa7 1437f(c)(7), (0(1).\n\n301\n\n\x0camendment. See Pub. L. No. 96\xe2\x80\x94153, \xc2\xa7 206(b)(1), 93 Stat. 1101, 1108. Prior to\n1979, Section 8 had simply provided that \xe2\x80\x9c the selection of tenants . . . shall be\nthe function of the owner, subject to the provisions of the annual contributions\ncontract between the Secretary and the agency.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1437f(d)(l)(A)\n(1976) (prior to 1979 amendment).\nThe legislative history accompanying the 1979 change explained the nature of\nthe preference:\nThe Committee has provided a priority in the selection of\ntenants in public housing and section 8 for families who occupy\nsubstandard housing or have been involuntarily displaced at the\ntime they apply for assistance. The Committee believes that in a\nperiod of reduced funding for assisted housing, the programs\nshould be directed toward those families who have housing needs\nwhich require more urgent attention. . . . The priority is not\nintended nor should it be used to allow the Department to direct an\nowner or PHA to select certain tenants. It would be unacceptable\nand clearly not authorized by this provision for the Department to\nrequire a PHA or owner to select tenants from a list developed by\nthe Department. This provision is not intended to alter the basic\nresponsibility over tenant selection which, under current law,\nrests solely with the PHA and owner. It is simply intended to have\nowners and PHAs give priority to meeting the urgent housing\nneeds of those families living in substandard conditions or being\ninvoluntarily displaced.\nH.R. Rep. No. 154, 96th Cong., 1st Sess. 16 (1979); Housing and Community\nDevelopment Amendments of 1979, Pub. L. No. 96-153, 93 Stat. 1101. Section\n8 and its legislative history offer no additional guidance on the rationales behind,\nand the permissibility of, tenant preferences.\nB. Rules o f Statutory Construction Relative to Legislation Affecting Indians.\n\nSection 8 and its legislative history give no clear indication of the extent of\ndiscretion that a PHA or owner may exercise in selecting tenants and, more\nspecifically, whether an Indian preference is permissible. The answers to these\nquestions must be evaluated in light of two rules of statutory interpretation\nrelevant to statutes that arguably affect the legal rights of Indians. One is the\nfamiliar rule that \xe2\x80\x9c legislation affecting the Indians is to be construed in their\ninterest and a purpose to make a radical departure is not lightly to be inferred.\xe2\x80\x9d\nU nited States v. Nice, 241 U.S. 591, 599 (1916). This policy of generously\nconstruing any ambiguities in favor of Indians would be applicable if either\nlanguage in the Housing Act generally, or Section 8 interpreted in light of\nadministrative practice, indicated an intention to permit an Indian housing\npreference in the present circumstances.\n302\n\n\x0cHowever, a second rule of statutory construction prescribes that if Congress\ndoes not explicitly single out Indians for preferential treatment, courts should not\nimply an intent to treat Indians more favorably or differently from all other\ncitizens. The Supreme Court has often noted that if Congress intends to aid or\nprotect Indians in a manner different from others, \xe2\x80\x9c it should say so in plain\nwords. Such a conclusion cannot rest on dubious inferences.\xe2\x80\x9d Oklahoma Tax\nComm\xe2\x80\x99n v. United States, 319 U.S. 598,607 (1943) (no express intent to exempt\nrestricted Indian lands from state estate taxation); F.P.C. v. Tuscarora Indian\nNation, 362 U.S. 99, 117 (1960) (no intent to exempt Indian reservations beyond\nthose specially defined in the statute). Thus, if further scrutiny reveals an absence\nof legislative intent to treat specially off-reservation Indian housing programs,\nthere is no basis for inferring preferential treatment simply because Indians have\nbeen favored in some other context. Faced with congressional silence, we could\nnot find that Indians, simply by being Indians, should be excluded from the\nlegislative and administrative rules that generally govern Section 8 housing\nprograms. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 116.\nThird, unless the Housing Act of 1937 contains an Indian preference, to infer\nthat Congress intended to exempt Indians from the general requirements of the\nnondiscrimination statutes that apply to federal housing assistance, without\nspecifically indicating such an intent, would constitute a repeal by implication.\nBecause Congress is presumed to be aware of the entire body of law, and thus\naware of prior statutes when it enacts later ones, courts strongly disfavor any\nrepeals by implication. See Watt v. Alaska, 451 U.S. 259, 267 (1981); Morton v.\nMancari, 417 U.S. at 549; Universal Interpretative Shuttle Corp. v. Washington\nMetropolitan Area Transit Comm\xe2\x80\x99n, 339 U.S. 186, 193 (1968).\nAs is well-known, \xc2\xa7 601 of Title VI of the Civil Rights Act of 1964 provides\nthat\nNo person in the United States shall, on the ground of race,\ncolor, or national origin, be excluded from participation in, be\ndenied the benefits of, or be subjected to discrimination under any\nprogram or activity receiving Federal financial assistance.\n42 U.S.C. \xc2\xa7 2000d. Title VIII of the Civil Rights Act of 1968, 42 U.S.C.\n\xc2\xa7\xc2\xa7 3601-3631 more specifically bans discrimination in the sale or rental of\nhousing \xe2\x80\x9c because of race, color, religion, sex or national origin.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 3604. This prohibition applies to public housing authorities like the St. Raul\nagency involved here that receive federal financial assistance. 42 U .S.C .\n\xc2\xa7 3603(a).\nWere the Housing Act of 1937, or long-settled and congressionally ratified\nadministrative practice thereunder, found to have sanctioned an Indian housing\npreference, then the subsequently enacted nondiscrimination statutes would not\nimpliedly repeal such a specific preference. See Radzanower v. Touche Ross &\nCo., 426 U.S. 148, 153 (1976) (\xe2\x80\x9cstatute dealing with a narrow, precise, and\nspecific subject is not submerged by a later enacted statute covering a more\ngeneralized spectrum\xe2\x80\x9d ); Morton v. Mancari (rejecting contention that Equal\n303\n\n\x0cEmployment Opportunity Act impliedly repealed Indian preference provisions\nof Indian Reorganization Act). But if the 1937 Act was silent with respect to\nIndian preferences, converse presumptions apply. When Congress amended the\nHousing Act in 1974 to provide for Section 8 housing assistance, and in all\nsubsequent amendments to Section 8, Congress was legislating against the\nbackdrop of Titles VI and VIII. Presumably, if Congress intended to exempt\nIndians from the nondiscrimination statutes, it would make express its desire to\nmodify or preclude the applicability of these existing statutes that would other\xc2\xad\nwise affect the later enactments. This is especially so when major public statutes\nreflecting important national policy, such as Titles VI and VIII, are involved. See\nWatt v. Alaska, 451 U.S. at 281 n.5 (Stewart, J., dissenting) (\xe2\x80\x9cit would be\nunreasonable to assume Congress would alter fundamental policy without an\nunambiguous expression of its intent to do so\xe2\x80\x9d ); 1A, C. Sands, Sutherland on\nStatutory Construction \xc2\xa7 23.10 (3d ed. 1972). Indeed, there is no question about\nCongress\xe2\x80\x99 awareness of Title VI: it expressly incorporated Title VI requirements\ninto the housing regulations. See n.15 infra. Thus, if Congress had been\npreviously silent concerning urban Indian housing, it would require an explicit\nIndian exemption or equivalent \xe2\x80\x9c clear and manifest\xe2\x80\x9d intent to effect a partial\namendment of Title VI. See U nited States v. Borden C o., 308 U.S. 188, 198\n(1939).\nC. Application c f Rules of Statutory Construction.\n(1) Congress Did Not Intend to Permit an Indian Only Off-Reservation Section\n8 Housing Program Under the Housing Act.\nFirst, we must determine whether the Housing Act is legislation enacted for the\nbenefit of Indians and therefore should be construed generously in their favor. We\nconclude that with respect to off-reservation housing the statute contains no\nevidence of an intent to treat Indians specially.\nThe Housing Act is a general statute and not legislation specifically designed\nto benefit Indians.7 In the opening declaration of policy, the Housing Act states\n\xe2\x80\x9c [i]t is the policy of the United States to promote the general welfare of the nation\nby employing its funds and credit, as provided in this chapter, to assist the several\nStates and their political subdivisions to remedy the unsafe and unsanitary\nhousing conditions and the acute shortage of decent, safe, and sanitary dwellings\nfor families of lower income. . . .\xe2\x80\x9d 42 U.S.C. \xc2\xa7 1437.\nThe Act refers explicitly to Indians on only two occasions. The primary\nreference to Indians is in a definition, rather than substantive, section of the Act.8\n7 Cf. The Bartlett Act, 42 U .S C \xc2\xa7 3371 (assistance for housing for Alaskan natives) In E ric v S e c \'y c f Housing\nand Urban Development, 464 F. Supp 44 (D . Alaska 1978), the court held that the legislative history of the Bartlett\nAct indicated that an Indian preference was intended.\n8 The other reference appears in 42 U .S.C . \xc2\xa7 1437d, which excepts projects on Indian reservations or in Alaskan\nNative villages from the general rules binding the Secretary in assessing prototype costs See p 15 infra. The 1974\nAmendments had also contained a provision targeting funds to Indians for certain types of housing from 1974 to\n1976 4 2 U S C \xc2\xa7 1437c(c) See p 23 infra. After 1976, Congress did not make explicit reference to Indian funds\nin the Housing Act and the 1978 Housing and Community Development Amendments specifically rejected the\nconcept of set-asides Congress concluded that \xe2\x80\x9c (djeletion of the set-asides would provide the Secretary maximum\nflexibility in utilizing the funds made available for public housing and section 8 housing assistance payments \xe2\x80\x9d S\nRep. No 871, 95th Cong.. 2d Sess 14, 73 (1978).\n\n304\n\n\x0cSection 1437a provides that when used in this chapter \xe2\x80\x9c [t]he term \xe2\x80\x98State\xe2\x80\x99\nincludes the several States, the District of Columbia, the Commonwealth of\nPuerto Rico, the territories and possessions of the United States, the Trust\nTerritory of the Pacific Islands, and Indian Tribes, bands, groups, and Nations,\nincluding Alaska Indians, Aleuts, and Eskimos, of the United States.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 1437a(7). No legislative history explains this 1974 amendment which included\n\xe2\x80\x9c Indian Tribes, bands, groups, and Nations\xe2\x80\x9d within the reach of the statute. Pub.\nL. No. 93-383, 88 Stat. 653; S. Rep. No. 693, 93d Cong., 2d Sess. 119 (1974).\nWe believe that the inclusion of Indians in this general definitional section, as\nopposed to a substantive section of the Act, suggests only that Congress intended\nto establish that HUD can have the same type of administrative relationship with\nIndian Tribes as it does with the states or the District of Columbia. See Alexander\nv. U.S. D ept, c f Housing <5 Urban Development, 441 U.S. 39, 50-53 (1979)\n(short, general statement of purpose not intended to be substantive departure\nfrom Congress\xe2\x80\x99 statutory design). In treating Indian Tribes as essentially equiv\xc2\xad\nalent to political subdivisions, Congress would be dealing with Indians as\nmembers of quasi-sovereign tribal entities, not as individuals of a particular\nrace.9 This interpretation comports with the prevailing rationale underlying\nCongress\xe2\x80\x99 plenary power to legislate specially with respect to Indians: that\nIndians are a separate people with their own institutions. See United States v.\nAntelope, 430 U.S. 641, 646 (1977); Morton v. Mancari, 417 U.S. at 555.\nThat Congress intended by the Act to direct housing assistance exclusively to\nIndian Tribes only insofar as they functioned as governmental authorities with\ndiscrete jurisdictions is supported by earlier legislation and existing regulations.\nPrior to the 1974 A m endm ent which included \xe2\x80\x9c Indian Tribes, bands,\ngroups . . .\xe2\x80\x9d within the categories of eligible recipients, Congress had infre\xc2\xad\nquently addressed Indian housing problems. The initial 1937 legislation provid\xc2\xad\ning housing for low-income families did not specifically include Indians as\nbeneficiaries of governmental largesse. See United States Housing Act of 1937,\n\xc2\xa7 1, 50 Stat. 888, 42 U.S.C. \xc2\xa7 1401. In 1968, Congress amended Section 1 of\nthe Act by adding \xe2\x80\x9c Indian areas\xe2\x80\x9d to the previously designated urban and rural\nnonfarm areas targeted for federal assistance. Housing and Urban Development\nAct of 1968, \xc2\xa7 206(a), 82 Stat. 504; 42 U.S.C. \xc2\xa7 1401. This reference to \xe2\x80\x9c Indian\n9 The Senate Report to the Housing and Community Development Act of 1974 gave a more extensive definition of\nthe Indian tribal groups which Congress intended to be eligible for planning assistance under an amendment to\nanother housing statute, the Housing Act of 1954 Insofar as the amendment, similar to the amendment in\n\xc2\xa7 1437a(7), redefined the list of eligible recipients, the description of Indian recipients is enlightening but not\ndispositive1\nThe amendments would, however, authorize the Secretary to make planning assistance available to\nIndian tribal groups, or bodies which represent Indians living as a community and owning\ncontiguous lands for which planning assistance is sought, whether or not these tribal groups or\nIndians are eligible to receive grants under other Federal assistance programs. The term \xe2\x80\x9c Indian\ntribal group or body\xe2\x80\x9d is intended to mean any tribe, band or other organized group of Indians,\nincluding those tribes, bands, or groups terminated since 1940 and those recognized by the State in\nwhich they reside and any tribe, band or groups of Eskimos, Aleuts, or Alaskan natives (emphasis\nadded)\nS Rep. No 693, 93d Cong , 2d Sess 60 (1974).\n\n305\n\n\x0careas\xe2\x80\x9d was the predecessor of the 1974 Amendment that defined \xe2\x80\x9c Indian Tribes,\nbands, groups, and Nations,\xe2\x80\x9d as potential recipients of assistance under the Act.\nThe legislative history explained the 1968 change which first mentioned\nIndians, as follows:\nSection 206 of the bill would amend the U.S. Housing Act of\n1937 so as to permit public housing assistance for Indian families\nwithout regard to the present limitation which does not permit\npublic housing programs to include a site which is on a farm or is\nan appurtenance to a farm. The existing limitation has presented\ndifficulties in connection with conventional low-rent housing and\nmutual-help housing programs for Indians. . . . In some cases,\nthe present limitation has the effect of permitting the use of certain\nsites, and prohibiting others, in connection with the same project\non an Indian reservation. This amendment is intended to apply to\nall Indian reservations, whether they be State or National.\nS. Rep. No. 1123, 90th Cong., 2d Sess. 32 (1968). By expressly stating that the\namendment applied to Indian areas\xe2\x80\x94 which the legislative history described as\nreservations\xe2\x80\x94 Congress presumably intended to direct such federal aid that far\nbut not necessarily any further.\nThe Supreme Court reached an analogous conclusion in F.P.C. v. Tuscarora\nIndian Nation, 362 U.S. 99, which presented the question whether lands owned\nby the Tuscarora Indian Nation could be taken, with just compensation, for the\nstorage reservoir of a hydroelectric power project by the New York Power\nAuthority under a license from the Federal Power Commission. The statute at\nissue exempted \xe2\x80\x9c reservations\xe2\x80\x9d c f the United States, including \xe2\x80\x9c tribal lands\nembraced within Indian reservations,\xe2\x80\x9d from the lands that could be condemned,\nif the taking would interfere with the purpose of the reservation. 362 U.S. at 112.\nYet the Court held that lands owned in fee simple by the Indian Nation were \xe2\x80\x9c not\nwithin a \xe2\x80\x98reservation\xe2\x80\x99 as that term is defined and used in the [statute].\xe2\x80\x9d 362 U.S.\nat 115. The Court distinguished the extent to which Congress dealt specially with\nIndians\xe2\x80\x94 excluding tribal lands within federally owned reservations from the\nstatute\xe2\x80\x99s scope\xe2\x80\x94 and the extent to which Congress \xe2\x80\x9c intended to include lands\nowned or occupied by any person or persons, including Indians . . .\xe2\x80\x9d within the\ntakings power of the statute. 362 U.S. at 118.\nInterpreting Congress\xe2\x80\x99 intent in the Housing Act to limit special aid to Indians\nto Indian areas10 is further supported by a recent amendment to the Act. Section\n1437d(b)\xe2\x80\x94 the other express statutory reference to Indians\xe2\x80\x94 excepts \xe2\x80\x9c projects to\nbe constructed as a result of assistance provided under this chapter and which are\nto be located on Indian reservations or in Alaskan Native villages\xe2\x80\x9d from the\ngeneral rules that bind the Secretary\xe2\x80\x99s determination of prototype costs. The\n10 "Indian areas\xe2\x80\x9d is a term o f art used both in the 1968 Housing Act and in existing regulations. 24 C F.R.\n\xc2\xa7 805.102 (1981). Essentially coterminous w ith the word \xe2\x80\x9c reservation,\xe2\x80\x9d the word is also intended to include the\nsimilarly owned Indian lands that cover large sections of Oklahoma and Indian areas in Alaska, neither of which fall\ntechnically within the term \xe2\x80\x9c reservation \xe2\x80\x9d\n\n306\n\n\x0csubsection notes that \xe2\x80\x9c with respect to remote areas such as may be found in\nconnection with projects developed under the Indian and Alaskan Native housing\nprogram assisted under this chapter, the extensive transportation required to\nprovide the necessary labor, materials, and equipment to the project site and any\nadditional conditions that the Secretary determines should be taken into consid\xc2\xad\neration . .\nshall be accounted for in determining the prototype costs. 42\nU.S.C. \xc2\xa7 1437d(b)(8). The statutory language implies that Indian program\nassistance is targeted to Indian lands which may not be well-integrated into the\nstate\xe2\x80\x99s transportation network or which simply may be remote from sources of\nmaterials, equipment, and supplies. Nowhere is there a congressional indication\nthat the Indian program is operative in the cities, for Congress most likely found\nno reason to differentiate Indians from other citizens in urban areas.\n(2) HUD Regulations Supply no Suggestion of Legislative Intent to Treat OffReservation Indians Specially.\nThe HUD regulations that define the Indian Housing Program under the\nHousing Act also buttress the conclusion that no special treatment of Indians was\nintended outside Indian areas. The Indian housing regulations set forth at 24\nC.F.R. \xc2\xa7 805 (1981) are applicable \xe2\x80\x9c to such projects which are developed or\noperated by an Indian Housing Authority [(1HA)] in the area within which such\nIndian Housing Authority is authorized to operate\xe2\x80\x9d (emphasis added). 24 C.F.R.\n\xc2\xa7 805.101(a)(1). If the IHA is established by a tribal ordinance enacted \xe2\x80\x9c by\nexercise of a tribe\xe2\x80\x99s powers of self-government,\xe2\x80\x9d it operates over \xe2\x80\x9c all areas\nwithin the jurisdiction of the tribe.\xe2\x80\x9d 24 C.F.R. \xc2\xa7 805.108(a); App. 1 (tribal\nordinance). If the IHA is established pursuant to a state law, it must have \xe2\x80\x9c all\nnecessary legal powers to carry out low income housing projects for Indians.\xe2\x80\x9d 24\nC.F.R. \xc2\xa7 805.108(b).\'\' That is, even an IHA created by state law must function as\na governing body with respect to housing matters within a particular region or\narea.12\n11 Alaska, Maine, Oklahoma, and Texas have enacted laws to permit the establishment of IHAs to provide\nhousing in Indian areas in those states See, e.g ,6 3 Okla. Stat Ann. \xc2\xa7 1054. As the HUD Interim Indian Housing\nHandbook 7440-1, amended 1979, explains, "[a] public housing agency which serves Indians as well as other low\nincome families is not eligible as an IHA since the statute creating such as authority is not a statute providing\nspecifically for housing authorities for Indians.\xe2\x80\x9d Chapt. I-1(C) at 1-3\n12 In addition, HUD indicated that federal funds for Indian Housing projects were restricted to Indian areas when\nit first published its Indian housing regulations in 1976. HUD explained the possibility of Section 8 housing as\nfollows*\nSeveral comments objected to the mention of the Section 8 Housing Assistance ftayments program\nas a type of housing available to IHAs. While the Section 8 Program has not yet been utilized in\nIndian areas, HUD has not ruled out the possibility o f providing this type of housing assistance as\nbeneficial to Indians because it is possible to provide homeownership opportunity housing under it.\nThe provision therefore has been retained (\xc2\xa7 805.103(c).)\n41 Fed Reg. 10152 (Mar 9, 1976). In promulgating the 1979 amendments to these regulations, HUD again\nexplained that\n[tjhe basic obstacle so far to the use of the Section 8 Program on Indian reservations has been the\nproblem of obtaining private financing by an owner (whether it be a private owner or an IHA) for the\nconstruction or acquisition o r rehabilitation of a project\n44 Fed. Reg. 64204 (Nov 6, 1979) (Indian housing, final rule). These regulations simply assume that Indian\nhousing will be situated in Indian areas\n\n307\n\n\x0cThus, the Housing Act, its legislative history, and the accompanying Indian\nhousing regulations all indicate that insofar as Congress intended to treat Indians\nspecially under the Act, federal assistance would be directed to Indian areas. The\nAct is silent on the possibility of Indian-only off-reservation housing. If Congress\nhas not authorized preferential treatment as part of the unique relationship\nbetween the federal government and the Indian Tribes, the Court has found that to\ninterpret the law specially for Indians is \xe2\x80\x9c not shown to be necessary to the\nfulfillment of the policy of Congress to protect a less-favored people against their\nown improvidence or the over-reaching of others; nor is it conceivable that it is\nnecessary, for the Indians are subjected only to the same rule of law as are others\nin this state. . . .\xe2\x80\x9d United States v. Oklahoma Gas C o., 318 U.S. 206, 211\n(1943). Indeed, if the special treatment of Indians cannot be grounded in their\nunique status as political entities\xe2\x80\x94 formerly sovereign nations which still retain a\nmeasure of inherent sovereignty over their people\xe2\x80\x94 and if no federal statute or\npractice exists that reflects this determination in regard to urban housing, to treat\nIndians other than as ordinary citizens would constitute impermissible discrimi\xc2\xad\nnation. See F ishery. D istrict Court, 424 U.S. 382, 390 (1976); Superintendent of\nFive C ivilized Tribes v. Commissioner o f Internal Revenue, 295 U.S. 418, 421\n(1935). Cf. M orton v. Mancari, 417 U.S. at 548 (exemptions in Title VII for\ntribal employment and preferential treatment by business on or near a reservation\nreveal \xe2\x80\x9c clear congressional sentiment that an Indian preference in the narrow\ncontext of tribal or reservation-related employment did not constitute racial\ndiscrimination of the type otherwise proscribed\xe2\x80\x9d ). Here, in the absence of an\nexpress congressional indication specifically referring to Indian preferences in\nurban housing programs, \xe2\x80\x9c Indians are subject only to the same rule of law as are\nothers.\xe2\x80\x9d F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 119; Oklahoma Tax\nCom m \xe2\x80\x99n v. United States, 319 U .S. 598, 607 (1944); United States v. Oklahoma\nG as C o ., 318 U.S. at 211.\nBecause the Housing Act, and administrative practice thereunder have not\nestablished off-reservation Indian housing preferences, Titles VI and VIII cannot\nbe read to impliedly repeal such a preference. Cf. Morton v. Mancari, 417 U.S. at\n550-551 (Equal Employment Opportunity Act of 1972 did not supersede specific\nstatutory preference for Indians). The only remaining question is whether the\nextent of discretion over tenant selection authorized by Section 8 would enable a\nPHA or owner to condition tenant eligibility on membership in a recognized\ntribe. That is, has Congress sanctioned any preference concepts in the Section 8\nregulations that could conceivably cover an Indian-exclusive tenant policy? Such\na preference must either be consistent with Titles VI and VIII or be expressly\naccepted by Congress as superseding the general nondiscrimination require\xc2\xad\nments of those earlier statutes. See Fullilove v. Klutznick, 448 U.S. 448,492 n.77\n(1980) (later, specific preference provision supersedes earlier general non\xc2\xad\ndiscrimination statute).\nD . Section 8 and HUD Regulations fo r Tenant Selection in Section 8\nHousing Permit No Specific Preferences That Could be Read to Include an\nIndian Preference.\n\n(1) As noted above in Section II. A, Section 8 itself places the duty of tenant\nselection on the housing owner and creates an express statutory preference only\n308\n\n\x0cfor families which occupy substandard housing or are involuntarily displaced.\nThe regulations describing the policies and procedures applicable to Section 8\nModerate Rehabilitation Programs under the Housing Act are set forth at 24\nC.F.R. \xc2\xa7 882, with special procedures for moderate rehabilitation in subparts D\nand E (1981).13 On the one hand, the regulations explicitly single out certain\ngroups for attention. For example, in submitting an application for a moderate\nrehabilitation program, the PHA must certify that it will take \xe2\x80\x9c affirmative action\nto provide opportunities to participate in the Program to those elderly persons\nexpected to reside in the locality and those Familys [sic] expected to reside in the\ncommunity as a result of current or planned employment. . . .\xe2\x80\x9d 24 C.F.R.\n\xc2\xa7 882.503(b)(l)(ii). The PHA must further certify \xe2\x80\x9c that the PHA will provide a\npreference for . . . Families displaced as a result of Moderate Rehabilita\xc2\xad\ntion. . . 24 C.F.R. \xc2\xa7 882.503(a)(2)(ii)(C). On the other hand, they provide no\nindication that the Secretary of HUD could make funds available to an Urban\nHousing program open only to Indians who are enrolled tribal members. Indeed,\na PHA applying for federal funds under Section 8 must include an equal\nopportunity housing plan in its submission. 24 C.F.R. \xc2\xa7 882.503(b).\nWhile the somewhat circular nature of the regulations makes it difficult to\ndetermine what an equal opportunity plan entails,14 there is no reason to believe\nthat the language does not mean what it says: no discrimination. The only\npreferential treatment expressly permitted by the regulations defining the equal\nopportunity plan is that \xe2\x80\x9c the PHA may establish a preference for applicants\ncurrently residing in that neighborhood who are being directly displaced by HUD\nprograms.\xe2\x80\x9d 24 C.F.R. \xc2\xa7 882.517(b). This preference both reflects the Section 8\nstatutory language and does not conflict with Title VI and VIII or the Fifth\nAmendment.\nSignificantly, the permissibility of any preferences is circumscribed by the\nrequirement that the equal opportunity plan must include \xe2\x80\x9c signed certification of\nthe applicant\xe2\x80\x99s intention to comply with Title VI of the Civil Rights Act of 1964;\nTitle VIII of the Civil Rights Act of 1968; [and] Executive Order 11246. . . .\xe2\x80\x9d 24\nC.F.R. \xc2\xa7 882.503(b)( 1)(ii).15 In contrast to other legislation and^regulations that\nexpressly authorize agencies to take affirmative action which favors members of\ncertain disadvantaged racial or ethnic groups to the exclusion of other persons,\nnothing in the regulations for Section 8 sanctions a racially or ethnically ex\xc2\xad\nclusive tenant policy. Cf. Fullilove v. Klutznick, 448 U.S. 448 (upholding Public\n13 The special procedures for moderate rehabilitation programs were promulgated m 1979. See 44 Fed Reg.\n26670 (May 4, 1979)\n14 The plan must describe the PHA\xe2\x80\x99s policies for \xe2\x80\x9c [sjelecting from among eligible applicant Families those to be\nreferred to O w ners\nincluding any provisions e stab lish in g p references for sele c tio n .\xe2\x80\x9d 24 C F.R\n\xc2\xa7 882.503(b)(1)(C) The only indication of what those preferences might encompass appears in 24 C.F.R\n\xc2\xa7 882 517(b). But \xc2\xa7 882.517(b) refers back to \xc2\xa7 882 503 in stating that \xe2\x80\x9c [t]he PHA must select Families for\nparticipation in accordance with the provisions of the Program and in accordance with the PHA\xe2\x80\x99s application,\nincluding any PHA requirements or preferences as approved by HUD. (See 24 C F.R \xc2\xa7 882 503(b)(l)(i)(C)).\xe2\x80\x99\xe2\x80\x99\n13 HUD has also issued specific regulations effectuating the provisions of Title VI 24 C F R . \xc2\xa7 1.1 (1981)\nAnalogous to the Section 8 regulations, the Title VI regulations permit recipients of federal financial assistance\noperating low-rent housing under the Housing Act of 1937 to assign applicants to dwelling units based on\npreferences or priorities established by the recipient\xe2\x80\x99s regulations and approved by HUD But these preferences may\nnot be \xe2\x80\x9c inconsistent with the objectives of Title VI of the Civil Rights Act of 1964 and this Part I \xe2\x80\x9d 24 C F R . \xc2\xa7 1.4\nThe HUD regulations effectuating Title VI were issued in 1973 See Fed Reg 17949 (July 5, 1973).\n\n309\n\n\x0cWorks Employment Act of 1977, 42 U.S.C. \xc2\xa7\xc2\xa7 6701-6710 which establishes in\n\xc2\xa7 103(f)(2) a minority business enterprise set-aside). Pub. L. No. 95-28,91 Stat.\n116, 117 (1977). In light of the express protections for the elderly, the handi\xc2\xad\ncapped, or displaced families, the absence of explicit preferences for racial or\nethnic groups, and the nondiscrimination obligations imposed on HUD by Titles\nVI and VIII, HUD would appear to have no discretion to direct Section 8 funds to\nprograms exclusively designed for a special racial or ethnic group, including\nurban Indians.\nE. N o Sufficiently Explicit Tenant Preference Provision Exists to Constitute\nan Exception to Title VI Requirement.\n\nHaving determined that neither Section 8 of the Housing Act nor the Section 8\nregulations expressly sanction any preference that conceivably could cover urban\nIndians, two rules of statutory construction are relevant. First, in the absence of\nany legislative indication or administrative practice, there is no basis for inter\xc2\xad\npreting the word \xe2\x80\x9c preference\xe2\x80\x9d in the regulations, 24 C.F.R. \xc2\xa7 882.503(b), to\ninclude an urban \xe2\x80\x9c Indian only\xe2\x80\x9d policy. C f M orton v. Mancari, 417 U.S. 535. As\nwe concluded in II. C. (1) and (2) above, with respect to urban housing, Indians\nstand on no different footing than do other minorities in our pluralistic society.\nCongress has expressed no intent to treat urban Indians preferentially, and, in\nlight of the congressional silence, such a determination \xe2\x80\x9c cannot rest on dubious\ninferences.\xe2\x80\x9d Oklahoma Tax Comm\'n v. United States, 319 U.S. at 607.\nSecond, C ongress enacted Section 8 against the backdrop of the non\xc2\xad\ndiscrimination statutes. HUD regulations specifically incorporated Title VI re\xc2\xad\nquirements. See n.15 infra. Congress cannot have been unaware of these laws\nand therefore its silence concerning urban Indian housing preferences cannot be\ninterpreted as an implied repeal of the earlier nondiscrimination provisions. See\nWatt v. Alaska, 451 U.S. at 267\xe2\x80\x94213, Morton v. Mancari, 417 U.S. at 549-550.\nThe presumption against implied repeals requires that the legislature\xe2\x80\x99s intention\nto repeal must be \xe2\x80\x9c clear and manifest.\xe2\x80\x9d United States v. Borden C o., 308 U.S.\n188, 198 (1939). Nothing in the legislative history of Section 8 indicates\naffirmatively a congressional intent to exempt urban Indians from the existing\nprohibitions on discrimination. The absence of a statutory preference for Indianonly urban housing and the lack of administrative precedent for providing\nSection 8 funds to Indian-only urban programs clearly do not constitute such a\nmanifest intent to exempt Indians from the otherwise applicable requirements of\nTitle VI and VIII. We conclude that HUD has no discretion to direct Section 8\nfunds to programs exclusively designed for urban Indians.\nIn reaching this conclusion, we would add that the present situation differs\nfrom that in M orton v. Ruiz, 415 U.S. 199 (1974), which involved a conflict\nbetween a congressional intent to benefit Indians near the reservation and an\nagency\xe2\x80\x99s 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\nregulations it had no discretion to provide general assistance to off-reservation\n310\n\n\x0cIndians. 415 U.S. at 204. But the Court noted that the BIA had represented to\nCongress that Indians \xe2\x80\x9c on or near\xe2\x80\x9d reservations were eligible for benefits, and\nCongress accordingly had appropriated funds to cover welfare services for\nIndians residing at least \xe2\x80\x9c on or near\xe2\x80\x9d reservations. 415 U.S. at 229-30. The\nCourt, therefore, found the agency\xe2\x80\x99s position that it could not provide offreservation benefits inconsistent with the congressional intent to benefit Indians\n\xe2\x80\x9c on or near\xe2\x80\x9d a reservation.\nHere, however, Congress has evinced an intent to provide \xe2\x80\x9c Indian only\xe2\x80\x9d\nhousing solely on reservations or similarly owned Indian areas. See Indian and\nAlaskan Native Housing Programs, Hearings Before the Subcommittee on H ous\xc2\xad\ning and Community Developments c f the Comm, on Banking, Finance and\nUrban Affairs, House c f Representatives, 96th Cong., 2d Sess. (1980) (no\n\nindication throughout hearings that \xe2\x80\x9c Indian only\xe2\x80\x9d programs are intended for offreservation Indians). Moreover, the one time that Congress explicitly targeted\nfunds for Indian housing, it expressly prohibited the use of such funds for Section\n8 housing. S e e 42 U.S.C. \xc2\xa7 1437c(c) (1976);16 H.R. Rep. No. 1114, 93dC ong.,\n2d Sess. 25 (1974). Notwithstanding the general rule of statutory construction\nthat legislation involving Indians is to be construed in their favor, we find no\nevidence whatsoever that Congress intended to provide Section 8 rental assist\xc2\xad\nance specially for Indians in an off-reservation context. Therefore, the policy of\nconstruing any ambiguities to the benefit of Indians does not even come into play.\nSee Cramer v. United States, 261 U.S. 219, 229 (1923) (government protects\nrights of Indians if such rights are recognized in statute or flow from settled\ngovernmental policy).\nIII. Conclusion\nSection 8 provides no authority for HUD to make federal funds available to an\nurban Moderate Rehabilitation Program whose occupancy is limited to Indian\ntribal members. Nor do the Indian housing regulations envisage \xe2\x80\x9c Indian only\xe2\x80\x9d\nhousing programs in urban areas with respect to which Indian tribes have no\nunique, semi-sovereign relationship. In the absence of any federal legislation or\nregulations recognizing Congress\xe2\x80\x99 special relationship to the Indians with respect\nto urban housing or authorizing HUD to assist specially urban Indian housing, we\nconclude that Congress intended to treat Indians in the same manner as all other\ncitizens for purposes of Section 8 Moderate Rehabilitation Housing in urban\n16 In pertinent part, \xc2\xa7 1437c(c) stated:\nIn addition, the Secretary shall enter into contracts for annual contributions, out of the aggregate\namount of contracts for annual contributions authorized under this section to be entered into on or\nafter July 1, 1974, aggregating at least $15,000,000 per annum, which amount shall be increased by\nnot less than $ 15,000,000 per annum , on July 1, 1975, and by not less than $ 17,000,000 per annum\non October 1, 1976, to assist in financing the development acquisition cost of low-income housing\nfor families who are members of any Indian tribe, band, pueblo, group, or community of Indians or\nAlaska Natives which is recognized by the Federal Government as eligible for service from the\nBureau of Indian Affairs, or who are wards of any State government, except that none of the funds\nmade available under this sentence shall be available for use under section 1437f of this title.\nLater amendments did not specifically target funds to Indians\n\n311\n\n\x0careas. See F.P.C. v. Tuscarora Indian Nation, 362 U.S. at 118. HUD, therefore,\nhas no discretion to provide tenant rental assistance to a Section 8 program with\nan exclusive occupancy policy.\nWe would add that nothing in this opinion is intended to suggest that a housing\nproject intended to serve the particular needs identified by St. Paul authorities in\nthis case could not be approximated by developing tenant occupancy policies\nbased on the various types of preferences which are authorized under the Housing\nAct and Section 8. We conclude only that HUD is presently without statutory\nauthority to grant Section 8 funds to an urban rehabilitation program restricted in\nits occupancy exclusively to Indians.\nT\n\nheodore\n\nB . O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n312\n\n\x0c'


b'Immigration and Naturalization Service\nParticipation in Computer Matching Program\nwith Department of Education\nT he Im m igration and N aturalization Service has legal authority to participate in a co m p u ter\nm atching p ro g ram with the D epartm ent o f Education in order to verify the im m igration\nstatus o f alien applicants for federal student aid under Title IV o f the H igher E ducation A ct\no f 1965.\n\nSeptember 21, 1992\nM\n\nem orandum\n\nD\n\nata\n\nO\n\np in io n fo r t h e\n\nSecretary\n\nIn t e g r it y B o a r d\n\nYou requested our opinion whether the Immigration and Naturalization\nService (\xe2\x80\x9cINS\xe2\x80\x9d) has legal authority to participate in a computer matching\nprogram with the Department of Education (\xe2\x80\x9cEducation\xe2\x80\x9d) involving alien\napplicants for federal student aid under Title IV of the Higher Education Act\nof 1965. As explained in more detail below, we conclude that INS does\nhave legal authority to participate in the matching program at issue.\nI.\nPursuant to section 4 of the Computer Matching and Privacy Protection\nAct of 1988 (\xe2\x80\x9cAct\xe2\x80\x9d), 5 U.S.C. \xc2\xa7 552a(u)(l), the Attorney General established\nthe Data Integrity Board (\xe2\x80\x9cBoard\xe2\x80\x9d) to oversee the Justice Department\xe2\x80\x99s imple\xc2\xad\nmentation of the Act. See Att\xe2\x80\x99y Gen. Order No. 1351-89 (June 7, 1989).\nThe Act requires the Board to review and approve all written agreements\nthat provide for the disclosure of Department records, including INS records,\nthrough computer matching programs. 5 U.S.C. \xc2\xa7 552a(u)(3)(A).\xe2\x80\x98 The review\n\n1As defined in the Act, the term \xe2\x80\x9cmatching program\xe2\x80\x9d means\nany com puterized comparison o f . . . two or more automated systems of records or a system of\nrecords with non-Federal records for the purpose o f . . . establishing or verifying the eligibil\xc2\xad\nity of, or continuing compliance with statutory and regulatory requirements by, applicants\nfor, recipients or beneficiaries of, [or] participants in . . . assistance or payments under Fed\xc2\xad\neral benefit programs.\n5 U.S C. \xc2\xa7 552a(a)(8).\n\n159\n\n\x0cand approval process is intended to ensure compliance with relevant statutory\nand regulatory requirements. Id. One of those requirements is that the\nagreement \xe2\x80\x9cspecify[] . . . the purpose and legal authority for conducting the\n[matching] program.\xe2\x80\x9d Id. \xc2\xa7 552a(o)(l)(A).\nIn February 1990, the Board approved a matching agreement between\nINS and Education that gave Education access to the INS-created Alien\nStatus Verification Index (\xe2\x80\x9cASVI\xe2\x80\x9d) for the purpose of verifying that each\nalien applying for or receiving federal student aid is eligible for such assis\xc2\xad\ntance under 20 U.S.C. \xc2\xa7 1091(a)(5).2 Before granting its approval, the Board\nrequested that INS and Education provide the Board with the \xe2\x80\x9clegal author\xc2\xad\nity\xe2\x80\x9d for their participation in the program. INS relied upon section 103 of\nthe Immigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d), which charges the Attorney\nGeneral \xe2\x80\x9cwith the administration and enforcement of [the INA] and all other\nlaws relating to the immigration and naturalization of aliens.\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1103(a). With minor exceptions not relevant here, the Attorney General\nhas delegated the authority conferred upon him by section 103 to INS. 28\nC.F.R. \xc2\xa7 0.105(a).\nIn its initial approval of the INS-Education matching agreement and in a\nsubsequent annual review of the agreement, the Board expressed reserva\xc2\xad\ntions about the sufficiency of section 103 as authority for INS participation\nin the program. The Board stated its view that section 121 of the Immigra\xc2\xad\ntion Reform and Control Act o f 1986 (\xe2\x80\x9cIRCA\xe2\x80\x9d), Pub. L. No. 99-603, 100\nStat. 3359, 3384-94, may have \xe2\x80\x9csuperseded\xe2\x80\x9d section 103 of the INA, at least\nwith respect to matching programs such as the one between INS and Educa\xc2\xad\ntion. If INS lacks statutory authority to participate in the matching program,\nthe Board cannot continue to approve the INS-Education matching agreement.\n\nII.\nThe Board\xe2\x80\x99s reservations about INS\xe2\x80\x99s authority to participate in the match\xc2\xad\ning program with Education are based on the Board\xe2\x80\x99s concern that the Act\nprohibits all computer matching programs that are not supported by specific\nlegal authority, that is, a statute that specifically refers to, and affirmatively\nauthorizes, the matching program at issue. We conclude that this concern is\nunfounded. As explained below, the Act requires only that there be legal\nauthority for a source agency to disclose information to a recipient agency\n\n2 Section 1091(a)(5) provides that in order to receive any federally funded grant, loan, or work assis\xc2\xad\ntance, a student must\nbe a citizen or national of th e United States, a permanent resident o f the United\nStates, in the U nited States fo r other than a tem porary purpose and able to provide\nevidence from [INS] of his o r her intent to becom e a permanent resident, or a per\xc2\xad\nm anent resident of the Trust Territory of the Pacific Islands, Guam, or the Northern\nM ariana Islands.\n\n160\n\n\x0cwithout violating the Privacy Act\xe2\x80\x99s general prohibition against disclosures of\nrecords absent written consent of the persons to whom the records pertain.3\nNeither the Act itself nor any other legislation of which we are aware can\nreasonably be read to require that there be specific statutory authority for a\nmatching program in order for an agency to conduct such a program in\naccordance with the Act. Although the Act mandates that a matching agree\xc2\xad\nment \xe2\x80\x9cspecify[]\xe2\x80\x9d the legal authority for conducting the matching program, 5\nU.S.C. \xc2\xa7552a(o)(l), that requirement is procedural, not substantive. If the\nstatute required agencies to identify \xe2\x80\x9cspecific\xe2\x80\x9d legal authority for conducting\na matching program, an argument might be made that explicit statutory au\xc2\xad\nthority was required for the particular program in question. See Black\xe2\x80\x99s Law\nDictionary 1398 (6th ed. 1990) (defining \xe2\x80\x9cspecific\xe2\x80\x9d as \xe2\x80\x9c[p]recisely formu\xc2\xad\nlated or restricted; definite; explicit; of an exact or particular nature\xe2\x80\x9d). The\nterm \xe2\x80\x9cspecify[],\xe2\x80\x9d however, does not modify \xe2\x80\x9clegal authority.\xe2\x80\x9d Instead, it\nmerely indicates that the agency must identify some legal authority that\nsupports the program. See id. at 1399 (defining \xe2\x80\x9cspecify\xe2\x80\x9d as \xe2\x80\x9c[t]o mention\nspecifically; to state in full and explicit terms; to point out; to tell or state\nprecisely or in detail; to particularize, or to distinguish by words one thing\nfrom another\xe2\x80\x9d). Put another way, the term \xe2\x80\x9cspecify[]\xe2\x80\x9d focuses on the nature\no f the identification, rather than the nature of the thing to be identified.\nThis reading of the statutory text is supported by the legislative history of\nthe Act, which demonstrates that Congress did not intend to create any addi\xc2\xad\ntional substantive legal obstacles to the implementation of computer matching\nprograms: \xe2\x80\x9cProvided that the new procedures in [the bill] have been com \xc2\xad\nplied with, any computer match that was lawful before passage of the bill\nwill continue to be lawful after passage.\xe2\x80\x9d H.R. Rep. No. 802, 100th Cong.,\n2d Sess. 22 (1988), reprinted in 1988 U.S.C.C.A.N. 3107, 3128.4 The House\nReport on the Act further indicates that the \xe2\x80\x9clegal authority\xe2\x80\x9d that must be\nspecified in a matching agreement is not legal authority for the matching\nprogram per se, but authority that confirms the \xe2\x80\x9clegality of [the] disclosures\nthat are necessary to support computer matching.\xe2\x80\x9d Id. at 21, reprinted in\n1988 U.S.C.C.A.N. at 3127. Thus, the House Report observes that \xe2\x80\x9c[w]here\nrecords are disclosed by one agency to another for use in matching, the\n\n3The Privacy A ct provides in part:\nNo agency shall disclose any record which is contained in a system of records by any\nmeans o f communication to any person, or to another agency, except pursuant to a written\nrequest by, or with the prior written consent of, the individual to whom the record pertains,\nunless disclosure of the record would be [consistent with one of twelve enumerated exceptions].\n5 U.S.C. \xc2\xa7 552a(b).\n4 When Congress intends to require agencies to obtain specific authorization in order to engage in a\nparticular activity that is otherwise within their authority, it does so explicitly. For example, in drafting\nthe provisions that govern the temporary or intermittent employment of experts and consultants, C on\xc2\xad\ngress specifically provided that an agency may procure the services of experts and consultants only\nwhen \xe2\x80\x9cauthorized by an appropriation or other statute.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3109(b). Similarly, although an\nagency m ight possess general authority to pay publicity experts in furtherance of its statutory m ission,\nCongress has explicitly barred such payment unless funds are "specifically appropriated for that pu r\xc2\xad\npose.\xe2\x80\x9d Id. \xc2\xa7 3107.\n\n161\n\n\x0cnormal legal authority for the disclosure comes from a routine use [as provided\nin 5 U.S.C. \xc2\xa7 552a(b)(3)].\xe2\x80\x9d5 Id. (emphasis added).\nBecause the legality of disclosures of agency records is generally deter\xc2\xad\nm ined by reference to the exceptions set forth in 5 U.S.C. \xc2\xa7 552a(b), the\n\xe2\x80\x9clegal authority\xe2\x80\x9d required by 5 U.S.C. \xc2\xa7 552a(o)(l) is the particular excep\xc2\xad\ntion under which disclosure is authorized. See Office of Management and\nBudget, Privacy Act o f 1974; Final Guidance Interpreting the Provisions of\nPublic Law 100-503, the Computer Matching and Privacy Protection Act of\n1988, 54 Fed. Reg. 25,818, 25,825 (1989) (\xe2\x80\x9c[B]ecause the Matching Act\ndoes not itself authorize disclosures from systems of records for the pur\xc2\xad\nposes o f conducting matching programs, agencies must justify any disclosures\nunder [the Privacy Act, 5 U.S.C. \xc2\xa7 552a(b)].\xe2\x80\x9d).6 In the case o f the INSEducation m atching program, the relevant exception is the routine use\nexception set forth in paragraph (3) of 5 U.S.C. \xc2\xa7 552a(b). See supra note 5.\nThe program requires INS to disclose records from the ASVI to Education.\nConsistent with 5 U.S.C. \xc2\xa7 552a(a)(7), using the ASVI to verify the immi\xc2\xad\ngration status of applicants for or recipients of federal benefits is \xe2\x80\x9ccompatible\xe2\x80\x9d\nwith the purpose for which the ASVI was created. Indeed, it is the central\npurpose of the ASVI. As enacted by section 121(a)(1)(C) of IRCA, 42\nU.S.C. \xc2\xa7 1320b-7(d)(3) requires the states, in determining eligibility for fed\xc2\xad\nerally funded benefit programs, to demand proof of satisfactory immigration\nstatus and to \xe2\x80\x9cutilize the individual\xe2\x80\x99s alien file or alien admission number to\nverify with [INS] the individual\xe2\x80\x99s immigration status through an automated\nor other system.\xe2\x80\x9d In section 121(c)(1) of IRCA, 100 Stat. at 3391, Congress\ndirected INS to \xe2\x80\x9cimplement a system for the verification of immigration\nstatus under [section 1320b-7(d)(3)].\xe2\x80\x9d That automated system is the ASVI.\nConsistent with 5 U.S.C. \xc2\xa7 552a(e)(4)(D), INS published a notice in the\nFederal Register to inform the public that states and federal agencies would\nmake use of the ASVI to verify the immigration status of applicants for\nfederal benefit programs. See Verification of Immigration Status of Aliens\nApplying for Benefits Under Certain Programs, 54 Fed. Reg. 5556 (1989).\nINS also published specific notice of the INS-Education computer matching\nprogram. See 55 Fed. Reg. 5904 (1990). Because the INS-Education match\xc2\xad\ning program meets the requirements of the routine use exception set forth in\n\xe2\x80\x99 The routine use exception to the general rule against the nonconsensual disclosure o f agency records\napplies when the disclosure would be \xe2\x80\x9c for a routine use as defined in subsection (a)(7) of this section\nand described under subsection (e)(4)(D) of this section.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552a(b)(3). Under subsection\n(a)(7), \xe2\x80\x9cthe term \xe2\x80\x98routine use\xe2\x80\x99 means, w ith respect to the disclosure of a record, the use of such record\nfo r a purpose which is compatible with the purpose for which it was collected.\xe2\x80\x9d Subsection (e)(4)(D)\nrequires that when an agency establishes or revises any system of records, it must publish a notice in the\nFederal R egister that includes \xe2\x80\x9ceach routine use o f the records contained in the system, including the\ncategories o f users and the purpose of such use.\xe2\x80\x9d\n\xe2\x80\x98 The OM B guidelines further state that \xe2\x80\x9c [s]ince the Com puter Matching Act provides no independent\nauthority for the operation of matching programs, agencies should cite a specific Federal or State statu\xc2\xad\ntory or regulatory basis for undertaking such programs.\xe2\x80\x9d Id. at 25,826. That the \xe2\x80\x9cbasis\xe2\x80\x9d for a matching\nprogram may include a state statute or a federal or state regulation provides additional support for the\nview that the Act should not be interpreted to require agencies to identify specific federal statutory\nauthority for m atching programs.\n\n162\n\n\x0c5 U.S.C. \xc2\xa7 552a(b)(3), there is \xe2\x80\x9clegal authority\xe2\x80\x9d for the matching program\nwithin the meaning of 5 U.S.C. \xc2\xa7 552a(o)(l)(A).7\nSection 121 of IRCA does not alter these conclusions. Section 121(a)(3)\nwould have required educational institutions participating in federal student\nassistance programs under Title IV of the Higher Education Act of 1965 to\nutilize an applicant\xe2\x80\x99s "alien file or alien admission number to verify with\n[INS] the individual\xe2\x80\x99s immigration status through an automated or other\nsystem.\xe2\x80\x9d 20 U.S.C. \xc2\xa7 1091(h)(3). Institutions using the verification system\nwould have been required to abide by certain procedures designed to protect\napplicants from erroneous verifications. See id. \xc2\xa7 1091(h)(4)-(6). Section\n121(c)(4)(B) of IRCA, however, gave Education authority to waive the ap\xc2\xad\nplication of IRCA to Title IV programs not later than April 1, 1988, if\nEducation determined that the costs of administering the verification system\notherwise required by IRCA would exceed the estimated savings generated\nby the system.8 By letter dated March 28, 1988, Education informed Con\xc2\xad\ngress of its decision to exercise this waiver authority.\nYou have asked whether, consistent with the statutory framework, Educa\xc2\xad\ntion can waive the procedural requirements of section 121(a)(3) of IRCA but\nstill use the ASVI, which was implemented pursuant to section 121(c)(1) of\nIRCA. You suggest that despite the waiver by Education, INS may be con\xc2\xad\nstrained to permit access to the ASVI only in accordance with the specific\nprocedures prescribed by section 121. A contrary conclusion, you argue,\nwould be inconsistent with Congress\xe2\x80\x99s decision to include student aid pro\xc2\xad\ngrams in section 121 of IRCA and thereby to subject them to that statute\xe2\x80\x99s\nprocedural requirements.\n\n7 The INS-Education matching program is also consistent with the general statutory authority o f the\ntwo agencies. The object of the program is to see that federal student assistance is not granted to persons\nwho are not eligible under 20 U.S.C. \xc2\xa7 1091(a)(5). See supra note 2. It is appropriate for INS to pursue\nthis object because section 1091(a)(5) is a law \xe2\x80\x9crelating to the immigration and naturalization o f aliens\xe2\x80\x9d\nsuch that it may be enforced by INS pursuant to section 103 of the INA, 8 U.S.C. \xc2\xa7 1103(a). It is appro\xc2\xad\npriate for Education to pursue this object because section 1091(a)(5) is part o f Title IV o f the Higher\nEducation Act o f 1965, and because Education funds and, in conjunction with institutions o f higher\neducation, administers programs authorized by Title IV. 5ee20U .S.C . \xc2\xa7\xc2\xa7 1070(b), 1072(a)(1), 1087b(a),\n1087aa(a).\n8 Section 121(c)(4)(B), 100 Stat. at 3392, provides:\nIf, with respect to [the system of grants, loans, and work assistance under Title IV of the\nHigher Education Act o f 1965], the [Secretary o f Education] determines, on the Secretary\xe2\x80\x99s\nown initiative or upon an application by an administering entity and based on such inform a\xc2\xad\ntion as the Secretary deems persuasive . . . , that \xe2\x80\x94\n(i) [the Secretary] or the administering entity has in effect an alternative system of\nimmigration status verification which \xe2\x80\x94\n(I) is as effective and timely as the system otherwise required under the am end\xc2\xad\nments made [to 20 U.S.C. | 1091] with respect to the program, and\n(II) provides for at least the hearing and appeals rights for beneficiaries that would\nbe provided under [such amendments], or\n(ii) the costs of administration o f the system otherwise required under such am end\xc2\xad\nments exceed the estimated savings,\n[the] Secretary may waive the application of such amendments to the covered program to the\nextent (by State or other geographic area or otherwise) that such determinations apply.\n\n163\n\n\x0cWe conclude that Education\xe2\x80\x99s waiver unequivocally relieves it of the obli\xc2\xad\ngation to comply with the procedural requirements of section 121 and that,\nin the present circumstances, INS may share ASVI-generated data on federal\nstudent aid applicants with Education without requiring Education to com\xc2\xad\nply with section 121. Congress\xe2\x80\x99s decision to include federal student assistance\nprograms among the programs covered by section 121 was conditional. Al\xc2\xad\nthough section 121(a)(3) requires each \xe2\x80\x9cinstitution of higher education\xe2\x80\x9d to\nobtain data on immigration status directly from INS, Congress gave Educa\xc2\xad\ntion express authority to waive this requirement if it found, \xe2\x80\x9cbased on such\ninformation as [Education] deem[ed] persuasive,\xe2\x80\x9d that the cost of institutionby-institution access to the ASVI would exceed the benefits of such access. See\nsupra note 8. That is, Congress granted Education the authority to determine\nwhether federal student aid programs should be included in section 121.\nOnce Education decided to waive the requirements of section 121(a)(3),\nhowever, it still faced the problem of enforcing, in a cost-effective manner,\nthe mandate of 20 U.S.C. \xc2\xa7 1091(a)(5) that federal student assistance be\ngranted only to aliens in a satisfactory immigration status. See supra note 2.\nA com puter matching program granting ASVI access to Education alone,\nrather than to every one of the thousands of educational institutions around\nthe country, was Education\xe2\x80\x99s preferred solution. Nothing in section 121 of\nIRCA prohibits INS from granting access to the ASVI in these circum\xc2\xad\nstances. M oreover, the institution-by-institution access to the ASVI\ncontemplated by section 121 and the Education-only access established by\nthe INS-Education matching agreement are quite different, precluding the\ninference that if Congress intended to regulate the former, it must have\nintended to regulate the latter. That Education need not comply with section\n121(a)(3) of IRCA does not mean that federal student aid applicants lack\nprocedural protections against erroneous determinations of their immigra\xc2\xad\ntion status by the ASVI, because the Computer Matching and Privacy\nProtection Act sets forth procedures similar to those set forth in section\n121(a)(3) that agencies must follow with respect to persons who are subject\nto matching programs. See 5 U.S.C. \xc2\xa7 552a(p).\n\nML\nWe conclude that INS does have legal authority to participate in a com\xc2\xad\nputer matching program with Education in order to verify the immigration\nstatus of alien applicants for federal student aid under Title IV of the Higher\nEducation Act of 1965.\nJOHN E. BARRY\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n164\n\n\x0c'


b'The Authority of the Bureau of the Census to Adjust\nPopulation Data for Purposes Other Than Apportionment\nT h e C o m m e rc e D e p artm e n t h a s th e a u th o rity to use sa m p lin g and o th e r re c o g n iz e d s tatistic a l p ro c e \xc2\xad\nd u re s in o rd e r lo c o rre c t th e u n a d ju ste d p o p u la tio n fig u res o b ta in e d in the d e ce n n ia l c e n s u s for\nth e y e a r 2 0 0 0 , a t least fo r p u rp o se s .o th e r th an p ro v id in g the b a sis fo r a p p o rtio n in g s e a ts in the\nU n ite d S ta te s H o u se o f R e p rese n ta tiv es.\n\nO ctober 7, 1998\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nO f f ic e o f M a n a g e m e n t & B u d g e t\n\nY o u have asked for our opinion whether the Secretary of Commerce ( \xe2\x80\x9c Sec\xc2\xad\nretary\xe2\x80\x9d ), and the Secretary\xe2\x80\x99s subordinate, the Director of the Bureau o f the\nCensus, have the authority, under existing statutory law, to use sampling and other\nrecognized statistical procedures in order to correct the unadjusted population fig\xc2\xad\nures obtained in the decennial census for the year 2000, at least for purposes\nother than providing the basis for apportioning seats in the United States House\nof Representatives. We believe that those officials have such authority.\nArticle I, Section 2, Clause 3, vests in Congress \xe2\x80\x9c virtually unlimited discretion\nin conducting the decennial \xe2\x80\x98actual Enumeration\xe2\x80\x99 \xe2\x80\x9d for which that Clause calls.\nWisconsin v. City o f New York, 517 U.S. 1, 19 (1996). \xe2\x80\x9c Through the Census\nAct, Congress has delegated its broad authority over the census to the Secretary.\nSee 13 U.S.C. \xc2\xa7 141(a).\xe2\x80\x9d Id. (footnote omitted). The Secretary\xe2\x80\x99s authority for\nestablishing census procedures may be delegated to the Director of the Bureau\nof the Census. See Franklin v. Massachusetts, 505 U.S. 788, 792, appeal dis\xc2\xad\nmissed, 505 U.S. 1215 (1992).\nThe provision in the Census Act primarily governing the Secretary\xe2\x80\x99s conduct\nof the decennial census is 13 U.S.C. \xc2\xa7 141 (1994) (\xe2\x80\x9c Population and other census\ninformation\xe2\x80\x9d ). Subsection 141(a) provides in part (emphasis added):\n\nThe Secretary shall, in the year 1980 and every 10 years there\xc2\xad\nafter, take a decennial census of population as of the first day of\nApril of such year, which date shall be known as the \xe2\x80\x9c decennial\ncensus date\xe2\x80\x9d , in such form and content as he may determine,\nincluding the use o f sampling procedures and special surveys.\nFurther, \xc2\xa7 141(b) provides that \xe2\x80\x9c [t]he tabulation of total population by States\nunder subsection (a) . . . as required for the apportionment of Representatives\nin Congress among the several States\xe2\x80\x9d is to be completed within nine months\nof the census date and reported to the President.\n239\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nAlthough (as \xc2\xa7 141(b) indicates) the \xe2\x80\x9c initial purpose\xe2\x80\x9d of the national decennial\ncensus was to provide a basis for apportioning seats in the House of Representa\xc2\xad\ntives among the States, \xe2\x80\x9c [t]he census today serves an important function in the\nallocation of federal grants to states based on population. In addition, the census\nalso provides important data for Congress and ultimately for the private sector.\xe2\x80\x9d\nBaldrige v. Shapiro, 455 U.S. 345, 353 (1982). For example, \xe2\x80\x9c [t]he Federal\nGovernment considers census data in dispensing funds through federal programs\nto the States, and the States use the results in drawing intrastate political districts.\xe2\x80\x9d\nWisconsin, 517 U.S. at 5 -6 .1\nThe authority of the Secretary under \xc2\xa7 141 over the procedures for conducting\nthe census is unquestionably broad. See Wisconsin, 517 U.S. at 19; Franklin, 505\nU.S. at 819 n.20 (Stevens, J., concurring) (\xc2\xa7 141(a) \xe2\x80\x9c gives the Secretary broad\ndiscretion with respect to the \xe2\x80\x98form and content\xe2\x80\x99 of the census\xe2\x80\x9d ). As one appellate\ncourt has said:\nThe Constitution directs Congress to conduct a decennial census,\nand the implementing statutes delegate this authority to the Census\nBureau. U.S. Const. Art. I, \xc2\xa7 2, cl. 3; 2 U.S.C. \xc2\xa7 2a; 13 U.S.C. \xc2\xa7 141.\nThere is a little more to the statutes \xe2\x80\x94 they specify a timetable,\nand a procedure for translating fractional into whole seats \xe2\x80\x94 but\nthey say nothing about how to conduct a census or what to do about\nundercounts.\nTucker, 958 F.2d at 1417.2\nWe recognize, o f course, the disputed question whether 13 U.S.C. \xc2\xa7 195 (1994)\nlimits the authority of the Bureau to make statistical adjustments for the specific\npurpose o f determining the population figures to be used in apportioning congres\xc2\xad\nsional seats. Section 195 ( \xe2\x80\x9c Use of sampling\xe2\x80\x9d ) provides:\n*See also 13 U.S C. \xc2\xa7 141(e)(1) (requiring use o f most recent data available from either decennial or mid-decade\ncensus for making eligibility determinations for federal grant programs based on taking account of data obtained\nin decennial census), Franklin, 505 U.S at 814 (Stevens, J , concurring) ( \xe2\x80\x9c [T]he census report is distributed to\nfederal and state agencies because it provides the basis for the allocation of various benefits and burdens among\nthe States under a variety o f federal programs. T he Secretary also transmits the census figures directly to the States\nto assist them in redistncting.\xe2\x80\x9d ); Glavin v. C linton, 19 F. Supp. 2d 543, 550 (E D . Va 1998) (three-judge district\ncourt) ( \xe2\x80\x9c [cjourts recognize that there is a direct correlation between decennial census population counts and federal\nand state funding allocations\xe2\x80\x9d ); National Law Ctr. on Homelessness & Poverty v Kantor, 91 F 3 d 178, 183-84\n(D C . Cir. 1996) (plaintiffs \xe2\x80\x9c receive federal monies pursuant to a host of \xe2\x80\x98census-based\xe2\x80\x99 programs\xe2\x80\x9d ); City o f Detroit\nv Franklin, 4 F.3d 1367, 1374 (6th C ir 1993) ( \xe2\x80\x9c m any federal programs do disburse funds based upon population\nfigures as reported in the decennial census\xe2\x80\x9d ), Tucker v United States D ep\xe2\x80\x99t o f Commerce, 958 F.2d 1411, 1415\n(7th C ir 1992) ( \xe2\x80\x9c the allocation o f state and federal funds is heavily influenced by census figures\xe2\x80\x9d ), City o f\nWillacoochee v. Baldrige, 556 F. Supp 551, 553 (S.D . Ga 1983) (identifying two programs that \xe2\x80\x9c distribute benefits\non the basis o f population data supplied by the Census Bureau\xe2\x80\x9d ); Jeffery S. Crampton, Lies, Damn Lies and Statistics\nDispelling Som e M yths Surrounding the United States Census, 1990 Det. C L. Rev 71, 87-91; Note, Demography\nand Distrust: Constitutional Issues o f the Federal C ensus, 94 Harv. L. Rev. 841, 844-45 (1981)\n2See also City o f Camden v. Plotkin, 466 F Supp. 44,52-53 (D N J 1978) (reviewing cases holding that there\nis only limited scope for judicial review o f methods used by Bureau o f Census).\n\n240\n\n\x0cThe A uthority o f the Bureau o f the Census to A djust Population D ata f o r P urposes O ther Than\nA pportionm ent\n\nExcept for the determination of population for purposes of appor\xc2\xad\ntionment of Representatives in Congress among the several States,\nthe Secretary shall, if he considers it feasible, authorize the use of\nthe statistical method known as \xe2\x80\x9c sampling\xe2\x80\x9d in carrying out the\nprovisions of this title.\nThis Office has followed several courts in concluding that \xc2\xa7 195 does not bar\nthe use of statistical adjustments even in determining the population count for\nuse in apportionment. See The Twenty-Second Decennial Census, 18 Op. O.L.C.\n184 (1994).3 Two recent decisions, however, have held otherwise. See Glavin,\n19 F.Supp. 2d at 550-53; United States House o f Representatives v. United States\nDep\'t o f Commerce, 11 F. Supp. 2d 76, 97-104 (D.D.C. 1998)(three-judge district\ncourt). The United States has appealed the latter of these two decisions to the\nSupreme Court, see Jurisdictional Statement, United States D ep\xe2\x80\x99t o f Commerce\nv. United States House o f Representatives, Sup. Ct. No. 98\xe2\x80\x94404 (O.T. 1997), and\nwe shall not address here the substantive question presented to the Court for\nreview. The sole question we presently consider is whether, even if the \xe2\x80\x98\xe2\x80\x98except\xe2\x80\x99 \xe2\x80\x99\nclause in \xc2\xa7 195 limits the Secretary\xe2\x80\x99s authority to use statistically adjusted popu\xc2\xad\nlation figures for purposes of apportionment, \xc2\xa7\xc2\xa7 141 and 195 otherwise authorize\nhim to adjust such population data for all other purposes for which such data\nare used. In our opinion, the Secretary does possess such statutory authority under\nthe Census Act.\nFirst, the plain language of both \xc2\xa7 141 and \xc2\xa7 195 vests the Secretary with the\nauthority to use methods of statistical adjustment in deriving final population fig\xc2\xad\nures. Section 141(a) authorizes theSecretary to \xe2\x80\x9c take a decennial census of popu\xc2\xad\nlation . . . in such form and content as he may determine, including the use of\nsampling procedures and special surveys\xe2\x80\x9d (emphasis added). Subsection 141(g)\ndefines \xe2\x80\x9c census of population\xe2\x80\x9d to mean \xe2\x80\x9c a census of population, housing, and\nmatters relating to population and housing.\xe2\x80\x9d Thus, the Secretary is authorized\nto use techniques of statistical adjustment in determining population figures, as\nwell as in collecting other types of information sought in the census. Similarly,\nthe plain terms of \xc2\xa7 195 affirmatively direct the Secretary to use sampling in \xe2\x80\x9c car\xc2\xad\nrying out the provisions\xe2\x80\x9d of the Census Act \xe2\x80\x9c if he considers it feasible\xe2\x80\x9d to do\nso (again, with the arguable exception of apportionment). The provisions of the\nAct of course include the statutory charge to take a census o f the population.\nEven the two courts that have held that the \xe2\x80\x9c except\xe2\x80\x9d clause of \xc2\xa7 195 limits\nthe Secretary\xe2\x80\x99s authority under \xc2\xa7 141 appear to acknowledge that the plain lan\xc2\xad\nguage of \xc2\xa7 141 authorizes the Secretary to use sampling and other such statistical\nprocedures in contexts other than apportionment. \xe2\x80\x98\xe2\x80\x98A reading of the plain language\n1 See also City o f N ew York v United States D ep\xe2\x80\x99t o f Commerce, 34 F 3 d 1114, 1124\xe2\x80\x9425 (2d Cir 1994), rev 7/\non other grounds sub nom , Wisconsin v City o f New York, 517 U.S 1 (1996); Carey v. Klutznick, 508 F. Supp\n404, 415 (S.D N Y 1980), City o f Philadelphia v Klutznick, 503 F Supp 663, 679 (E.D Pa 1980), Young v\nKlutznick, 497 F. Supp 1318, 1334-35 (E.D. Mich 1980), rev\'d on other grounds, 652 F.2d 617 (6th C ir 1981)\n\n241\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nof Section 141 itself . . . establishes that Congress\xe2\x80\x99 intent was to authorize sam\xc2\xad\npling for numerous purposes of the census other than congressional apportion\xc2\xad\nment. . . . [T]he only plausible interpretation o f the plain language and structure\nof the Act is that Section 195 prohibits sampling for apportionment and Section\n141 allows it fo r all other purposes.\'" Glavin, 19 F. Supp. 2d at 551-53 (emphasis\nadded). See also United States House o f Representatives, 11 F. Supp. 2d at 104\n( \xe2\x80\x9c sampling should be used in any and all areas in which that use is legal and/\nor constitutional, but . . . not . . . in . . . apportionment\xe2\x80\x9d ) (emphasis added)).\nWe note also that the House of Representatives takes the position that \xc2\xa7\xc2\xa7 141\nand 195 \xe2\x80\x9c indisputably permit (indeed, require) the use of sampling in the decen\xc2\xad\nnial census to collect a myriad of statistical data about our nation.\xe2\x80\x9d Memorandum\nfor Plaintiff United States House o f Representatives in Support of its Motion for\nSummary Judgment, at 30, United States House o f Representatives v. United States\nD ep\xe2\x80\x99t o f Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998). The House further argues\nthat \xe2\x80\x9c [sjection 141(a) gives the Secretary the general authority to use sampling\nand special surveys in the decennial census to collect data respecting population\nand housing. That section surely permits sampling in lieu of a complete enumera\xc2\xad\ntion for purposes other than apportionment.\xe2\x80\x9d Id. at 37 (emphasis added).4\nThe legislative history of the provisions in question also supports the under\xc2\xad\nstanding advanced here. Consider first \xc2\xa7 195. As originally enacted in 1957, \xc2\xa7 195\nauthorized, rather than required, the use of sampling. See Pub. L: No. 85-207,\n\xc2\xa714, 71 Stat. 481, 484 (1957) (Secretary \xe2\x80\x9c may, where he deems it appropriate,\nauthorize . . . \xe2\x80\x98sampling\xe2\x80\x99 \xe2\x80\x9d ); 18 Op. O.L.C. at 193-94. Congress amended the\nsection in 1976 to require the Secretary to use sampling, whenever \xe2\x80\x9c feasible\xe2\x80\x9d\n(i.e., possible). See Pub. L. No. 94\xe2\x80\x94521, \xc2\xa7 10, 90 Stat. 2459, 2464 (1976); City\no f New York, 34 F.3d at 1125. The Conference Report states that the amendment\n\xe2\x80\x9c differ[ed] from the [original] provisions of section 195 which grant[ed] the Sec\xc2\xad\nretary discretion to use sampling when it [wa]s considered appropriate. The sec\xc2\xad\ntion, as amended, strengthens the congressional intent that, whenever possible,\nsampling shall be used.\xe2\x80\x9d H.R. Conf. Rep. No. 94-1719, at 13 (1976), reprinted\nin 1976 U.S.C.C.A.N. 5476, 5481 (emphasis added). See also S. Rep. No. 94\xe2\x80\x94\n1256, at 6 (1976), reprinted in 1976 U.S.C.C.A.N. 5463, 5468.\nSection 141(a) was also amended by the same 1976 legislation. See Pub. L.\nNo. 94\xe2\x80\x94521, \xc2\xa77(a), 90 Stat. at 2461. The amendatory language authorized the\nSecretary to take the decennial census \xe2\x80\x9c in such form and content as he may deter\xc2\xad\nmine, including the use of sampling procedures and special surveys.\xe2\x80\x9d Id. The\nSenate Report on this amendment states that it was \xe2\x80\x9c added at the end o f the\nsubsection to encourage the use o f sampling and surveys in the taking of the\ndecennial census.\xe2\x80\x9d S. Rep. No. 94\xe2\x80\x941256, at 4, reprinted in 1976 U.S.C.C.A.N.\nat 5466. M ore generally, in describing the purposes of the 1976 legislation as\n4 See also U nited States House o f Representatives, 11 F. Supp 2d at 103 (noting that the House views \xc2\xa7 141(a)\nas conferring \xe2\x80\x9c broad authorization\nto use sampling in most aspects of data collection\xe2\x80\x9d )\n\n242\n\n\x0cThe A uthority o f the Bureau o f the C ensus to A djust Population Data f o r P urposes O ther Than\nApportionm ent\n\na whole, the Senate Report explained that one of its purposes was \xe2\x80\x9c to direct\nthe Secretary of Commerce to use sampling and special surveys in lieu of total\nenumeration in the collection of statistical data whenever feasible.\xe2\x80\x9d Id. at 1,\nreprinted in 1976 U.S.C.C.A.N. at 5464.\nIn light of the plain meaning of \xc2\xa7\xc2\xa7 141 and 195, the judicial and congressional\nconstruction given to those sections, and the legislative history of the 1976 amend\xc2\xad\nments to them, we conclude that they permit the Secretary to make statistical\nadjustment to an initial population count for \xe2\x80\x94 at least \xe2\x80\x94 all purposes other than\nproviding the basis for apportionment.\nIn addition, we have reviewed the provisions of some 140 statutes that your\nOffice advised us depend on population figures or census data for their\nimplementation. We determined that nothing in the terms of any of these provi\xc2\xad\nsions prohibits the Bureau of the Census from using sampling in deriving popu\xc2\xad\nlation figures.\nTODD D. PETERSON\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n243\n\n\x0c'