A tribal nation that wants to invest the interest on federal housing grants described its position to a three-judge panel of the U.S. 10th Circuit Court of Appeals on May 7.
The Muscogee (Creek) Nation in Muscogee (Creek) Nation v. U.S. Department of Housing & Urban Development charges that the U.S. Department of Housing and Urban Development (HUD) is incorrect in some fiscal practices under the Native American Housing and Self-Determination Act (NAHASDA).
The Nation has filed an appeal following a ruling against it in 2010 in District Court for the District of Eastern Oklahoma (District Court) which agreed with HUD that the agency was immune from litigation under the federal Administrative Procedure Act.
In oral argument recently before the federal appeals court, the Nation contended the issue centered on how to interpret the original language of NAHASDA, including defining the intent of grant funds from HUD and the proper income tribes can use from the funds and for how long.
Although HUD had capped the Nation’s obtaining interest income from housing grants at 2 years, the limit was “merely a procedural issue,” the Nation said, suggesting that HUD investment policy was an “interpretive” regulation carrying the force of law even though the language of the statute is ambiguous.
The federal agency said the issue is in interpreting the statute, not in focusing on what happened later—the time at which interest began to accrue.
Interest income that goes to tribes doesn’t go into the U.S. Treasury, HUD pointed out; the government said it could forego interest for two years, but can’t afford to lose more income: tribes “can’t keep interest indefinitely.”
The Nation in District Court challenged the lifting of an injunction that would have prohibited HUD from recouping $1.3 million of investment income the Nation had paid the federal agency.
The Nation had requested the current oral argument before the 10th Circuit to allow the justices to obtain clarification. They will rule at an unspecified future date.