Tribal Employment Rights in HUD Programs Here on behalf of ONAP’s Deputy Assistant Secretary, Heidi Frechette, who was unable to attend herself due to her travel schedule Thank the Eastern Band of Cherokees for their warm hospitality Thank CTER and their staff for their work organizing the conference How many folks are from tribal housing departments or who have some familiarity with HUD programs? Goal is to provide you with a broad overview of HUD programs and the employment and labor requirements that come with HUD funding. Council for Tribal Employment Rights Alyce Thompson August 1, 2018

Indian Housing Block Grant (IHBG) Title VI Loan Guarantees Program Indian Community Development Block Grant (ICDBG) Tribal HUD-VA Supportive Housing Section 184 Loan Guarantee Program Healthy Homes Production Grant Program for Tribal Housing Majority of Indian specific programs are administered by the Office of Native American Programs (ONAP), however, other specialty offices within HUD will get funding that’s specifically targeted towards tribes. For example, HUD’s Healthy Homes office currently has funding specifically for tribes to remediate housing with health hazards such as lead or meth.   Programs that are administered outside of ONAP may not understand the unique circumstances in Indian Country, and working with tribes. If you run into challenges, never hesitate to bring in your Area ONAP office to help you run interference with other HUD offices. HUD offers a combination of programs, some of which are formula, some are competitive funding, some fund tribes and housing authorities, while others support individuals directly. Footer Text

Indian Housing Block Grant Authorized under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) Grants distributed annually by formula based on Census data and the number of houses developed under previous HUD programs for tribal housing Appropriated approximately $650 million in recent years. Grants range from 75K – 80M Administered by the Tribe or the Tribally Designated Housing Entities (TDHEs) authorized by the Tribe Self-determination based. Tribes choose what to spend their money on – planned for annually in an Indian Housing Plan (IHP) Tribally-driven housing policy tailored to local needs For today, I’ll be focusing on our largest programs, the Indian Housing Block Grant and Indian Community Development programs, as these programs provide the most significant employment opportunities depending on how tribes choose to use their funding. Self-determination comes into play when we look at the very broad range of activities tribes can choose to carry out. HUD does review and approve the plans, but we’re primarily checking to ensure that the proposed activities fall under the categories permitted by the statute. We’re not approving based on which activities the tribe chooses. From an employment perspective, some activities create more employment opportunities than others, and at different skill and education levels. For example, construction and housing rehab versus housing counseling. If you’re tasked with creating economic opportunities for your citizens, don’t overlook the annual planning process for IHBG funds.

Eligible Activities Housing Development Housing Services Acquisition, new construction, reconstruction, infrastructure, modernizing 1937 Act housing Housing Services Housing counseling, youth activities, supporting resident organizations, self-sufficiency activities, etc. Housing Management Services Inspections, tenant selection, operating costs, maintenance Crime Prevention and Safety Activities Safety, security, and law enforcement measures for low-income residents Model Activities Affordable housing related activities, as approved by HUD on a case by case basis – NAHASDA related equipment storage warehouses, community washterias, day care centers Admin and Planning, Reserve Accounts May use 20 or 30% of grant funds, depending on grant size or annual expenditures Footer Text

Employment Preferences Two Options: Indian Preference requirements from 7(b) of the Indian Self-Determination and Education Assistance Act (ISDEAA) OR Tribal preference laws Footer Text 2/5/2019

Indian Preference ISDEAA Section 7(b) provides that any contract, subcontract, grant, or subgrant pursuant to an act authorizing grants to Indian organizations or for the benefit of Indians shall require that, to the greatest extent feasible: (i) Preference and opportunities for training and employment shall be given to Indians; and (ii) Preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452). Default requirement Footer Text 2/5/2019

Tribal Preference NAHASDA states: “Tribal Preference in Employment and Contracting- Notwithstanding any other provision of law, with respect to any grant (or portion of a grant) made on behalf of an Indian tribe under this Act that is intended to benefit 1 Indian tribe, the tribal employment and contract preference laws (including regulations and tribal ordinances) adopted by the Indian tribe that receives the benefit shall apply with respect to the administration of the grant (or portion of a grant).” 25 U.S.C. 4111(k) Footer Text 2/5/2019

Tribal Preference Requirements Tribal Laws, ordinances, or regulations override the Federal Indian preference requirements Gives tribes the maximum flexibility to tailor requirements to their community Can give preference to their tribal members over members of other tribes Can specify preferences in workforce reductions or layoffs Does not apply to de minimus/ micro-purchase procurements (less than $10,000) Footer Text 2/5/2019

Davis-Bacon Labor Standards The Davis-Bacon Act requires laborers and mechanics working on Federal construction projects be paid locally prevailing wages Davis-Bacon requirements have been applied by statute to other Federal assistance, including some ONAP programs – IHBG, Title VI Generally administered by the Department of Labor, which issues prevailing wage rates for localities around the country, though this can complicated Footer Text 2/5/2019

Davis-Bacon in IHBG The complication: Under the U.S. Housing Act, HUD, not the Department of Labor, determines some wages. Per the IHBG statute: 25 U.S.C. 4114(b) DOL Davis-Bacon wages applies to development of affordable housing projects HUD-determined prevailing wages apply to the operation of the project - includes maintenance Davis-Bacon and HUD wage rates apply to Tribe/TDHE housing employees (force account workers) Footer Text 2/5/2019

Davis-Bacon Exemptions Davis-Bacon and HUD wage rates won’t apply: Where the tribe has laws that require payment of not less than the prevailing wages set by the tribe. Pay tribally-determined wages instead If a resident is providing sweat equity in exchange for homeownership, or instead of making rent payments (or to supplement rent) To any work done by volunteers Footer Text 2/5/2019

Section 3 Requirements Comes from Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) HUD-wide requirement that attaches when HUD funding is used to carry out specific types activities once a $200,000 grant threshold is reached Section 3 preferences are apolitical, race and gender neutral - based on income and location Footer Text 2/5/2019

When is Section 3 required? Tied to specific activities supported by HUD funding: Housing construction or rehabilitation Public construction – infrastructure, updates to building facades, etc. Tied to other HUD programs including: Indian Community Development Block Grant (ICDBG) HOME Investment Partnership Healthy Homes Production Grant Program for Tribal Housing Any one-off funding, including the competitive IHBG funding that was appropriated in the FY19 budget Footer Text 2/5/2019

Tied to funding thresholds Recipient must receive at least $200,000 combined from all HUD programs Once the threshold is met, it applies to all covered projects carried out by the recipient, even if the individual project is inexpensive Applies to any project with HUD funding, even if other funds are included Tied to subcontractors if the contract for a covered project is at least $100,000. Does not apply to contracts for materials only. Footer Text 2/5/2019

Section 3 Quirks Significant confusion about the intersection of Indian/Tribal Preference and Section 3 requirements, especially when combining multiple sources of HUD funds IHBG funding: Indian/Tribal preference meets Section 3 requirements under IHBG regs. (24 CFR 1000.42(c))No similar reg for other HUD programs Section 3 regulations state that tribes and TDHEs have to comply with Section 3 to the “maximum extent consistent with, but not in derogation of [Indian Preference] (24 CFR 135.3(c)) Footer Text 2/5/2019

Quick Tips for Compliance If possible, hire low-income Indians or Tribal members, preferably residents of HUD assisted housing When in doubt, follow Indian or Tribal Preference requirements Section 3 requirements are monitored by HUD’s Office of Fair Housing and Equal Opportunity (FHEO), not the Office of Native American Programs (ONAP). FHEO won’t know the ins and outs of Indian or Tribal Preference Bring in the Area ONAP staff if any concerns Footer Text 2/5/2019

Indian Community Development Block Grant ICDBG Program provides direct grants to eligible grantees for developing viable Indian Communities through decent housing, a suitable living environment and economic opportunities for low and moderate income persons Competitive Grants – funds specific projects Administered by Tribe directly or Tribally Designated Housing Entities (TDHEs)

Eligible Activities New Housing Construction Housing Rehabilitation Housing Infrastructure Land Acquisition for New Housing Homeownership Assistance Public Facilities and Improvements Economic Development Microenterprise From an employment perspective, some activities create more employment opportunities than others, and at different skill and education levels. For example, construction and housing rehab versus housing counseling. If you’re tasked with creating economic opportunities for your citizens, don’t overlook the annual planning process for IHBG funds. Footer Text

ICDBG Quick Overview Indian preference applies Section 3 applies Tribal preference does not apply Davis-Bacon does not apply Footer Text 2/5/2019

Questions? Footer Text