Implementing NAHASDA: How the rule was written

On October 26, 1996, Congress passed the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA). This new block grant program for Indian housing is designed to overhaul the method of federal housing assistance to Native Americans by discarding a variety of housing aid programs and substituting them with a single program. The new federal act also called for the creation of the Negotiated Rulemaking Committee to develop the regulations necessary to implement the program.

Community Dividendrecently spoke with Doug Dewalt, executive director of the Sokaogon Chippewa Indian Housing Authority, Crandon, Wis., and a member of the Negotiated Rulemaking Committee, to discuss his experience with development of NAHASDA.

CD: What was your first reaction when Congress passed NAHASDA?

Dewalt: I thought it was long overdue. Indian housing professionals and activists had been trying for years to develop legislation targeted specifically for Indian reservations.

After NAHASDA was passed, the Department of Housing and Urban Development (HUD) was directed to put together a group to develop the rules and regulations. The group that was formed—and that I was a part of—is known as the Negotiated Rulemaking Committee. I thought for some time that change in Indian housing was going to come and that it would be beneficial to be a part of that change. I wanted to know how the change would affect the Chippewa rather than wonder what happened after the ink [on the legislation] had dried.

CD: What is the difference between the former Indian housing programs and NAHASDA?

Dewalt: Self-determination! Essentially, Indian tribes will control the housing efforts on their own reservations. NAHASDA will allow for Indian tribes to receive a single block grant for implementing housing programs on reservations.

The tribally designated housing entity (TDHE) selected by each tribe can tailor the block grant received from HUD to meet the tribe's own needs. For example, if a reservation has a tribal community college with a significant number of students who need housing, the TDHE can attempt to meet those housing needs. Tribes with a high number of low-income families will benefit because the TDHE can allocate housing based on each family's financial capacity to make mortgage or rent payments.

CD: It must have been exciting to be a member of a group that made history in the development of Indian housing. Can you tell our readers how you were chosen to be a member of the Negotiated Rulemaking Committee?

Dewalt: I was nominated by Arlyn Ackley Sr., tribal chairman of the Sokaogon Chippewa. I was one of 48 tribal representatives from the eight regions of the United States and one of six representatives from the Minnesota-Wisconsin region. In addition to the 48 Indian housing representatives, HUD was represented by 10 members of its staff.

CD: What was the official role of the committee?

Dewalt: It was our job to put in motion the new law so that Indian tribes could easily go about their duty of providing housing for their members. The full committee was initially divided into two groups: the Formula Committee, established to develop the formula used to allocate funds to tribes, and the Rules Committee, created to draft all other aspects of the regulation's program options and implementation procedures. There was some concern that each committee would be unable to comment on the activities of the other. So, after some discussion, we found that having two separate committees would be ineffective and we combined the Formula and Rules committees into one large body. From the large body, we broke into six subcommittee work groups.

CD: Can you tell us about the occupations of the other committee members?

Dewalt: The 48 tribal representatives were attorneys, a tribal chairman, council members, and housing directors and planners.

CD: How did the various constituency groups work together?

Dewalt: Everyone worked together very well. There are some areas of the final rule that I might not be happy with, but there are others that I'm extremely proud of. Our objective was to be fair and equitable to all tribes. For example, the Southwest region, where the Navajo historically have been located, had been on the short end of receiving funds to satisfy housing needs, so we chose to increase the amount of money that region will receive. I, along with many others, was in full agreement with that decision.

CD: What was the first order of business at the initial committee meeting?

Dewalt: Our first meeting was at the Second Annual Native American Summit in Scottsdale, Ariz., in December 1996 where we set a working structure for future meetings. We met again in January 1997 where we filed a charter, formed meeting groups and established organizational protocols.

CD: What were those protocols?

Dewalt: Choosing our decision-making process, which resulted in the use of consensus; establishing rules for attendance and participation at meetings; and determining the roles of the facilitators and committee cochairpersons.

CD: You mentioned that agreement was reached by consensus and not majority rule. Didn't that make the process more time-consuming?

Dewalt: Yes, but we were more concerned with reaching mutual agreement than forcing a new law on a reservation. So on some occasions, we took extra time to get everyone on the same page as it relates to understanding their roles and the new law. There were a few times when we thought we were going to have to deviate, but we didn't.

CD: Were meetings private?

Dewalt: Anyone could attend the meetings, but only official committee members had a vote on NAHASDA matters. In fact, noncommittee members in attendance raised issues that assisted in the final product.

CD: Did you get feedback on your work from people outside the committee?

Dewalt: Yes, in April or May 1997, we submitted a draft of the rule to HUD for an initial review and asked that it only make comments regarding whether our work was on track. While many committee members were surprised that HUD made the kind of changes it did, HUD staff members indicated that the changes reflected strongly held policy positions of the department. After some discussion, HUD staff and committee members agreed that future revisions would be handled the same as public comments and that HUD would make no further changes once the final rule had been submitted to the Office of Management and Budget (OMB). If OMB had an issue with our final rule, tribal leaders from the committee would provide input to settle disagreements.

CD: Can you describe the public comment process?

Dewalt: The public comment period began July 2, 1997, when a copy of the rule was sent to all U.S. tribes and tribal housing authorities. The comment period ended August 18, 1997. We received nearly 100 comments before the deadline and an additional 37 comments after the deadline. The additional comments were accepted because we were still in session.

To step up the review process, the committee assigned each subcommittee work group to review the comments that applied to its respective area of expertise. Each work group decided whether to adopt or reject the position of each public comment reviewed and explained why the group took the action it did on each comment.

CD: How did you and other committee members view the public comments?

Dewalt: Many of the committee members are past or present lawmakers on their reservations, and they are used to hearing and responding to public comments. We were very satisfied with the comments we received—they provided insight into the needs relating to Indian housing.

CD: I understand the rule is presented as a series of questions and answers. Why did you choose this format?

Dewalt: We preferred the question-and-answer method because it simplifies the understanding of this complicated rule.

CD: How did you decide on which questions to use to communicate the act?

Dewalt: The committee work groups formed the questions based on anticipated responses from TDHE staff, and the answers were taken directly from the act. Before a single question was submitted as a part of the Q&A, we first had to reach consensus within the work group responsible for that topic. After receiving work group approval, a question was sent to the floor of the main body to receive consensus approval. If we did not reach consensus on the floor of the main body, the question was returned to the work group for editing or elimination. A question sometimes would go back five or six times before we reached consensus.

CD: I understand this process meant long hours of work.

Dewalt: Yes. We would meet for at least a week and sometimes longer—up to ten days. We would start first thing in the morning and take breaks for lunch and dinner. After dinner, we would come back and work well into the night. Many times, we'd get together informally on Sundays to discuss possible solutions to problems.

CD: Do you think tribal housing authorities can implement NAHASDA or will they need outside consultants?

Dewalt: I think tribes can implement NAHASDA without the assistance of a consultant. That is why we insisted on the question-and-answer method in the rule. We thought the process had to be user-friendly. Someone employed by the housing authority should be able to complete the plan in two or three days. It's only a matter of filling in the blanks. However, if a tribe plans to use a consultant, it should choose one who fully understands tribal custom, the relationship between the tribe and federal government, and the relationship between the tribal government and the tribal housing authority.

CD: How do you think NAHASDA will change Indian housing, and what do you think is the future of Indian housing?

Dewalt: I'm confident NAHASDA will benefit Indian housing, not because of what we did as a committee, but because the Indian people sincerely want self-determination. Indian people want to decide for themselves what is best for their families and their futures.

Never before has the federal government come to Indian country for an opinion on the creation of Indian housing. I was extremely proud—and I still am proud—to have been part of something that will change the way Indian housing is to be allocated on reservations.

Change will not come overnight and setbacks will occur, but I believe we are putting the infrastructure in place to satisfy the housing needs for this and future generations of Indian families.

Thomas Moore is a Community Affairs management analyst for the Federal Reserve Bank of Minneapolis.

About Doug Dewalt Doug Dewalt began his career in housing development in 1985 as director of the Sokaogon Chippewa Housing Authority. When he started, the reservation had 35 housing units. It now has 105 low-income housing units, 27 mutual-help units and another 15 units of senior citizen housing are in the works, bringing the total to 147. In addition to his position as housing director, Dewalt serves on the board of directors of the National American Indian Housing Council, representing the tribal housing authorities in Wisconsin, Minnesota and Michigan for the Great Lakes Indian Housing Association.