Existing law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development (department), and the California Housing Finance Agency in carrying out state housing policies and programs. Existing law, the G. David Singleton California Indian Assistance Program, requires the department to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in these areas. Upon request of the governing body of a reservation or rancheria, existing law authorizes the department to act on behalf of the tribal housing authority and perform the functions thereof.

This bill would remove the authority for the department to act on behalf of the tribal housing authority. The bill would also require the department to provide comprehensive technical assistance to tribes, designated tribal housing entities, and tribal housing departments on reservations, rancherias, and on public domain, and tribes that want to participate in tribal housing grant programs on fee simple land. The bill would additionally require the department to provide comprehensive technical assistance to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing within a tribes designated service area, as defined by the tribe. The bill would require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, tribally designated housing entities, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process. The bill would require data collected pursuant to these provisions to be kept confidential and not subject to public disclosure.

Existing law authorizes the department to modify or waive various requirements of any state financing being provided to a housing development by the department in specified situations, if tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements for the financing. Existing law authorizes the department to waive, among other things, target population percentage requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute and affordability levels, and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute.

This bill would change the limitations on the departments authority to waive the target population percentage requirements and affordability levels and unit mix requirements, as specified. The bill would additionally authorize the department to waive, among other things, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits. To provide assistance with these waivers, the bill would require the department to, among other things, assign each waiver or modification request submitted a reference number and post on its internet website a waiver or modification request submitted to the department, including the nature of the waiver or modification request and the reference number. The bill would authorize the Director of the department or designee to incorporate a waiver or modification into any of the departments state financing programs if the department makes a specified determination.

This bill would require the department to take specified actions with respect to loans made by the department to tribal sponsors.

This bill would create in the department the Tribal Housing Grant Program Trust Fund Advisory Committee, upon appropriation by the Legislature. The bill would require the committee to be composed of, among others, members who are representatives of federally recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law, as specified. The bill would require the department to appoint members to the committee and to take into account geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee. The bill would, subject to funding availability, authorize specified members to receive per diem and expense reimbursements, as specified, and would provide that the per diem and expense reimbursements shall not be deemed to be gross income, as specified.

This bill would require the committee, among other things, to identify and report annually to the department specified information, including barriers that exist for tribes when applying for funds from a specified fund. The bill would require the department to provide input and guidance to assist in the creation of a standard grant agreement to be used by the department for a specified program. The bill would provide that these provisions only take effect upon sufficient funds appropriated from the Legislature to implement these provisions, as specified.

This bill would require the department, to the extent practicable, to include its designated tribal liaison or their designee in discussions with tribes that are eligible recipients of state funds. The bill would require the designated tribal liaison and their designee to complete a culturally competent training course before engaging in these discussions with tribes, as specified. The bill would prohibit the department from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereign immunity in order to access funds, as specified.

The Personal Income Tax Law, in modified conformity with federal law, generally defines gross income as income from whatever source derived, except as specifically excluded, and provides various exclusions from gross income for purposes of computing tax liability.

This bill would provide that gross income does not include any payment received by an individual pursuant to the provisions described above, as specified.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development (department), and the California Housing Finance Agency in carrying out state housing policies and programs. Existing law, the G. David Singleton California Indian Assistance Program, requires the department to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in these areas. Upon request of the governing body of a reservation or rancheria, existing law authorizes the department to act on behalf of the tribal housing authority and perform the functions thereof.

This bill would remove the authority for the department to act on behalf of the tribal housing authority. The bill would also require the department to provide comprehensive technical assistance to tribes, designated tribal housing entities, and tribal housing departments on reservations, rancherias, and on public domain, and tribes that want to participate in tribal housing grant programs on fee simple land. The bill would additionally require the department to provide comprehensive technical assistance to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing within a tribes designated service area, as defined by the tribe. The bill would require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, tribally designated housing entities, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process. The bill would require data collected pursuant to these provisions to be kept confidential and not subject to public disclosure.

Existing law authorizes the department to modify or waive various requirements of any state financing being provided to a housing development by the department in specified situations, if tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements for the financing. Existing law authorizes the department to waive, among other things, target population percentage requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute and affordability levels, and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute.

This bill would change the limitations on the departments authority to waive the target population percentage requirements and affordability levels and unit mix requirements, as specified. The bill would additionally authorize the department to waive, among other things, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits. To provide assistance with these waivers, the bill would require the department to, among other things, assign each waiver or modification request submitted a reference number and post on its internet website a waiver or modification request submitted to the department, including the nature of the waiver or modification request and the reference number. The bill would authorize the Director of the department or designee to incorporate a waiver or modification into any of the departments state financing programs if the department makes a specified determination.

This bill would require the department to take specified actions with respect to loans made by the department to tribal sponsors.

This bill would create in the department the Tribal Housing Grant Program Trust Fund Advisory Committee, upon appropriation by the Legislature. The bill would require the committee to be composed of, among others, members who are representatives of federally recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law, as specified. The bill would require the department to appoint members to the committee and to take into account geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee. The bill would, subject to funding availability, authorize specified members to receive per diem and expense reimbursements, as specified, and would provide that the per diem and expense reimbursements shall not be deemed to be gross income, as specified.

This bill would require the committee, among other things, to identify and report annually to the department specified information, including barriers that exist for tribes when applying for funds from a specified fund. The bill would require the department to provide input and guidance to assist in the creation of a standard grant agreement to be used by the department for a specified program. The bill would provide that these provisions only take effect upon sufficient funds appropriated from the Legislature to implement these provisions, as specified.

This bill would require the department, to the extent practicable, to include its designated tribal liaison or their designee in discussions with tribes that are eligible recipients of state funds. The bill would require the designated tribal liaison and their designee to complete a culturally competent training course before engaging in these discussions with tribes, as specified. The bill would prohibit the department from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereign immunity in order to access funds, as specified.

The Personal Income Tax Law, in modified conformity with federal law, generally defines gross income as income from whatever source derived, except as specifically excluded, and provides various exclusions from gross income for purposes of computing tax liability.

This bill would provide that gross income does not include any payment received by an individual pursuant to the provisions described above, as specified.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development (department), and the California Housing Finance Agency in carrying out state housing policies and programs. Existing law, the G. David Singleton California Indian Assistance Program, requires the department to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in these areas. Upon request of the governing body of a reservation or rancheria, existing law authorizes the department to act on behalf of the tribal housing authority and perform the functions thereof.

This bill would remove the authority for the department to act on behalf of the tribal housing authority. The bill would also require the department to provide comprehensive technical assistance to tribes, designated tribal housing entities, and tribal housing departments on reservations, rancherias, and on public domain, and tribes that want to participate in tribal housing grant programs on fee simple land. The bill would additionally require the department to provide comprehensive technical assistance to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing within a tribes designated service area, as defined by the tribe. The bill would require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, tribally designated housing entities, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process. The bill would require data collected pursuant to these provisions to be kept confidential and not subject to public disclosure.

Existing law authorizes the department to modify or waive various requirements of any state financing being provided to a housing development by the department in specified situations, if tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements for the financing. Existing law authorizes the department to waive, among other things, target population percentage requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute and affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute.

This bill would instead authorize the department change the limitations on the departments authority to waive the target population percentage requirements and affordability levels and unit mix requirements without limitation. requirements, as specified. The bill would additionally authorize the department to waive, among other things, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans, and income limits. To provide assistance with these waivers, the bill would require the department to, among other things, assign each waiver or modification request submitted a waiver reference number and post on its internet website a waiver or modification request submitted to the department, including the nature of the waiver or modification request and the waiver reference number. The bill would authorize the Director of the department or designee to incorporate a waiver or modification into any of the departments state financing programs if the department makes a specified determination.

This bill would require the department to take specified actions with respect to state housing programs that have ties to federal housing programs, create tribal set-asides within each funding program, defer loans made by the department to tribal sponsors, and forgive loans made by the department to tribal sponsors if all conditions for the loans have been satisfied. The bill would require that tribally designated housing entities, as defined, be allowed to submit one competitive application per tribe within the same funding program when applying for department funds, as specified. The bill would authorize grants from programs that assist individual tribal members with becoming or remaining homeowners to be used for specified purposes. loans made by the department to tribal sponsors.

This bill would create in the Business, Consumer Services, and Housing Agency Department of Housing and Community Development the Tribal Housing Grant Program Trust Fund Advisory Committee, upon appropriation by the Legislature. The bill would require the committee to be composed of of, among others, members who are representatives of federally recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law, as specified. The bill would require the Business, Consumer Services, and Housing Agency department to appoint members to the committee and to take into account geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee. The bill would, subject to funding availability, authorize specified members to receive per diem and expense reimbursements, as specified, and would provide that the per diem and expense reimbursements shall not be deemed to be gross income, as specified.

This bill would require the committee, among other things, to identify and report annually to the Business, Consumer Services, and Housing Agency Department of Housing and Community Development specified information, including barriers that exist for tribes when applying for Business, Consumer Services, and Housing Agency or Department of Housing and Community Development funds. funds from a specified fund. The bill would require the committee department to create provide input and guidance to assist in the creation of a standard grant agreement to be used by state agencies for tribal housing grant programs and to identify tribal targets and set-asides in state-funded and federally funded housing programs. The bill would also require the committee to create a tribal management information system to collect client-level data and data on the provision of housing and services to tribes and tribal members. The bill would require data collected pursuant to these provisions be kept confidential. the department for a specified program. The bill would provide that these provisions only take effect upon sufficient funds appropriated from the Legislature to implement these provisions, as specified.

This bill would require the department department, to the extent practicable, to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients, unless those eligible recipients give permission for the tribal liaison or their designee to be absent. recipients. The bill would require the designated tribal liaison and their designee to complete a culturally competent training course before engaging in these discussions with tribes, as specified. The bill would prohibit the department from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereignty sovereign immunity in order to access funds. funds, as specified.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development (department), and the California Housing Finance Agency in carrying out state housing policies and programs. Existing law, the G. David Singleton California Indian Assistance Program, requires the department to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in these areas. Upon request of the governing body of a reservation or rancheria, existing law authorizes the department to act on behalf of the tribal housing authority and perform the functions thereof.

This bill would remove the authority for the department to act on behalf of the tribal housing authority. The bill would also require the department to provide comprehensive technical assistance to tribes, designated tribal housing entities, and tribal housing departments on reservations, rancherias, and on public domain, and tribes that want to participate in tribal housing grant programs on fee simple land. The bill would additionally require the department to provide comprehensive technical assistance to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing within a tribes designated service area, as defined by the tribe. The bill would require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, tribally designated housing entities, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process. The bill would require data collected pursuant to these provisions to be kept confidential and not subject to public disclosure.

Existing law authorizes the department to modify or waive various requirements of any state financing being provided to a housing development by the department in specified situations, if tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements for the financing. Existing law authorizes the department to waive, among other things, target population percentage requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute and affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute.

This bill would instead authorize the department to waive the target population percentage requirements and affordability levels and unit mix requirements without limitation. The bill would additionally authorize the department to waive, among other things, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans, and income limits. To provide assistance with these waivers, the bill would require the department to, among other things, assign each waiver submitted a waiver reference number and post on its internet website a waiver submitted to the department, including the nature of the waiver and the waiver reference number.

This bill would create in the Business, Consumer Services, and Housing Agency the Tribal Housing Advisory Committee, upon appropriation by the Legislature. The bill would require the committee to be composed of members who are tribal representatives of federally recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law, as specified. The bill would require the Business, Consumer Services, and Housing Agency to appoint members to the committee and to take into account geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee.

This bill would require the committee, among other things, to identify and report to the Business, Consumer Services, and Housing Agency specified information, including barriers that exist for tribes when applying for Business, Consumer Services, and Housing Agency or Department of Housing and Community Development funds. The bill would require the committee to create a standard grant agreement to be used by state agencies for tribal housing grant programs and to identify tribal targets and set-asides in state-funded and federally funded housing programs. The bill would also require the committee to create a tribal management information system to collect client-level data and data on the provision of housing and services to tribes and tribal members. The bill would require data collected pursuant to these provisions be kept confidential.

This bill would require the department to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients, unless those eligible recipients give permission for the tribal liaison or their designee to be absent. If the department requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access funds, the bill would require the department to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable. The bill would require the designated tribal liaison and their designee to complete a culturally competent training course before engaging in these discussions with tribes, as specified. The bill would prohibit the department from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access funds.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Existing law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development (department), and the California Housing Finance Agency in carrying out state housing policies and programs. Existing law, the G. David Singleton California Indian Assistance Program, requires the department to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in these areas. Upon request of the governing body of a reservation or rancheria, existing law authorizes the department to act on behalf of the tribal housing authority and perform the functions thereof.

This bill would remove the authority for the department to act on behalf of the tribal housing authority. The bill would also require the department to provide comprehensive technical assistance to tribes, designated tribal housing entities, and tribal housing departments on reservations, rancherias, and on public domain, and tribes that want to participate in tribal housing grant programs on fee simple land. The bill would additionally require the department to provide comprehensive technical assistance to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing within a tribes designated service area, as defined by the tribe. The bill would require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, tribally designated housing entities, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process. The bill would require data collected pursuant to these provisions to be kept confidential and not subject to public disclosure.

Existing law authorizes the department to modify or waive various requirements of any state financing being provided to a housing development by the department in specified situations, if tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements for the financing. Existing law authorizes the department to waive, among other things, target population percentage requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute and affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute.

This bill would instead authorize the department to waive the target population percentage requirements and affordability levels and unit mix requirements without limitation. The bill would additionally authorize the department to waive, among other things, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans, and income limits. To provide assistance with these waivers, the bill would require the department to, among other things, assign each waiver submitted a waiver reference number and post on its internet website a waiver submitted to the department, including the nature of the waiver and the waiver reference number.

This bill would create in the Business, Consumer Services, and Housing Agency the Tribal Housing Advisory Committee, upon appropriation by the Legislature. The bill would require the committee to be composed of members who are tribal representatives and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law, as specified. The bill would require the Business, Consumer Services, and Housing Agency to appoint members to the committee and to take into account geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee.

This bill would require the committee, among other things, to identify and report to the Business, Consumer Services, and Housing Agency specified information, including barriers that exist for tribes when applying for Business, Consumer Services, and Housing Agency funds. The bill would require the committee to create a standard grant agreement to be used by state agencies for tribal housing grant programs and to identify tribal targets and set-asides in state-funded and federally funded housing programs. The bill would also require the committee to create a tribal management information system to collect client-level data and data on the provision of housing and services to tribes and tribal members. The bill would require data collected pursuant to these provisions be kept confidential.

This bill would require the department to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients, unless those eligible recipients give permission for the tribal liaison or their designee to be absent. If the department requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access funds, the bill would require the department to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1878

Author:(Garcia)

As Amended Ver:August 23, 2024

Majority vote

SUMMARY

Creates the Tribal Housing Grant Program Fund Advisory Committee (committee) within the Department of Housing and Community Development (HCD), upon appropriation; makes changes to tribal liaison and technical assistance requirements that apply to HCD; and limit HCD’s ability to require tribes to waive sovereign immunity to access funding, as specified.

Senate Amendments

1. Rename the committee the Tribal Housing Grant Program Fund Advisory Committee, revise the committee membership, provide tribal voting members a per diem of $100 for each day performing official duties and travel and other expense reimbursements, and exempt these payments from gross income for state tax purposes.
2. Move the committee under HCD, rather than the Business, Consumer Services, and Housing (BCSH) Agency, revise the duties of the committee to be related to the Tribal Housing Grant Program Trust Fund (the Fund), and specify that the committee shall only be established upon appropriation of sufficient funds by the Legislature to implement the bill through funding made available to the Fund.
3. Delete the requirement for the committee to create a tribal management information system to collect client-level data and data on the provision of housing and services to tribes and tribal members.
4. Expand the types of items that may be modified by HCD where provisions of tribal law, governance, charter, or legal structure would cause a violation or not satisfy the requirements of state financing or statutory requirements, to also include form of funding provided, phase of funding, and requirements regarding infill location and density.
5. Revise the ability of HCD to modify target population percentage and affordability levels and unit mix requirements to specify that a change of this nature shall not be of more than one category of income between extremely low, very low, lower, and moderate income households, as specified.
6. Require HCD to defer repayment of principal and interest on loans made to tribal sponsors for the full term of the loan.
7. Allow HCD to forgive loans made by HCD to tribal sponsors if all conditions for the loan have been satisfied.
8. Prohibit HCD from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereign immunity in order to access state or federal funds, as long as not requiring the waiver is not in conflict with applicable law, and exempting certain affordable housing programs administered by HCD.
9. Require HCD’s designated tribal liaison and their designee to complete a culturally competent training course, as specified.
10. Clarify that HCD must provide assistance with both waivers and modification requests.

COMMENTS

Background on Tribal Access to State Housing Programs: California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia), Chapter 667, Statutes of 2019, the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the California Indian Assistance Program (CIAP) – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process, and provide assistance with program waivers and modification requests.

Challenges Continue with Accessing Some Housing Funds: The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Those challenges include:

1. Existing state programs often were not designed with tribes in mind, meaning they have restrictive threshold and compliance requirements that are too difficult for tribes to meet, or are mismatched to the opportunities that exist on tribal trust and fee land;
2. Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances;
3. Because HCD program applications can be onerous and opaque, only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are successful at all;
4. Tribal technical assistance, which HCD is required to provide under AB 1010 (E. Garcia), is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines. Inadequate provision of technical assistance is negatively impacting tribes’ ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides;
5. There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher AMI in determining eligibility of applicants for certain income-restricted homeownership programs; and
6. Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

To address some of these challenges, the bill proposes to create a Tribal Housing Grant Program Advisory Committee within HCD, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs and several nonvoting members representing state housing agencies. The committee would be charged with identifying and reporting issues within the Fund that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for the Fund, and would provide input and guidance to HCD with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would assist in the creation of a standard grant agreement to be used by HCD for the Fund, and provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors. The Fund is proposed to be created in SB 1187 (McGuire) of the current legislative session.

The bill further proposes to address inconsistencies and inflexibility in HCD’s waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, program income limits, form and phase of funding requirements, and requirements regarding infill location and density to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements.

The bill prohibits HCD from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereign immunity in order to access state or federal funds, so long as not requiring the waiver is not in conflict with applicable law. The bill also requires HCD’s designated tribal liaison and their designee to be included to the extent practicable in all discussions with tribes that are eligible recipients.

According to the Author

“AB 1878 would, upon appropriation of the Legislature, create a Tribal Housing Grant Program Trust Fund Advisory Committee. Significantly, this advisory committee would provide input and guidance on barriers to accessing tribal housing resources and the implementation of the Tribal Housing Grant Program Trust Fund. To better ensure equitable tribal representation and inclusion, voting members of the committee who represent a tribe will not be taxed on per diem should it be received for the performance of official duties; any possible per diem would be subject to funding availability.”

Arguments in Support

According to the California State Association of Counties, “Counties and tribes have shared interests in promoting economic development and self-sufficiency for their overlapping constituencies, promoting the general health, safety, well-being of the entire community, and infrastructure that is beneficial to all. Additionally, counties continue to advocate for more federal and state support to build and maintain housing for low-income Californians and develop creative financing models to increase the feasibility for more projects. AB 1878 help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage.”

Arguments in Opposition

None on file.

FISCAL COMMENTS

Unknown.

VOTES:

ASM HOUSING AND COMMUNITY DEVELOPMENT: 9-0-0

YES: Ward, Joe Patterson, Grayson, Kalra, Lee, Zbur, Reyes, Sanchez, Wilson

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

ASSEMBLY FLOOR: 72-0-8

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Cervantes, Megan Dahle, Essayli, Holden, Mathis, Luz Rivas, Blanca Rubio, Wicks

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

UPDATED

VERSION: August 23, 2024

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0004924

SENATE COMMITTEE ON REVENUE AND TAXATION

Senator Steven Glazer, Chair

2023 - 2024 Regular

Housing programs: tribal housing program

Excludes from gross income for state tax purposes payments made under the Tribal Housing Grant Program Fund Advisory Committee, which the bill creates within the Department of Housing and Community Development.

Background

The United States Constitution vests Congress with the authority to engage in relations with Native American tribes, sovereign nations that existed long before the founding of the Republic. Their sovereignty was first affirmed in 1832 by the United States Supreme Court in Worcester v. Georgia, 31 U.S. 515, which stated that “the Indian nations had always been considered as distinct, independent political communities retaining their original natural rights as undisputed possessors of the soil, from time immemorial.” As a result, state laws generally do not apply to Native Americans on their respective lands, except where expressly allowed.

Because of this sovereign status, Native Americans and their property located in their respective countries are generally not subject to state taxation. The Supreme Court affirmed these limits on state tax authority in McClanahan v. State Tax Commission of Arizona (1973) 411 U.S. 164, ruling that the State of Arizona has no jurisdiction to impose a tax on the income of Navajo Indians who (1) are members of the Navajo tribe, (2) reside on the Navajo land, and (3) whose income is wholly derived from Native American sources. However, the “McClanahan exemption” does not limit states from applying taxes on Native Americans who work, invest, or own property outside lands reserved exclusively for the use of their tribe. Courts have subsequently affirmed a state’s authority to extend its laws to Native Americans living away from their tribe’s lands.

This limitation on state tax powers does not apply to the federal taxation of income earned by Native Americans on their own land. Federal income tax law generally applies the income of Native Americans residing on reservations as any other citizen, unless a federal law or a treaty authorizes an exemption. Tribes themselves and any of its wholly-owned corporations are exempt from tax; however, its members are not exempt, even though some tribes impose taxes on their members.

Existing federal and state laws provide that gross income includes all income from any source, including compensation for services, business income, gains from property, interest, dividends, rents, and royalties, unless specifically excluded. Existing federal and state laws provide that certain types of income are excluded from gross income, such as amounts received as a gift or inheritance, certain compensation for injuries and sickness, qualified scholarships, educational assistance programs, foster care payments, and interest received on certain state or federal obligations

The author wants to exclude from personal income for state tax purposes payments made pursuant to the Tribal Housing Grant Program Fund Advisory Committee, which the bill creates in the Department of Housing and Community Development (HCD), upon appropriation of the Legislature.

Proposed Law

Assembly Bill 1878 excludes from gross income for state tax purposes any payments made under the Tribal Housing Grant Program Fund Advisory Committee, which the bill creates within HCD. The measure provides that voting members of the Committee representing a tribe must receive a per diem of $100 per day and reimbursement for travel and other expenses incurred in the performance of official duties, subject to funding availability. The bill states that neither are income for state purposes nor used to determine eligibility for any state or local program financed wholly or in part with state funds.

Additionally, AB 1878:

• Creates the Committee within HCD, upon appropriation by the Legislature, and requires, among other things, the Committee membership to be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs.
• In addition to nine tribal members, provides that the Secretary of the Business, Consumer Services, and Housing; HCD’s executive director; and the executive director of the California Housing Finance Agency; or their designees, are ex-officio members of the Committee.
• Requires the committee to do all of the following:
  • Identify and report to HCD: issues within the Tribal Housing Grant Program Trust Fund that require waivers to receive state financing, as proposed by the bill; inconsistencies that impact the Tribal Housing Grant Program Trust Fund within state housing program streamlined regulations; and barriers that exist for tribes when applying for funds from the Tribal Housing Grant Program Trust Fund;
  • Provide input and guidance to HCD on guidelines to implement the Tribal Housing Grant Program Trust Fund;
  • Provide input and guidance to assist in the creation of a standard grant agreement HCD can use for the Tribal Housing Grant Program Trust Fund;
  • Create and adopt bylaws to govern committee meetings and determine attendance policies, which must be adopted by a majority of the Committee’s voting members, among other provisions; and
  • Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP).
• Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as specified.
• States that HCD cannot require a tribe that is an eligible recipient of state funding to waive tribal sovereign immunity to access state or federal funds, as long as not requiring the waiver is not in conflict with applicable law, with specified exceptions.
• Modifies the CIAP as follows:
  • Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
  • Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
  • Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.

AB 1878 states that the part of the bill creating the Committee only takes effect upon appropriation of sufficient funds by the Legislature through funding being made available to the Tribal Housing Grant Program Trust Fund. The measure also includes a legislative finding stating that the measure’s exemption from public disclosure requirements for data collected by HCD demonstrating the interest protected by the limitation on public access and the need for it.

State Revenue Impact

Pending.

Comments

1. Purpose of the bill. According to the author, “AB 1878 would, upon appropriation of the Legislature, create a Tribal Housing Grant Program Trust Fund Advisory Committee. Significantly, this advisory committee would provide input and guidance on barriers to accessing tribal housing resources and the implementation of the Tribal Housing Grant Program Trust Fund. To better ensure equitable tribal representation and inclusion, voting members of the committee who represent a tribe will not be taxed on per diem should it be received for the performance of official duties; any possible per diem would be subject to funding availability.”

2. Precedent. Currently, members of tribes in California generally include income derived from sources outside Native American reservations. Additionally, members of state boards and commissions generally include compensation, per diems, and expense reimbursement as income subject to state taxation as well; however, the Legislature enacted a similar exclusion for members of the Interagency Council on Homelessness, its advisory committees, or working groups, who are or have been homeless (AB 129, Committee on Budget, 2023).

3. What’s the rush? AB 1878 would enact a personal income tax exclusion for payments made under its provisions that create the Tribal Housing Grant Program Fund Advisory Committee. However, that part of the bill is contingent upon a future appropriation of sufficient funds by the Legislature through funding being made available to the Tribal Housing Grant Program Trust Fund. After that appropriation, HCD must appoint members, after which the committee can then meet, and HCD can pay per diems and expense reimbursements should funds be available. It is unlikely that the above steps will be completed by the time 2024 personal income taxes are due in April of next year. As a result, the Legislature could instead consider AB 1878’s income tax exclusion next year.

4. No conformity. AB 1878 creates an income exclusion for state tax purposes that is not allowed for federal taxes unless and until Congress acts to enact a similar exclusion. As a result, taxpayers may have to include the same income for federal purposes that they would exclude for state purposes, which can create confusion for taxpayers

5. Clarity needed. AB 1878 excludes from gross income “payments” received by an individual under the part of the bill that creates the Tribal Housing Grant Program Fund Advisory Committee. However, that part of the bill does not refer to “payments,” instead authorizing the receipt of a per diem on $100 and expense reimbursement. The bill’s income exclusion should refer specifically to the per diem and expense reimbursement.

6. Section 41. Section 41 of the Revenue and Taxation Code requires any bill authorizing a new tax expenditure to contain, among other things, specific goals, purposes, and objectives that the tax expenditure will achieve, including detailed performance indicators, along with data collection and reporting requirements (SB 1335, Leno, 2014). AB 1878 does not contain legislative findings and declarations stating there is no available information to report or collect to comply with Section 41. However, the Legislature enacted AB 3289 (Committee on Revenue & Taxation) this year to provide that Section 41 does not apply to new personal income tax exclusions when the Legislature determines that there is no available information to report or collect.

7. Sunset. California law allows various income tax credits, deductions, exemptions, and exclusions. Many tax expenditures contain a sunset date, which allows a future Legislature to review them to determine whether they should be extended, modified, or allowed to end. AB 1878 does not contain a sunset date.

8. Related legislation. Currently pending on the Assembly Floor, SB 1187 (McGuire) enacts the Tribal Housing Reconstitution and Resiliency Act, which among other provisions, creates the Tribal Housing Grant Program within HCD for the construction and rehabilitation of affordable rental and for-sale housing for Native Americans.

9. 29.10(b). The Committees on Housing, Judiciary, and Appropriations previously approved AB 1878. On August 23^rd, the author amended the bill to insert its changes to the Revenue and Taxation Code, among other modifications. As a result, the measure triggered Senate Rule 29.10(b) and a referral back to this Committee. The Rule provides that the Committee has three options:

• Hold the bill;
• Return the bill to the Floor for consideration; or
• Re-refer the bill to fiscal committee pursuant to Senate Rule 10.5.

Assembly Actions

Assembly Housing and Community Development Committee: 9-0
Assembly Appropriations Committee: 15-0
Assembly Floor: 72-0

Support and Opposition

(8/26/24)

Support: Pala Band of Mission Indians (Sponsor)
Aids Healthcare Foundation
American Planning Association California Chapter
Cahuilla Band of Indians
California Housing Partnership Corporation
California State Association of Counties (CSAC)
California Tribal Business Alliance
Cpca Advocates
Dry Creek Rancheria Band of Pomo Indians
Habematolel Pomo of Upper Lake
Smart Justice California, a Project of Tides Advocacy
Yimby Action

Opposition: None submitted.

-- END --

 THIRD READING  

Bill No: AB 1878

Author: Garcia (D)

Amended: 6/17/24 in Senate

Vote: 21

SENATE HOUSING COMMITTEE: 10-0, 6/24/24

AYES: Skinner, Ochoa Bogh, Blakespear, Caballero, Cortese, Menjivar, Padilla, Seyarto, Umberg, Wahab

SENATE JUDICIARY COMMITTEE: 11-0, 7/2/24

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 72-0, 5/23/24 - See last page for vote

SENATE REVENUE AND TAXATION COMMITTEE: 7-0, 8/27/24 Pursuant Senate Rule 29.10)

AYES: Glazer, Dahle, Ashby, Bradford, Dodd, Padilla, Skinner

SUBJECT: Housing programs: tribal housing program

SOURCE: Author

DIGEST:

This bill creates the Tribal Housing Grant Program Fund Advisory Committee (Committee) within the Department of Housing and Community Development (HCD) upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to HCD.

Senate Floor Amendments of 8/23/24 (1) change the limitations on HCD to waive the target population percentage requirements and affordability levels; (2) authorize the HCD director to incorporate a waiver or modification into any of its state programs; (3) require the committee to report on funds available for tribes, as specified; and (4) provide that gross income does not include payment received by an individual participating in the committee.

ANALYSIS:

Existing law:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden, as specified.
2. Requires HCD, under the G. David Singleton California Indian Assistance Program (CIAP), to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas.
3. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs.
4. Provide that gross income includes all income from any source, including compensation for services, business income, gains from property, interest, dividends, rents, and royalties, unless specifically excluded. 

This bill:

1. Creates the Committee within HCD, upon appropriation by the Legislature, and requires, among other things, the Committee membership to be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs.
2. Requires the committee to do all of the following:
   1. Identify and report to HCD issues within the Tribal Housing Grant Program Trust Fund (Trust Fund) that require waivers to receive state financing, as proposed by the bill; inconsistencies that impact the Trust Fund housing program streamlined regulations; and barriers that exist for tribes when applying for Trust Funds.
   2. Provide input and guidance to HCD on guidelines to implement the Trust Fund, as specified.
   3. Provide input and guidance to assist in the creation of a standard agreement to be used by HCD.
   4. Create bylaws to govern committee meetings, determine attendance policies, and establish any other provisions to effectuate the committee’s responsibilities, as specified.
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP).
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as specified.
5. Exclude from income for state tax purposes payments received under the section of the bill that creates the Committee, which consists of members of federally recognized tribal governments, and where members who represent tribes receive a $100 per diem while engaged in official duties in addition to reimbursement for travel and other necessary expenses incurred in the performance of official duties.

Background

Background on Tribal Access to State Housing Programs. California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia, Chapter 660, Statutes of 2019), the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

Comments

1. Author’s Statement. According to the author, “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”
2. Challenges Continue with Accessing Some Housing Funds. The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds.

To address these challenges, the bill proposes to create a Committee within HCD, which, among others, would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies and barriers to applying for HCD funds, and would provide input and guidance to create a standard grant agreement.

This bill further proposes to address inconsistencies and inflexibility in HCD’s waiver and modification authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• BCSH Agency estimates first year costs of approximately $547,000 and ongoing costs of approximately $523,000 annually for 3.0 PY of staff to create and staff the new advisory committee and administer the provisions of the bill, including the development of a standard grant agreement for state tribal housing grant programs, identification of tribal targets and set-asides in housing programs, and providing administrative support for the advisory committee. BCSH Agency would also incur additional expenses, likely in the tens of thousands of dollars annually ongoing, to provide for travel, per diem compensation, and other costs associated with advisory committee meetings. (General Fund)*
  
• BCSH Agency indicates that one-time costs to design, develop, and integrate the tribal management information system (TMIS) are unknown, but likely in the high millions of dollars, and also estimates unknown costs, likely in the millions of dollars annually, for ongoing maintenance of the system. In addition, BCSH Agency estimates it would incur one-time contracting costs in the low millions of dollars prior to launching the new TMIS to conduct outreach focused on promoting access to the program and technical assistance. (General Fund)*
  
• HCD estimates ongoing costs of approximately $1.04 million annually for 5.0 PY of staff to add a new tribal liaison, modify existing program guidelines to account for different matters that may be waived or modified for tribal applicants, to provide additional coordination with tribal stakeholders, to incorporate additional tracking for tribal waivers, and to provide outreach and enhanced technical assistance to tribal entities. (General Fund)
  
• Unknown, significant cost pressures and revenue losses related to provisions that require deferral of all principal and interest payments, and forgiveness of loans, for any state funding assistance program provided to tribal sponsors. (General Fund and various special funds)

SUPPORT: (Verified 8/15/24)

AIDS Healthcare Foundation
American Planning Association California Chapter
Cahuilla Band of Indians
California Housing Partnership Corporation
California Primary Care Association Advocates
California State Association of Counties
California Tribal Business Alliance
Habematolel Pomo of Upper Lake
Pala Band of Mission Indians
Smart Justice California, a Project of Tides Advocacy

OPPOSITION: (Verified 8/15/24)

None received

ASSEMBLY FLOOR: 72-0, 5/23/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Cervantes, Megan Dahle, Essayli, Holden, Mathis, Luz Rivas, Blanca Rubio, Wicks

Prepared by: Alison Hughes / HOUSING / (916) 651-4124

8/27/24 19:51:20

**** END ****

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, “California Tribal Housing Needs and Opportunities: A Vision Forward” (2019) ↑

2. Congressional Research Service, “Tribal Lands: An Overview” (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑

 THIRD READING  

Bill No: AB 1878

Author: Garcia (D)

Amended: 6/17/24 in Senate

Vote: 21

SENATE HOUSING COMMITTEE: 10-0, 6/24/24

AYES: Skinner, Ochoa Bogh, Blakespear, Caballero, Cortese, Menjivar, Padilla, Seyarto, Umberg, Wahab

SENATE JUDICIARY COMMITTEE: 11-0, 7/2/24

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Niello, Roth, Stern, Wahab

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 72-0, 5/23/24 - See last page for vote

SUBJECT: Housing programs: tribal housing program

SOURCE: Author

DIGEST:

This bill creates the Tribal Housing Advisory Committee (Committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD).

ANALYSIS:

Existing law:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden, as specified.
2. Requires HCD, under the G. David Singleton California Indian Assistance Program (CIAP), to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas.
3. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs.

This bill:

1. Creates the Committee within BCSH, upon appropriation by the Legislature, and requires, among other things, the Committee membership to be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs.
2. Requires the committee to do all of the following:
   1. Identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH funds;
   2. Provide input and guidance to any agency with a tribal housing grant program regarding existing and new housing programs for federally recognized tribes to ensure the programs are designed with tribes in mind;
   3. Create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. Identify tribal targets and set-asides in state and federally funded housing programs;
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP); and
   6. Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as specified.
5. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
6. Requires HCD to create tribal set-asides within each funding program for which only federally recognized tribes are eligible for a specific percentage of dollar amount.

Background

Background on Tribal Access to State Housing Programs. California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia, Chapter 660, Statutes of 2019), the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

Comments

1. Author’s Statement. According to the author, “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”
2. Challenges Continue with Accessing Some Housing Funds. The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds.

To address these challenges, the bill proposes to create a Tribal Housing Advisory Committee within BCSH, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and would provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would create a standard grant agreement to be used by state agencies who have tribal housing grant programs, provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors, and create a tribal management information system to collect data on the provision of housing and services to tribes and tribal members.

This bill further proposes to address inconsistencies and inflexibility in HCD’s waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and program income limits to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill directs HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable, and requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• BCSH Agency estimates first year costs of approximately $547,000 and ongoing costs of approximately $523,000 annually for 3.0 PY of staff to create and staff the new advisory committee and administer the provisions of the bill, including the development of a standard grant agreement for state tribal housing grant programs, identification of tribal targets and set-asides in housing programs, and providing administrative support for the advisory committee. BCSH Agency would also incur additional expenses, likely in the tens of thousands of dollars annually ongoing, to provide for travel, per diem compensation, and other costs associated with advisory committee meetings. (General Fund)*
  
• BCSH Agency indicates that one-time costs to design, develop, and integrate the tribal management information system (TMIS) are unknown, but likely in the high millions of dollars, and also estimates unknown costs, likely in the millions of dollars annually, for ongoing maintenance of the system. In addition, BCSH Agency estimates it would incur one-time contracting costs in the low millions of dollars prior to launching the new TMIS to conduct outreach focused on promoting access to the program and technical assistance. (General Fund)*
  
• HCD estimates ongoing costs of approximately $1.04 million annually for 5.0 PY of staff to add a new tribal liaison, modify existing program guidelines to account for different matters that may be waived or modified for tribal applicants, to provide additional coordination with tribal stakeholders, to incorporate additional tracking for tribal waivers, and to provide outreach and enhanced technical assistance to tribal entities. (General Fund)
  
• Unknown, significant cost pressures and revenue losses related to provisions that require deferral of all principal and interest payments, and forgiveness of loans, for any state funding assistance program provided to tribal sponsors. (General Fund and various special funds)

SUPPORT: (Verified 8/15/24)

AIDS Healthcare Foundation
American Planning Association California Chapter
Cahuilla Band of Indians
California Housing Partnership Corporation
California Primary Care Association Advocates
California State Association of Counties (CSAC)
California Tribal Business Alliance
Habematolel Pomo of Upper Lake
Pala Band of Mission Indians
Smart Justice California, a Project of Tides Advocacy

OPPOSITION: (Verified 8/15/24)

None received

ASSEMBLY FLOOR: 72-0, 5/23/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Cervantes, Megan Dahle, Essayli, Holden, Mathis, Luz Rivas, Blanca Rubio, Wicks

Prepared by: Alison Hughes / HOUSING / (916) 651-4124

8/18/24 8:51:05

**** END ****

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, “California Tribal Housing Needs and Opportunities: A Vision Forward” (2019) ↑

2. Congressional Research Service, “Tribal Lands: An Overview” (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 1878 (Garcia) - Housing programs: tribal housing program

Bill Summary:

AB 1878 would establish the Tribal Housing Advisory Committee within the Business, Consumer Services, and Housing Agency (BCSH Agency), upon appropriation of funds by the Legislature, and make specified changes to the Department of Housing and Community Development’s (HCD’s) tribal liaison and technical assistance requirements. The bill would also require HCD to create tribal set-asides for specified funding programs, defer loan payments for the full term of a loan, and require forgiveness of loans to tribal sponsors, as specified.

Fiscal Impact:

• BCSH Agency estimates first year costs of approximately $547,000 and ongoing costs of approximately $523,000 annually for 3.0 PY of staff to create and staff the new advisory committee and administer the provisions of the bill, including the development of a standard grant agreement for state tribal housing grant programs, identification of tribal targets and set-asides in housing programs, and providing administrative support for the advisory committee. BCSH Agency would also incur additional expenses, likely in the tens of thousands of dollars annually ongoing, to provide for travel, per diem compensation, and other costs associated with advisory committee meetings. (General Fund)*
  
• BCSH Agency indicates that one-time costs to design, develop, and integrate the tribal management information system (TMIS) are unknown, but likely in the high millions of dollars, and also estimates unknown costs, likely in the millions of dollars annually, for ongoing maintenance of the system. In addition, BCSH Agency estimates it would incur one-time contracting costs in the low millions of dollars prior to launching the new TMIS to conduct outreach focused on promoting access to the program and technical assistance. (General Fund)*
  
• HCD estimates ongoing costs of approximately $1.04 million annually for 5.0 PY of staff to add a new tribal liaison, modify existing program guidelines to account for different matters that may be waived or modified for tribal applicants, to provide additional coordination with tribal stakeholders, to incorporate additional tracking for tribal waivers, and to provide outreach and enhanced technical assistance to tribal entities. (General Fund)
  
• Unknown, significant cost pressures and revenue losses related to provisions that require deferral of all principal and interest payments, and forgiveness of loans, for any state funding assistance program provided to tribal sponsors. (General Fund and various special funds)

*Staff notes that the fiscal impacts attributable to the BCSH Agency should be characterized as cost pressures as they would only be incurred to the extent that funds are appropriated for the creation of the Tribal Housing Advisory Committee.

Background:

California has the largest Native American population in the nation, with over 365,000 Californians identifying in whole or part as American Indian and/or Native American. California currently has 109 federally recognized tribes, almost one-fifth of all tribes nationwide.  These tribes, which include nearly 100 small reservations and Rancherias, are spread out across the state, in urban, suburban, and rural jurisdictions. California differs from other states in that only a small percentage of tribal lands are held in trust by the U.S. government. Poverty disproportionately affects tribal populations; the rate of tribal poverty is more than twice that of the rest of the state’s population, and one-third of tribal residents live below the federal poverty rate.

In response to Governor Brown’s issuance of Executive Order B-10-11, HCD adopted a Tribal Consultation Policy in December of 2014 to memorialize its commitment to strengthening and promoting relationships between the Tribes and the State of California. HCD’s Policy is intended to foster and promote effective consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes eligible for HCD’s financing programs, regarding development and/or implementation of policies, rules, regulations, programs, projects, plans, and activities that may affect tribal communities. In 2019, Governor Newsom issued EO N-15-19, which reaffirmed the previous executive order and added a formal apology to California’s First Nations for atrocities committed by the State against tribal communities during early statehood.

Existing law, as enacted by AB 1010 (E.Garcia), Chap. 660/2019, expressly includes a duly constituted governing body of an Indian reservation or Rancheria, and tribally designated housing entities, as eligible applicants under numerous state housing programs. AB 1010 also reconstituted the “G. David Singleton California Indian Assistance Program” (CIAP), which requires HCD to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, Rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in such areas. Existing law also authorizes HCD to act on behalf of a tribal housing authority and perform its functions, upon request of the governing body of a reservation or Rancheria, as specified.

Existing law authorizes HCD to modify or waive various requirements of state financing provided to a housing development if the provisions of tribal law, governance, charter, or legal structure would cause a violation or not satisfy the requirements of any state funding being provided by HCD. Where inconsistencies exist, existing law authorizes HCD to waive financing requirements, as it deems necessary to avoid any unnecessary administrative burden, and specifies a non-exclusive list of matters that may be waived or modified.

Proposed Law:

AB 1878 would establish the Tribal Housing Advisory Committee within the BCSH Agency, upon appropriation of funds by the Legislature, co-chaired by the Agency Secretary and a tribal representative, and composed of at least nine members, selected as specified, who are representatives of federally-recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The bill would require the advisory committee to do all of the following:

• Identify and report to the BCSH Agency tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, and barriers that exist for tribes when applying for BCSH Agency or HCD funds.
• Provide input and guidance to any agency or department with a tribal housing grant program for federally recognized tribes to ensure programs are designed or enhanced with tribes in mind.
• Create a standard grant agreement to be used by state agencies for tribal housing grant programs.
• Identify tribal set-asides in state-funded housing programs.
• Provide recommendations to HCD for minimum job requirements of advisors and attorneys provided technical assistance as part of CIAP.
• Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members. This data must be kept confidential and would not be subject to public disclosure, but HCD and other departments with funding programs may share data with tribes.

The bill would also revise HCD’s tribal liaison and technical assistance requirements as follows:

• Revise HCD’s authority to modify or waive a program’s financing requirements if tribal law, governance, charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy financing requirements to allow waivers or modifications of timeline, service area, fund matching, shovel-ready project status, housing element and housing plan requirements, income limits, threshold experience and ranking and rating requirements, as specified, and to eliminate specified restrictions on target population percentage and affordability levels and unit mix requirements.
• Require HCD, where state housing programs have ties to federal programs, to work with the US Department of Housing and Urban Development (HUD) to ensure program capability, avoid unnecessary administrative burden, and remove barriers.
• Allow tribally designated housing entities that represent more than one federally recognized tribe to submit one competitive application per tribe with the same funding program, as specified.
• Require HCD to create tribal set-asides within each funding program for which only federally recognized tribes are eligible for a specified percentage of dollar amount, and allow unawarded set-aside balances to be rolled over to subsequent cycles, as specified.
• Require the repayment of principal and interest on HCD loans to tribal sponsors to be deferred for the full term of the loan, and require HCD to forgive loans to tribal sponsors if all loan conditions have been satisfied.
• Require HCD to include its designated tribal liaison or a designee in all discussions with tribes who are eligible recipients, except as specified.
• Prohibit HCD from requiring a tribe that is an eligible recipient of state funding to waive tribal sovereignty as a condition of accessing funds.
• Require HCD’s designated tribal liaison to complete a culturally competent training course and require HCD to include the tribal liaison in all discussions with tribes that are eligible recipients of state funds, unless express permission is provided by the recipient for the liaison or their designee to be absent.
• Revise the CIAP as follows:
  • Add tribes, designated tribal housing entities, tribal housing departments, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing HCD requirement to provide technical assistance to various entities to facilitate the planning and development of tribal housing.
  • Delete authorization for HCD to act on behalf of, and perform the functions of, a tribal housing authority upon request of a reservation or Rancheria governing body.
  • Require HCD to provide assistance with waivers by assigning each waiver with a reference number, posting all waivers on its website, and whether waivers were approved or denied, and allowing a tribe that did not submit an approved waiver to be subject to an approved waiver, as specified.
  • Require HCD to provide outreach, education, and comprehensive technical assistance to specified tribal entities in the development of tribal housing grant programs, and before, during, and after the grant application process.

Related Legislation:

SB 1187 (McGuire), which is currently pending in the Assembly Appropriations Committee, would establish the Tribal Housing Grant Program and require HCD to allocate grant funds, upon appropriation by the Legislature, to federally-recognized Indian reservations and Rancherias, and tribally designated housing entities, for specified affordable housing projects and purposes.

SB 371 (Garcia), which was vetoed by Governor Newsom last year, was nearly identical to this bill. The veto message of both AB 371 and SB 18, a bill nearly identical to SB 1187, indicated that Governor Newsom shares the author’s “desire to further remove barriers and increase tribal access to tribal access to housing and homelessness programs,” and noted recent allocations of funding specifically for tribes through set asides in several housing and homelessness programs. The Governor’s veto message further stated the following:

System overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

I am committed to addressing these important issues in next year's budget and look forward to working with the Legislature and our tribal partners to help deliver these critical dollars to tribal communities where - and how- they are needed.

AB 1010 (E.Garcia), Chap. 660/2019, expanded applicant eligibility for numerous state housing programs to include a duly constituted governing body of an Indian reservation or Rancheria, or a tribally designated housing entity, and required HCD to provide technical assistance to specified tribal entities to facilitate housing development for American Indians.

Staff Comments:

This bill would address the challenges and structural obstacles experienced by tribes and tribally designated housing entities as they have attempted to access and compete for funding in existing state housing programs by establishing a new advisory committee at the BCSH Agency to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The bill would also enhance HCD’s technical assistance provided to tribal entities through CIAP and expand its authority to modify or waive a housing program’s financing requirements if issues specific to tribal law, governance, charter, or legal structure are inconsistent with the requirements for financing.

As noted in the “Related Legislation” section above, the Governor vetoed both SB 18 (McGuire) and AB 371 (E.Garcia) last year, and expressed a commitment to address the issues raised in those measures in this year’s budget. Staff notes, however, that the 2024-25 Budget does not include provisions or provide funding to address tribal housing programmatic barriers or for a tribal housing grant program. According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1878 (Author:Garcia)

Version: June 17, 2024

Hearing Date: July 2, 2024

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

Housing programs: tribal housing program

DIGEST

This bill establishes the Tribal Housing Advisory Committee (Committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD), as provided. The bill provides that the data collected for specified purposes under the bill are confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.

EXECUTIVE SUMMARY

AB 1010 (E. Garcia, Ch. 660, Stats. 2019) expanded the law to make the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs and also reconstituted a defunct program to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. This bill seeks to bolster these provisions by, among other things, requiring HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process. The principal policy matter drawing this bill into the purview of the Senate Judiciary Committee is the inclusion of a provision that restricts access to certain public records. This bill is a reintroduction of AB 371 (Garcia, 2023), which was vetoed by Governor Newsom (see Comment 4), below). This bill passed the Senate Housing Committee on a vote of 10 to 0. The bill is author sponsored by the Pala Band of Mission Indians and supported by several organizations, including California Housing Partnership Corporation and the California Primary Care Association. No timely opposition was received by this Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing being provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden. (Health & Saf. Code § 50406(p)(1).)
2. Matters that may be waived or modified pursuant to 1), above, include, but are not limited to, all of the following:
   1. instrument recordation requirements;
   2. security requirements for state financing provided pursuant to HCD programs;
   3. title insurance requirements;
   4. target population percentage requirements, affordability levels, and unit mix requirements, not to exceed a change of more than five percent of any amount expressly set forth in statute; and
   5. any matter not expressly or objectively set forth in statute, but is set forth with specificity in guidelines or regulations promulgated by HCD. (Health & Saf. Code § 50406(p)(2).)
3. Requires HCD, under the G. David Singleton California Indian Assistance Program (CIAP), to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas. (Health & Saf. Code § 50513.)
4. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs. (see e.g. Health & Saf. Code §§ 50077, 50079, & 50091.)
5. Provides, pursuant to the California Constitution, that the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies are required to be open to public scrutiny. (Cal. const. art. I, § 3(b)(1).)
   1. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. const. art. I, § 3(b)(1).)
   2. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Cal. const. art. I, § 3(b)(1).)
6. Governs the disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA). (Gov. Code § 7920.000 et seq.)
   1. States that the Legislature, mindful of the individual right to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code § 7921.000.)
   2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530.)
   3. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code § 7922.530.)

This bill:

1. Establishes the Committee within BCSH, upon appropriation by the Legislature, composed of members who are representatives of federally recognized tribal governments and have knowledge, experience, and expertise in the area of tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs.
   1. The Committee is to have three members from central California, three from northern California, and three from southern California.
   2. The Committee is cochaired by the Secretary of BCSH, or a designee, and a tribal representative voted upon by the committee members.
   3. The BCSH is to appoint members to the Committee, and members are to serve on a volunteer basis for four-year terms with no term limits so long as the member is active and does not miss three consecutive meetings.
2. Requires the Committee to do all of the following:
   1. identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH or HCD funds;
   2. provide input and guidance to any agency or department with a tribal housing grant program for federally recognized tribes to ensure the programs are designed or enhanced with tribes in mind;
   3. create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. identify tribal set-asides in state-funded housing programs;
   5. provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the CIAP; and
   6. create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Makes the following modifications to CIAP:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide assistance with waivers by doing all of the following:
      1. assign each waiver with a reference number;
      2. post on its website a waiver submitted to HCD, including the nature of the waiver and the waiver reference number;
      3. post on its website whether a waiver is accepted and denied. If the waiver is denied, post the reason HCD denied the waiver; and
      4. allow a tribe that did not submit an approved waiver to be subject to an approved waiver.
   4. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as follows:
   1. deletes the restriction on HCD to waive target population percentage requirements or affordability levels and unit mix requirements, not to exceed a change of more than 5 percent of any amount expressly set forth in statute, such that HCD may instead waive or modify target population percentage or affordability levels and unit mix requirements without a 5 percent cap; and
   2. adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, income limits, threshold experience requirements, and ranking and rating requirements to the list of matters that HCD may waive or modify.
5. Requires HCD to draft any waiver of sovereign immunity narrowly, if it requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access the funds, in order to serve both the individual needs of the tribe and make the funding agreement enforceable.
6. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
7. Requires data collected for CIAP pursuant to the above provisions to be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.
   1. Authorizes the data collected by HCD and other departments with funding programs to be shared and made available to tribes.

COMMENTS

1. Stated need for the bill

The author writes:

California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants.

Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.

1. Background

The sponsor and author of the bill contend that, while some state housing and homelessness programs are working well for tribal entities, there are several challenges that remain and that is why this bill is needed. These challenges include, among others:

• • Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances.
  • Only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are even successful at all, because HCD program applications can be onerous and opaque.
  • Tribal technical assistance, which HCD is required to provide under AB 1010, is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines.
  • Inadequate provision of technical assistance is negatively impacting tribes’ ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides.
  • There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher area median income in determining eligibility of applicants for certain income-restricted homeownership programs.
  • Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

In light of the above, this bill seeks to establish a Tribal Housing Advisory Committee (Committee) within BCSH, which would be made up of tribal representatives with experience related to accessing state-funded grant programs. Among other things, the Committee is responsible for identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and is authorized to provide input and guidance to any agency with tribal housing grant programs and for any newly created housing programs for tribes. Additionally, the bill addresses inconsistencies and rigidness in HCD’s waiver authority to allow for more leniency on aspects of program requirements, and expands the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill requires HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable. Under the bill, HCD would be required to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

1. CPRA and access to public records

The bill provides that data collected pursuant to the provision of the bill related to technical assistance is to be kept confidential and is not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.

California generally recognizes that public access to information concerning the conduct of the people’s business is a fundamental and necessary right. At the same time, the state recognizes that this right must be balanced against the right to privacy. The general right of access to public records may, therefore, be limited where records include personal information or information of a sensitive nature. The bill provides that this limitation is necessary in order to protect the privacy of California residents, while also collecting useful data on housing and services to tribes and tribal members.

1. This bill is a reintroduction of AB 371 (Garcia, 2023)

This bill is substantially similar to AB 371 (Garcia, 2023), which was vetoed by Governor Newsom:

I signed legislation in 2019 to make tribes eligible for most State housing programs, and I remain committed to doing more. My Administration has provided tribal set asides in a variety of new programs we created, including: $30 million in the Behavioral Health Infrastructure Bond Act of 2023; $29 million through the first round of the Multifamily Super Notice of Funding Availability, which combines funding for four affordable housing funding programs; $20 million recently awarded through the Homeless, Housing Assistance and Prevention program (HHAP); and a forthcoming Homekey Tribal Entity Notice of Funding Availability of approximately $75 million, to name a few.

But system overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

SUPPORT

Aids Healthcare Foundation

American Planning Association California Chapter

California Housing Partnership Corporation

California Primary Care Association

California State Association of Counties

Smart Justice California

OPPOSITION

None received

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 371 (Garcia, 2023) was nearly identical to this bill, but was vetoed by Governor Newsom (see Comment 4), above, for veto message).

AB 1010 (E. Garcia, Ch. 660, Stats. 2019) see Executive Summary.

PRIOR VOTES

Senate Housing Committee (Ayes 10, Noes 0)

Assembly Floor (Ayes 72, Noes 0)

Assembly Appropriations Committee (Ayes 15, Noes 0)

Assembly Housing and Community Development Committee (Ayes 9, Noes 0)

**************

SENATE COMMITTEE ON HOUSING

Senator Nancy Skinner, Chair

2023 - 2024 Regular

Bill No: AB 1878 Hearing Date: 6/24/2024

SUBJECT: Housing programs: tribal housing program

DIGEST: This bill creates the Tribal Housing Advisory Committee (Committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD).

ANALYSIS:

Existing law:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden. The matters that may be waived or modified include, but are not limited to:
   1. Instrument recordation requirements;
   2. Security requirements for state financing provided pursuant to HCD programs;
   3. Title insurance requirements;
   4. Target population percentage requirements, affordability levels, and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute; and
   5. Any matter not expressly or objectively set forth in statute, but is set forth with specificity in guidelines or regulations promulgated by HCD.
2. Requires HCD, under the G. David Singleton California Indian Assistance Program (CIAP), to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas.
3. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs.

This bill:

1. Creates the Committee within BCSH, upon appropriation by the Legislature, and requires the following:
   1. The membership of the committee must be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The members must consist of at least three members from Central California, three from Northern California, and three from Southern California;
   2. The committee must be co-chaired by the Secretary of BCSH or a designee, and by a tribal representative voted on by committee members;
   3. BCSH must appoint members to the committee, and members must serve on a volunteer basis with four-year terms with no term limits so long as the member is active and does not miss three consecutive meetings;
   4. When appointing members to the committee, BCSH must take into account geographic diversity and proven qualifying experience and expertise in tribal housing; and
   5. An individual may apply to be a member on the committee by submitting an application to BCSH that includes a letter of nomination and support from their respective tribal chairperson, a portfolio of qualifying experience, and a defined region of representation.
2. Requires the committee to do all of the following:
   1. Identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH funds;
   2. Provide input and guidance to any agency with a tribal housing grant program regarding existing and new housing programs for federally recognized tribes to ensure the programs are designed with tribes in mind;
   3. Create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. Identify tribal targets and set-asides in state and federally funded housing programs;
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP); and
   6. Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide assistance with waivers by doing all of the following:
      1. Assign each waiver with a reference number;
      2. Post on its website a waiver submitted to HCD, including the nature of the waiver and the waiver reference number;
      3. Post on its website whether a waiver is accepted and denied. If the waiver is denied, post the reason HCD denied the waiver; and
      4. Allow a tribe that did not submit an approved waiver to be subject to an approved waiver.
   4. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as follows:
   1. Strikes the restriction on HCD to waive target population percentage requirements or affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute, such that HCD may instead waive or modify target population percentage or affordability levels and unit mix requirements without a 5% cap;
   2. Adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits to the list of matters that HCD may waive or modify.
5. Requires HCD, if it requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access the funds, to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.
6. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
7. Requires HCD to create tribal set-asides within each funding program for which only federally recognized tribes are eligible for a specific percentage of dollar amount.
8. Requires data collected under this bill for CIAP to be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.
9. Provides that HCD shall not require a tribe to waive tribal sovereignty in order to access funds.

COMMENTS:

1. Author’s Statement. “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”
2. Background on Tribal Access to State Housing Programs. California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia, Chapter 667, Statutes of 2019), the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

1. Challenges Continue with Accessing Some Housing Funds. The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Those challenges include:
2. Existing state programs often were not designed with tribes in mind, meaning they have restrictive threshold and compliance requirements that are too difficult for tribes to meet, or are mismatched to the opportunities that exist on tribal trust and fee land;
3. Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances;
4. Because HCD program applications can be onerous and opaque, only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are successful at all;
5. Tribal technical assistance, which HCD is required to provide under AB 1010 (E. Garcia), is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines. Inadequate provision of technical assistance is negatively impacting tribes’ ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides;
6. There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher area median income (AMI) in determining eligibility of applicants for certain income-restricted homeownership programs; and
7. Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

To address these challenges, the bill proposes to create a Tribal Housing Advisory Committee within BCSH, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and would provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would create a standard grant agreement to be used by state agencies who have tribal housing grant programs, provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors, and create a tribal management information system to collect data on the provision of housing and services to tribes and tribal members.

The bill further proposes to address inconsistencies and inflexibility in HCD’s waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and program income limits to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill directs HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable, and requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

1. If at first you don’t succeed… This bill is nearly identical to AB 371 (Garcia, 2023), which was vetoed by the Governor.
2. Double referral. This bill was also referred to the Judiciary Committee.

Related Legislation:

AB 371 (E. Garcia, 2023) — was nearly identical to this bill. The bill was vetoed by the Governor, with the following message:

SB 18 would create the Tribal Housing Grant Program Trust Fund to provide grant funds to tribal entities, and AB 371 would change the current waiver process utilized to assist tribal entities in applying for various housing financing programs administered by the Department.

I want to thank the authors and their supporters for their commitment to providing more safe and affordable housing for California's tribal residents. These legislative efforts are well-intentioned, and I share the desire to further remove barriers and increase tribal access to housing and homelessness programs.

I signed legislation in 2019 to make tribes eligible for most State housing programs, and I remain committed to doing more. My Administration has provided tribal set asides in a variety of new programs we created, including: $30 million in the Behavioral Health Infrastructure Bond Act of 2023; $29 million through the first round of the Multifamily Super Notice of Funding Availability, which combines funding for four affordable housing funding programs; $20 million recently awarded through the Homeless, Housing Assistance and Prevention program (HHAP); and a forthcoming Homekey Tribal Entity Notice of Funding Availability of approximately $75 million, to name a few.

But system overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

I am committed to addressing these important issues in next year's budget and look forward to working with the Legislature and our tribal partners to help deliver these critical dollars to tribal communities where - and how- they are needed.

AB 1010 (E. Garcia, Chapter 660, Statutes of 2019) — made tribes eligible for various affordable housing grant programs and recreated the CIAP at HCD.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

POSITIONS: (Communicated to the committee before noon on Wednesday,

June 19, 2024.)

SUPPORT:

AIDS Healthcare Foundation

Cahuilla Band of Indians

California Housing Partnership Corporation

California Primary Care Association Advocates

California Tribal Business Alliance

Habematolel Pomo of Upper Lake

Pala Band of Mission Indians

Smart Justice California, a Project of Tides Advocacy

OPPOSITION:

None received.

-- END --

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, “California Tribal Housing Needs and Opportunities: A Vision Forward” (2019) ↑

2. Congressional Research Service, “Tribal Lands: An Overview” (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑

SENATE COMMITTEE ON HOUSING

Senator Nancy Skinner, Chair

2023 - 2024 Regular

Bill No: AB 1878 Hearing Date: 6/24/2024

SUBJECT: Housing programs: tribal housing program

DIGEST: This bill creates the Tribal Housing Advisory Committee (Committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD).

ANALYSIS:

Existing law:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden. The matters that may be waived or modified include, but are not limited to:
   1. Instrument recordation requirements;
   2. Security requirements for state financing provided pursuant to HCD programs;
   3. Title insurance requirements;
   4. Target population percentage requirements, affordability levels, and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute; and
   5. Any matter not expressly or objectively set forth in statute, but is set forth with specificity in guidelines or regulations promulgated by HCD.
2. Requires HCD, under the G. David Singleton California Indian Assistance Program (CIAP), to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas.
3. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs.

This bill:

1. Creates the Committee within BCSH, upon appropriation by the Legislature, and requires the following:
   1. The membership of the committee must be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The members must consist of at least three members from Central California, three from Northern California, and three from Southern California;
   2. The committee must be co-chaired by the Secretary of BCSH or a designee, and by a tribal representative voted on by committee members;
   3. BCSH must appoint members to the committee, and members must serve on a volunteer basis with four-year terms with no term limits so long as the member is active and does not miss three consecutive meetings;
   4. When appointing members to the committee, BCSH must take into account geographic diversity and proven qualifying experience and expertise in tribal housing; and
   5. An individual may apply to be a member on the committee by submitting an application to BCSH that includes a letter of nomination and support from their respective tribal chairperson, a portfolio of qualifying experience, and a defined region of representation.
2. Requires the committee to do all of the following:
   1. Identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH funds;
   2. Provide input and guidance to any agency with a tribal housing grant program regarding existing and new housing programs for federally recognized tribes to ensure the programs are designed with tribes in mind;
   3. Create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. Identify tribal targets and set-asides in state and federally funded housing programs;
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP); and
   6. Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide assistance with waivers by doing all of the following:
      1. Assign each waiver with a reference number;
      2. Post on its website a waiver submitted to HCD, including the nature of the waiver and the waiver reference number;
      3. Post on its website whether a waiver is accepted and denied. If the waiver is denied, post the reason HCD denied the waiver; and
      4. Allow a tribe that did not submit an approved waiver to be subject to an approved waiver.
   4. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as follows:
   1. Strikes the restriction on HCD to waive target population percentage requirements or affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute, such that HCD may instead waive or modify target population percentage or affordability levels and unit mix requirements without a 5% cap;
   2. Adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits to the list of matters that HCD may waive or modify.
5. Requires HCD, if it requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access the funds, to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.
6. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
7. Requires HCD to create tribal set-asides within each funding program for which only federally recognized tribes are eligible for a specific percentage of dollar amount.
8. Requires data collected under this bill for CIAP to be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.
9. Provides that HCD shall not require a tribe to waive tribal sovereignty in order to access funds.

COMMENTS:

1. Author’s Statement. “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”
2. Background on Tribal Access to State Housing Programs. California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia, Chapter 667, Statutes of 2019), the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

1. Challenges Continue with Accessing Some Housing Funds. The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Those challenges include:
2. Existing state programs often were not designed with tribes in mind, meaning they have restrictive threshold and compliance requirements that are too difficult for tribes to meet, or are mismatched to the opportunities that exist on tribal trust and fee land;
3. Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances;
4. Because HCD program applications can be onerous and opaque, only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are successful at all;
5. Tribal technical assistance, which HCD is required to provide under AB 1010 (E. Garcia), is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines. Inadequate provision of technical assistance is negatively impacting tribes’ ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides;
6. There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher area median income (AMI) in determining eligibility of applicants for certain income-restricted homeownership programs; and
7. Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

To address these challenges, the bill proposes to create a Tribal Housing Advisory Committee within BCSH, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and would provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would create a standard grant agreement to be used by state agencies who have tribal housing grant programs, provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors, and create a tribal management information system to collect data on the provision of housing and services to tribes and tribal members.

The bill further proposes to address inconsistencies and inflexibility in HCD’s waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and program income limits to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill directs HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable, and requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

1. If at first you don’t succeed… This bill is nearly identical to AB 371 (Garcia, 2023), which was vetoed by the Governor.

Related Legislation:

AB 371 (E. Garcia, 2023) — was nearly identical to this bill. The bill was vetoed by the Governor, with the following message:

SB 18 would create the Tribal Housing Grant Program Trust Fund to provide grant funds to tribal entities, and AB 371 would change the current waiver process utilized to assist tribal entities in applying for various housing financing programs administered by the Department.

I want to thank the authors and their supporters for their commitment to providing more safe and affordable housing for California's tribal residents. These legislative efforts are well-intentioned, and I share the desire to further remove barriers and increase tribal access to housing and homelessness programs.

I signed legislation in 2019 to make tribes eligible for most State housing programs, and I remain committed to doing more. My Administration has provided tribal set asides in a variety of new programs we created, including: $30 million in the Behavioral Health Infrastructure Bond Act of 2023; $29 million through the first round of the Multifamily Super Notice of Funding Availability, which combines funding for four affordable housing funding programs; $20 million recently awarded through the Homeless, Housing Assistance and Prevention program (HHAP); and a forthcoming Homekey Tribal Entity Notice of Funding Availability of approximately $75 million, to name a few.

But system overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

I am committed to addressing these important issues in next year's budget and look forward to working with the Legislature and our tribal partners to help deliver these critical dollars to tribal communities where - and how- they are needed.

AB 1010 (E. Garcia, Chapter 660, Statutes of 2019) — made tribes eligible for various affordable housing grant programs and recreated the CIAP at HCD.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

POSITIONS: (Communicated to the committee before noon on Wednesday,

June 19, 2024.)

SUPPORT:

AIDS Healthcare Foundation

Cahuilla Band of Indians

California Housing Partnership Corporation

California Primary Care Association Advocates

California Tribal Business Alliance

Habematolel Pomo of Upper Lake

Pala Band of Mission Indians

Smart Justice California, a Project of Tides Advocacy

OPPOSITION:

None received.

-- END --

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, “California Tribal Housing Needs and Opportunities: A Vision Forward” (2019) ↑

2. Congressional Research Service, “Tribal Lands: An Overview” (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1878

Author:(Garcia)

As Introduced Ver:January 22, 2024

Majority vote

SUMMARY

Creates the Tribal Housing Advisory Committee (committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD).

Major Provisions

1. Creates the committee within BCSH, upon appropriation by the Legislature, and requires the following:
   1. The membership of the committee must be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The members must consist of at least three members from Central California, three from Northern California, and three from Southern California;
   2. The committee must be co-chaired by the Secretary of BCSH or a designee, and by a tribal representative voted on by committee members;
   3. BCSH must appoint members to the committee, and members must serve on a volunteer basis with four-year terms with no term limits so long as the member is active and does not miss three consecutive meetings;
   4. When appointing members to the committee, BCSH must take into account geographic diversity and proven qualifying experience and expertise in tribal housing; and
   5. An individual may apply to be a member on the committee by submitting an application to BCSH that includes a letter of nomination and support from their respective tribal chairperson, a portfolio of qualifying experience, and a defined region of representation.
2. Requires the committee to do all of the following:
   1. Identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH funds;
   2. Provide input and guidance to any agency with a tribal housing grant program regarding existing and new housing programs for federally recognized tribes to ensure the programs are designed with tribes in mind;
   3. Create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. Identify tribal targets and set-asides in state and federally funded housing programs;
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP); and
   6. Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe's designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide assistance with waivers by doing all of the following:
      1. Assign each waiver with a reference number;
      2. Post on its website a waiver submitted to HCD, including the nature of the waiver and the waiver reference number;
      3. Post on its website whether a waiver is accepted and denied. If the waiver is denied, post the reason HCD denied the waiver; and
      4. Allow a tribe that did not submit an approved waiver to be subject to an approved waiver.
   4. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as follows:
   1. Strikes the restriction on HCD to waive target population percentage requirements or affordability levels and unit mix requirements, not to exceed a change of more than 5% of any amount expressly set forth in statute, such that HCD may instead waive or modify target population percentage or affordability levels and unit mix requirements without a 5% cap;
   2. Adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits to the list of matters that HCD may waive or modify.
5. Requires HCD, if it requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access the funds, to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.
6. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
7. Requires data collected under this bill for CIAP to be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.

COMMENTS

Background on Tribal Access to State Housing Programs: California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as "American Indian." California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes' land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to "foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes." While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia), Chapter 660, Statutes of 2019, the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe's designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

Challenges Continue with Accessing Some Housing Funds: The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Those challenges include:

1. Existing state programs often were not designed with tribes in mind, meaning they have restrictive threshold and compliance requirements that are too difficult for tribes to meet, or are mismatched to the opportunities that exist on tribal trust and fee land;
2. Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances;
3. Because HCD program applications can be onerous and opaque, only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are successful at all;
4. Tribal technical assistance, which HCD is required to provide under AB 1010 (E. Garcia), is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines. Inadequate provision of technical assistance is negatively impacting tribes' ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides;
5. There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher area median income (AMI) in determining eligibility of applicants for certain income-restricted homeownership programs; and
6. Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

To address these challenges, the bill proposes to create a Tribal Housing Advisory Committee within BCSH, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and would provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would create a standard grant agreement to be used by state agencies who have tribal housing grant programs, provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors, and create a tribal management information system to collect data on the provision of housing and services to tribes and tribal members.

The bill further proposes to address inconsistencies and inflexibility in HCD's waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and program income limits to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill directs HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable, and requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

According to the Author

"California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants.

Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed."

Arguments in Support

According to the Pala Band of Mission Indians, the bill's sponsor, "California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly committee on Appropriations:

1. Subject to an appropriation by the Legislature, BCSH estimates the following costs:
2. General Fund (GF) costs of approximately $486,000 in the first year and $462,000 annually thereafter to create and staff the new advisory committee and administer the provisions of the bill. Duties would include developing a standard grant agreement for state tribal housing grant programs, and identifying tribal targets and set-asides in state and federally funded housing programs.
3. GF costs, likely in the tens of thousands of dollars annually ongoing to provide for travel, per-diem compensation, and other costs associated with the administration of the advisory committee.
4. GF costs in the high millions of dollars for the design, development, integration, and ongoing maintenance of a customized tribal management information system to collect client-level data and data on the provisions of housing and services to tribal nations and tribal members.
5. One-time GF contract costs in the low millions of dollars prior to launching the tribal management information system to conduct outreach focused on promoting access to the system and technical assistance.
6. HCD estimates ongoing GF costs of $568,000 annually for three staff positions to add a new tribal liaison, modify existing program guidelines, incorporate additional tracking for tribal waivers, and provide additional coordination with tribal stakeholders.

According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

VOTES

ASM HOUSING AND COMMUNITY DEVELOPMENT: 9-0-0

YES: Ward, Joe Patterson, Grayson, Kalra, Lee, Zbur, Reyes, Sanchez, Wilson

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: January 22, 2024

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0003366

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, "California Tribal Housing Needs and Opportunities: A Vision Forward" (2019) ↑

2. Congressional Research Service, "Tribal Lands: An Overview" (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑

Date of Hearing: April 10, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 1878

Author:(Garcia) – As Introduced Ver:January 22, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill creates, upon appropriation by the Legislature, the Tribal Housing Advisory Committee (advisory committee) within the Business, Consumer Services, and Housing Agency (BCSH), and makes changes to tribal liaison and technical assistance (TA) requirements that apply to the Department of Housing and Community Development (HCD).

Among its provisions, this bill:

1. Upon appropriation by the Legislature, creates the advisory committee within BCSH, composed of tribal representatives with the knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs.
2. Requires the advisory committee to identify and report to BCSH tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, and barriers to applying for BCSH funds, and to also provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes.
3. Requires the advisory committee to create a standard grant agreement to be used by state agencies with tribal housing grant programs, identify tribal targets and set-asides in state-funded and federally funded housing programs, and create a tribal management information system to collect data on housing and services provided to tribes and tribal members. Requires the data collected be kept confidential and not be subject to public disclosure.
4. Revises existing HCD authority to waive or modify financing requirements of programs where provisions of tribal law, governance, or charter, or difference in legal structure cause a violation, create minor inconsistencies, or fail to satisfy state financing requirements, in order to ensure program compatibility and avoid unnecessary administrative burden.
5. Requires HCD to include its dedicated tribal liaison in all discussions with tribes that are eligible recipients of state funds.
6. Revises the G. David Singleton California Indian Assistance Program (CIAP) as follows:
7. Requires HCD to additionally provide TA to tribes wishing to participate in tribal housing grant programs on fee simple land, and to include TA for planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands.
8. Deletes the authorization for HCD to act on behalf of a tribal housing authority.
9. Requires HCD to provide assistance with waivers submitted pursuant to 4) above, and to provide outreach, education, and TA to tribes and tribal housing entities in developing tribal housing grant programs and throughout the grant application process.
10. Requires data collected under CIAP be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides TA.

FISCAL EFFECT:

1. Subject to an appropriation by the Legislature, BCSH estimates the following costs:
2. General Fund (GF) costs of approximately $486,000 in the first year and $462,000 annually thereafter to create and staff the new advisory committee and administer the provisions of the bill. Duties would include developing a standard grant agreement for state tribal housing grant programs, and identifying tribal targets and set-asides in state and federally funded housing programs.
3. GF costs, likely in the tens of thousands of dollars annually ongoing to provide for travel, per-diem compensation, and other costs associated with the administration of the advisory committee.
4. GF costs in the high millions of dollars for the design, development, integration, and ongoing maintenance of a customized tribal management information system to collect client-level data and data on the provisions of housing and services to tribal nations and tribal members.
5. One-time GF contract costs in the low millions of dollars prior to launching the tribal management information system to conduct outreach focused on promoting access to the system and technical assistance.
6. HCD estimates ongoing GF costs of $568,000 annually for three staff positions to add a new tribal liaison, modify existing program guidelines, incorporate additional tracking for tribal waivers, and provide additional coordination with tribal stakeholders.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. The author seeks to remove programmatic barriers in the state's tribal housing set-aside grant programs to help tribes achieve sustainable, safe, and affordable homes. According to the author:

California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants.

1. Background. California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.

California differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.

AB 1010 (E. Garcia), Chapter 667, Statutes of 2019, made tribes eligible to receive funding from various affordable housing programs that had received new funding from housing bonds approved by the voters through Proposition 1 in 2018. The sponsor and author of this bill point out that, while some of these state housing and homelessness programs are working well for tribal entities, notably the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program, there remain a variety of challenges for tribes to access other housing funds. To address these challenges, this bill creates an advisory committee within BCSH, made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs.

AB 1010 additionally required HCD to reconstitute the CIAP, a state-operated program, shuttered in 2008, to provide TA to Indian reservations and rancherias in planning for affordable housing and to help them access housing and community development resources. This bill revises the CIAP to require HCD to consult with additional tribes and types of tribal housing entities and to expand the TA provided to tribes and tribal housing providers.

1. Related Legislation. AB 371 (Garcia), of this legislative session, was nearly identical to this bill. SB 18 (McGuire), also of this legislative session, was a companion bill to AB 371 and would have created a Tribal Housing Grant Program. Both AB 371 and SB 18 were vetoed by the Governor who indicated, in part:

System overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

I am committed to addressing these important issues in next year's budget and look forward to working with the Legislature and our tribal partners to help deliver these critical dollars to tribal communities where - and how- they are needed.

The 2024-25 Governor’s Budget proposes no funding to address tribal housing programmatic barriers or for a tribal housing grant program.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: March 20, 2024

ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT

Christopher M. Ward, Chair

ABPCA Bill Id:AB 1878 (

Author:Garcia) – As Introduced Ver:January 22, 2024

SUBJECT: Housing programs: tribal housing program

SUMMARY: Creates the Tribal Housing Advisory Committee (committee) within the Business, Consumer Services, and Housing Agency (BCSH), upon appropriation, and makes changes to tribal liaison and technical assistance requirements that apply to the Department of Housing and Community Development (HCD). Specifically, this bill:

1. Creates the committee within BCSH, upon appropriation by the Legislature, and requires the following:
   1. The membership of the committee must be composed of members who are tribal representatives and who have knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law to close the gap of inconsistencies and barriers for tribes to successfully access state-funded grant programs. The members must consist of at least three members from Central California, three from Northern California, and three from Southern California;
   2. The committee must be co-chaired by the Secretary of BCSH or a designee, and by a tribal representative voted on by committee members;
   3. BCSH must appoint members to the committee, and members must serve on a volunteer basis with four-year terms with no term limits so long as the member is active and does not miss three consecutive meetings;
   4. When appointing members to the committee, BCSH must take into account geographic diversity and proven qualifying experience and expertise in tribal housing; and
   5. An individual may apply to be a member on the committee by submitting an application to BCSH that includes a letter of nomination and support from their respective tribal chairperson, a portfolio of qualifying experience, and a defined region of representation.
2. Requires the committee to do all of the following:
   1. Identify and report to BCSH tribal housing issues that require waivers to receive state financing, as proposed by the bill; inconsistencies within state housing program streamlined regulations; and barriers that exist for tribes when applying for BCSH funds;
   2. Provide input and guidance to any agency with a tribal housing grant program regarding existing and new housing programs for federally recognized tribes to ensure the programs are designed with tribes in mind;
   3. Create a standard grant agreement to be used by state agencies for tribal housing grant programs;
   4. Identify tribal targets and set-asides in state and federally funded housing programs;
   5. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of the G. David Singleton California Indian Assistance Program (CIAP); and
   6. Create a tribal management information system to collect client-level data and data on the provisions of housing and services to tribes and tribal members.
3. Modifies CIAP as follows:
   1. Adds tribes, designated tribal housing entities, tribal housing departments, housing sponsors, and tribes that want to participate in tribal housing grant programs on fee simple lands to the existing requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas or within a tribe’s designated service area, as defined by the tribe.
   2. Deletes the authorization for HCD, upon request of the governing body of a reservation or rancheria, to act on behalf of the tribal housing authority and perform the functions of the housing authority.
   3. Requires HCD to provide assistance with waivers by doing all of the following:
      1. Assign each waiver with a reference number;
      2. Post on its website a waiver submitted to HCD, including the nature of the waiver and the waiver reference number;
      3. Post on its website whether a waiver is accepted and denied. If the waiver is denied, post the reason HCD denied the waiver; and
      4. Allow a tribe that did not submit an approved waiver to be subject to an approved waiver.
   4. Requires HCD to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, a tribally designated housing entity, housing departments of a tribe, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain in the development of tribal housing grant programs, and before, during, and after the grant application process.
4. Revises existing HCD authority to modify financing requirements of programs where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy requirements of any state financing being provided by HCD, as follows:
   1. Strikes the restriction on HCD to waive target population percentage requirements or affordability levels and unit mix requirements, not to exceed a change of more than 5 percent of any amount expressly set forth in statute, such that HCD may instead waive or modify target population percentage or affordability levels and unit mix requirements without a 5 percent cap;
   2. Adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and income limits to the list of matters that HCD may waive or modify.
5. Requires HCD, if it requires a tribe that is an eligible recipient of state funding to waive tribal sovereignty in order to access the funds, to draft the waiver narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.
6. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.
7. Requires data collected under this bill for CIAP to be kept confidential and not subject to public disclosure, including, but not limited to, any person or entity that provides technical assistance.

EXISTING LAW:

1. Authorizes HCD to modify the requirements of financing that it provides to ensure program compatibility where the provisions of tribal law, tribal governance, tribal charter, or difference in tribal entity or agency legal structure would cause a violation or not satisfy the requirements of any state financing being provided to a housing development by HCD. Where inconsistencies exist, HCD may waive the requirements of financing that it provides, as deemed necessary, to avoid an unnecessary administrative burden. (Health and Safety Code (HSC) Section 50406(p)(1))
2. Matters that may be waived or modified pursuant to 1) include, but are not limited to, all of the following:
   1. Instrument recordation requirements;
   2. Security requirements for state financing provided pursuant to HCD programs;
   3. Title insurance requirements;
   4. Target population percentage requirements, affordability levels, and unit mix requirements, not to exceed a change of more than five percent of any amount expressly set forth in statute; and
   5. Any matter not expressly or objectively set forth in statute, but is set forth with specificity in guidelines or regulations promulgated by HCD. (HSC 50406(p)(2))
3. Requires HCD, under the G. David Singleton CIAP, to provide comprehensive technical assistance to tribal housing authorities, housing sponsors, and governmental agencies on reservations, rancherias, and on public domain to facilitate the planning and orderly development of suitable, decent, safe, and sanitary housing for American Indians residing in those areas. (HSC 50513)
4. Includes a tribally-designated housing entity or a duly constituted governing body of an Indian reservation or rancheria as a qualifying applicant to a variety of housing programs. (HSC 50077, 50079, 50091, etc.)

FISCAL EFFECT: Unknown.

COMMENTS:

Author’s Statement: According to the author, “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. For new tribal applicants, HCD program applications can be onerous and opaque. Only a few tribes are willing and able to commit limited time and resources to learn these programs and prepare applications for tribal set-asides that will fund only a handful of applicants.

Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”

Background on Tribal Access to State Housing Programs: California has the largest Native American/American Indian population in the nation with nearly 360,500 Californians identifying in whole or part as “American Indian.” California has 109 federally recognized tribes, which include nearly 100 small reservations and rancherias spread across the state. Additionally, the rate of tribal poverty is more than twice that of the rest of California's population and one-third of tribal residents live below the federal poverty line.^[1]

California also differs from other states in that only a small percentage of California tribes’ land is held in trust by the U.S. government – often on reservations and rancherias – as compared to fee land, under complete control of its tribal owner or individual tribal member, or restricted fee land, which is owned by a tribe or tribal member but cannot be sold or encumbered. Trust or restricted fee lands may also be allotted, in that these were formerly communal lands that have since been broken up into individual allotments redistributed among individual tribal members. As a result, there are a variety of complex tribal property ownership and land designation statuses that require specialized knowledge to navigate for purposes of developing tribal housing.^[2]

In September of 2011, Governor Brown issued Executive Order B-10-11, which reflected a significant administrative change to encourage communication and consultation with California tribes. In line with this directive, HCD adopted a Tribal Consultation Policy in 2015, which sought to “foster and promote consultation and collaboration between HCD and federally-recognized California Indian Tribes and non-federally recognized tribes.” While California Indian tribes have not been eligible for and competitive for most state housing and community development program grants in the past, the California Tax Credit Allocation Committee (TCAC) changed this in 2014 with their first round of awards for tribal housing within its rural set-aside. Twelve tribal housing projects were funded from 2014-2021.^[3]

Additionally, in 2016, HCD proposed regulation changes addressing tribal access to the Home Investment Partnerships program (HOME). The State HOME program then became eligible to tribes and awarded the first-ever grant for a tribal project in Mendocino County. While tribes had been made explicitly eligible for some state housing programs like those mentioned, before the passage of AB 1010 (E. Garcia, Chapter 667, Statutes of 2019), the terminology used to refer to tribes was inconsistent and confusing. Other programs omitted tribes and tribal entities as eligible applicants altogether.

AB 1010 (E. Garcia) made the governing board of an Indian reservation or rancheria eligible to receive funding from various affordable housing programs, including the Joe Serna, Jr. Farmworker Housing Program, the Predevelopment Loan Program, the Local Housing Trust Fund Program, the CalHOME program, and the Special User Housing Rehabilitation Program. These programs had received new funding from housing bonds approved by the voters through Proposition 1 in 2018.

In addition, for approximately 30 years the state operated a program – the CIAP – to provide technical assistance to Indian reservations and rancherias in planning for affordable housing and to help them access local, state, and federal housing and community development resources. However, the program was shuttered in 2008. AB 1010 (E. Garcia) required HCD to reconstitute the CIAP, renamed the program, and appropriated funding for one full-time program position.

This bill would revise the CIAP to require HCD to consult with additional types of tribal housing entities or departments and expand the technical assistance requirement to tribes and providers who are interested in planning and developing housing within a tribe’s designated service area, rather than just within reservation or rancheria lands. The bill also requires HCD to provide outreach, education, and comprehensive technical assistance to tribes and the various tribal housing entities listed in the bill during the development of tribal housing grant programs, and before, during, and after the grant application process.

Challenges Continue with Accessing Some Housing Funds: The sponsor and author of this bill point out that while some state housing and homelessness programs are working well for tribal entities – in particular they point to the success of the tribal set-aside in the Homeless Housing, Assistance, and Prevention Program – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Those challenges include:

• Existing state programs often were not designed with tribes in mind, meaning they have restrictive threshold and compliance requirements that are too difficult for tribes to meet, or are mismatched to the opportunities that exist on tribal trust and fee land;
• Due to conflicts with tribal sovereignty and laws, tribes must often appeal for time-consuming program waivers, which depend on HCD staff to have knowledge of tribal needs and awareness of their specific legal and cultural circumstances;
• Because HCD program applications can be onerous and opaque, only a few tribes with resources are willing and able to expend the time and money to learn program requirements and prepare applications for tribal set-asides that will fund only a handful of applicants, if they are successful at all;
• Tribal technical assistance, which HCD is required to provide under AB 1010 (E. Garcia), is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, rancherias, and even across state lines. Inadequate provision of technical assistance is negatively impacting tribes’ ability to apply for programs, resulting in missed opportunities, small numbers of applicants, and failed set-asides;
• There are inconsistencies between federal housing programs, state-administered federal housing programs, and state housing programs. Federal regulations allow tribes to have leniency on certain aspects of housing requirements, such as allowing locally higher area median income (AMI) in determining eligibility of applicants for certain income-restricted homeownership programs; and
• Decades of oppression and disinvestment – including outright taking of tribal lands and forced displacement of indigenous communities – have left many tribes lacking basic or quality infrastructure, including failing water and sewer systems or other basic infrastructure required to support housing developments.

To address these challenges, the bill proposes to create a Tribal Housing Advisory Committee within BCSH, which would be made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs. The committee would be charged with identifying and reporting tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and would provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes. Furthermore, the committee would create a standard grant agreement to be used by state agencies who have tribal housing grant programs, provide recommendations to HCD for minimum job requirements for CIAP technical assistance staff and contractors, and create a tribal management information system to collect data on the provision of housing and services to tribes and tribal members.

The bill further proposes to address inconsistencies and inflexibility in HCD’s waiver authority to allow for more leniency on aspects of program requirements, specifically target population percentage and affordability levels (for example, AMI requirements) and unit mix requirements. The bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, requirements related to housing elements and housing plans, and program income limits to the list of matters that HCD can waive or modify in order to address conflicts between tribal law or tribal sovereignty and HCD program requirements. If a waiver is required, the bill directs HCD to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable, and requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.

Arguments in Support: According to the Pala Band of Mission Indians, the bill’s sponsor, “California, along with the rest of the nation, has a long history of neglect and abuse of tribal communities, leaving many with limited resources and little support to improve their socio-economic situation. Tribes need a flexible, dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. A housing grant program by tribes for tribes will enable the State to live up to its commitments to redress historic wrongs and help tribes achieve sustainable, safe, and affordable homes while reconstituting on ancestral lands where they can prosper and preserve their cultural heritage. Tribal communities and families are underserved and the housing problem will continue to rise amongst Native Americans if restrictions and barriers are not removed.”

Arguments in Opposition: None on file.

Related Legislation:

AB 371 (E. Garcia) of 2023 was nearly identical to this bill. The bill was vetoed by the Governor, with the following message:

SB 18 would create the Tribal Housing Grant Program Trust Fund to provide grant funds to tribal entities, and AB 371 would change the current waiver process utilized to assist tribal entities in applying for various housing financing programs administered by the Department.

I want to thank the authors and their supporters for their commitment to providing more safe and affordable housing for California's tribal residents. These legislative efforts are well-intentioned, and I share the desire to further remove barriers and increase tribal access to housing and homelessness programs.

I signed legislation in 2019 to make tribes eligible for most State housing programs, and I remain committed to doing more. My Administration has provided tribal set asides in a variety of new programs we created, including: $30 million in the Behavioral Health Infrastructure Bond Act of 2023; $29 million through the first round of the Multifamily Super Notice of Funding Availability, which combines funding for four affordable housing funding programs; $20 million recently awarded through the Homeless, Housing Assistance and Prevention program (HHAP); and a forthcoming Homekey Tribal Entity Notice of Funding Availability of approximately $75 million, to name a few.

But system overhauls such as those included in these two bills need to be made through the budget process where a dedicated grant program to address tribal housing needs - using either new general fund and/or reappropriation of existing tribal set-asides - can be established, along with appropriate program rules to streamline application processes, with more flexible uses to better meet the unique housing needs of tribal governments.

I am committed to addressing these important issues in next year's budget and look forward to working with the Legislature and our tribal partners to help deliver these critical dollars to tribal communities where - and how- they are needed.

AB 1010 (E. Garcia), Chapter 660, Statutes of 2019: Made tribes eligible for various affordable housing grant programs and recreated the CIAP at HCD.

REGISTERED SUPPORT / OPPOSITION:

Support

Pala Band of Mission Indians (Sponsor)

AIDS Healthcare Foundation

California Tribal Business Alliance

Habematolel Pomo of Upper Lake

YIMBY Action

Opposition

None on file.

Analysis Prepared by: Nicole Restmeyer / H. & C.D. / (916) 319-2085

1. California Coalition for Rural Housing and Rural Community Assistance Corporation, “California Tribal Housing Needs and Opportunities: A Vision Forward” (2019) ↑

2. Congressional Research Service, “Tribal Lands: An Overview” (2021) ↑

3. https://tribalbusinessnews.com/sections/real-estate/13605-belatedly-a-housing-program-starts-to-work-for-california-tribes ↑