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 sanity 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 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. 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 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.

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 require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, 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. 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. 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 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 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 require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, 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.

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. 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 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 provisions 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 law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development, 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 of Housing and Community Development 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 require the department to provide outreach, education, and comprehensive technical assistance to tribes, tribal housing authorities, 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.

Existing law authorizes the Department of Housing and Community Development 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. 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. 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 specified information geographic diversity and proven quality experience and expertise in tribal housing when appointing members to be on the committee, including giving priority to applicants with a letter of support from a tribal chairperson. 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 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 provisions 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 law sets forth the general responsibilities and roles of the Business, Consumer Services, and Housing Agency, the Department of Housing and Community Development, 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 of Housing and Community Development 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.

Existing law authorizes the Department of Housing and Community Development 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.

This bill would express the intent of the Legislature to enact subsequent legislation to require the Department of Housing and Community Development to work to remove barriers that tribes encounter when trying to access grants provided by the department.

GOVERNOR'S VETO

GV Bill Id:AB 371

Author:(Garcia and Ramos)

As Enrolled Ver:September 18, 2023

2/3 vote

SUMMARY

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).

Senate Amendments:

1. Increase the number of tribal representatives on the Committee from each region from two to three.
2. Specify that Committee members will serve for four-year terms.
3. Make other clarifying changes.

Governor's Veto 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.

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 United States 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 (HHAP) – 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, and requirements related to housing elements and housing plans 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

"Despite passage of AB 1010 in 2019, which made tribes eligible for most State housing programs and recreated the California Indian Assistance Program (CIAP) at HCD, Tribes still face serious structural and inequitable obstacles to accessing and competing in these programs. Tribes need a flexible and dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. AB 371 ensures that programs are designed with tribes in mind. As well as creating a Tribal specific database as a support system and information mechanism for Tribes and Tribal related programs."

Arguments in Support

According to the California Tribal Business Alliance, "Existing state housing and community development programs, despite recent tribal set-asides, have failed to address tribal housing needs. Although well-intended, the tribal [set-aside] programs are wrought with numerous barriers to tribal participation, effectively rendering the set-aside programs unworkable. AB 371 will remove programmatic barriers in the state's tribal housing set-aside grants programs to 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 plague Native Americans if restrictions and barriers are not removed."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. BSCH 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 provide 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)
2. BSCH 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, BSCH 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. 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. (General Fund)
3. HCD estimates ongoing costs of approximately $341,000 annually for 2.0 PY of staff to 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)

VOTES

ASM HOUSING AND COMMUNITY DEVELOPMENT: 8-0-0

YES: Wicks, Joe Patterson, Wendy Carrillo, Gabriel, Kalra, Quirk-Silva, Sanchez, Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 80-0-0

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

SENATE FLOOR: 39-0-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, 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

ABS, ABST OR NV: Caballero

ASSEMBLY FLOOR: 79-0-1

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

ABS, ABST OR NV: Bauer-Kahan

UPDATED

VERSION: September 18, 2023

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0002496

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 ↑

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 371

Author:(Garcia and Ramos)

As Amended Ver:September 8, 2023

Majority vote

SUMMARY

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).

Senate Amendments:

1. Increase the number of tribal representatives on the Committee from each region from two to three.
2. Specify that Committee members will serve for four-year terms.
3. Make other clarifying changes.

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 United States 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 (HHAP) – 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, and requirements related to housing elements and housing plans 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

"Despite passage of AB 1010 in 2019, which made tribes eligible for most State housing programs and recreated the California Indian Assistance Program (CIAP) at HCD, Tribes still face serious structural and inequitable obstacles to accessing and competing in these programs. Tribes need a flexible and dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. AB 371 ensures that programs are designed with tribes in mind. As well as creating a Tribal specific database as a support system and information mechanism for Tribes and Tribal related programs."

Arguments in Support

According to the California Tribal Business Alliance, "Existing state housing and community development programs, despite recent tribal set-asides, have failed to address tribal housing needs. Although well-intended, the tribal [set-aside] programs are wrought with numerous barriers to tribal participation, effectively rendering the set-aside programs unworkable. AB 371 will remove programmatic barriers in the state’s tribal housing set-aside grants programs to 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 plague Native Americans if restrictions and barriers are not removed."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. BSCH Agency estimates first year costs of approximately $547,000 and ongoing costs of approximately $523,000 annually for 3.0 personnel years (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 provide 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)
2. BSCH 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, BSCH 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. 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. (General Fund)
3. HCD estimates ongoing costs of approximately $341,000 annually for 2.0 PY of staff to 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)

VOTES:

ASM HOUSING AND COMMUNITY DEVELOPMENT: 8-0-0

YES: Wicks, Joe Patterson, Wendy Carrillo, Gabriel, Kalra, Quirk-Silva, Sanchez, Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 80-0-0

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

UPDATED

VERSION: September 8, 2023

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0002209

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 371

Author: Garcia (D) and Ramos (D)

Amended: 9/8/23 in Senate

Vote: 21

SENATE HOUSING COMMITTEE: 11-0, 7/10/23

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/1/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Housing programs: tribal housing program

SOURCE: Pala Band of Mission Indians

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).

Senate Floor Amendments of 9/8/23 remove the provisions creating the Committee. They also add income limits to the list of matters that may be waived or modified by HCD to ensure program compatibility for Tribes. They also declare that data collected, as specified, is confidential and not subject to public disclosure.

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 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. 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 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.
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. Modifies CIAP as follows:
   1. Adds 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 requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and development of tribal housing.
   2. Requires 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.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance in the development of tribal housing grant programs, and before, during, and after the grant application process.
2. Declares that data collected, as specified, is confidential and not subject to public disclosure.
3. Revises current HCD authority to modify financing requirements of programs where 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. Eliminate 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; and
   2. Add income limits, timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans to the list of matters that HCD may waive or modify.
4. 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.
5. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.

Background

Tribal communities in California. 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. According to a 2019 report on California tribal housing needs, 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.

Comments

1. Author’s statement. According to the author, “Despite passage of AB 1010 in 2019, which made tribes eligible for most State housing programs and recreated the California Indian Assistance Program (CIAP) at HCD, Tribes still face serious structural and inequitable obstacles to accessing and competing in these programs. Tribes need a flexible and dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. AB 371 ensures that programs are designed with tribes in mind. As well as creating a Tribal specific database as a support system and information mechanism for Tribes and Tribal related programs.”
2. Ongoing barriers. 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 HHAP – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Among others, 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 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.

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

According to the Senate Appropriations Committee:

• BSCH 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 provide 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)
• BSCH 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, BSCH 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. 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. (General Fund)
• HCD estimates ongoing costs of approximately $341,000 annually for 2.0 PY of staff to 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)

SUPPORT: (Verified 9/1/23)

Pala Band of Mission Indians (source)

AIDS Healthcare Foundation

California Housing Partnership Corporation

California Tribal Business Alliance

Iipay Nation of Santa Ysabel

Livable California

Rincon Band of Luiseño Indians

OPPOSITION: (Verified 9/1/23)

None received

ASSEMBLY FLOOR: 80-0, 5/31/23

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

Prepared by: Aiyana Cortez / HOUSING / (916) 651-4124

9/11/23 12:52:40

**** END ****

 THIRD READING  

Bill No: AB 371

Author: Garcia (D) and Ramos (D)

Amended: 7/12/23 in Senate

Vote: 21

SENATE HOUSING COMMITTEE: 11-0, 7/10/23

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

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/1/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Housing programs: tribal housing program

SOURCE: Pala Band of Mission Indians

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 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. 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 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.
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 membership to be composed of tribal representatives who have the knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law.
2. Requires a minimum of three members each from tribes in northern, central, and southern California to serve on the Committee. Members shall serve four-year terms with no term limits as volunteers and must not miss three consecutive meetings.
3. Requires the Committee to be co-chaired by the Secretary of BCSH or a designee and a tribal representative voted upon by the Committee members.
4. Requires BCSH to take into account geographic diversity and qualifying experience in tribal housing when appointing members to the Committee.
5. Requires an individual to 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.
6. 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, inconsistencies within state housing program 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. Identify tribal targets and set-asides in state and federally funded housing programs and create a standard grant agreement to be used by state agencies;
   4. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of CIAP; and
   5. Create a tribal management information system to collect client-level data and data on provisions of housing and services to tribes and tribal members.
7. Modifies CIAP as follows:
   1. Adds 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 requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and development of tribal housing.
   2. Requires 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.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance in the development of tribal housing grant programs, and before, during, and after the grant application process.
8. Revises current HCD authority to modify financing requirements of programs where 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. Eliminate 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; and
   2. Add timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans to the list of matters that HCD may waive or modify.
9. 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.
10. Requires HCD to include its designated tribal liaison or their designee in all discussions with tribes that are recipients of state funds, unless those eligible recipients give permission for the tribal liaison or their designee to be absent.

Background

Tribal communities in California. 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. According to a 2019 report on California tribal housing needs, 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.

Comments

1. Author’s statement. According to the author, “Despite passage of AB 1010 in 2019, which made tribes eligible for most State housing programs and recreated the California Indian Assistance Program (CIAP) at HCD, Tribes still face serious structural and inequitable obstacles to accessing and competing in these programs. Tribes need a flexible and dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. AB 371 ensures that programs are designed with tribes in mind. As well as creating a Tribal specific database as a support system and information mechanism for Tribes and Tribal related programs.”
2. Ongoing barriers. 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 HHAP – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Among others, 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 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.

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

According to the Senate Appropriations Committee:

• BSCH 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 provide 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)
• BSCH 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, BSCH 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. 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. (General Fund)
• HCD estimates ongoing costs of approximately $341,000 annually for 2.0 PY of staff to 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)

SUPPORT: (Verified 9/1/23)

Pala Band of Mission Indians (source)

AIDS Healthcare Foundation

California Tribal Business Alliance

Livable California

California Housing Partnership Corporation

Iipay Nation of Santa Ysabel

Rincon Band of Luiseño Indians

OPPOSITION: (Verified 9/1/23)

None received

ASSEMBLY FLOOR: 80-0, 5/31/23

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

Prepared by: Aiyana Cortez / HOUSING / (916) 651-4124

9/4/23 9:25:05

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 371 (Garcia) - Housing programs: tribal housing program

Bill Summary:

AB 371 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.

Fiscal Impact:

• BSCH 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 provide 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)*
  
• BSCH 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, BSCH 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 $341,000 annually for 2.0 PY of staff to 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)

*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 on December 1, 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 371 would establish the Tribal Housing Advisory Committee within the BCSH Agency, upon appropriation of funds by the Legislature, chaired by the Agency Secretary and composed of nine members, selected as specified, 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 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 funds.
• Provide input and guidance to any agency with existing or new tribal housing grant programs to ensure programs are designed with tribes in mind.
• Create a standard grant agreement to be used by state agencies for tribal housing grant programs.
• Identify tribal targets and set-asides in state and federally 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.

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, and housing element and housing plan requirements, and to eliminate specified restrictions on target population percentage and affordability levels and unit mix requirements.
• Require HCD to draft any necessary waivers of tribal sovereignty narrowly to serve both the individual needs of the tribe and make the funding agreement enforceable.
• Require HCD to include its designated tribal liaison or a designee in all discussions with tribes who are eligible recipients, except as specified.
• 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 18 (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.

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.

-- END --

SENATE COMMITTEE ON HOUSING

Senator Scott Wiener, Chair

2023 - 2024 Regular

Bill No: AB 371 Hearing Date: 7/10/2023

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 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. 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 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.
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 membership to be composed of tribal representatives who have the knowledge, experience, and expertise in tribal housing, tribal land, tribal government, tribal policy, and tribal law.
2. Requires a minimum of 3 members each from tribes in Northern, Central, and Southern California to serve on the Committee. Members shall serve 4-year terms with no term limits as volunteers and must not miss three consecutive meetings.
3. Requires the Committee to be co-chaired by the Secretary of BCSH or a designee and a tribal representative to be voted upon by the Committee members.
4. Requires BCSH to take into account geographic diversity and proven qualifying experience and expertise in tribal housing when appointing members to the Committee.
5. Requires an individual to 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.
6. 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, inconsistencies within state housing program 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. Identify tribal targets and set-asides in state and federally funded housing programs and create a standard grant agreement to be used by state agencies;
   4. Provide recommendations to HCD for minimum job requirements of advisors and attorneys providing technical assistance as part of CIAP; and
   5. 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.
7. Requires that tribal data submitted to the state be confidential and not subject to public disclosure, including entities that provide technical assistance.
8. Modifies CIAP as follows:
   1. Adds 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 requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and development of tribal housing.
   2. Requires 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.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance in the development of tribal housing grant programs, and before, during, and after the grant application process.
9. Revises current 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. Eliminate 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. Add timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans to the list of matters that HCD may waive or modify.
10. 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.
11. 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.

COMMENTS:

1. Author’s statement. “Despite passage of AB 1010 in 2019, which made tribes eligible for most State housing programs and recreated the California Indian Assistance Program (CIAP) at HCD, Tribes still face serious structural and inequitable obstacles to accessing and competing in these programs. Tribes need a flexible and dedicated funding source fitted to Tribal conditions that will provide grants, as well as low-interest forgivable loans, for affordable housing projects and programs. Existing state programs were not designed with Tribes in mind. They are often too restrictive for Tribes to meet threshold and compliance requirements. AB 371 ensures that programs are designed with tribes in mind. As well as creating a Tribal specific database as a support system and information mechanism for Tribes and Tribal related programs.”
2. Tribal communities in California. 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. According to a 2019 report on California tribal housing needs, 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.

1. Tribal access to state housing programs. 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 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 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. Ongoing barriers. 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 HHAP – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. Among others, 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 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.
2. Reducing barriers through consultation and flexibility. To address these challenges, this 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. For the purpose of protecting the privacy of tribes, this bill requires any tribal information submitted to the state to be confidential and not be subject public disclosure, including entities that provide technical assistance. Due to time constraints and at the request of the author, the committee may wish to remove these confidentiality provisions, to allow the author time to discuss with relevant stakeholders.

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. This bill adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans 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.

Related Legislation:

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,

July 5, 2023.)

SUPPORT:

AIDS Healthcare Foundation

California Housing Partnership Corporation

California Tribal Business Alliance

Iipay Nation of Santa Ysabel

Livable California

Pala Housing Resource Center

Rincon Band of Luiseño Indians

OPPOSITION:

None received.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 371

Author:(Garcia and Ramos)

As Amended Ver:March 23, 2023

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 membership to be composed of tribal representatives who have 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 BCSH to take into account geographic diversity and proven qualifying experience and expertise in tribal housing when appointing members to the committee. BCSH must give priority to an applicant with a letter of support from a tribal chairperson.
3. Allows an individual to 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.
4. 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, inconsistencies within state housing program 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. Identify tribal targets and set-asides in state and federally funded housing programs and create a standard grant agreement to be used by state agencies;
   4. 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
   5. 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.
5. Modifies CIAP as follows:
   1. Adds 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 requirement for HCD to provide comprehensive technical assistance to various entities to facilitate the planning and development of tribal housing.
   2. Requires 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.
   3. Requires HCD to provide outreach, education, and comprehensive technical assistance in the development of tribal housing grant programs, and before, during, and after the grant application process.
6. Revises current 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. Eliminate 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. Add timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans to the list of matters that HCD may waive or modify.
7. 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.
8. 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.

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. 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. While tribes had been made explicitly eligible for a handful of state housing programs in the past, 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 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, is a competency-based skill that not many housing providers or developers have, and tribal housing knowledge and experience also varies between communities, reservations, and rancherias. Inadequate provision of technical assistance is 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 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, and requirements related to housing elements and housing plans 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 California Tribal Business Alliance, "Existing state housing and community development programs, despite recent tribal set-asides, have failed to address tribal housing needs. Although well-intended, the tribal [set-aside] programs are wrought with numerous barriers to tribal participation, effectively rendering the set-aside programs unworkable. AB 371 will remove programmatic barriers in the state's tribal housing set-aside grants programs to 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 plague Native Americans if restrictions and barriers are not removed."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Committee on Appropriation:

1. BCSH estimates the following costs:
2. General Fund (GF) costs of approximately $512,000 in the first year and $504,000 annually thereafter to create the Tribal Housing Advisory Committee, including three positions to staff the committee and administer the provisions of the bill. Duties would include the creation of a standard grant agreement to be used by state agencies for tribal housing grant programs to identify tribal targets and set-asides in state and federally funded housing programs.
3. Additional GF resources in the tens of thousands of dollars ongoing to support the administration of the 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 $341,000 annually for two staff positions to meet the new requirements of the bill.

VOTES

ASM HOUSING AND COMMUNITY DEVELOPMENT: 8-0-0

YES: Wicks, Joe Patterson, Wendy Carrillo, Gabriel, Kalra, Quirk-Silva, Sanchez, Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

UPDATED

VERSION: March 23, 2023

CONSULTANT: Nicole Restmeyer / H. & C.D. / (916) 319-2085 FN: 0000476

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 371

Author:(Garcia) – As Amended Ver:March 23, 2023

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

SUMMARY:

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

Specifically, this bill:

1. Creates a Tribal Housing 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 committee to identify and report to BCSH tribal housing issues that require waivers to receive state financing, inconsistencies within state housing program regulations, barriers to applying for BCSH funds, and to provide input and guidance to any agency with tribal housing grant programs and for newly created housing programs for tribes.
3. Requires the committee to 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 G. David Singleton California Indian Assistance Program (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.
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:
5. 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.
6. Adds timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans 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.
7. Requires HCD, if a waiver of tribal sovereignty is required, to draft the waiver narrowly to serve both the individual needs of the tribe and to make the funding agreement enforceable.
8. Requires HCD to include its dedicated tribal liaison or their designee in all discussions with tribes that are eligible recipients of state funds.
9. Revises the CIAP as follows:
10. Requires 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.
11. 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.
12. Requires HCD to provide assistance with waivers, as specified.
13. 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.

FISCAL EFFECT:

1. BCSH estimates the following costs:
2. General Fund (GF) costs of approximately $512,000 in the first year and $504,000 annually thereafter to create the Tribal Housing Advisory Committee, including three positions to staff the committee and administer the provisions of the bill. Duties would include the creation of a standard grant agreement to be used by state agencies for tribal housing grant programs to identify tribal targets and set-asides in state and federally funded housing programs.
3. Additional GF resources in the tens of thousands of dollars ongoing to support the administration of the 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 $341,000 annually for two staff positions to meet the new requirements of the bill.

COMMENTS:

1. Purpose. 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. 

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, 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.

AB 1010 additionally required HCD to reconstitute the CIAP, a state operated program, shuttered in 2008, 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. AB 1010 renamed the program and appropriated funding for one full-time program position. This bill revises 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.

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 (HHAP) – there are a variety of other challenges that continue to make it difficult for tribes to access other housing funds. To address these challenges, this bill creates a Tribal Housing Advisory Committee within BCSH, made up of tribal representatives with specialized experience of relevance to accessing state-funded grant programs.

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

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT

Buffy Wicks, Chair

ABPCA Bill Id:AB 371 (

Author:Garcia) – As Amended Ver:March 23, 2023

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 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. The members must consist of at least two members from Central California, two from Northern California, and two 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 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. BCSH must give priority to an applicant with a letter of support from a tribal chairperson; 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, 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 whether a waiver was 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. Strike 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. Add timeline requirements, service area requirements, fund matching requirements, shovel-ready project requirements, and requirements related to housing elements and housing plans 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.

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 (HHAP) – 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, and requirements related to housing elements and housing plans 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 California Tribal Business Alliance, “Existing state housing and community development programs, despite recent tribal set-asides, have failed to address tribal housing needs. Although well-intended, the tribal [set-aside] programs are wrought with numerous barriers to tribal participation, effectively rendering the set-aside programs unworkable. AB 371 will remove programmatic barriers in the state’s tribal housing set-aside grants programs to 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 plague Native Americans if restrictions and barriers are not removed.”

Arguments in Opposition: None on file.

Related Legislation:

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

California Tribal Business Alliance

Iipay Nation of Santa Ysabel

Pala Housing Resource Center

Rincon Band of Luiseño Indians

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 ↑