ment of several plumbing appliances; and recovering of the roof. The total cost of the rehabilitative effort would be $14,219, including $3,200 for electrical work. $6,428 for plumbing, $444 for roofing, and $3,400 cost of materials. Plaintiff Augosto Guadamuz will perform all necessary labor. A recent FHA appraisal of plaintiffs' property concluded that although "deferred maintenance is obvious, with FACE rehabilitation available this building has good potential."

San Francisco FACE officials have approved, and submitted to HUD, an application from plaintiffs for a sec. 115 grant of $3,500 and a sec. 312 loan of $10.750. The loan would require no payments during the first six months to allow sufficient time to effect the repairs and rent the two apartments. This would then permit plaintiffs to make the monthly mortgage payment of $61.19 even if plaintiff Guadamuz remains unemployed, or underemployed.

Since sec. 312 loans are unavailable due to the present impoundment, San Francisco FACE officials have advised plaintiffs that neither the grant (because the $3.500 maximum available cannot meet the costs of repairs) nor the loan is available. They have advised plaintiffs, however, that if sec. 312 funds were available, all that is now required is HUD approval of their application.

Plaintiffs Guadamuz have attempted to obtain financing to permit them to make the necessary repairs from several conventional sources, all to no avail. Unless they can receive a sec. 312 loan and sec. 117 grant, they will be forced to sell their property to someone who can afford to make the repairs or be subject to the imposition of penalties and/or ejectment from and condemnation of their property.

49. Plaintiff Karen E. Apana is a resident and property owner within a FACE area in San Francisco, California. Plaintiff Apana is a credentialed school teacher. Because of the excessive supply of unemployed school teachers in California, she is presently employed as a part-time substitute teacher in San Francisco.

A FACE code inspection report has revealed that plaintiff Apana's home is in a very delapidated condition. Substantial electrical repairs must be made; since acquiring the property, two minor electrically-caused fires have broken out; extensive repairs and replacement of plumbing is necessary; ventilation of heaters, stove and water heater is required; the interior and exterior walls, windows and doors must be extensively replaced and repaired; the sidewalk fronting the property is in a state of serious disrepair due to cracks and holes; several of the floor surfaces must be replaced.

On or about September 12, 1972, plaintiff Apana purchased said property in the Duboce Triangle FACE area. She did so with full knowledge that it was in a FACE area, had undergone code inspection, that it was in very substantial disrepair and, thus, in violation of the Building Code of San Francisco. Plaintiff was advised, however, that the seller had applied for a sec. 312 rehabilitation loan and that San Francisco FACE officials had determined that they would recommend a sec. 312 loan of $8.000. This was confirmed by plaintiff in a conversation with San Francisco FACE officials prior to the purchase of the property.

On the day that the sale closed, plaintiff received notice that proceedings had been commenced to condemn the property as a public nuisance. Immediately thereafter, plaintiff applied for sec. 312 rehabilitation loan. Plaintiff has been advised by San Francisco FACE officials that, but for the unavailability of sec. 312 funds, they would recommend to HUD that a loan of approximately $8,000 be granted.

On November 20, 1972, an abatement order was entered by the Director of Public Works of San Francisco condemning plaintiff's property as unsafe and a public nuisance. An appeal therefrom to the Abatement Appeals Board has been filed, thus delaying the imposition of penalties and/or ejectment from or condemnation of the property.

If she is forced to sell, the brokerage fees and the prepayment penalty to the holder of the first deed of trust will consume nearly all of her existing equity. 50. Plaintiffs Felipe and Marcella Espinoza are residents and property owners within a FACE area in San Francisco, California; residing with them are their seven minor children. Plaintiff Felipe Espinoza immigrated from Guadalajara. Mexico in 1966. For three years thereafter, plaintiff Felipe Espinoza was employed as a night porter at the Mark Hopkins Hotel. After acquiring a sufficient command of English, he enrolled in a federal job training program. Upon successful completion, he obtained his present job as a vending machine repairman and painter.

The Espinoza home was first inspected by FACE inspectors on July 27, 1971. The inspection report revealed serious, substantial violations of the housing code and the necessity of extensive replacement of electrical wiring to abate a fire hazard, substantial repair and replacement of plumbing, substantial repairs to exterior and interior walls, floors, doors and windows, a new heating system, and replacement of the entire front porch. The report concluded that four of the eight rooms were not fit for human habitation. The estimated cost of making the necessary repairs is approximately $7,000.

San Francisco FACE officials have advised plaintiffs Espinoza that, if funds were available, they would recommend that they receive a $3,500 sec. 115 rehabilitation grant and a sec. 312 rehabilitation loan of $10,000 to cover refinancing of existing indebtedness as well. However, because of defendant Ash's embargo on sec. 312 loan funds, neither the loan nor the grant can be made because the maximum grant allowable, $3,500, is insufficient to make the necessary repairs.

If the loan and grant were made, plaintiffs Espinoza could (1) make all the necessary repairs and thus prevent condemnation of their property and (2) refinance their existing loans. The result would be that their present monthly payments for principal and interest, taxes and insurance would drop from $148 to $68.50.

If the repairs are not made, plaintiffs Espinoza face the imposition of fines or ejectment from and/or condemnation of their property. Plaintiff Felipe Espinoza has monthly gross earnings of only $610.66, which, with a family of eight to support, prevents him from making the necessary repairs without the FACE assistance. If plaintiffs are unable to obtain the FACE assistance, they will be forced to sell their home at substantially less than its potential value.

51. Section 312 funds cannot be committed beyond June 30, 1973. 42 USC sec. 1452b (h). Unless defendant Ash is restrained from imposing his impoundment on sec. 312 funds, plaintiffs will be irreparably injured since they will be unable to obtain the necessary funds to rehabilitate and thus retain their property. E. The FACE Program-Duty

52. The impounding of FACE funds by defendant Ash has been done without statutory or constitutional authority.

53. Defendant Lynn has a duty to make sec. 312 funds available for commitment in order to achieve the Congressional objectives.

54. Plaintiffs incorporate by reference paragraphs 26, 27 and 28 of the First Claim, as applied to FACE.

Wherefore, plaintiffs pray that this Court:

1. Assume jurisdiction over this cause;

2. Issue an order permitting the cause to proceed as a class action on behalf of the indicated classes;

3. Enter a preliminary and permanent injunction restraining defendants, their successors in office, agents, assignees, and all persons acting by, through or under them, or subject to their supervision or control, as follows:

(a) defendant Ash from impounding, or releasing less than, the entire REAP obligational authority for FY 1973 and the impounding, withholding, delaying or otherwise effectively precluding the commitment of the full REAP obligational authority and the expenditure of the entire FY 1973 FACE appropriation;

(b) defendant Butz from terminating the REAP program;

(c) defendant Lynn from failing to make available the entire FY 1973 FACE appropriation;

4. Enter a judgment declaring that defendant ASH is without authority to impound REAP or FACE funds, as aforesaid;

5. Provide for costs of suit; and,

6. Provide such other and further relief as the Court shall deem just. Respectfully submitted,

RALPH SANTIAGO ABASOAL,

San Francisco Neighborhood Legal Assistance Foundation, Inc., San Francisco, Calif. Attorney for Plaintiffs Guadamuz, Apana and Espinoza.

Georgetown University Law Center,
Plaintiff Scarbrough.

Dated: January 25, 1973, Washington, D.C.

90-538-73-61

JOHN R. KRAMER,
Washington, D.C., Attorney for

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 175-73

The Minnesota Chippewa Tribe, P.O. Box 588, Federal Building, Room 420, Bemidji, Minn. 56601, Telephone: (218) 751-2985;

Coalition of Eastern Native Americans, 927 15th Street, N.W., Suite 612, Washington, D.C. 20005, Telephone: (202) 638-2287;

Seneca Nation of Indians, P.O. Box 268-A, Irving, N.Y. 14081, Telephone: (716) 945-1790;

California Indian Education Association, Inc., P.O. Box 4095, Modesto, Calif. 95352, Telephone: (209) 523-9257;

National Indian Training and Research Center, 2121 South Mill Avenue, Suite 107, Tempe, Ariz. 85252, Telephone: (602) 967-9484;

Nez Perce Tribe of Idaho, P.O. Box 205, Lapwai, Idaho 83540, Telephone: (208) 843-2362;

North Slope Borough School District, P.O. Box 307, Barrow, Alaska 99723 Telephone: (907) 852-6930;

Reservation School District of the Kashia Band of Pomo Indians of the Stewarts Point Rancheria, c/o Sidney Parrish, President, Stewarts Point, Calif. 95480, Telephone: (707) 785-2801; Plaintiffs,

v.

Frank C. Carlucci, Individually and as Acting Secretary of the Department of Health, Education and Welfare;

Sidney P. Marland, Individually and as Assistant Secretary of the Department of Health, Education and Welfare;

John R. Ottina, Individually and as Acting United States Commissioner of Education;

Caspar W. Weinberger, individually and as Director of the Office of Management and Budget;

Richard M. Nixon, Individually and as President of the United States:

COMPLAINT FOR A DECLARATORY JUDGMENT AND MANDATORY INJUNCTION Plaintiffs allege:

1. This is an action for a declaratory judgment and mandatory injunction to compel the defendants to comply with the terms and provisions of the Indian Education Act, Title IV of P.L. 92-318, 86 Stat. 334 (hereinafter the "Act"). Plaintiffs, in their First Claim, seek an order compelling the defendant Nixon, to appoint the members of the National Advisory Council on Indian Education. established by the Act. Plaintiffs, in their Second Claim, seek an order com pelling the remaining defendants to constitute the Office of Indian Education. established by the Act as a Bureau of the Office of Education, and to set up the other administrative machinery, mandated by the Act, for the implementation of the Act, including the promulgation of regulations under the Act. By their Third Claim, plaintiffs seek an order compelling the defendants to release and expend the funds appropriated by Congress for expenditure in fiscal year 1973 pursuant to the provisions of the Act.

2. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1337, 1361, 1362, and 5 U.S.C. §§ 701-706. The amount in controversy exceeds $10,000 exclusive of interest and costs.

3. Plaintiff, THE MINNESOTA CHIPPEWA TRIBE, is a duly recognized Indian tribe consisting of the Chippewa Indians of the White Earth, Leee. Lake, Fond du Lac, Nett Lake, Grand Portage and Mille Lac Reservations and organized under the Indian Reorganization Act, 25 U.S.C. § 476. THE MINNESOTA CHIPPEWA TRIBE through its Education Committee is actively involved with education programs affecting tribal members throughout the State of Minnesota; the Tribe itself administers a college scholarship program and intends to assume, in 1973, the administration of two more educational programs, the first to provide for the special educational needs of tribal members in elementary and secondary schools, and the second to provide for adult vocational education. Tribal members are beneficiaries of programs to be funded under Parts A, B, and C of the Act, and the Tribe is a potential grantee entitled of preferential consideration in programs funded under Parts B and C.

4. Plaintiff, COALITION OF EASTERN NATIVE AMERICANS, is an unincorporated association, representing approximately 60 Indian tribes, communities

or groups, in the Eastern part of the United States. The COALITION was formed on December 9, 1972 at the conclusion of a conference of Eastern Indians. At that time, the COALITION elected an 11 person steering committee. The tribes and groups represented by the COALITION have members who are beneficiaries of programs to be funded under Parts A, B, and C of the Act.

5. Plaintiff, the SENECA NATION OF INDIANS, is an American Indian tribe recognized by the Secretary of Interior. Tribal members are beneficiaries of programs funded under Parts A, B, and C of the Act, and the Tribe is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

6. Plaintiff, CALIFORNIA INDIAN EDUCATION ASSOCIATION, INC., is a non-profit Indian organization organized pursuant to the laws of the State of California. CALIFORNIA INDIAN EDUCATION ASSOCIATION is organized to improve the educational opportunities of the Indian children in the State of California. Members of this organization have children who are beneficiaries of programs to be funded under Parts A, B, and C of the Act. The CALIFORNIA INDIAN EDUCATION ASSOCIATION is eligible to be a grantee and is entitled to preferential consideration under Parts B and C of the Act.

7. Plaintiff, NATIONAL INDIAN TRAINING AND RESEARCH CENTER, is a non-profit corporation organized pursuant to the District of Columbia Non-Profit Corporation Act. NATIONAL INDIAN TRAINING AND RESEARCH CENTER has been active in the development of training programs for education personnel in the Bureau of Indian Affairs Education Division and has trained personnel located on a number of reservations throughout the United States. NATIONAL INDIAN TRAINING AND RESEARCH CENTER is a potential grantee under Parts B and C of the Act.

8. Plaintiff, the NEZ PERCE TRIBE OF IDAHO, is a duly recognized Indian tribe with a constitution and by-laws approved by the Secretary of the Interior. The NEZ PERCE Tribe, through its tribal executive committee, is actively involved with educational programs including a scholarship program, vocational assistance and educational components of the Tribe's community action program. Tribal members are beneficiaries of programs funded under Parts A, B, and C of the Act and the Tribe is a potential grantee entitled to preferential consideration in programs funded under Parts B and C. In particular, tribal members are enrolled in public schools operated by the State of Idaho which are entitled to a specific amount of grant funds provided in Part A.

9. Plaintiff, NORTH SLOPE BOROUGH SCHOOL DISTRICT, is a duly organized school district operated pursuant to the laws of the State of Alaska. NORTH SLOPE BOROUGH SCHOOL DISTRICT will eventually operate three schools which are presently operated by Bureau of Indian Affairs and two which are presently operated by the State of Alaska as public schools. The eventual takeover and operation of these schools by the school board will be in part dependent upon the amount of money the district can obtain from Part A of this Act. Residents of the school district are beneficiaries of programs to be funded under Parts A, B, and C of the Act, and the district is entitled to funds under Part A and is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

10. Plaintiff, RESERVATION SCHOOL DISTRICT OF THE KASHIA BAND OF POMO INDIANS, STEWARTS POINT RANCHERIA, is a duly organized public school district operated pursuant to the laws of the State of California. The RESERVATION SCHOOL DISTRICT presently operates an all-Indian public school in Sonoma County, California. Residents of the RESERVATION SCHOOL DISTRICT are beneficiaries of programs to be funded under Parts A. B, and C of the Act, and the district is entitled to funds under Part A and is a potential grantee entitled to preferential consideration in programs funded under Parts B and C.

11. Defendant, FRANK C. CARLUCCI, is the Acting Secretary of the Department of Health, Education and Welfare, and, as such, is the principal officer of the United States Government charged with the administration and budget of the education programs of the Department of Health, Education and Welfare. 12. Defendant SIDNEY P. MARLAND, is an Assistant Secretary of the Department of Health, Education and Welfare, responsible for the overall supervision of the Office of Education.

13. Defendant, JOHN R. OTTINA, is the Acting United States Commissioner of Education and, as such, is charged by the Act with specific responsibility for its execution and implementation.

14. Defendant, CASPER W. WEINBERGER, is the Director of the Office of Management and Budget and, as such, has authority for the release and expend:ture of the funds, appropriated by Congress, for expenditure in fiscal year 1973 pursuant to the terms of the Act.

15. Defendant, RICHARD M. NIXON, is President of the United States and is charged by the Constitution with the ultimate responsibility for the faithful execution of the laws of the United States. By § 442 (a) of the Act, the Presi dent must appoint the members of the National Advisory Council on Indian Education. On information and belief, defendant NIXON has not officially delegated this responsibility to an official in his administration.

STATUTORY PROVISIONS

16. In recognition of the federal obligation to provide for the educational needs of American Indians, to counteract the adverse effects of past federal Indian education policies termed by the special Subcommittee on Indian Education of the Senate Committee on Labor and Public Welfare "a national tragedy" and to assure the future welfare and survival of the Indian communities, the Congress of the United States passed the Indian Education Act, P.L. 92-318, 86 Stat. 334 and it was approved by the President on June 23, 1972.

17. The Act consists of four major parts. Part A, § 411 (a), contains a Declaration of Policy "to provide financial assistance to local educational agencies to develop and carry out elementary and secondary school programs specially designed to meet "the special educational needs of Indian students and directs the Commissioner of Education (hereinafter Commissioner) to effectuate the policy by carrying out a program of making grants to local education agencies “which are entitled to payments" in accord with a non-discretionary formula based on average per pupil expenditures and numbers of Indian students. Part A also amends Title I of the Federal Impact Aid Law, P.L. 81-874, 20 U.S.C. § 240 by providing that applications on the basis of children who reside on Indian lands "shall set forth adequate assurance that Indian children will participate on an equitable basis in the school program of the local education agency" (§ 411 (c) (1)).

18. Part B of the Act directs the Commissioner of Education to "carry out a program of making grants for the improvement of educational opportunities for Indian children" (§ 421 (a)). State and local educational agencies, Indian tribes. and Indian organizations are eligible grantees under provisions of this Part. Indian educational agencies, organizations, and institutions are to be given preference as grantees.

19. Part C directs the Commissioner to "carry out a program of making grantsTM for adult education for Indians (§ 431), and requires the Commissioner to give priority to applications from Indian educational agencies, organizations, and

institutions.

20. Part D establishes in the Office of Education a Bureau to be known as the Office of Indian Education, which, along with the Commissioner, shall have the responsibility for administering the Act (§ 441(a)). The Act directs that the Office of Indian Education shall be headed by a Deputy Commissioner of Education from a list of nominees submitted to him by the National Advisory Coutcil on Indian Education (§ 441 (a)). Part D also establishes the aforementioned National Advisory Council on Indian Education, consisting of fifteen members who are Indian and Alaska Natives appointed by the President of the United States (§ 442 (a)). In addition to submitting to the Commissioner a list of nominees for the position of Deputy Commissioner of Indian Education, the Council shall advise the Commissioner with respect to the administration of the Act: shall review applications for assistance under the Act; shall evaluate any programs within the Department of Health, Education and Welfare for Indians or from which they can benefit; shall assist the Commissioner in developing March 31 of each year a report on its activities and recommendations for the improvement of federal education programs designed for Indians.

21. Public Law 92-607, Chapter IV, passed into law on October 31, 1972 and approved by the President that day, appropriates a total of $18,000,000 for carrying out the Act in fiscal year 1973, specifically $11,500,000 for Part A, $5,000,000 for Part B, $500,000 for Part C, and $1,000,000 for the General Education Provision Act. Chapter XI of this Act provides that no part of any of these appro priated funds shall remain available beyond the end of fiscal year 1973, June 30. 1973. The United States budget for fiscal year 1974 indicates that the Administra