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Court allows suit against tribe - not HUD - for faulty homes

The Blackfeet Nation of Montana can be sued for placing tribal members in faulty homes, a federal appeals court ruled on Wednesday.

In a case being watched nationwide, the 9th Circuit Court of Appeals said the tribe waived its sovereign immunity through a housing ordinance. The 2-1 decision means 153 families who blame poor health conditions on moldy homes can sue the Blackfeet Housing Authority for damages and repairs.

The majority, however, refused to assign blame to the Department of Housing and Urban Development. Even though the federal government provided the funds to build the homes at issue, the court said the Blackfeet families failed to prove the agency violated its trust responsibility.

"The federal government did not exercise direct control over Indian land, houses, or money by means of these funding mechanisms," Judge Susan P. Graber wrote. "The federal government did not build, manage, or maintain any of the housing."

Another judge on the 9th Circuit, however, disputed this holding. Judge Harry Pregerson cited a slew of statutes -- including the Native American Housing Assistance and Self-Determination Act -- that he said created a trust duty to the tribe and its members.

"The federal government undertook, as part of its treaty and general trust relationship, to assist the Blackfeet tribe to acquire decent, safe, and sanitary housing for low income families," Pregerson wrote in the dissent. "The tribe had little choice but to accept the government housing program."

The difference of opinion means the case is likely to be heard again the 9th Circuit. Yesterday's ruling was the second time a three-judge panel of the court issued an opinion on the dispute, which is being watched by tribes across Indian Country.

The opinion, in fact, invited petitions for rehearing -- either by a three-judge panel or an en banc panel of the court.

Tribes, along with the Native American Rights Fund and the National Congress of American Indians, have mainly been concerned about the sovereign immunity aspects. The "sue and be sued" clause in the Blackfeet Nation's housing ordinance is common among many tribal housing authorities and agencies.

The trust responsibility aspect, however, could end up drawing more interest because it goes back to two critical U.S. Supreme Court rulings from 2003. The cases -- Navajo Nation v. US and White Mountain Apache Tribe v. US -- were discussed a length in the opinion and dissent yesterday.

In Navajo, the Supreme Court declined to find a trust responsibility in a dispute over a coal lease. Despite federal approval of the lease, the justices said Congress passed laws that put greater control of trust assets in tribal hands.

But in Apache, the Supreme Court found a trust duty for a reservation school. The justices cited a law that required the government to maintain the school property.

According to the majority in yesterday's opinion, the Blackfeet case is more like Navajo. Judge Graber noted that NAHASDA puts greater control of housing matters into tribal hands.

"Ultimately, no statute ever required tribes to form housing authorities. No statute obliged Indian housing authorities, once formed, to seek federal funds," Graber wrote. "No statute committed the United States itself to construct houses on Indian lands or to manage or repair them."

Pregerson, however, argued that the case is more like Apache. The government exercises "pervasive control" over Indian housing funds and trust lands where housing is built, he said.

"Here, the federal government actively undertook to assist the Blackfeet to obtain desperately needed decent, safe, and sanitary housing," he said. "Labeling the housing program as simply one of 'financing' ignores the fact that private lenders would not finance the construction of homes on reservation land held by the federal government, which actively undertook to assist the Blackfeet to obtain desperately needed decent, safe, and sanitary housing.

According to a University of Montana study, 75 percent of homes tested on the Blackfeet Nation were contaminated by a high level of toxins. Most of the toxins came from black mold, which can lead to cancer, asthma, kidney failure, respiratory problems and other ailments.

The study found that 71 percent of residents reported mold-related symptoms. In addition, 37 percent of the children were suffering from asthma.

Tribal and federal officials have said mold is a problem throughout Indian Country.

Get the Decision:
Marceau v. Blackfeet Housing Authority (March 19, 2008)

Earlier Decision:
Marceau v. Blackfeet Housing Authority (July 21, 2006)

Case Documents:
Marceau v. Blackfeet Housing Authority (NCAI-NARF Tribal Supreme Court Project)

Navajo Nation Decision:
Excerpt | Syllabus | Opinion [Ginsburg] | Dissent [Souter]

White Mountain Apache Tribe Decision:
Excerpt | Syllabus | Opinion [Souter] | Concurrence [Ginsburg] | Dissent [Thomas]