Appeals court changes mind in Blackfeet housing case

Law

Monday, August 25, 2008

A federal appeals court on Friday again waded into a dispute over faulty homes that were built by the Blackfeet Nation of Montana.

The decision from the 9th Circuit Court of Appeals was the third in a long-running case that has drawn attention across Indian Country. The most recent try appears to have vindicated some of the tribal interest because a three-judge panel changed its mind on a key sovereign immunity issue.

Rather than hold the Blackfeet Nation liable for the condition of the homes, the 9th Circuit said tribal members must first make their claims in tribal court. That's a big shift from two prior opinions that said the tribe waived its sovereign immunity.

"In our earlier opinions, we declined to require plaintiffs to exhaust their tribal court remedies," wrote Judge Susan P. Graber for the majority. "Instead, we held that the Blackfeet Tribe had waived tribal immunity through the enabling ordinance that established the [tribal] Housing Authority.

"Our doing so was in error, and we now vacate that holding and decline to reach the issue," Graber, a Clinton nominee, continued.

The holding worried tribes because many of them adopted housing ordinances similar to the one at issue in the case. They could have faced lawsuits in federal court for housing agreements they signed with tribal members.

Though the immunity issue now favors tribes, the 9th Circuit wasn't swayed on another critical aspect of the case. By a 2-1 vote, the court said the Department of Housing and Urban Development did not violate its trust responsibility even though federal funds were used to build the faulty homes.

"The federal government did not exercise direct control over Indian land, houses, or money by means of these funding mechanisms," Graber wrote, repeating identical language in the March 19 opinion in the case.

But, like before, Judge Harry Pregerson dissented on the trust responsibility aspect. He said a slew of statutes -- including the Native American Housing Assistance and Self-Determination Act, whose reauthorization is pending in Congress this year -- obligated HUD to act as fiduciary for the tribe.

"I believe that the government breached that duty by requiring the tribes to use substandard, hazardous building materials during the construction of the homes and then refusing to repair or rebuild the homes," wrote Pregerson, a Carter nominee.

All three judges, however, agreed that some of the plaintiffs' claims against HUD should be heard in federal court. The plaintiffs want HUD to repair or rebuild the 153 homes at the heart of the case.

The mixed nature of the ruling could lead to an appeal to the U.S. Supreme Court. The Native American Rights Fund and the National Congress of American Indians, through their joint Tribal-Supreme Court Project, have been closely monitoring the case.

The Supreme Court is the only avenue for further recourse because Friday's opinion stated that the 9th Circuit will not rehear the case and will not put it to a full en banc panel of judges.

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 housing in Indian Country.

9th Circuit Decision:
Marceau v. Blackfeet Housing Authority (August 22, 2008)

Prior Opinions:
March 19, 2008 | July 21, 2006

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