Marceau v. Blackfeet Housing ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN MARCEAU; CANDICE 
LAMOTT; JULIE RATTLER; JOSEPH
RATTLER, JR.; JOHN G. EDWARDS;
MARY J. GRANT; GRAY GRANT;
DEANA MOUNTAIN CHIEF, on behalf
of themselves and others similarly
situated, No. 04-35210
Plaintiffs-Appellants, D.C. No.
v.
 CV-02-00073-SEH
BLACKFEET HOUSING AUTHORITY, ORDER AND
and its board members; SANDRA AMENDED
CALFBOSSRIBS; NEVA RUNNING OPINION
WOLF; KELLY EDWARDS; URSULA
SPOTTED BEAR; MELVIN MARTINEZ,
Secretary; DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
United States of America,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted on Rehearing
May 9, 2007—Portland, Oregon
Filed July 21, 2006
Amended March 19, 2008
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
2545
2546 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Opinion by Judge Graber;
Dissent by Judge Pregerson
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2549
COUNSEL
Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommer-
feld, PLLP, Billings, Montana; Jeffrey A. Simkovic, Sim-
kovic Law Firm, Billings, Montana; Mary Ann Sutton,
Attorney at Law, Missoula, Montana, for the plaintiffs-
appellants.
Stephen A. Doherty and Patrick L. Smith, Smith, Doherty &
Belcourt, P.C., Great Falls, Montana; Timothy J. Cavan,
Assistant U.S. Attorney, Billings, Montana, for the
defendants-appellees.
John T. Harrison, Confederated Salish and Kootenai Tribes,
Tribal Legal Department, Pablo, Montana; Patterson V. Joe,
Patterson V. Joe, P.C., Flagstaff, Arizona, for the amici.
ORDER
The opinion filed on July 21, 2006, slip op. 8071, and
appearing at 455 F.3d 974 (9th Cir. 2006), is replaced in part
and adopted in part by the amended opinion filed concurrently
with this order. Further petitions for rehearing and petitions
for rehearing en banc may be filed.
2550 MARCEAU v. BLACKFEET HOUSING AUTHORITY
OPINION
GRABER, Circuit Judge:
Plaintiffs are members of the Blackfeet Indian Tribe who
bought or leased houses built under the auspices of the United
States Department of Housing and Urban Development
(“HUD”). The houses had wooden foundations. The wood
had been pressure-treated with toxic chemicals. Plaintiffs
allege that the use of wooden foundations caused their houses
to deteriorate and that the chemicals in the wood have caused,
and continue to cause, health problems for those who live in
the houses. On behalf of a class of persons similarly situated,
Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet
Tribal Housing Authority and its board members (“the Hous-
ing Authority”) under several theories. The district court dis-
missed the entire complaint under Federal Rule of Civil
Procedure 12(b)(6).
On rehearing, we hold: (1) the Housing Authority forfeited
its claim to tribal exhaustion and, in any event, waived its
tribal immunity; (2) the government did not undertake a trust
responsibility toward Plaintiffs to construct houses or main-
tain or repair houses; and (3) Plaintiffs alleged sufficient facts
to state claims against HUD under the Administrative Proce-
dure Act (“APA”). We readopt our earlier opinion1 with
respect to Plaintiff’s breach of contract claims. Accordingly,
we affirm the district court’s dismissal of the case except as
to Plaintiffs’ claims against the Housing Authority and its
board members and Plaintiffs’ claims under the APA. As to
those claims, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Because the district court dismissed the amended complaint
for failure to state a claim, we construe the facts from Plain-
1
Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006).
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2551
tiffs’ amended complaint, which we must deem to be true, in
the light most favorable to them. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). But we “need not
assume the truth of legal conclusions cast in the form of fac-
tual allegations.” United States ex rel. Chunie v. Ringrose,
788 F.2d 638, 643 n.2 (9th Cir. 1986).
The Blackfeet Tribe is a federally recognized Indian tribe.
In January 1977, the Tribe established a separate entity, the
Blackfeet Housing Authority. See 24 C.F.R. § 805.109(c)
(1977) (requiring, as a prerequisite to receiving a block grant
from HUD, that a tribe form a HUD-approved tribal housing
authority). The Blackfeet Tribe adopted HUD’s model
enabling ordinance. Blackfeet Tribal Ordinance No. 7, art. II,
§§ 1-2 (Jan. 4, 1977), reprinted in 24 C.F.R. § 805, subpt. A,
app. I (1977). Thereafter, HUD granted the Blackfeet Housing
Authority authorization and funding to build 153 houses.
Construction of those houses, and some additional ones,
began after the Housing Authority came into being in 1977.
Construction was completed by 1980.2 The houses—at least
in retrospect—were not well constructed. They had wooden
foundations, and the wood products used in the foundations
were pressure-treated with toxic chemicals. The crux of Plain-
tiffs’ complaint is that HUD directed the use of pressure-
treated wooden foundations, over the objection of tribal mem-
bers, and that the Housing Authority acceded to that directive.
In the ensuing years, the foundations became vulnerable to
the accumulation of moisture, including both groundwater and
septic flooding, and to structural instability. Some of the
houses have become uninhabitable due to contamination from
toxic mold and dried sewage residues. The residents of the
houses have experienced health problems, including frequent
2
In the district court, Plaintiffs’ counsel stated that most of the houses
were completed in 1978 and 1979, with “some follow-up into 1980.”
2552 MARCEAU v. BLACKFEET HOUSING AUTHORITY
nosebleeds, hoarseness, headaches, malaise, asthma, kidney
failure, and cancer.
Plaintiffs bought or leased the houses, either directly or
indirectly, from the Housing Authority. After it became clear
that the houses were unsafe or uninhabitable, Plaintiffs asked
the Housing Authority and HUD to repair the existing houses,
provide them with new houses, or pay them enough money to
repair the houses or acquire substitute housing. When they
received no help from either entity, Plaintiffs filed this class
action against the Housing Authority, HUD, and the Secretary
of HUD. Plaintiffs seek declaratory and injunctive relief and
damages for alleged violations of statutory, contractual, and
fiduciary duties.
HUD filed a motion to dismiss for lack of subject matter
jurisdiction and a motion to dismiss for failure to state a claim
upon which relief can be granted. The Housing Authority and
its board members filed a motion to dismiss because of tribal
immunity. The district court granted those motions. In an ear-
lier opinion, we affirmed the dismissal of HUD and its Secre-
tary, but reversed with respect to the Housing Authority.
Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir.
2006). The Housing Authority filed a petition for rehearing.
The panel granted the petition and reheard the case. All par-
ties, as well as amici curiae, participated in the rehearing. We
now issue this revised opinion.
STANDARD OF REVIEW
We review de novo each of the issues in this case. See
Coyle v. P.T. Garuda Indon., 363 F.3d 979, 984 n.7 (9th Cir.
2004) (concerning federal subject matter jurisdiction);
Demontiney v. United States, 255 F.3d 801, 805 (9th Cir.
2001) (concerning an Indian tribe’s sovereign immunity and
the waiver thereof, waiver of the United States’ sovereign
immunity, and dismissal for failure to state a claim under
Rule 12(b)(6)).
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2553
DISCUSSION
A. Tribal Immunity
[1] Indian tribes generally enjoy immunity from suit.
Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754
(1998) (noting that “an Indian tribe is subject to suit only
where Congress has authorized the suit or the tribe has waived
its immunity”). In our earlier opinion, we held that the Black-
feet Tribe waived tribal immunity through the enabling ordi-
nance that established the Housing Authority.3 Marceau, 455
F.3d at 978 83. On rehearing, the Housing Authority urges us
to dismiss the claims against it, or at least to abstain from con-
sidering those claims until tribal courts rule on the question
whether the Housing Authority is immune from suit. For two
reasons, we are not persuaded that we should do either.
[2] We begin by recognizing that principles of comity gen-
erally require federal courts to dismiss, or abstain from decid-
ing, cases in which a party asserts that an Indian tribal court
possesses concurrent jurisdiction. Crawford v. Genuine Parts
Co., 947 F.2d 1405, 1407 (9th Cir. 1991); see also Wellman
v. Chevron U.S.A., Inc., 815 F.2d 577, 578 (9th Cir. 1987)
(“Considerations of comity require the exhaustion of tribal
remedies before the [tribal court’s jurisdiction] may be
addressed by the district court.”). Ordinarily, exhaustion of
tribal remedies is mandatory. Burlington N. R.R. Co. v. Crow
Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991).
3
Blackfeet Tribal Ordinance No. 7, art. V, § 2 (Jan. 4, 1977), states:
The [Blackfeet Tribal] Council hereby gives its irrevocable
consent to allowing the [Housing] Authority to sue and be sued
in its corporate name, upon any contract, claim or obligation aris-
ing out of its activities under this ordinance and hereby authorizes
the Authority to agree by contract to waive any immunity from
suit which it might otherwise have; but the Tribe shall not be lia-
ble for the debts or obligations of the Authority.
(Emphasis added.)
2554 MARCEAU v. BLACKFEET HOUSING AUTHORITY
[3] But the Supreme Court has stated that the tribal exhaus-
tion rule is “prudential” rather than “jurisdictional.” Strate v.
A-1 Contractors, 520 U.S. 438, 451 (1997). Because it is a
non-jurisdictional principle, the preference for tribal exhaus-
tion may be forfeited. The Housing Authority forfeited the
argument that the tribal court should decide the immunity
issue by failing to raise it until the Housing Authority’s peti-
tion for rehearing. Talk of the Town v. Dep’t of Fin. & Bus.
Servs., 353 F.3d 650, 650 (9th Cir. 2003). That being so, we
readopt our earlier opinion on this issue, Marceau, 455 F.3d
at 978-83.
Moreover, in this case, the tribal court already has ruled on
the question. In DeRoche v. Blackfeet Indian Housing Author-
ity, 17 Indian L. Rptr. 6036 (Blackfeet Trib. Ct. App. 1989),
the Blackfeet Tribal Court of Appeals considered a breach of
contract claim against the Housing Authority. That court
adopted the Eighth Circuit’s approach to interpreting a “sue
and be sued” clause. Id. at 6042 (citing Namekagon Dev. Co.
v. Bois Forte Reservation Hous. Auth., 517 F.2d 508, 510 (8th
Cir. 1975). The Blackfeet Tribal Court of Appeals held that
the original Housing Authority enabling ordinance “is an
indisputable qualified waiver of immunity by the Blackfeet
Tribe and housing authority for a breach of contract action”
and that, by adopting the clause,” the tribe waived, to some
extent, the housing authority’s immunity from suit.” Id. The
court thus allowed the contract claim to proceed. Id. DeRoche
is the only Blackfeet appellate decision, and it is on point.
Even if exhaustion in tribal court were warranted, abstention
would not be required. DeRoche is binding tribal precedent,
and we would defer to the tribal court’s extant interpretation.
See Hinshaw v. Mahler, 42 F.3d 1178, 1180 (9th Cir. 1994)
(“The Tribal Court’s interpretation of tribal law is binding on
this court.”).4
4
The Housing Authority points to Whiteman v. Blackfeet Indian Hous-
ing Authority, No. 97 CA 474 (Blackfeet Tribal Ct. Aug. 25, 1999), for the
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2555
[4] Thus, the tribal appellate court and this court agree that
the Tribe waived the Housing Authority’s tribal immunity.
Whether the Housing Authority forfeited the issue of defer-
ence to the tribal court, or whether exhaustion applies, the
result is the same.
B. Claim of Federal Trust Responsibility
Plaintiffs allege that HUD violated its trust responsibility to
them, as tribal members, “because of [HUD’s] comprehensive
and pervasive control of the monies, the property, the stan-
dards for constructing the homes, the standards for providing
mortgages for the homes, [and] the standards for who quali-
fies to live in the homes.” Plaintiffs further allege that “[t]he
corpus of the trust agreement is found in the statutes” con-
cerning Indian housing. Before examining those statutes, we
will set out some governing principles for interpreting them.
1. Governing Principles
In general, a trust relationship exists between the United
States and Indian Nations. Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 17 (1831). But that relationship does not
always translate into a cause of action.5 In a pair of cases from
proposition that a tribal court has held that the ordinance in question did
not waive tribal immunity. Whiteman is a decision of a Blackfeet trial
court, while DeRoche is a published opinion of the Blackfeet Tribal Court
of Appeals. Whiteman can take away nothing from DeRoche, any more
than a district court’s later ruling can detract from an earlier holding of
this court concerning the same subject. “Binding authority must be fol-
lowed unless and until overruled by a body competent to do so.” Hart v.
Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001); see also id. at 1170 &
n.24 (“A district judge may not respectfully (or disrespectfully) disagree
with his learned colleagues on his own court of appeals who have ruled
on a controlling legal issue . . . . [C]aselaw on point is the law.”). There
is but one controlling precedent from the tribal courts, and that is De-
Roche.
5
A cognizable claim that rests on the federal government’s trust obliga-
tion is enforceable through the Tucker Act, 28 U.S.C. § 1491, or the
2556 MARCEAU v. BLACKFEET HOUSING AUTHORITY
the 1980s, the Supreme Court gave us guidance to determine
when an actionable fiduciary duty toward Indians arises.
In Mitchell I, 445 U.S. at 541-46, tribal members on the
Quinault Indian Reservation protested federal mismanage-
ment of the tribe’s timber resources. Although acknowledging
that the Indian General Allotment Act of 1887 (“General
Allotment Act”), ch. 119, 24 Stat. 388, 25 U.S.C. §§ 331-358
(1976) (§§ 331-333 repealed by Pub. L. No. 106-462,
§ 106(a)(1) (2000)), established a trust relationship on behalf
of Indians, the Court found that the relationship was “limited”
and did not impose on the government a particular duty to
manage timber resources. Mitchell I, 445 U.S. at 542. Instead,
the federal government’s trust responsibilities under the Gen-
eral Allotment Act were merely to prevent alienation of the
land and to hold the land “immune from . . . state taxation.”
Id. at 544. Despite rejecting the tribe’s claim under the Gen-
eral Allotment Act, the Court remanded the case to the Court
of Claims to consider whether other statutes might provide a
basis for liability. Id. at 546.
When the case returned to it, the Supreme Court permitted
a claim to proceed. Mitchell II, 463 U.S. 206. The Court
examined various timber management statutes that Congress
had enacted after the General Allotment Act. Id. at 219-24.
Those statutes directed the government to manage Indian for-
est resources, obtain revenue thereby, and pay proceeds to the
Indian landowners. The Court held that those statutes imposed
strict and detailed duties on the government to manage forest
lands. In view of the pervasive and complete control exercised
Indian Tucker Act, 28 U.S.C. § 1505. United States v. Mitchell, 445 U.S.
535, 538-39 (1980) (Mitchell I); United States v. Mitchell, 463 U.S. 206,
218, 226 (1983) (Mitchell II). A federal court’s jurisdiction is identical
whether conferred by the Tucker Act or the Indian Tucker Act. See Mitch-
ell I, 445 U.S. at 538-39. As a result, for convenience and unless otherwise
noted, we refer to both the Indian Tucker Act and the Tucker Act as “the
Tucker Act” in this opinion.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2557
by the government over the lands, the statutes confirmed the
existence of a fiduciary relationship. Id. Thus, the statutes sat-
isfied the requirements for a claim of breach of fiduciary duty
because they mandated the payment to Indians of money
resulting from the management of Indian timber resources. Id.
at 224-27.
[5] Together, Mitchell I and Mitchell II form the Mitchell
doctrine: To create an actionable fiduciary duty of the federal
government toward Indian tribes, a statute must give the gov-
ernment pervasive control over the resource at issue. Two
2003 Supreme Court decisions illustrate how the Mitchell
doctrine applies: United States v. Navajo Nation, 537 U.S.
488 (2003), and United States v. White Mountain Apache
Tribe, 537 U.S. 465 (2003).
We first address Navajo Nation. In 1964, the Navajo
Nation—with approval from the Secretary of the Interior—
entered into a lease with the corporate predecessor of the Pea-
body Coal Company for the mining of coal on tribal lands.
537 U.S. at 493. The lease provided for low royalty payments
to the tribe. Id. at 495. Under the terms of the lease, the tribe
and the mining company agreed to delegate power to the Sec-
retary of the Interior to adjust the royalty rate to a “reason-
able” level on the twentieth anniversary of the lease. Id. By
the 1980s, the royalties to the Navajo Nation equaled only
about 2% of gross proceeds of the coal, while Congress had
established a yield of 12.5% for coal mined on federal lands.
Id. at 495-96.
Eventually, the Navajo Nation and Peabody negotiated a
change in the royalty rate to 12.5%, retroactive to 1984. Id.
at 498. The agreement also included other concessions by
Peabody, including acceptance of tribal taxation of coal pro-
duction. Id. at 498-99. In 1987, after the Navajo Tribal Coun-
cil approved amendments to the lease and a final agreement
was signed, the Secretary of the Interior approved the agree-
ment. Id. at 500.
2558 MARCEAU v. BLACKFEET HOUSING AUTHORITY
The tribe later learned that the Secretary had engaged in ex
parte dealings with Peabody, without which, they alleged, the
rate could have been as high as 20%. The Navajo Nation filed
suit in the Court of Federal Claims, claiming that the Secre-
tary of the Interior had breached the government’s trust obli-
gations by approving the 1987 amendments to the lease. Id.
at 500. The tribe contended that the Indian Mineral Leasing
Act of 1938 (“Indian Mineral Leasing Act”), ch. 198, 52 Stat.
347, 25 U.S.C. §§ 396a-496g, imposed a fiduciary obligation
on the Secretary of the Interior to maximize financial returns
from coal leases on Indian lands and that the royalty approved
in 1987 was inadequate. Navajo Nation, 537 U.S. at 493.
When the case reached the Supreme Court, the Court con-
firmed the primacy of Mitchell I and Mitchell II as “the path-
marking precedents on the question whether a statute or
regulation (or combination thereof) ‘can fairly be interpreted
as mandating compensation by the Federal Government.’ ”
Navajo Nation, 537 U.S. at 503 (quoting Mitchell II, 463 U.S.
at 218). The Court explained the contrast between Mitchell I
and Mitchell II as the difference between a “ ‘bare trust’ ” for
a limited purpose and “ ‘full responsibility’ ” for management
of Indian resources. Id. at 505 (quoting Mitchell II, 463 U.S.
at 224). The Court held that a court’s analysis of a statute
“must train on specific rights-creating or duty-imposing statu-
tory or regulatory prescriptions.” Id. at 506.
Turning to the Indian Mineral Leasing Act, the Court held
that the statute failed to establish even the “limited trust rela-
tionship,” which the Court found insufficient to support a
claim for relief in Mitchell I, because the statute did not
include any trust language. Id. at 507-08. Instead, the statute
“simply require[d] Secretarial approval before coal mining
leases negotiated between Tribes and third parties become
effective and authorize[d] the Secretary generally to promul-
gate regulations governing mining operations.” Id. at 507
(citations omitted). Further, because the Indian Mineral Leas-
ing Act “aim[ed] to enhance tribal self-determination by giv-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2559
ing Tribes, not the Government, the lead role in negotiating
mining leases with third parties,” the congressional purpose
would be defeated by “[i]mposing upon the Government a
fiduciary duty to oversee the management of allotted lands.”
Id. at 508.
On the same day as it issued Navajo Nation, the Supreme
Court examined the trust doctrine in the context of overseeing
the maintenance of buildings on land of the White Mountain
Apache Tribe. White Mountain Apache Tribe, 537 U.S. 465.
In 1870, the United States Army established Fort Apache in
the White Mountains of Arizona. Id. at 468. In the 1920s,
control of the fort was transferred to the Department of the
Interior, which used part of the property as a school. Id. at
468-69. In 1960, Congress declared that Fort Apache be
“ ‘held by the United States in trust for the White Mountain
Apache Tribe, subject to the right of the Secretary of the Inte-
rior to use any part of the land and improvements for adminis-
trative or school purposes for as long as they are needed for
the purpose.’ ” Id. at 469 (quoting Pub. L. No. 86-392, 74
Stat. 8, 8 (1960 Act). In 1976, the National Park Service des-
ignated Fort Apache as a National Historic Site. Id.
The tribe brought suit, alleging that the Secretary of the
Interior exercised the statutory prerogative to use the prop-
erty, but then failed to perform necessary maintenance and
allowed Fort Apache to fall into disrepair. White Mountain
Apache Tribe v. United States, 46 Fed. Cl. 20, 22 (1999). An
engineering assessment estimated that rehabilitating the prop-
erty in accordance with standards for historic preservation
would cost $14 million. White Mountain Apache Tribe, 537
U.S. at 469.
The Supreme Court held that an actionable fiduciary rela-
tionship existed between the federal government and the tribe.
Id. at 468. The Court explained that a trust relationship alone
is not enough to imply a remedy in damages; “a further source
of law [is] needed to provide focus for the trust relationship.”
2560 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Id. at 477. In the case of the White Mountain Apache Tribe,
that further source of law was the 1960 Fort Apache statute,
which went “beyond a bare trust and permit[ted] a fair infer-
ence that the Government [was] subject to duties as a trustee
and liable in damages for breach.” Id. at 474. First, the 1960
Act “expressly define[d] a fiduciary relationship” by provid-
ing that Fort Apache was “ ‘held by the United States in trust
for the White Mountain Apache Tribe.’ ” Id. (quoting 74 Stat.
at 8) (emphasis added). Second, the United States exercised
its discretionary authority under the statute to make actual use
of the property, “not merely exercis[ing] daily supervision but
. . . enjoy[ing] daily occupation.” Id. at 475. Because the gov-
ernment assumed plenary control over the assets held in trust,
the government likewise assumed an obligation, as trustee, to
preserve those assets. Id.
2. Housing on the Blackfeet Reservation
To decide whether Plaintiffs have a viable claim for viola-
tion of a federal trust responsibility, we must examine the
statutes and regulations pertaining to the Blackfeet houses at
issue. After having done so, we conclude that HUD did not
undertake a trust responsibility toward Plaintiffs to construct
houses or to maintain or repair houses.
[6] During the period in which the houses were constructed,
between 1977 and 1980, HUD provided federal funds to the
Blackfeet Housing Authority pursuant to the United States
Housing Act of 1937, 42 U.S.C. §§ 1437-1440 (1976). Under
that statute and its implementing regulations for Indian housing,6
HUD provided block grants with which an Indian housing
authority could organize the construction of homes through its
own contractors. In “Annual Contributions Contracts,” HUD
agreed to provide a specified amount of money to fund proj-
ects undertaken by a tribal housing authority and approved by
HUD. 24 C.F.R. §§ 805.102, 805.206 (1977). After securing
6
24 C.F.R. §§ 805.404(a), 805.415, 805.416, 805.421, 805.422 (1977).
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2561
funding from HUD, a tribal housing authority contracted with
eligible American Indian families. Id. § 805.406. Eligible
families contributed land, labor, or materials to the building
of their houses. Id. § 805.408. After occupying its house, each
family made monthly payments to the housing authority in an
amount calibrated to the family’s income. Id.
§ 805.416(a)(1)(ii). The Indian purchasers were responsible
for maintaining their houses. Id. § 805.418(a).
[7] Significantly, the statute under which HUD established
that program, 42 U.S.C. § 1437 (1976), provided in relevant
part:
It is the policy of the United States to promote the
general welfare of the Nation by employing its funds
and credit, as provided in this chapter, to assist the
several States and their political subdivisions to rem-
edy the unsafe and unsanitary housing conditions
and the acute shortage of decent, safe, and sanitary
dwellings for families of low income and, consistent
with the objectives of this chapter, to vest in local
public housing agencies the maximum amount of
responsibility in the administration of their housing
programs.
(Emphasis added.) For the purpose of our analysis, two points
are notable. First, as the text just emphasized demonstrates,
Congress gave housing authorities the greatest responsibility
in administering their low-income housing programs. That is,
Congress specifically intended that HUD not assume more
responsibility in developing and managing housing projects
than was necessary. Second, Congress defined the term
“states” to include “Indian tribes, bands, groups, and
Nations.” 42 U.S.C. § 1437a(7). In other words, the block-
grant statute applied across the board to all low-income hous-
ing, not specially or specifically to Indian housing, even
though HUD promulgated separate regulations for Indian
housing. See Artichoke Joe’s Cal. Grand Casino v. Norton,
2562 MARCEAU v. BLACKFEET HOUSING AUTHORITY
353 F.3d 712, 729 (9th Cir. 2003) (reaffirming the rule that
statutes are construed liberally in favor of Indians only when
the statute is passed for the benefit of Indian tribes and the
statute is ambiguous).
[8] Under its regulations, HUD had two general controls
over Indian housing. First, HUD required that low-income
housing meet Minimum Housing Standards, 24 C.F.R.
§§ 200.929, 805.212 (1977). Second, new construction could
not exceed the “prototype costs” for the project,7 although the
prototype costs could be revised upon request of a housing
authority, either at application for a project or later when
found to be necessary. 24 C.F.R. §§ 805.213(c), 805.214(b)
(1977).
[9] Three important points bear emphasis. First, neither
restriction was unique to Indian housing. Title 24 C.F.R.
§ 200.925 (1977) provided that all housing built under HUD
programs “shall meet or exceed HUD Minimum Property
Standards.” See, e.g., 24 C.F.R. § 800.205(c)(1) (1977) (man-
dating that developers provide “detailed information” con-
cerning the application of the Minimum Property Standards in
their project applications); 24 C.F.R. § 841.107(c)(2) (1977)
(requiring use of the Minimum Property Standards in other
HUD-funded construction projects). Similarly, non-Indian
housing construction projects had to comply with prototype
cost limitations. See, e.g., 24 C.F.R. §§ 841.115(b)(2), pt. 841,
app. A (1977) (establishing limitations on dwelling construc-
tion and equipment costs based on the area prototype costs).
[10] Second, HUD regulations did not require the use of
pressure-treated wooden foundations. With respect to founda-
tions, HUD’s Minimum Property Standards established mini-
mum criteria in section 601-16. Dep’t of Hous. & Urban Dev.,
Handbook 4900.1: Minimum Property Standards for One and
7
Prototype costs are the HUD-approved ceiling or maximum costs for
each type of dwelling. 24 C.F.R. § 841.204 (1977).
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2563
Two Family Dwellings § 601-16 (1973 ed., rev. May 1979)
(“Minimum Property Standards Handbook”). That regulation
provided two alternative sets of minimum requirements, one
for concrete or masonry walls below grade, id. § 601-16.4,
and one for pressure-treated wooden foundations, id. at app.
E.
[11] Third, Indian housing authorities were not rigidly
bound by either the Minimum Property Standards or the pro-
totype cost limitations.8 Indian housing authorities could
choose to request variances from both the Minimum Property
Standards and the prototype costs, if they believed that local
conditions justified modifications. 24 C.F.R. §§ 805.212(a),
805.213(c) (1977). In a handbook published for use by Indian
housing authorities, HUD characterized the introductory state-
ments to the handbook on Minimum Property Standards as
“stress[ing] the importance of flexibility to meet local condi-
tions.” Dep’t of Hous. & Urban Dev., Handbook 7440.1:
Interim Indian Housing Handbook § 3-5(a) (1976 ed., rev.
Jan. 1978) (“Indian Housing Handbook”). As HUD empha-
sized:
The [Indian Housing Authority] is responsible for
the planning and development of Indian housing
projects. The U.S. Housing Act of 1937 provides
that local public housing agencies are to be vested
with maximum responsibility for project administra-
tion and the Indian Self-Determination and Educa-
tion Assistance Act emphasizes the importance of
maximum Indian self-determination.
8
Variances to the prototype cost limitations were likewise available to
non-Indian housing authorities, but under somewhat different rules. 24
C.F.R. § 841.115(2) (1977). However, variances from HUD Minimum
Property Standards generally were not available in non-Indian housing
programs. See 24 C.F.R. § 841.107(c)(2) (1977) (mandating inclusion of
HUD Minimum Property Standards as one of construction standards in
design of public housing program projects); 24 C.F.R. § 883.208(a)(2)
(1977) (requiring the same for Section 8 projects).
2564 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Indian Housing Handbook § 2-1(a).
Indeed, a 1979 amendment to the Indian housing regula-
tions further emphasized the importance of maximizing
Indian self-determination by removing the requirement that
Indian housing comply with the HUD Minimum Property
Standards in the absence of a waiver. Instead, the amendment
required only that the design of Indian housing take into
account the Minimum Property Standards, along with several
other factors. 24 C.F.R. § 805.212(a) (1979). Thus, at the end
of the period during which the housing in question was built,
HUD was loosening, not tightening, the reins on the auton-
omy of Indian housing authorities that were receiving block
grants.
By the time Plaintiffs filed their complaint in 2002, a new
statutory regime was in effect under which Plaintiffs claim a
federal trust obligation to repair or replace their houses.9 In
1996, Congress enacted the Native American Housing Assis-
tance and Self-Determination Act of 1996 (“NAHASDA”), 25
U.S.C. §§ 4101-4243. As the 1996 statute’s statement of con-
gressional findings recognized, federal Indian housing assis-
tance was to be provided “in a manner that recognizes the
right of Indian self-determination and tribal self-governance”
and with the “goals of economic self-sufficiency and self-
determination for tribes and their members.” 25 U.S.C.
§ 4101(6)-(7).
Under NAHASDA, HUD makes annual block grants, in
amounts determined by a formula, to a tribe or its designated
9
In 1988, Congress moved the authorization for Indian low-income
housing to Title II of the United States Housing Act and formalized the
Indian housing program. Indian Housing Act of 1988, 42 U.S.C.
§§ 1437aa-1437ee (1988), repealed by Native American Housing Assis-
tance and Self-Determination Act of 1966, Pub. L. No. 104-330, 110 Stat.
4016 (“NAHASDA”). The 1988 statute did not govern at the time the
Blackfeet housing was built, nor does it govern presently. For our pur-
poses, the 1988 statute does not affect the analysis.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2565
housing entity (such as an Indian housing authority), to carry
out activities related to the provision of affordable housing. 25
U.S.C. §§ 4111(a), 4152; 24 C.F.R. §§ 1000.201, 1000.202,
1000.206, 1000.301-.340. To receive a block grant, a tribe
must submit to HUD an Indian Housing Plan that meets cer-
tain requirements and that is subject to HUD’s approval. 25
U.S.C. § 4111(b); 24 C.F.R. § 1000.201. But the housing plan
is to be “locally driven.” 24 C.F.R. § 1000.220. And HUD’s
statutorily prescribed role—in addition, of course, to provid-
ing the block grants themselves—is generally confined to “a
limited review of each Indian housing plan,” and even then
“only to the extent that [HUD] considers review is necessary.”
25 U.S.C. § 4113(a)(1). The grant, once made, is subject to
tribal control; the recipient, rather than HUD, is responsible
for operating the housing program, including the continued
maintenance of housing. 25 U.S.C. § 4133. HUD’s responsi-
bility consists primarily of oversight and audit, to ensure that
federal funds are spent for the intended purpose. 24 C.F.R.
§ 1000.520.
[12] Ultimately, no statute ever required tribes to form
housing authorities. No statute obliged Indian housing author-
ities, once formed, to seek federal funds. No statute commit-
ted the United States itself to construct houses on Indian lands
or to manage or repair them. Indeed, the relevant regulations
expressly imposed inspection duties on Indian housing
authorities, independently of HUD, including any enforce-
ment of warranties. 24 C.F.R. §§ 805.221(a), 805.417(a)
(1977).
[13] No statute has imposed duties on the government to
manage or maintain the property, as occurred in Mitchell II,
nor has any HUD regulation done so. Unlike in White Moun-
tain Apache Tribe, here no statute has declared that any of the
property was to be held by the United States in trust, nor did
the United States occupy or use any of the property. In the
present case, there is plenary control of neither the money nor
the property.
2566 MARCEAU v. BLACKFEET HOUSING AUTHORITY
[14] Instead, this case most closely resembles Navajo
Nation. Just as the Indian Mineral Leasing Act required Sec-
retarial approval of leases, but did not oblige the Secretary to
negotiate them, the United States Housing Act gave HUD a
right of final inspection with respect to construction and
design materials, 24 C.F.R. §§ 805.211-805.217 (1977), but
did not oblige HUD to select them. Here, as there, the statute
failed to include a federal managerial role. Here, as there,
Congress expressed the aim of giving the lead role to an entity
other than the government.
[15] Although we must take as true Plaintiffs’ allegations
that HUD in fact required the use of wooden foundations and
that those foundations caused injury, the government did not
enter into a trust relationship merely because HUD did not
approve an alternative design. Although HUD’s power to
approve a design implies the power to reject a design as well,
the Supreme Court made clear in Mitchell I and Navajo
Nation that such oversight authority alone (whether exercised
wisely or unwisely) cannot create the legal relationship that is
a threshold requirement for Plaintiffs to recover on a trust the-
ory. Even if HUD’s actions in mandating certain construction
materials and methods may have been arbitrary or capricious,
those actions alone cannot alter the legal relationship between
the parties.
[16] In summary, under the Housing Act, Indian housing
authorities (such as the Blackfeet Housing Authority) applied
to HUD for loans to enable the housing authority to develop
low-income public housing designed to be sold to eligible
members of the tribe. Under NAHASDA, block grants could
be used by the tribe or its designated housing entity to repair
or replace housing. As with any grant of federal funds, certain
requirements had to be met to obtain and spend the funds. But
the federal government held no property—land, houses,
money, or anything else—in trust. The federal government
did not exercise direct control over Indian land, houses, or
money by means of these funding mechanisms. The federal
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2567
government did not build, manage, or maintain any of the
housing. For these reasons, we adhere to our earlier ruling that
the district court properly dismissed Plaintiffs’ claim that
HUD violated a trust responsibility. Marceau, 455 F.3d at
983-85.
C. Administrative Procedure Act
[17] Plaintiffs allege that they are entitled to relief under
the APA, 5 U.S.C. §§ 702-706. The APA authorizes suit by
“[a] person suffering legal wrong because of agency action,
or adversely affected or aggrieved by agency action within the
meaning of a relevant statute.” 5 U.S.C. § 702. When review-
ing an APA claim, a court may only (1) “compel agency
action unlawfully withheld or unreasonably delayed”; or (2)
“hold unlawful and set aside agency action, findings, and con-
clusions found to be (A) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(1)-(2)(A). “[C]entral to the analysis . . . is that the only
agency action that can be compelled under the APA is action
legally required.” Norton v. S. Utah Wilderness Alliance, 542
U.S. 55, 63 (2004).
[18] As our earlier opinion explained, Marceau, 455 F.3d
at 985, a claim under the APA requires, among other things,
that the claimant seek “relief other than money damages.” See
also Bowen v. Massachusetts, 487 U.S. 879, 895-902 (1988)
(analyzing the meaning of “money damages” in 5 U.S.C.
§ 702). Examination of the relief that Plaintiffs seek does not
stop at the parties’ allegations. Instead, “the substance of the
pleadings must prevail over their form.” Amoco Prod. Co. v.
Hodel, 815 F.2d 352, 361 (5th Cir. 1987); see also Tucson
Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th
Cir. 1998) (examining plaintiff’s APA claims and concluding
that the “claims are not ‘for money damages’ ”). We must
“discern the nature of the relief being sought and focus on the
type of relief that will result from the action.” Amoco Prod.
Co., 815 F.2d at 362.
2568 MARCEAU v. BLACKFEET HOUSING AUTHORITY
[19] In this case, Plaintiffs request equitable and injunctive
relief. Specifically, they seek a declaration that HUD has vio-
lated its legal obligations, and they seek equitable relief in the
form of repairs (or, where necessary, rebuilding) of their
homes.
[20] According to Plaintiffs, a judicial declaration that
HUD approved the construction designs and materials in a
manner that violated HUD regulations could be used as lever-
age with Congress to enact remedial legislation. In their alter-
native claim for injunctive relief, Plaintiffs ask that HUD
simply “fix” the construction defects that allegedly caused the
health problems suffered by some of the Blackfeet homeown-
ers. On reconsideration, we conclude that Plaintiffs’ claims
for declaratory and injunctive relief thus are distinct from
money damages.
[21] The district court erred in dismissing Plaintiffs’ claims
for declaratory and injunctive relief under the APA before
allowing adequate development of the record. According to
the Amended Complaint, HUD required the use of “materials
and construction techniques which do not meet HUD’s own
standards or standards used in the industry generally.” HUD
was required to approve “all contracts in connection with the
development of a Project, including contracts for work, mate-
rials, or equipment, or for architectural, engineering or legal
services.” See 24 C.F.R. § 805.211 (1977).10 The regulations
that were in effect when HUD approved the 153 Blackfeet
homes in the late 1970s provided that housing materials had
to meet minimum property standards. 24 C.F.R. § 805.212
(1979); Indian Housing Handbook §§ 3-19, 3-20. Those mini-
10
We note that HUD approval of contracts was common to all HUD
housing programs. See Indian Housing; final rule, 44 Fed. Reg. 64,204,
64,206 (Nov. 6, 1979 ) (“The requirement for HUD approval of develop-
ment contracts is in accordance with the standard rule for the entire public
housing program, Indian and non-Indian, and is not considered unduly
restrictive.”)
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2569
mum property standards permitted the use of chemically
treated lumber in the foundations of single- and double-family
dwellings. See 24 C.F.R. § 200.925 & pt. 200, subpt. S, app.
(permitting “[w]ater borne preservatives[,] [l]ight petroleum
solvent penta-solution [and] [v]olatile petroleum solvent
penta-solution”); see also Minimum Property Standards
Handbook app. E, pp. E-1 and E-2.
HUD’s regulations neither permitted nor proscribed the
particular chemicals (such as arsenic) that Plaintiffs allege
caused the unsafe housing conditions. Because the case is
before us on a motion to dismiss the Amended Complaint, the
record is silent about whether arsenic-treated lumber was
within industry standards at the time. The record is equally
silent about whether Plaintiffs requested the use of different
materials or methods and about whether HUD failed to com-
ply with its own regulations. At this stage in the litigation,
though, we must accept as true Plaintiffs’ allegations that the
construction materials and methods were substandard and that
HUD improperly mandated the use of the wooden foundations
at issue.
For a similar reason, the district court prematurely dis-
missed Plaintiffs’ claim for injunctive relief. Under Count
Two of the Amended Complaint, Plaintiffs allege that, for
more than 15 years, they “repeatedly asked the Blackfeet
Housing Authority and HUD to remedy the dangerous hous-
ing conditions.” NAHASDA permits a tribal authority to seek
block grants from HUD for “affordable housing authorities,”
see 25 U.S.C. § 4111, which include “operating assistance for
housing previously developed or operated under a contract
between the Secretary and Indian housing authority,” id.
§ 4132(1). To the extent that Plaintiffs requested remedial
measures under the repealed Indian Housing Act, HUD had
to consider their requests and then exercise discretion. See S.
Utah Wilderness Alliance, 542 U.S. at 64 (holding that a fail-
ure to act can be cognizable under the APA). In summary,
Plaintiffs’ allegations—that HUD arbitrarily and capriciously
2570 MARCEAU v. BLACKFEET HOUSING AUTHORITY
declined to consider requests for remedial funds, as required
by 24 C.F.R. § 905.270 before the Indian Housing Act’s
repeal and by 25 U.S.C. §§ 4111 and 4132(1) under
NAHASDA—suffice to bring the claim for injunctive relief
under the APA.
D. Breach of Contract Claims
We readopt our earlier opinion, Marceau, 455 F.3d at 986,
concerning Plaintiffs’ breach of contract claims against HUD.
The district court lacked jurisdiction to hear those claims, so
there remains nothing for us to review.
AFFIRMED in part; REVERSED in part and
REMANDED. The parties shall bear their own costs on
appeal.
PREGERSON, Circuit Judge, dissenting:
I concur in the majority’s rulings on tribal immunity and
the Administrative Procedure Act. I dissent with regard to the
majority’s analysis of federal trust responsibility, and write
separately on that issue.
I. Factual Background1
Pursuant to the goals set out in the United States Housing
Act of 1937, 42 U.S.C. §§ 1437-1440, HUD developed the
Homeownership Program. HUD designed the Homeowner-
ship Program to meet the housing needs of low-income Amer-
ican Indian families. HUD entered into agreements called
“Annual Contributions Contracts” with tribal housing authori-
ties under which HUD agreed to provide a specified amount
1
These facts, except as noted, are taken from Plaintiffs’ complaint,
which is presumed true for purposes of this Rule 12(b)(6) proceeding.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2571
of money to fund projects undertaken by the housing authori-
ties and pre-approved by HUD. See 24 C.F.R. § 805.102
(1979); id. § 805.206. After securing funding from HUD, a
tribal housing authority would then contract with eligible
American Indian families. See id. § 805.406. The program
required families to contribute land, labor, or materials to the
building of their house, see id. § 805.408, and after occupying
the house, each family made monthly payments in an amount
calibrated to their income, see id. § 805.416(a)(1)(ii). The
homebuyers were responsible for maintenance of the house.
See id. § 805.418(a).
Until 1988, when the program was formalized in the Indian
Housing Act of 1988, 42 U.S.C. §§ 1437aa-1437ee (1988),
repealed by Native American Housing Assistance and Self-
Determination Act of 1996, Pub. L. No. 104-330, 110 Stat.
4016 (1996), HUD operated the Homeownership Program
under a series of regulations and its “Indian Housing Hand-
book.” See H.R. Rep. No. 100-604 (1988), reprinted in 1988
U.S.C.C.A.N. 791, 793.
In 1977, the Blackfeet Tribe established a separate entity,
the Blackfeet Housing Authority, as HUD regulations
required. See 24 C.F.R. § 805.109(c) (1979) (requiring, as a
prerequisite to receiving Homeownership Program funding,
that tribes form a tribal housing authority). HUD published a
model enabling ordinance, reprinted in 24 C.F.R. § 805,
subpt. A, app. I (1979), which the Blackfeet Tribe adopted.
The enabling ordinance charged the Blackfeet Housing
Authority with “[a]lleviating the acute shortage of decent,
safe and sanitary dwellings for persons of low income” and
“[r]emedying unsafe and [u]nsanitary housing conditions that
are injurious to the public health, safety and morals.” Black-
feet Tribal Ordinance No. 7, art. II, §§ 1-2 (Jan. 4, 1977).
Thereafter, HUD granted the Housing Authority authorization
and funding to build 153 homes.
Construction of the homes took place between 1979 and
1980. The homes, at least in retrospect, were not constructed
2572 MARCEAU v. BLACKFEET HOUSING AUTHORITY
well. The homes were built with wood foundations, and the
wood products used to build the foundations were chemically
treated with arsenic and other toxic chemicals. Plaintiffs
allege, as the crux of their claim, that HUD required the use
of wood foundations over the objection of tribal members,
and that the Housing Authority acceded to that directive.
In the ensuing years, the foundations were, predictably,
vulnerable to moisture accumulation and structural instability.
Today, some of the houses are uninhabitable due to toxic
mold and dried sewage residues. There has been a high inci-
dence of cancer, asthma, kidney failure, respiratory problems,
and other serious health problems among residents of the
homes. Many residents have been advised to leave their
houses for health reasons. Some residents, however, cannot
leave because there are, quite simply, no affordable housing
options in the area.
Plaintiffs purchased or leased these Homeownership Pro-
gram homes either directly or indirectly from the Housing
Authority. They made significant monthly payments and
investments of their own time and/or resources, as required
under the Homeownership Program. After it became clear that
the houses were substandard and hazardous, Plaintiffs sought
assistance from the Blackfeet Housing Authority and from
HUD in remedying the construction defects. When they
received no assistance from either entity, Plaintiffs filed this
class action complaint.
II. Analysis
A.
Plaintiffs allege that HUD has violated its trust responsibil-
ity to tribal members.2 The federal government has substantial
2
Count Three of Plaintiffs’ original complaint alleged that HUD has
violated: (a) the United States Housing Act of 1937, 42 U.S.C. §§ 1437-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2573
trust responsibilities toward Indians. These duties are part of
the nature of the government-Indian relationship. “[A] fidu-
ciary relationship necessarily arises when the Government
assumes . . . elaborate control over forests and property
belonging to Indians.” United States v. Mitchell, (“Mitchell
II”), 463 U.S. 206, 225 (1983).
1. Historical Framework
The federal government-Indian trust relationship dates back
over a century. To appreciate the nature and extent of the gov-
ernment’s responsibilities, and its failure to discharge them, I
review the history of the government-Indian trust relationship.
The United States’ relationship with the Indian tribes has
almost always been “contentious and tragic.” Cobell v. Nor-
ton, 240 F.3d 1081, 1087 (D.C. Cir. 2001). In the early days
of this nation, the federal government sought to put an end to
the communal living and nomadic life common to so many
tribes. The government (by treaty and/or by force) moved
Indians onto reservations. See, e.g., Cherokee Nation v. Geor-
gia, 30 U.S. (5 Pet.) 1 (1831).
In the second half of the nineteenth century, the govern-
ment replaced its policy of relocation with one of assimila-
tion. This assimilationist policy began with treaties negotiated
with individual tribes, and was eventually enacted into federal
law with passage of the General Allotment Act of 1887, also
known as the “Dawes Act,” ch. 119, 24 Stat. 388 (as amended
at 25 U.S.C. § 331 et seq.). Under the General Allotment Act,
1437x; (b) the Indian Housing Act, 42 U.S.C. §§ 1437aa-1437ee; (c) the
Native American Housing Assistance and Self-Determination Act of 1996,
25 U.S.C. §§ 4101-4243; and (d) the Housing Act of 1949, 42 U.S.C.
§§ 1441-1490. On appeal, Plaintiffs did not challenge the district court’s
holding that no express or implied right of action existed under those stat-
utes. Accordingly, I do not consider those statutes here.
2574 MARCEAU v. BLACKFEET HOUSING AUTHORITY
beneficial title of the lands allotted to tribes vested in the
United States as trustee for individual Indians.3
The government then began to divide reservations and
other Indian lands into individual parcels. The government
essentially took the land it had earlier set aside for Indian
tribes and re-allotted the land to individual tribe members. See
Felix S. Cohen, Handbook of Federal Indian Law § 1.04
(2005 ed.). “The objectives of allotment were simple and
clear cut: to extinguish tribal sovereignty, erase reservation
boundaries, and force assimilation of Indians into the society
at large.” Yakima v. Yakima Indian Nation, 502 U.S. 251,
254,(1992). Once tribal lands were allotted in fee to individ-
ual tribal members, white settlers could purchase the lands
from tribe members.
The federal government ceased allotting tribal lands to indi-
viduals with the enactment of the Indian Reorganization Act
of 1934 (“IRA”), 48 Stat. 984 (codified as amended at 25
U.S.C. § 461 et seq.). Lands already allotted remained so, but
the IRA provided that unallotted Indian lands would be
returned to tribal ownership. 25 U.S.C. § 463.
In the 1950s, federal Indian policy shifted yet again as Con-
gress adopted a “termination policy.” Under termination,
Congress sought to release tribes from federal supervision and
to terminate the government-Indian relationship. The purpose
of this policy shift was specifically to sever the trust relation-
ship. Cobell, 240 F.3d at 1088. During this period, Congress
terminated numbers of tribes and withdrew its recognition of
those tribes.
The termination policy was no more successful than earlier
assimilation efforts, and was soon replaced with the current
policy of self-determination and self-governance. In 1975
3
Where tribes resisted allotment, it could be imposed. See Act of June
28, 1898, ch. 517, 30 Stat. 495 (“Curtis Act”).
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2575
Congress enacted the Indian Self-Determination and Educa-
tion Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203 (1975).
Today, much tribally owned land is held in trust “indefinite-
ly.” 25 U.S.C. § 462.
2. The Mitchell Doctrine
Here, Plaintiffs argue that, as tribal members, HUD owed
them a trust duty and it breached that duty. Claims based on
the tribal trust duty are enforceable via the Tucker Act. In
1980, the Supreme Court held that the General Allotment Act,
on its own, did not provide a substantive damage remedy
enforceable through the Tucker Act. United States v. Mitchell
(Mitchell I), 445 U.S. 535, 541-46 (1980).
The tribe in Mitchell I protested federal mismanagement of
its timber resources. Although acknowledging that the Gen-
eral Allotment Act did indeed establish a trust relationship on
behalf of the Indians, the Court found the relationship to be
a “limited” one that did not impose a duty to manage timber
resources. Id. at 542. Under the Court’s reading of the Gen-
eral Allotment Act, the trust responsibilities of the federal
government under the statute were merely to prevent alien-
ation of the land and to hold the land “immune from . . . state
taxation.” Id. at 544.
Although the Mitchell I Court rejected the tribe’s claim as
premised solely on the General Allotment Act, it remanded to
the Court of Claims for consideration of whether other stat-
utes might provide a basis for liability. Id. at 546. Thus, the
Court left the door open to continued pursuit of the claim
against the federal government under alternative sources of
law.
When the case returned to it, the Supreme Court permitted
the Tucker Act suit to proceed. Mitchell II, 463 U.S. 206. The
Court examined various timber management statutes enacted
subsequent to the General Allotment Act, which directed the
2576 MARCEAU v. BLACKFEET HOUSING AUTHORITY
government to manage Indian forest resources, obtain revenue
thereby, and pay proceeds to the landowners. Id. at 219-24.
The Court held that these statutes imposed strict duties upon
the government to manage forestlands and specifically
required the government to take into account the maintenance
of the productive use of the land, the highest and best use of
the land, and the financial needs of the owner and the owner’s
heirs. Id. The Court held that the statutes confirmed the exis-
tence of a fiduciary relationship, especially given the perva-
sive and complete control exercised by the government over
these lands. Id.
Finally, in Mitchell II the Court concluded that because this
fiduciary relationship specifically prescribed management of
Indian timber resources, these statutes could fairly be inter-
preted as mandating the payment of money — thereby satisfy-
ing the standard for a Tucker Act action. Id. at 224-27.
Moreover, the Court stated, absent a damages remedy, the
fiduciary obligations of the United States would be largely
unenforceable, because prospective relief would be inade-
quate and fail to deter federal officials from defaulting in their
trust duties. Id. at 227-28.
Together, Mitchell I and II form the Mitchell doctrine,
which outlines the circumstances under which the federal
government owes a fiduciary duty to tribes. These cases indi-
cate that the government’s obligation must go beyond the
mere general obligation that it owes to domestic dependent
sovereigns. A tribe must demonstrate specific statutory lan-
guage indicating that the federal government has pervasive
control over the resource at issue. Two decisions from 2003
clarify the Mitchell doctrine: United States v. Navajo Nation,
537 U.S. 488 (2003), and United States v. White Mountain
Apache Tribe, 537 U.S. 465 (2003).
In 1964, the Navajo Nation, with the approval of the Secre-
tary of the Interior, entered into a lease with the corporate pre-
decessor of the Peabody Coal Company for coal mining on
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2577
tribal lands. Navajo Nation v. United States, 46 Fed. Cl. 217,
221 (Ct. Cl. 2000). The lease provided for low initial royalty
payments to the tribe. Id. Pursuant to the terms of the lease,
the tribe and the mining company agreed to delegate power to
the Secretary of the Interior to adjust the royalty rate to a “rea-
sonable” level on the twentieth anniversary of the lease. Id.
By the 1980s, the royalty payments to the Navajo Nation were
only about two percent of gross proceeds on the coal, well
below the twelve-and-a-half percent Congress had established
for coal mined on federal lands. Navajo Nation, 537 U.S. at
496.
Subsequently, the Navajo Nation and the Peabody Mining
Company negotiated a change in the royalty rate to twelve-
and-a-half percent, retroactive to 1984, and included other
concessions such as coal company acceptance of tribal taxa-
tion of coal production. Id. at 498. In 1987, after the Navajo
Tribal Council approved the lease amendments and a final
agreement was signed, Interior Secretary Hodel approved the
negotiated agreement. Id. at 500. The tribe later learned that
Secretary Hodel had engaged in backroom ex parte dealings
with the coal company, without which the royalty rate would
likely have been closer to twenty percent (not the twelve-and-
a-half percent negotiated).
In 1993, the Navajo Nation filed suit in the Court of Fed-
eral Claims under both the Tucker Act and the Indian Tucker
Act, claiming that the Secretary of the Interior breached the
government’s trust obligations by approving the 1987 amend-
ments to the lease. Navajo Nation, 46 Fed. Cl. at 220-21. The
tribe contended that the Indian Mineral Leasing Act imposed
a fiduciary obligation on the Secretary of the Interior to maxi-
mize the financial returns from coal leases and that the
twelve-and-a-half percent royalty rate approved in 1987 was
manifestly inadequate. Id. at 219-21.
In Navajo Nation, the Supreme Court confirmed the contin-
ued primacy of Mitchell I and Mitchell II as “the pathmarking
2578 MARCEAU v. BLACKFEET HOUSING AUTHORITY
precedents on the question whether a statute or regulation (or
combination thereof) ‘can fairly be interpreted as mandating
compensation by the Federal Government.’ ” 537 U.S. at 503
(quoting Mitchell II, 463 U.S. at 218). The Court explained
the contrast between Mitchell I and Mitchell II as that between
a “bare trust” for limited purposes and “full responsibility” by
the government for management of Indian resources. Id. at
505 (quoting Mitchell II, 463 U.S. at 224). The Court held
that the statutory “analysis must train on specific rights-
creating or duty-imposing statutory or regulatory prescrip-
tions.” Id. at 506. However, once such a full fiduciary duty
has been identified in the pertinent statute, the Court said that
the availability of damages as a remedy “may be inferred,”
even if not expressly referred to in the statute. Id.
Turning to the Indian Mineral Leasing Act, the Navajo
Nation Court ruled, “[t]he IMLA simply requires Secretarial
approval before coal mining leases negotiated between Tribes
and third parties become effective and [further] authorizes the
Secretary generally to promulgate regulations governing min-
ing operations.” Id. at 507. The statute, by failing to include
a federal managerial role, did not establish the “limited trust
relationship” needed to support a claim for relief. Id. at 507-
08.
Further, the Court explained that “imposing fiduciary duties
on the Government here would be out of line with one of the
statute’s principal purposes.” Id. at 508. Because “[t]he IMLA
aims to enhance tribal self-determination by giving Tribes,
not the Government, the lead role in negotiating mining leases
with third parties,” the congressional purpose would be
defeated by “[i]mposing upon the Government a fiduciary
duty to oversee the management of allotted lands.” Id.
In an opinion issued the same day as Navajo Nation, the
Supreme Court examined the trust doctrine in the context of
overseeing the maintenance of buildings on land of the White
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2579
Mountain Apache Tribe. United States v. White Mountain
Apache Tribe, 537 U.S. 465 (2003).
In 1870, the United States Army established Fort Apache
in the White Mountains of east-central Arizona. White Moun-
tain Apache Tribe v. United States, 46 Fed. Cl. 20, 22 (1999).
In the 1920s, control of the fort was transferred to the Depart-
ment of the Interior, and part of the property was used as a
school. Id. In 1960, Congress declared that Fort Apache “be
held by the United States in trust for the White Mountain
Apache Tribe, subject to the right of the Secretary of the Inte-
rior to use any part of the land and improvements for adminis-
trative or school purposes for as long as they are needed for
that purpose.” Pub. L. No. 86-392, 74 Stat. 8, 8 (1960). In
1976, the National Park Service designated Fort Apache as a
National Historic Site. White Mountain Apache Tribe, 46 Fed.
Cl. at 22.
As alleged by the tribe, the Secretary of the Interior exer-
cised the statutory prerogative to use the property, but then
allowed Fort Apache to fall into disrepair and failed to per-
form necessary maintenance. Id. The tribe commissioned an
engineering assessment of the property. The assessment
reported that it would cost roughly $14 million to rehabilitate
the property in accordance with standards for historic preser-
vation. White Mountain Apache Tribe, 537 U.S. at 469. The
tribe brought suit in the Court of Claims arguing that the gov-
ernment had breached its fiduciary duty.
The Supreme Court held there to be an actionable fiduciary
relationship. Id. at 468. In light of the Mitchell cases, the
Court concluded that the Fort Apache trust statute “goes
beyond a bare trust and permits a fair inference that the Gov-
ernment is subject to duties as a trustee and liable in damages
for breach.” Id. at 474. First, the 1960 Act “expressly defines
a fiduciary relationship” by providing that Fort Apache be
“held by the United States in trust for the White Mountain
Apache Tribe.” Id. (citing statute). Second, the United States
2580 MARCEAU v. BLACKFEET HOUSING AUTHORITY
exercised its discretionary authority to make actual use of the
property, thus “not merely exercis[ing] daily supervision but
. . . enjoy[ing] daily occupation.” Id. at 475.
Accordingly, the Court held when the government assumes
plenary control over assets held in trust, the government like-
wise assumes an obligation as trustee to preserve those assets,
even absent express statutory delineation of duties of manage-
ment and conservation. Id. As the Court observed, “elemen-
tary trust law, after all, confirms the commonsense
assumption that a fiduciary actually administering trust prop-
erty may not allow it to fall into ruin on his watch.” Id. The
Court explained that a trust relationship between the United
States and Native Americans alone is not enough to imply a
remedy in damages, and thus “a further source of law [is]
needed to provide focus for the trust relationship.” Id. at 477.
But “once that focus [is] provided, general trust law [is to be]
considered in drawing the inference that Congress intended
damages to remedy a breach of obligation.” Id.
The Mitchell cases, Navajo Nation, and White Mountain
Apache together define the state of law with respect to the
Indian trust doctrine. These cases stand for the proposition
that tribes may successfully bring cases before the Court of
Federal Claims seeking money damages based on the govern-
ment’s breach of a fiduciary duty. Hence, the trust doctrine
gives rise to a viable Tucker Act claim. See George C. Sisk,
Yesterday and Today: Of Indians, Breach of Trust, Money
and Sovereign Immunity 29 Tulsa L. Rev. 313, 317 (2003)
(summarizing these important cases and discussing their inter-
play with the Tucker Act and the Indian Tucker Act).
Before the Court decided these cases, tribes and tribal
members had to identify specific statutes stating a right to
monetary relief from the government. Id. at 337. With these
four cases, the Court has clarified that the trust relationship
itself can establish a right to monetary relief. However, plain-
tiffs must go beyond asserting the general trust relationship
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2581
between tribes and the government, and must allege a specific
trust obligation tied to the resource at stake. In Mitchell II, the
Court recognized that statutes established a pervasive federal
regulation over timber resources adequate to demonstrate a
trust relationship. In White Mountain Apache, the Court held
that the federal government’s occupation and management of
land and buildings established a trust relationship. These
cases demonstrate that where statutes and behavior create per-
vasive governmental control over a tribal resource, a specific
trust relationship and concomitant fiduciary duty are created.
In Navajo Nation, the Court examined the Interior Depart-
ment’s control over mining resources and found no pervasive
control. There, the Court held that the statutory framework
only established a minor role for the federal government —
signing and approving mining leases that were negotiated and
managed by the tribes. The Court found it particularly signifi-
cant that the statute regarding the leases was designed to keep
control of the resource in the hands of the tribe. In the wake
of these cases, determining whether there is a trust relation-
ship sufficiently detailed to create a viable claim under the
Tucker Act requires a tailored inquiry into the resource at
stake, the role of the federal agency involved, and the atten-
dant statutory structure.
3. Housing on the Blackfeet Reservation
In assessing whether plaintiffs have a potential claim under
the tribal trust doctrine, we examine the level of control the
federal government exercises over the tribal asset at issue.
Here, the asset is housing. The federal government’s perva-
sive control of housing on the Blackfeet reservation relates
directly to the trust obligations the government owed the tribe.
Congress’s decision to hold tribal land in trust has the prac-
tical result of eliminating the private housing market on tribal
land because neither individual members of the tribe nor the
tribe itself has an ownership interest that can be used as secur-
2582 MARCEAU v. BLACKFEET HOUSING AUTHORITY
ity. The government’s decision to hold tribal land in trust
shows Congress’ intent to maintain pervasive control over the
resource at stake and gives rise to a fiduciary duty in the
government-created tribal housing market. However admira-
ble the government’s motivations, the decision to take tribal
land in trust has had adverse consequences: by holding tribal
land in trust and preventing alienation, the federal government
foreclosed many options that exist in most private housing
markets. In a recent publication, the United States Commis-
sion on Civil Rights reported that American Indians have con-
sistently found it difficult to obtain mortgages on their land
because the land is held in trust and therefore cannot be used
as collateral. See United States Comm. on Civil Rights, A
Quiet Crisis: Federal Funding and Unmet Needs in Indian
Country at 64, available at http://www.usccr.gov/pubs/
na0703/na0731.pdf; see also H.R. Rep. 100-604, reprinted in
1988 U.S.C.C.A.N. 791, 795.
Similarly, private housing developers have been deterred
from entering tribal housing markets because the property
cannot be alienated. Id. at 64. The federal government exer-
cises pervasive control over tribal land, and in so doing,
severely limits the tribe’s ability to control its own economic
development in the area of housing. In fact, according to one
House Report relating to the passage of the Indian Housing
Act, HUD’s Homeownership Program was the “only reason-
able source of housing in many reservations,” see H.R. Rep.
100-604, reprinted in 1988 U.S.C.C.A.N. 791, 795, in part
because the land was held in trust.
Thus, while the goal of the General Allotment Act was to
prevent unwise tribal alienation of the land, the result was to
prevent building and improving housing. Restrictions operat-
ing on Indian lands prevent developers from entering the pri-
vate tribal housing market, and leave tribes with no option but
to wait for the federal government to provide decent, safe, and
sanitary housing.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2583
The government has often undertaken to provide tribal
housing as an exercise of its special responsibility to the
tribes. Congress has acknowledged federal control over tribal
land and the government’s attendant obligations. Congress
has specifically noted that the federal government’s general
trust relationship with the tribes creates a responsibility for
the federal government to remedy the deplorable housing con-
ditions on reservations. See Native American Housing Assis-
tance and Self-Determination Act (“NAHASDA”), 25 U.S.C.
§ 4101(2)-(5). NAHASDA recognizes that:
Congress, through treaties, statutes, and the general
course of dealing with Indian tribes, has assumed a
trust responsibility for the protection and preserva-
tion of Indian tribes and for working with tribes and
their members to improve their housing conditions
and socioeconomic status so that they are able to
take greater responsibility for their own economic
condition; . . . [Moreover,] providing affordable
homes in safe and healthy environments is an essen-
tial element in the special role of the United States
in helping tribes and their members to improve their
housing conditions and socioeconomic status.
25 U.S.C. § 4101(4)-(5) (emphasis added).
As indicated in the findings under NAHASDA, the federal
government’s duty to remedy tribal housing conditions
existed even before NAHASDA — it derives from treaties
and the “general course of dealing” with tribes. During the
process of forcing the tribes onto reservations, many tribes
were explicitly promised housing in exchange for land ces-
sion. See Virginia Davis, A Discovery of Sorts: Reexamining
the Origins of the Federal Indian Housing Obligation, 18
Harv. BlackLetter L.J. 211, 215-23 (2002). Others were
promised money to “promote their civilization.” Id. at 218-19;
see, e.g., White Mountain Apache Tribe v. United States, 26
Cl.Ct. 446, 465, 466-67 (1992). The Blackfeet Tribe signed
2584 MARCEAU v. BLACKFEET HOUSING AUTHORITY
such a treaty. The Court of Claims has held that treaty lan-
guage such as the “requisites to ‘promote civilization’ ”
includes housing. White Mountain Apache, 26 Cl. Ct. at 466-
67. Treaty language and the relationship between the tribes
and the federal government demonstrate that the federal gov-
ernment has long promised that it would assist American
Indian tribes in providing housing.
When tribal land was taken into trust under the General
Allotment Act, it was done to ensure that every Indian could
have a “homestead of his own with assistance by the govern-
ment to build houses and fences, and open farms.” See Davis,
18 Harv. BlackLetter L.J. at 224 (quoting Comm’r of Indian
Affairs, Annual Report iv-v (1885)). Henry Dawes, proponent
of the General Allotment Act, stated that housing was a cen-
tral element of the Act. Id. at 224. When the government took
the land in trust, it committed itself to play a major role in
housing the trust land’s occupants.
Navajo Nation and White Mountain Apache delineate the
ends of a continuum along which courts examine the Mitchell
doctrine. In White Mountain Apache, the federal govern-
ment’s involvement was pervasive. The federal government
occupied the land, built and maintained structures on the land,
and managed the land. Additionally, federal legislation
explicitly recognized a trust relationship between the govern-
ment and the tribe with respect to management of the land.
When the federal agency allowed the buildings on the land to
fall into dangerous disrepair, the Court held that it had a fidu-
ciary obligation regarding the buildings and the land. The
obligations surrounding the buildings had also been height-
ened by the National Park Service’s designation of the area as
a National Historic Site. Thus, the case demonstrates on-site
involvement, oversight of the building and management of the
structure, funding, and a statutory framework explicitly recog-
nizing the trust relationship.
The present case is similar in several respects. The federal
government controlled the design of the houses, set the build-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2585
ing standards, approved all the designs and contracts, and pro-
vided funding. HUD’s control of housing on tribal land and
the Homeownership Program was pervasive.
HUD set the “prototype costs” for each locality, and
required that the cost of construction and equipment could not
exceed the prototype cost by more than ten percent. See
Department of Housing and Urban Development, Manual
7440.1: Indian Housing Handbook 3-29 (March 1976). These
prototype costs were based on the minimum property stan-
dards, standards that permitted the use of the wood founda-
tions at issue here. Housing authorities proposed projects
within the prototype cost, “carefully consider[ing] costs . . .
to be sure that the project is completed at the lowest possible
cost.” Indian Housing Handbook 3-40. Even then, however,
HUD approved the “development cost” allocated for each
project. Indian Housing Handbook 3-40; 5-25. Any variation
from the minimum property standards had to be HUD-
approved. Indian Housing Handbook 5-25. HUD also had
final say over design of the houses and the authority to alter
tribally proposed designs in any way. The Indian Housing
Handbook has a sample of every form, every contract, every
checklist to be used from the first step to the last.
Thus, the only autonomy permitted to tribal housing
authorities was the right to design a home within the price
range set by HUD, a price range based on HUD’s minimum
property standards. Even then HUD could change the plans.
This is hardly “maximum responsibility for project adminis-
tration” promised to the Housing Authority by HUD. See
HUD Housing Manual 2-1.
The facts of this case confirm that the tribe had little con-
trol over how HUD housing would be built. Although the
Blackfeet Housing Authority and occupants of the housing
vigorously opposed use of wood foundations, it appears that
they had no power to control the materials used. Thus, not
only was HUD funding the only viable lending option on
2586 MARCEAU v. BLACKFEET HOUSING AUTHORITY
most tribal property, but it exerted almost total control over
how the tribes would use the housing money they received to
construct homes on land the government held in trust.
Thus, as with Mitchell II, there is pervasive management of
a tribally owned resource to the exclusion of control by the
tribal landholders. And, unlike Mitchell I, the very purpose for
which the land was taken in trust — to prevent alienation —
caused the injury at issue. Just as in Mitchell II, tribes were
squeezed out of any role in their own tribal housing market.
The current case contrasts with the minimal federal control
at issue in Navajo Nation. There, the Interior Department’s
only role was to approve leases. It did not manage the leases,
negotiate the leases, or dictate their terms. The Interior
Department did not provide any funding or oversight beyond
lease approval. Although the Interior Secretary appeared to
have conducted himself improperly by revealing confidential
information to the mineral lessee, the Court held that there
was no fiduciary duty and no trust asset in connection with
the mineral leases. Navajo Nation represents minimal involve-
ment, and it stands in sharp contrast to the pervasive regula-
tion of housing on the Blackfeet reservation. The framework
in this case is more akin to the system in White Mountain
Apache.
An important element in both Navajo Nation and White
Mountain Apache (and in the Mitchell cases) was the statutory
framework regarding the resource in question. In White
Mountain Apache, statutory language used the word “trust”
when acknowledging the obligation the government owed the
tribe in relation to management of tribal land. In Navajo
Nation, the statutory framework gave the tribe management of
the resource. In Mitchell II, the Court examined several tim-
ber management statutes and noted that the statutory frame-
work showed evidence of an intent by the federal government
to pervasively control the tribe’s timber resources. Based on
the importance of statutory framework in a tribal trust analy-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2587
sis, the determining factor in the present analysis lies in the
housing statutes that resulted in the construction of the sub-
standard homes.
The homeowners base their trust claims on five statutes: the
United States Housing Act of 1937 and 1949, 42 U.S.C.
§ 1437-1437x; the National Housing Act, 12 U.S.C.
§§ 1715l(a), 1738(a); the Indian Housing Act of 1988, 42
U.S.C. § 1437aa-ff; and the Native American Housing and
Self-Determination Act of 1996 (“NAHASDA”), 25 U.S.C.
§§ 1702-1750.
At the time the houses were constructed for low-income
families on the Blackfeet Indian Reservation in the 1970s,
there was no specific statutory enactment applicable only to
public housing on Indian lands. Federal low-income housing
legislation was generally found in the U.S. Housing Act. See
42 U.S.C. §§ 1437-1437j (1976). The provisions in the U.S.
Housing Act applied to all public housing, including housing
on Indian reservations. See 42 U.S.C. § 1437a(6)-(7) (1976)
(defining “public housing agency” to include entities “autho-
rized” by, among other governmental agencies, “Indian
tribes” to “engage in or assist in the development or operation
of low-income housing”).
Through the Housing Act, Congress appropriated money
for low-income housing purposes, see 42 U.S.C. § 1437g(c),
and authorized and directed the Secretary of HUD to award,
or lend, any appropriated funds to eligible grantees, see 42
U.S.C. §§ 1437b, 1437c, 1437f, 1437g(a), & 1439(d). Local
housing authorities could apply for loans and grants for the
“development, acquisition, or operation of low-income hous-
ing projects.” See 42 U.S.C. §§ 1437b, 1437c, 1437d(a),
1437g. Under the Housing Act, HUD could award funding
and other benefits to tribal housing authorities. See, e.g., 24
C.F.R. §§ 805.108-805.109 (1976) (relating to Indian housing
authorities).
2588 MARCEAU v. BLACKFEET HOUSING AUTHORITY
HUD implemented, by regulation, a “Mutual Help Home-
ownership Opportunity Program” on Indian lands to help
meet the needs of low-income Indian families. The homes
currently at issue were built under this regulatory program.
Housing authorities could sell public housing to low-income
families under “such terms and conditions as [HUD] may
determine by regulation.” 42 U.S.C. § 1437c(h) (1976). Under
the Homeownership Program, an Indian housing authority
could apply to HUD for loans to enable the housing authority
to develop public housing designed for sale to eligible tribal
members. See 24 C.F.R. §§ 805.404(a), 805.415, 805.416,
805.421, 805.422 (1976).
In 1988, nearly ten years after the Blackfeet low-income
homes were completed, Congress enacted the Indian Housing
Act. The Indian Housing Act was specific Indian housing leg-
islation that moved all Indian public housing programs to a
separate title of the U.S. Housing Act and provided express
statutory authority for the Homeownership Program under 42
U.S.C. § 1437bb (1988). With the subsequent adoption of the
NAHASDA in 1996, Congress moved Indian housing pro-
grams out of the U.S. Housing Act consolidating the pro-
grams under NAHASDA. HUD’s involvement with Indian
public housing programs is now controlled exclusively by the
NAHASDA and its implementing regulations. Housing
Authorities receive block grants under the NAHASDA, and
HUD administers the grants. See Solomon v. Interior Reg’l
Hous. Auth., 313 F.3d 1194, 1195 (2002).
On their face, these statutes only establish a mechanism for
lending money to tribal housing authorities. However, a
review of the statutory framework and the Homeownership
Program reveals a much more pervasive and controlling
framework, as detailed above. The Homeownership Program
details the requirements for the housing and connected con-
tracts. There is no language indicating that the goal of the
Homeownership Program is merely to help Indian tribes in
managing their land and resources. The regulations do not
MARCEAU v. BLACKFEET HOUSING AUTHORITY 2589
defer to tribal authorities or tribal decision making, but
instead explicitly detail what the tribal authorities are to do
each step of the way. Federal control over the funds and the
program is pervasive.
But pervasive control over a tribal housing program is not
necessarily the same as federal control over the tribal
resource. If the tribe chooses not to participate in this program
(and therefore not receive the funding for housing), HUD has
no input into the housing contracts, house designs, or materi-
als used. Such a view, however, ignores the overarching hous-
ing issue. 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. The tribe had little choice but to accept the
government housing program. HUD’s Homeownership Pro-
gram was the “only reasonable source of housing in many res-
ervations,” see H.R. Rep. 100-604, reprinted in 1988
U.S.C.C.A.N. 791, 795, and this was the case on the Blackfeet
Reservation. Here, the federal government actively undertook
to assist the Blackfeet to obtain desperately needed decent,
safe, and sanitary housing. 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 under-
took to assist the Blackfeet to obtain desperately needed
decent, safe, and sanitary housing.
Because the government undertook to fulfill its trust
responsibility to provide housing for the tribe and did so
through a pervasive regulatory structure, I would hold that the
federal government, having undertaken this task, had an obli-
gation to perform it in a manner consistent with its fiduciary
duty to the tribe. Based on the facts set forth in the Complaint,
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
2590 MARCEAU v. BLACKFEET HOUSING AUTHORITY
repair or rebuild the homes. Accordingly, I concur in part, dis-
sent in part.