Marceau v. Blackfeet Housing Authority

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,
Plaintiffs-Appellants, No. 04-35210
v.
 D.C. No.
CV-02-00073-SEH
BLACKFEET HOUSING AUTHORITY,
and its board members; SANDRA OPINION
CALFBOSSRIBS; NEVA RUNNING
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
June 16, 2005—Seattle, Washington
Filed July 21, 2006
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Pregerson;
Concurrence by Judge Pregerson
8071
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8075
COUNSEL
Jeff Simkovic, (argued and briefed), Billings, Montana,
Thomas E. Towe, (briefed), Towe, Ball, Enright, Mackey &
Sommerfeld, Billings, Montana, and Mary Ann Sutton
(argued and briefed), Missoula, Montana, for the plaintiffs-
appellants.
Timothy J. Cavan, Assistant United States Attorney, Depart-
ment of HUD, Billings, Montana, Stephen A. Doherty for
8076 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Blackfeet Housing, Great Falls, Montana, and Harold J. Ren-
nett for Government, Washington, D.C., for the defendants-
appellees.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs represent members of the Blackfeet Indian tribe
who purchased or leased homes built under the auspices of the
Department of Housing and Urban Development (“HUD”)
Mutual Help and Homeownership Program (“MHHO Pro-
gram”). Plaintiffs’ homes were built with wood foundations,
using wood pressure-treated with arsenic and other toxic
chemicals. Plaintiffs allege that this use of wood foundations
caused their homes to deteriorate, and that the present condi-
tion of the homes has caused and continues to cause severe
health problems for the homes’ residents. They sued both
HUD and the Blackfeet Tribal Housing Authority (“Housing
Authority”) and its board members alleging numerous statu-
tory and contractual violations. We have jurisdiction under 28
U.S.C. § 1291, with the limitations discussed below. We
reverse the district court’s dismissal of the claims against the
Housing Authority, and affirm dismissal of the claims against
HUD.
I. Factual Background1
Pursuant to the goals set out in the United States Housing
Act of 1937, 42 U.S.C. §§ 1437-1440 (2005), HUD developed
the MHHO Program. The MHHO Program was designed to
1
These facts, except as noted, are taken from Plaintiffs’ complaint,
which is presumed true for purposes of this Rule 12(b)(6) proceeding. For
a more vivid description of the Plaintiffs’ plight, see Jessie McQuillan,
Rotten Deal, Missoula Indep., April 6, 2006, available at http://
www.missoulanews.com/News/News.asp?no=5625.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8077
meet the housing needs of low-income American Indian fami-
lies. HUD entered into agreements called “Annual Contribu-
tions Contracts” with tribal housing authorities under which
HUD agreed to provide a specified amount of money to fund
projects undertaken by the housing authorities and pre-
approved by HUD. See 24 C.F.R. § 805.102 (1979); id.
§ 805.206. After securing funding from HUD, the Housing
Authority, in turn, would contract with eligible American
Indian families. See id. § 805.406. The families were required
to contribute land, labor, or materials to the building of their
house, see id. § 805.408, and after occupying the house, each
family was required to make monthly payments in an amount
calibrated to their income, see id. § 805.416(a)(1)(ii). The
homebuyers were made 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
MHHO Program under a series of regulations and its own “In-
dian Housing Handbook.” 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 required by HUD’s regu-
lations. See 24 C.F.R. § 805.109(c) (1979) (requiring, as a
prerequisite to receiving MHHO funding, that tribes form a
tribal housing authority). The Blackfeet Tribe adopted HUD’s
model enabling ordinance, reprinted in 24 C.F.R. § 805,
subpt. A, app. I (1979).2 In the enabling ordinance, the Black-
feet Housing Authority was charged with “[a]lleviating the
acute shortage of decent, safe and sanitary dwellings for per-
sons of low income” and “[r]emedying unsafe and
2
The Board of the Blackfeet Housing Authority has since been dis-
banded, and the entity is now simply an arm of the tribal government cal-
led “Blackfeet Housing.” This fact makes no difference to our analysis,
and we use “Housing Authority” to refer to this entity in both its iterations.
8078 MARCEAU v. BLACKFEET HOUSING AUTHORITY
[u]nsanitary housing conditions that are injurious to the public
health, safety and morals.” Blackfeet 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
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 cannot leave
because there are, quite simply, no affordable housing options
in the area.
Plaintiffs represent those who purchased or leased these
MHHO homes either directly or indirectly from the Housing
Authority. They have made significant monthly payments and
investments of their own time and/or resources, as required
under the MHHO program. After it became clear that the
houses were substandard and possibly hazardous, Plaintiffs
sought assistance from the Housing Authority and from HUD
in remedying the construction defects. When they received no
assistance from either entity, Plaintiffs filed this class action
complaint on August 2, 2002, in the District Court for the
District of Montana seeking declaratory and injunctive relief
and damages. They named, as Defendants, the Housing
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8079
Authority, its board members, and Mel Martinez, then-
secretary of the Department of Housing and Urban Develop-
ment. Plaintiffs allege that HUD and the Blackfeet Housing
Authority violated statutory, contractual, and fiduciary duties
owed to them.
HUD Defendants filed a motion to dismiss for lack of sub-
ject matter jurisdiction and a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
The Tribal Defendants filed a similar motion to dismiss based
on tribal immunity. After hearings and further briefing, the
district court granted both parties’ motions to dismiss. Plain-
tiffs appealed.
II. Standard of Review
We review the question of subject matter jurisdiction de
novo. See Coyle v. P.T. Garuda Indon., 363 F.3d 979, 984 n.7
(9th Cir. 2004). Questions of tribal and sovereign immunity
are also reviewed de novo. See Orff v. United States, 358 F.3d
1137, 1142 (9th Cir. 2004); Linneen v. Gila River Indian
Cmty., 276 F.3d 489, 492 (9th Cir. 2002). Dismissal for fail-
ure to state a claim is likewise reviewed de novo. See Decker
v. Advantage Funding, Ltd., 362 F.3d 593, 595-96 (9th Cir.
2004).
III. Analysis
A. Tribal Immunity for Board Members of the Blackfeet
Housing Authority
[1] An Indian tribe enjoys sovereign immunity from suit
except where Congress authorizes the suit or the tribe waives
its immunity. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,
523 U.S. 751, 754 (1998). Tribal immunity extends to both
the corporate and governmental activities of the tribe. See id.
at 754-55. It extends to agencies and subdivisions of the tribe,
and has generally been held to apply to housing authorities
8080 MARCEAU v. BLACKFEET HOUSING AUTHORITY
formed by tribes. See, e.g., Dillon v. Yankton Sioux Tribe
Hous. Auth., 144 F.3d 581, 583 (8th Cir. 1998). Moreover,
tribal immunity covers “tribal officials when acting in their
official capacity and within their scope of authority.” United
States v. Oregon, 657 F.2d 1009, 1013 n.8 (9th Cir. 1981).
Thus there is little doubt that the Blackfeet Tribe’s sovereign
immunity extends to the Blackfeet Housing Authority and to
the members of the Blackfeet Housing Authority’s board.
[2] We turn next to the question of waiver. Congressional
abrogation of tribal immunity “cannot be implied but must be
unequivocally expressed.” Santa Clara Pueblo v. Martinez,
436 U.S. 49, 58 (1978) (citation omitted). Similarly, a tribe
may voluntarily subject itself to suit by issuing a “clear”
waiver. See C & L Enters., Inc. v. Citizen Band Potawatomi
Indian Tribe of Okla., 532 U.S. 411, 418 (2001).
Plaintiffs claim that a “sue and be sued” clause in the
Enabling Ordinance that created the Blackfeet Housing
Authority is a clear waiver of tribal immunity. The Enabling
Ordinance states:
The Council hereby gives its irrevocable consent to
allowing the Authority to sue and be sued in its cor-
porate name, upon any contract, claim or obligation
arising 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 oth-
erwise have; but the Tribe shall not be liable for the
debts or obligations of the Authority.
Blackfeet Tribal Ordinance No. 7, art. V, § 2 (Jan. 4, 1977).
For the reasons set forth below, we conclude that the “sue and
be sued” clause of the Enabling Ordinance is a clear and
unambiguous waiver of tribal immunity, and we reverse the
district court’s dismissal of the claims against the Housing
Authority.
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8081
1. Caselaw
[3] The federal courts have had frequent occasion to inter-
pret this “sue and be sued” clause. The text was proposed in
HUD’s model enabling ordinance, and is repeated in the
enabling ordinance of many tribal housing authorities. See
Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous.
Auth., 207 F.3d 21, 30 (1st Cir. 2000) (commenting that
“[d]ue to HUD’s formulaic approach, several other decisions
have dealt with substantially identical ordinances”). The
courts have not, however, agreed in their interpretations. See
Felix S. Cohen et al., Cohen’s Handbook of Federal Indian
Law § 4.04[3][a][ii] (2005) (“Some courts have held this lan-
guage to be a waiver of the immunity of the tribal corporation,
and others have not.”).
[4] Two main lines of cases have emerged. First, there is
a line of cases stating that the very existence of a “sue and be
sued clause” waives the tribal immunity of housing authori-
ties. In Namekagon Development Co. v. Bois Forte Reserva-
tion Housing Authority, 395 F. Supp. 23 (D. Minn. 1974),
aff’d, 517 F.2d 508 (8th Cir. 1975), the district court held that
a construction contractor could sue the Bois Forte Reservation
Housing Authority over a contract claim. The court rested its
decision on the similarity between the model ordinance’s “sue
and be sued” clause and the “sue and be sued” clause used by
the federal government when it creates a corporation. See id.
at 27. The court noted that federal corporations are not
immune from suit unless expressly created to be immune
from suit, but that in the case of tribal housing authorities, it
did not need to go that far because the “sue and be sued”
clause was a clear expression that the corporation itself had
surrendered its sovereign immunity. See id. at 26-27. More-
over, the court stated that it would be “grossly unfair” to dis-
miss the suit against the housing authority, where the tribe
had “purported to create an independent corporation which
would be legally responsible for its promises . . . [and] invited
8082 MARCEAU v. BLACKFEET HOUSING AUTHORITY
outsiders to do business with it on a contractual basis.” Id. at
29.
Subsequent cases followed Namekagon without adding
much more to the analysis. See, e.g., Weeks Constr., Inc. v.
Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986);
Whitebird v. Kickapoo Hous. Auth., 751 F. Supp. 928, 929-30
(D. Kan. 1990); Snowbird Constr. Co. v. United States, 666
F. Supp. 1437, 1441 (D. Idaho 1987); Duluth Lumber & Ply-
wood Co. v. Delta Dev., Inc., 281 N.W.2d 377, 383-84 (Minn.
1979). The only authority in our circuit, R.J. Williams Co. v.
Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir.
1983), also tracks this line of cases. In R.J. Williams Co., we
noted, in dictum, that the tribal immunity of the Fort Belknap
Housing Authority was waived by the “sue and be sued”
clause in the ordinance establishing the Housing Authority.
See id. at 982 n.2. Similarly, the Blackfeet Tribal Court of
Appeals has followed Namekagon and has permitted a con-
tractual suit against the Housing Authority. See DeRoche v.
Blackfeet Indian Hous. Auth., 17 Indian L. Rptr. 6036, 6042
(Blackfeet Trib. Ct. App. 1989) (“Contrary to the housing
authority’s position, this tribal ordinance is an indisputable
qualified waiver of immunity by the Blackfeet Tribe and
housing authority for a breach of contract action. . . . With
[this] tribal ordinance, the tribe waived, to some extent, the
housing authority’s immunity from suit.” (citing Namekagon,
517 F.2d at 510)); see also Davis v. Turtle Mountain Hous.
Auth., 17 Indian L. Rptr. 6035 (Turtle Mountain Trib. Ct.
1990) (allowing a suit for declaratory relief against the hous-
ing authority based on shoddy workmanship on a MHHO
house: “The court refuses to ‘force plaintiffs out into the street
or into the bush’ as the defense of tribal immunity would do.
. . . If the defendants let contractors off with substandard
work, the immunity defense will not save the housing author-
ity from declaratory relief.”).
[5] Another line of cases from the Eighth and Second Cir-
cuits diverges from Namekagon. The Eighth Circuit, in Dillon
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8083
v. Yankton Sioux Housing Authority, 144 F.3d 581 (8th Cir.
1998), held that the “sue and be sued” clause alone did not
waive tribal immunity. The court relied heavily on its own
opinion in Weeks Construction to support its decision, stating
that, in Weeks Construction “and the cases cited therein,”
there was a contract that expressly waived sovereign immu-
nity. Id. at 583-84. The court held that, because the employee
who sued the Yankton Sioux Housing Authority had no con-
tract for employment, the tribe retained its immunity from
suit.
We believe that Dillon provides little support for the propo-
sition that the “sue and be sued” clause is not sufficient to
waive tribal immunity, because it misreads Weeks Construc-
tion. Although both Weeks Construction and Namekagon
dealt with a contract dispute, neither court relied on any
explicit waiver of immunity in the contract in reaching its
decision that the housing authority had waived its sovereign
immunity. See Weeks Constr., 797 F.2d at 670 (“Weeks con-
tends that federal jurisdiction over this action exists because
the “sue and be sued” clause contained in the tribal ordinance
chartering the Housing Authority represents a waiver of sov-
ereign immunity. . . . The Housing Authority does not dispute
that it is amenable to suit.”); Namekagon, 395 F. Supp. at 27
(“The Court finds that one of the purposes of the Ordinance
[that created the Housing Authority] was to cut the corpora-
tion off from the protection of sovereign immunity . . . .”). In
fact, neither court even mentioned whether the contracts at
issue contained any kind of explicit waiver. Dillon’s lack of
citation on this point is thus conspicuous.3 We refuse to com-
pound this error by putting any stock in Dillon.
The Second Circuit went further when it held that the “sue
3
Accordingly, the cases that rely on Dillon with little or no additional
analysis are similarly flawed. See, e.g., Ninigret, 207 F.3d at 30; Buchanan
v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043, 1047 (E.D. Wis.
1999).
8084 MARCEAU v. BLACKFEET HOUSING AUTHORITY
and be sued” waiver was only a waiver in tribal courts, and
did not confer any right on the federal courts to hear the case.
See Garcia v. Akwesasne Hous. Auth., 268 F.3d 76 (2d Cir.
2001). In Garcia, the court based its analysis on a rule that a
waiver of sovereign immunity by a foreign sovereign or a
state sovereign waives immunity only in the courts of that
sovereign. See id. at 87. Thus, the Second Circuit held that the
“sue and be sued” clause waived sovereign immunity only in
tribal courts. Id.
We believe that Garcia’s approach is also problematic. The
Namekagon court specifically considered and rejected the
proposition that a tribe’s waiver of immunity waived immu-
nity only in that tribe’s courts. As the Namekagon court noted,
there is no language in the enabling ordinance that limits the
“sue and be sued” waiver to tribal courts. 395 F. Supp. at 28.
To reach its holding in Garcia, then, the court was forced to
read quite a bit into the clause.
Moreover, the Garcia court was probably wrong to do so,
given that some tribes — including the St. Regis Mohawk
Tribe that was at issue in Garcia — did not have a tribal court
at the time they entered into the model ordinances creating the
housing authority. See Garcia, 268 F.3d at 90 (Katzmann, J.,
concurring in part and concurring in the judgment). As Judge
Katzmann wrote, “it is a little awkward to read the ‘sue and
be sued’ ordinance . . . as a waiver of sovereign immunity
only in (apparently yet-to-be-envisioned-or-created) Tribal
Courts.” Id. The Blackfeet Housing Authority has not asked
us to go as far as the Second Circuit, nor given us any addi-
tional reasons that we should limit the “sue and be sued”
clause to tribal courts, and we see no reason to do so.
2. The Plain Meaning of the Housing Authority
Enabling Ordinance
[6] Independent of the precedent on both sides, the plain
meaning of the ordinance supports the approach taken in
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8085
Namekagon. First, the “sue and be sued” clause expressly per-
mits suit on “any contract, claim or obligation arising out of
its activities.” Blackfeet Tribal Ordinance No. 7, art. V, § 2
(Jan. 4, 1977). This wording forecloses the argument that
some further waiver must be obtained by a later contract; such
a holding renders “claim or obligation” as surplusage. More-
over, the phrase “arising out of its activities” signals that the
“sue and be sued” clause opens the door to liability that was
not necessarily the product of negotiation, but rather liability
that arose by virtue of the Housing Authority’s conduct.
[7] Second, interpreting the “sue and be sued” clause as
sufficient to waive the Housing Authority’s immunity allows
us to interpret the entire section consistently. The enabling
ordinance has two clauses: (1) that the council “gives its irrev-
ocable consent to allowing the Authority to sue and be sued
in its corporate name”; and (2) that the council “authorizes the
Authority to agree by contract to waive any immunity from
suit which it might otherwise have.” Id. The first clause
clearly has some present effect. To give meaning to the first
clause, we must interpret it to mean that the tribe waived the
Housing Authority’s immunity from suit, i.e., that no further
tribal consent was required. Moreover, by doing so, we do not
render the second clause — authorizing the Housing Author-
ity to agree by contract to waive any immunity “it might oth-
erwise have” — surplusage. Given the unclear nature of the
tribe’s right to waive its own authority at the time the ordi-
nance was written, see Cohen, § 7.05[1][c], at 642, such clari-
fication is not superfluous. See Namekagon, 395 F. Supp. at
27 (noting that the second clause “simply indicates a desire to
make the corporation’s amenability to suit unqualifiedly
clear”). Thus, the language of the enabling ordinance supports
the conclusion that the “sue and be sued” clause effected a
waiver of the Housing Authority’s tribal immunity.
[8] Third, Article VII, clause 7 of the Enabling Ordinance
provides that “any judgment against the [Housing] Authority”
shall not be a charge or lien against Blackfeet Housing’s prop-
8086 MARCEAU v. BLACKFEET HOUSING AUTHORITY
erty, but instead could be satisfied out of “its rents, fees or
revenues.” This section clearly countenances that the Housing
Authority would be subject to a judgment against it, and only
limits the funds out of which such a judgment could be satis-
fied.
[9] Thus a plain reading of the Blackfeet Housing Authori-
ty’s enabling ordinance supports Plaintiffs’ argument that the
Blackfeet Housing Authority intended to waive its immunity
when it enacted the enabling ordinance.
3. Additional Reasons for Adopting Namekagon’s
Approach
[10] Moving away from the text of the ordinance, the con-
text in which such housing authorities were created also
informs the interpretation we give these clauses. In 1934,
Congress passed the Indian Reorganization Act, 48 Stat. 984
(1934) (codified as amended at 25 U.S.C. §§ 461-494), which
permitted tribes to form corporate and quasi-corporate entities
that could enter into and compete in the world of commerce.
Tribes could ratify a constitution, write bylaws and otherwise
organize “for its common welfare” under Section 16 of the
Indian Reorganization Act. See 25 U.S.C. § 477. While per-
forming sovereign acts, a tribe organized under Section 16
enjoyed immunity as a sovereign. See, e.g., Linneen, 276 F.3d
at 493 (“The ‘sue and be sued’ clause in the Community’s
corporate charter in no way affects the sovereign immunity of
the Community as a constitutional, or governmental, entity.”).
[11] Under Section 17 of the Indian Reorganization Act,
tribes were also permitted to form corporate organizations —
business corporations through which they could enter the
world of commerce. See White Mountain Apache Tribe v.
Williams, 810 F.2d 844, 866 n.17 (9th Cir. 1987). Housing
authorities are Section 17 organizations. See Cohen,
§ 4.04[3][a], at 256 (citing housing authority cases in exam-
ples of Section 17 organizations). Housing authorities are
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8087
public corporations with enabling ordinances that resemble
articles of incorporation, and contain a hierarchical structure
similar to a board of directors. Charters for Section 17 organi-
zations often contain “sue and be sued” clauses like the one
at issue here. See Cohen, § 4.04[3][a], at 256. And, although
the Housing Authority “occupies a role quintessentially
related to self-governance,” EEOC v. Karuk Tribe Hous.
Auth., 260 F.3d 1071, 1080 (9th Cir. 2001), a tribal housing
authority is nonetheless a “public corporation carrying on
public enterprises,” see Eligibility of Indian Tribes for Loans
and Grants under National Housing Act of 1937, 57 Interior
Dec. 145, 149, 1940 WL 4162, at *4 (Dep’t of the Interior
1940).
[12] The designation of an entity as a Section 16 or a Sec-
tion 17 organization affects how we interpret any waiver of
immunity. This court has been careful to separate a tribe’s
corporate functions from its governmental functions. Accord-
ingly, we have refused to read a waiver of immunity in the
Section 17 corporate context as abrogating immunity for the
tribe’s governmental actions as a Section 16 entity. See, e.g.,
Linneen, 276 F.3d at 492. In the same way, however, a “sue
and be sued” clause in the enabling ordinance of a Section 17
entity must be examined in light of the rationale of Section
17. The purpose of allowing tribes to create Section 17 corpo-
rations, even corporations that perform some quasi-
governmental role, is to allow tribal entities to fully partici-
pate in the world of commerce. See 78 Cong. Rec. 11732
(1934) (noting that, in allowing tribes to incorporate under
Section 17, Congress sought to promote the organization of
tribal business enterprises and to enable those enterprises “to
enter the white world on a footing of equal competition”).
And:
It is repugnant to the American theory of sovereignty
that an instrumentality of the sovereign shall have all
the rights and advantages of a trading corporation,
and the ability to sue, and yet be itself immune from
8088 MARCEAU v. BLACKFEET HOUSING AUTHORITY
suit, and able to contract with others, or to injure oth-
ers, confident that no redress may be had against it
as a matter of right.
Namekagon, 395 F. Supp. at 29 (citing Fed. Sugar Ref. Co.
v. U.S. Sugar Equalization Bd., 268 F. 575, 587 (S.D.N.Y.
1920)). Where there is an express waiver of tribal immunity,
such as this “sue and be sued” clause, we should read that
waiver in light of the purpose of Section 17. Because “devel-
opers and lenders will be reluctant to deal with a corporation
which is legally irresponsible and cannot be made to answer
for its debts,” id. at 29, tribes can compete fully in the busi-
ness world only if they voluntarily agree to limit their right to
immunity.
Finally, the language of Namekagon that it is “grossly
unjust” to interpret such a clear “sue and be sued” clause as
anything less than a waiver of tribal immunity rings true here
as well. The Housing Authority invited individuals to do busi-
ness with it. It signed contracts with these Plaintiffs, bound
the homeowners to make payments, and had contractual rem-
edies in the event that Plaintiffs breached their promises. To
interpret the “sue and be sued” clause in the manner suggested
by the Housing Authority would render the Housing Authori-
ty’s contractual obligations illusory.
[13] For these reasons, we hold that the Tribe waived the
immunity of the Housing Authority when it enacted the
enabling ordinance with its “sue and be sued” clause, subject
to the limitations contained in the enabling ordinance. Of
course, the enabling ordinance contains two important limita-
tions on the Housing Authority’s liability: (a) Article V, Cl.
2: the Tribe shall not be liable for the debts or obligations of
the Authority; and (b) Article VII, Cl. 7: No judgment shall
be a lien upon Authority property; judgments may only be
enforced out of the Authority’s rents, fees or revenues.
Because a sovereign is entitled to set the terms on which it
waives its immunity, such limits restrict the ability of Plain-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8089
tiffs to collect damages against the Housing Authority. We
remand Plaintiffs’ claims against the Housing Authority to the
district court for further proceedings.
B. Motion to Dismiss by the Secretary of the
Department of Housing and Urban Development
Plaintiffs appeal dismissal of the following claims against
HUD: (a) a claim based on a violation of the trust responsibil-
ity; (b) a claim based on a violation of the Administrative Pro-
cedures Act; and (c) a claim for breach of contract. We affirm
the district court’s decision on each claim.
1. Violation of Trust Responsibility and Fiduciary
Duties
Plaintiffs allege that HUD has violated its trust responsibil-
ity to tribal members.4 Plaintiffs’ trust responsibility claims
are based on the Mitchell Doctrine, which derives its origins
from United States v. Mitchell, 445 U.S. 535 (1980)
(“Mitchell I”) and United States v. Mitchell, 463 U.S. 206
(1983) (“Mitchell II”). These two cases concerned a suit by
tribal members who lived on the Quinault Indian Reservation.
The plaintiffs sued the Secretary of the Interior for damages
based on alleged mismanagement of timber resources on land
held in trust. In Mitchell I, 445 U.S. at 542, the Supreme
Court found that the General Allotment Act, under which
tribal land was taken into trust, created only a limited trust
relationship between the United States and the tribal member
as it related to timber management. The Court noted that the
4
Count Three of Plaintiffs’ original complaint alleged that HUD has
violated: (a) the United States Housing Act of 1937, 42 U.S.C. §§ 1437-
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, we do not consider those statutes here.
8090 MARCEAU v. BLACKFEET HOUSING AUTHORITY
statute did not impose any responsibility for timber manage-
ment on the federal government and left all beneficial use of
the land in the allottee, not in the government. See id. at 542-
55. The case was remanded to consider whether any other
basis existed to find a full trust responsibility.
When the case returned to the Supreme Court, the Plaintiffs
framed the trust responsibility on statutes that gave the
Department of the Interior “ ‘comprehensive’ control over the
harvesting of Indian timber.” Mitchell II, 463 U.S. at 209.
This time, the Court found that the general trust relationship
between the federal government and the tribal members cul-
minated in full fiduciary responsibility because the Secretary
of the Interior was granted statutory authority to exercise sub-
stantial control over the harvest of tribally-owned timber.
Under the statute, the Secretary was required to consider
“ ‘the needs and best interests of the Indian owner and his
heirs.’ ” Id. at 209 (quoting 25 U.S.C. § 406(a)). Pursuant to
this authority, the Secretary of the Interior promulgated regu-
lations that addressed “virtually every aspect of forest man-
agement,” essentially squeezing the tribe out of the
opportunity to manage its own timber. Id. at 220. The Court
concluded that this decision to take control of a tribally-
owned resource and to manage it for the benefit of the tribe
created fiduciary responsibilities, the breach of which man-
dated damages. See id. at 226.
[14] This pair of cases sets the stage for how we consider
Mitchell claims: the general “ward-custodian” relationship
between the federal government and the tribes does not give
rise to fiduciary duties. But where the government takes full
control of a tribally-owned resource and manages it to the
exclusion of the tribe, a fiduciary relationship is created and
the government bears responsibilities as a fiduciary.
HUD’s control over the MHHO projects is certainly perva-
sive. HUD set minimum property standards for MHHO hous-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8091
ing. See 24 C.F.R. § 805.212(a) (1979).5 Although the
Housing Authority initially designed the projects, HUD
retained the authority to alter those designs. See id.
§ 805.212(b)-(c). The Housing Authority had to keep the cost
of the houses they designed within a HUD-mandated “proto-
type cost” for each area. See id. §§ 805.213(a), (c),
805.214(b). The Housing Authority was not permitted to enter
any contract for materials or labor without HUD’s approval.
See id. § 805.211(a)-(b).
[15] There is a fatal flaw, however, in Plaintiffs’ Mitchell
claim. Plaintiffs rely solely on the general trust responsibility
that exists between the federal government and American
Indians. But fiduciary duties arise under Mitchell only where
the federal government pervasively regulates a tribally-owned
resource. Plaintiffs offered no argument as to why a grant of
HUD funds should be considered a tribal resource or why the
general trust responsibility between the federal government
and American Indians was focused into specific fiduciary
duties. To say that government funding, conditioned on the
performance of certain acts and heavily regulated by a gov-
ernment agency, is a tribal resource subject to Mitchell fidu-
ciary duties is a step we are unwilling to take in the absence
of precedent extending the doctrine that far. Because Plain-
tiffs have not shown that HUD took a pervasive role in the
management of a tribal resource, we hold that no Mitchell
fiduciary duty existed.
Later congressional acts dealing with Indian Housing have
not provided any additional concrete duties that would give
rise to a claim against HUD. Under the Indian Housing Act
of 1988 and the Native American Housing Assistance and
Self-Determination Act of 1996, HUD was permitted, not
required, to provide additional money to housing authorities
5
These minimum property standards, incidentally, appear to permit the
use of wood foundations such as those used in Plaintiffs’ home. See 24
C.F.R. pt. 200, subpt. S, app. (1976).
8092 MARCEAU v. BLACKFEET HOUSING AUTHORITY
for the repairs. See 25 U.S.C. § 4132(1)-(5). Moreover, main-
tenance duties lay exclusively with individual home owners.
See 24 C.F.R. § 805.418(a)(1) (1979). Because the Indian
Housing Act and the Native American Housing Assistance
and Self-Determination Act of 1996 did not add to the man-
agement responsibilities of HUD, they do not alter our Mitch-
ell analysis. Accordingly, on the claims presented to us, we
conclude that no Mitchell fiduciary duty existed.
2. Violation of the Administrative Procedure Act
[16] Plaintiffs alleged that they are entitled to relief under
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702-
706. The APA grants a cause of action to persons injured by
administrative action. See 5 U.S.C. § 702. A claim under the
APA requires, inter alia, that the claimant seeks “relief other
than money damages.” Id.; see also Bowen v. Massachusetts,
487 U.S. 879, 895-902 (1988). Examination of the relief
Plaintiffs sought 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) (interpreting monetary damages under the
Tucker Act). Our task, then, is to “discern the nature of the
relief being sought and focus on the type of relief that will
result from the action.” Id. at 362.
In this case, although Plaintiffs nominally claim equitable
and injunctive relief, the substance of their claim is that they
are owed money damages from the federal government. As
Plaintiffs admitted at oral argument, their purpose in seeking
a declaratory judgment is that it would enable them to seek
monetary damages in other fora. Under the APA, however,
Plaintiffs cannot seek relief that is essentially the equivalent
of monetary damages. See id. at 362 (finding that the plain-
tiffs were, in essence, seeking monetary relief where “money
would ‘flow from,’ or be the ‘natural consequence’ of” a
review of agency action); Gray v. Rankin, 721 F. Supp. 115,
119 (S.D. Miss. 1989) (noting that “a complaint seeks relief
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8093
other than money damages within the meaning of the Admin-
istrative Procedure Act only if the equitable relief sought has
a ‘significant prospective effect or considerable value apart
from merely determining monetary liability of the govern-
ment’ ”) (citations omitted); cf. Bakersfield City Sch. Dist. of
Kern County v. Boyer, 610 F.2d 621, 628 (9th Cir. 1979)
(“[I]t is firmly established that, where the real effort of the
complaining party is to obtain money from the federal gov-
ernment, the exclusive jurisdiction of the court of claims over
non-tort claims exceeding $10,000 cannot be evaded or
avoided by framing a district court complaint to appear to
seek only injunctive, mandatory or declaratory relief against
government officials or the government itself.”).
[17] Similarly, an injunction is not available to Plaintiffs in
this case. Injunctions are generally not permissible unless a
legal damages remedy would be insufficient. See Cont’l Air-
lines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir.
1994); Charles Wright et al., Federal Practice and Procedure
§ 2944 (2d ed. 1995). Here, money damages in an amount
necessary to repair or rebuild Plaintiffs’ home would be a suf-
ficient remedy, and, therefore, an injunction is not an avail-
able remedy. Because Plaintiffs have no remedy apart from
legal damages, a claim under the APA is not appropriate.
In the alternative, Plaintiffs have argued that their claims
are permitted under Bowen v. Massachusetts, 487 U.S. 879
(1988). In Bowen, the Court noted that a claim under the APA
is not precluded simply because a “judicial remedy may
require one party to pay money to another.” Id. at 893. Rather,
the APA forbids claims based on “a sum of money used as
compensatory relief . . . to substitute for a suffered loss.” Id.
at 895. A plaintiff can, however, bring a claim under the APA
if the plaintiff seeks money as a “specific remed[y] . . . the
very thing to which he was entitled.” Id. (citing Dan B.
Dobbs, Handbook on the Law of Remedies 135 (1973)). Thus,
for example, a claim under the APA is appropriate where a
statute entitles a claimant to a specific amount of money, and
8094 MARCEAU v. BLACKFEET HOUSING AUTHORITY
an administrative agency wrongfully withholds that money
from the claimant.
Plaintiffs in this case clearly seek compensatory damages,
not money as a specific equitable remedy. Plaintiffs claim that
they were harmed because HUD caused their houses to be
constructed in a substandard manner. Plaintiffs want a sum of
money that would redress a wrong caused to them — a legal
damage, not an equitable one. Accordingly, their claims can-
not be brought under the APA.
3. Breach of Contract Claims
[18] Finally, the district court properly found that it was
without jurisdiction to review Plaintiffs’ breach of contract
claims. The Tucker Act vests the Court of Federal Claims
with exclusive jurisdiction for contract claims against the
United States. See 28 U.S.C. § 1491(a)(1). The Little Tucker
Act carves out a minor exception, creating concurrent juris-
diction in the district courts for contract claims against the
United States not exceeding $10,000. See 28 U.S.C.
§ 1346(a)(2). While parties may waive their right to receive
more than $10,000, see United States v. Johnson, 153 F.2d
846, 848 (9th Cir. 1946), Plaintiffs have not done so in this
case. Thus, given that Plaintiffs seek monetary damages in
excess of $10,000, the District Court correctly determined that
it was without jurisdiction to hear Plaintiffs’ contract claims
against HUD.6 We likewise, then, lack jurisdiction to review
Plaintiffs’ contract claims.
6
Contrary to Plaintiffs’ assertions, where a case falls under Tucker Act
jurisdiction, federal question jurisdiction cannot serve as an alternative
basis for jurisdiction. Plaintiffs cite a Seventh Circuit case holding that
federal question jurisdiction can be an alternative basis for jurisdiction, W.
Sec. Co. v. Derwinski, 937 F.2d 1276, 1280-81 (7th Cir. 1991), and indeed
the circuits appear to be divided on this question. Compare C.H. Sanders
Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 118-20 (2d Cir. 1990)
(finding Tucker Act jurisdiction not exclusive, where there is federal ques-
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8095
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
dismissal of claims against HUD. We REVERSE, however,
the dismissal of Plaintiffs’ claims against the Blackfeet Tribal
Housing Authority, and REMAND for proceedings in accor-
dance with this opinion. The parties shall bear their own costs
on appeal.
PREGERSON, Circuit Judge, specially concurring:
I write separately to point out the manifest injustice of
releasing the federal government from responsibility in this
suit. The relationship between the federal government and the
tribes has been one of promises carelessly made and callously
broken. Here we see that in the area of tribal housing, as in
so many other areas, we as a nation have ignored the collat-
eral consequences of our conduct toward American Indians
and have utterly failed to live up to our promises. We have a
moral duty, if not a legal duty, to remedy the harm caused to
these Plaintiffs.
tion jurisdiction and a waiver of sovereign immunity), with A.E. Finley &
Assoc. v. United States, 898 F.2d 1165, 1167 (6th Cir. 1990) (“[I]f an
action rests within the exclusive jurisdiction of the Claims Court under the
Tucker Act . . . the district court does not have jurisdiction regardless of
other possible statutory bases.”). The Ninth Circuit has not squarely con-
fronted the particular arguments raised in those two cases, but has gener-
ally held that Tucker Act jurisdiction is exclusive. See, e.g., Skokomish
Indian Tribe v. United States, 410 F.3d 506, 511 (9th Cir. 2005) (en banc);
M-S-R Pub. Power Agency v. Bonneville Power Admin., 297 F.3d 833,
840 (9th Cir. 2002); Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.
2002). We see no reason to disturb that conclusion here. Because Tucker
Act jurisdiction is exclusive, except where the Little Tucker Act provides
concurrent district court jurisdiction, such claims are properly reviewed in
the court of claims, not in the federal district courts.
8096 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Much tribally-owned land, including the land at issue here,
is held in trust “indefinitely.” 25 U.S.C. § 462. The decision
to hold the land in trust was made, in part, to prevent tribes
from unwisely alienating their land. As the Supreme Court
noted: “[W]hen Congress enacted the General Allotment Act,
it intended that the United States ‘hold the land . . . in trust’
not because it wished the Government to control use of the
land and be subject to money damages for breaches of fidu-
ciary duty, but simply because it wished to prevent alienation
of the land and to ensure that allottees would be immune from
the state taxation.” See United States v. Mitchell, 445 U.S.
535, 544 (1980) (emphasis added). In so doing, we promised
to guard the tribes’s property rights for a period of time, while
they prepared to “cope on equal footing” with the “white man
who might attempt to cheat him out of his newly acquired
property.” See 18 Cong. Rec. 190 (1886) (statement of Repre-
sentative Skinner).
However admirable the government’s motivations, the
decision to take tribal land in trust had adverse consequences:
by holding tribal land in trust and preventing alienation, the
federal government prevented the tribe from developing its
own private housing market. For example, in a recent publica-
tion, the United States Commission on Civil Rights reported
that American Indians have consistently found it difficult to
obtain mortgages on their land because the land is held in
trust and therefore cannot be used as collateral. See U.S.
Comm. on Civil Rights, A Quiet Crisis: Federal Funding and
Unmet Needs in Indian Country 63, available at
http://www.usccr.gov/pubs/na0703/na0204.pdf [hereinafter A
Quiet Crisis]; see also H.R. Rep. 100-604 (1988), 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, once developed, cannot be
alienated. See A Quiet Crisis, at 63.
The federal government has exercised pervasive control
over tribal land, and in so doing, has severely limited the
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8097
tribe’s control over its own economic development. In fact,
according to one House Report relating to the passage of the
Indian Housing Act, HUD’s Mutual Help and Homeowner-
ship Program was the “only reasonable 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. That is, while the goal of the General Allotment Act was
to prevent unwise alienation of the land, the result was to pre-
vent any encumbrance of the land for the purpose of building
or improving housing. The effect was to freeze out developers
from entering the private tribal housing market, and to leave
the tribes with no option but to wait for the federal govern-
ment to provide safe, decent, and sanitary housing.
Congress has, in more recent years, recognized that the fed-
eral government’s control over the land and its general trust
relationship with the tribes creates a responsibility for the fed-
eral government to remedy the deplorable housing conditions
on reservations. See Native American Housing Assistance and
Self-Determination Act of 1996 (“NAHASDA”), 25 U.S.C.
§ 4101(2)-(5). NAHASDA recognizes that:
[T]he Congress, through treaties, statutes, and the
general course of dealing with Indian tribes, has
assumed a trust responsibility for the protection and
preservation 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 eco-
nomic condition; . . . [Moreover,] providing afford-
able homes in safe and healthy environments is an
essential 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).
8098 MARCEAU v. BLACKFEET HOUSING AUTHORITY
As suggested 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 that was intended to “promote their civiliza-
tion.” See id. at 218-19; see, e.g., White Mountain Apache
Tribe of Arizona v. United States, 26 Cl. Ct. 446, 465, 466-67
(1992).1 The Court of Claims has held that treaty language
such as the “requisites to ‘promote civilization’ ” includes a
covenant to provide housing. Thus, the federal government
has long promised that it would assist American Indian tribes
in providing housing.
Later, when much of tribal land was taken into trust under
the General Allotment Act, it was done with an eye toward
ensuring that every American Indian had a “homestead of his
own with assistance by the government 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 holding tribal land in trust as a means of “civi-
lizing” the American Indian would not work unless housing
was also provided: “If [the American Indian] starts wrong; if
he comes upon the homestead and is left there with no house
to put himself in . . . what is to become of him? He had better
never have been put there.” See Davis, 18 Harv. BlackLetter
1
Indeed, the Blackfeet Indian signed such a treaty. Treaty with the
Blackfoot Indians, art. X, October 17, 1855, 11 Stat. 727 (“The United
States further agree to expend annually, for the benefit of the aforesaid
tribes of the Blackfoot Nation, a sum not exceeding fifteen thousand dol-
lars annually, for ten years, in establishing and instructing them in agricul-
tural and mechanical pursuits, and in educating their children, and in any
other respect promoting their civilization and Christianization.”)
MARCEAU v. BLACKFEET HOUSING AUTHORITY 8099
L.J. at 224 (quoting Henry Dawes, Defense of the Dawes Act
(1887)). Once again, when the government took the land in
trust, it committed itself to play a major role in housing the
trust land’s occupants.
We have failed miserably in this duty. For much too long,
our nation simply ignored our responsibility to assist the
tribes in building houses. In 1966, the Bureau of Indian
Affairs estimated that 75% of houses on Indian reservations
and in the territory of the Alaska Natives were substandard,
and that two-thirds “were too run down even to merit
improvement.” See A Quiet Crisis at 52. And yet, despite the
advances made in the general population with the passage of
the United States Housing Act of 1937, the federal govern-
ment did little to remedy the substandard housing conditions
on the reservations.
When HUD finally decided to extend its aid to the tribes in
the 1960s, see Susan J. Ferrell, Indian Housing: The Fourth
Decade, 7 St. Thomas L. Rev. 445, 452-53 (1995), the chosen
vehicle was the Mutual Help and Homeownership Program
(“MHHO Program”), through which homes were to be “com-
pleted at the lowest possible cost.” U.S. Dep’t of Hous. &
Urban Dev., Manual 7440.1: Interim Indian Housing Hand-
book 3-40 (1976). In HUD’s zeal to save money, it forced
Plaintiffs’ families — and probably members of countless
other tribes — to decide between rejecting HUD funding alto-
gether or living in homes that were cheaply built, homes that
tribal members knew would not withstand the Montana cli-
mate for any period of time. These Plaintiffs, understandably,
chose to take what they could get. And, as a result, Plaintiffs
now live in homes infested with black mold and other toxins,
plagued with structural disintegration, and that have caused
high incidence of kidney failure, cancer, headaches and
bloody noses in the home’s residents. Yet many Plaintiffs
remain in MHHO housing because, in many cases, “it is the
only housing they can afford.” See Jessie McQuillan, Rotten
8100 MARCEAU v. BLACKFEET HOUSING AUTHORITY
Deal, Missoula Indep., April 6, 2006, available at
http://www.missoulanews.com/News/News.asp?no=5625.
Even after this situation was brought to HUD’s attention,
the federal government refused to step in and remedy the
harm. Before filing this suit, Plaintiffs tried unsuccessfully for
years to obtain funding to repair their houses, but their pleas
fell on deaf ears. As HUD’s counsel stated at oral argument,
despite HUD’s present desire to try to settle the case, Con-
gress has not allocated sufficient discretionary funding to
allow HUD any latitude to alleviate this most grievous situa-
tion on the Blackfeet Reservation.
The lack of affordable housing alternatives and the federal
government’s callousness to Plaintiffs’ suffering have con-
demned Plaintiffs to live in dangerous houses that are making
them sick. Under the theories presented here, we cannot offer
Plaintiffs any relief against HUD. But our nation’s responsi-
bility to the Blackfeet Tribe and its members is deeper than
a legal responsibility; it is also a moral responsibility. If we
are serious about this duty, the federal government should rec-
ognize the consequences of its actions. We as a nation should
live up to the promises that we have made. We should come
to the assistance of the men, women, and children who will
continue to live in absolute squalor until we step in.