Marceau v. Blackfeet Housing

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 August 22, 2008
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Pregerson
11393
MARCEAU v. BLACKFEET HOUSING AUTH. 11397
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, and the amended opinion filed on March
19, 2008, slip op. 2545, and appearing at 519 F.3d 838, is
replaced in its entirety by the amended opinion filed concur-
rently with this order.
With this amended opinion, Judges Graber and Gould have
voted to deny the Petition of the Federal Appellees for Panel
Rehearing and Blackfeet Housing’s Petition for Rehearing En
banc. Judge Pregerson has voted to grant the petitions.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED. No further petitions for panel
rehearing or petitions for rehearing en banc may be filed.
11398 MARCEAU v. BLACKFEET HOUSING AUTH.
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) Plaintiffs must exhaust their
tribal court remedies before bringing their claim against the
Housing Authority; (2) the government did not undertake a
trust responsibility toward Plaintiffs to construct houses or
maintain or repair houses; and (3) Plaintiffs alleged sufficient
facts to state claims against HUD under the Administrative
Procedure 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.
1
Marceau v. Blackfeet Hous. Auth. (Marceau I), 455 F.3d 974 (9th Cir.
2006).
MARCEAU v. BLACKFEET HOUSING AUTH. 11399
FACTUAL AND PROCEDURAL BACKGROUND
Because the district court dismissed the complaint for fail-
ure to state a claim, we construe the facts from Plaintiffs’
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 factual allega-
tions.” 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
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.”
11400 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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 our original opinion, we affirmed the dismissal of HUD
and its Secretary, but reversed with respect to the Housing
Authority. Marceau v. Blackfeet Hous. Auth. (Marceau I),
455 F.3d 974 (9th Cir. 2006). We granted the Housing
Authority’s petition for rehearing and issued an amended
opinion. Marceau v. Blackfeet Hous. Auth. (Marceau II), 519
F.3d 838 (9th Cir. 2008). The Housing Authority and HUD
filed separate petitions for review. 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.
MARCEAU v. BLACKFEET HOUSING AUTH. 11401
2004) (concerning federal subject matter jurisdiction); Atwood
v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 946 (9th
Cir. 2008) (concerning exhaustion of tribal court remedies).
DISCUSSION
A. Claim against the Housing Authority
Plaintiffs allege that the Blackfeet Housing Authority
breached the covenants of habitability, merchantability, and
good faith and fair dealing by selling defective homes to
Plaintiffs. We decline to reach the merits of this contract
claim because Plaintiffs first must exhaust their tribal court
remedies.
[1] Principles of comity require federal courts to dismiss or
to abstain from deciding claims over which tribal court juris-
diction is “colorable,” provided that there is no evidence of
bad faith or harassment. Atwood, 513 F.3d at 948. Exhaustion
of tribal remedies is “mandatory.” Burlington N. R.R. Co. v.
Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991).
The parties failed to raise this issue until after we issued our
opinion. Nevertheless, “[a] district court has no discretion to
relieve a litigant from the duty to exhaust tribal remedies prior
to proceeding in federal court.” Allstate Indem. Co. v. Stump,
191 F.3d 1071, 1073 (9th Cir.), amended, 197 F.3d 1031 (9th
Cir. 1999). Although Plaintiffs’ contract claim has not yet
been brought in tribal court, “[t]he absence of any ongoing lit-
igation over the same matter in tribal courts does not defeat
the tribal exhaustion requirement.” Sharber v. Spirit Mountain
Gaming Inc., 343 F.3d 974, 976 (9th Cir. 2003) (per curiam);
see also United States v. Plainbull, 957 F.2d 724, 728 (9th
Cir. 1992) (holding that exhaustion of tribal remedies is “re-
quired even in the absence of a pending tribal court action”).
[2] Tribal court jurisdiction over the contract disputes here
is unquestionably colorable: Plaintiffs are tribal members,
Defendant Blackfeet Housing Authority is a tribal entity, and
11402 MARCEAU v. BLACKFEET HOUSING AUTH.
at least some key events—construction of the homes, for
instance—occurred on tribal lands. See Stock W. Corp. v. Tay-
lor, 964 F.2d 912, 919 (9th Cir. 1992) (en banc) (holding that
tribal court jurisdiction was colorable where a non-tribe mem-
ber sued a tribe in a contract and tort dispute and the key
events may have taken place on tribal lands). Because there
is no evidence of bad faith or harassment, we hold that Plain-
tiffs must exhaust their tribal court remedies. Accordingly, we
remand the case. Because of the lengthy course of this litiga-
tion, the district court should stay, rather than dismiss, the
action against the Housing Authority while Plaintiffs exhaust
their tribal court remedies. See Allstate Indem. Co., 191 F.3d
at 1076 (remanding with instructions to stay action while
party exhausted tribal court remedies). Cf. Atwood, 513 F.3d
at 948 (approving a district court’s discretionary decision to
dismiss a domestic relations action when tribal court proceed-
ings were pending).
[3] In our earlier opinions, we declined to require Plaintiffs
to exhaust their tribal court remedies. Instead, we held that the
Blackfeet Tribe had waived tribal immunity through the
enabling ordinance that established the Housing Authority.
Marceau II, 519 F.3d at 842-44; Marceau I, 455 F.3d at 978-
83; see also 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”). Our doing so was in error,
and we now vacate that holding and decline to reach the issue.
Whether or not the Tribe waived tribal immunity, the tribal
court must have the first opportunity to address all issues
within its jurisdiction, including that one.
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11403
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
[4] 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.3 In a pair of cases from
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-
3
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
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.
11404 MARCEAU v. BLACKFEET HOUSING AUTH.
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 219-23.
Those statutes directed the government to manage Indian for-
est resources, obtain revenue thereby, and pay proceeds to the
Indian landowners. Id. The Court held that those statutes
imposed strict and detailed duties on the government to man-
age forest lands. Id. at 224-25. In view of the pervasive and
complete control exercised by the government over the lands,
the statutes confirmed the existence of a fiduciary relation-
ship. Id. Thus, the statutes satisfied 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
MARCEAU v. BLACKFEET HOUSING AUTH. 11405
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.
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.
[6] When the case reached the Supreme Court, the Court
confirmed the primacy of Mitchell I and Mitchell II as “the
pathmarking 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
11406 MARCEAU v. BLACKFEET HOUSING AUTH.
“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-
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-
MARCEAU v. BLACKFEET HOUSING AUTH. 11407
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.”
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.
11408 MARCEAU v. BLACKFEET HOUSING AUTH.
[7] 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 (1976). Under that
statute and its implementing regulations for Indian housing, a
tribe could establish an Indian housing authority. 24 C.F.R.
§§ 805.108, 805.109 (1977). In “Annual Contributions Con-
tracts,” HUD agreed to provide a specified amount of money
to fund projects undertaken by an Indian housing authority
and approved by HUD. Id. §§ 805.102, 805.206. After secur-
ing funding from HUD, an Indian housing authority con-
tracted 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).
[8] The express intent of Congress was “to vest in local
public housing agencies the maximum amount of responsibil-
ity in the administration of their housing programs.” 42
U.S.C. § 1437 (1976). In other words, Congress specifically
intended that HUD not assume more responsibility in devel-
oping and managing housing projects than was necessary.
HUD was not without legal obligations, however. Congress
also provided:
The Department of Housing and Urban Development
. . . shall exercise their powers, functions, and duties
under this or any other law, consistently with the
national housing policy declared by this Act and in
such manner as will facilitate sustained progress in
attaining the national housing objective hereby
established, and in such manner as will encourage
and assist (1) the production of housing of sound
standards of design, construction, livability, and size
for adequate family life; (2) the reduction of the
MARCEAU v. BLACKFEET HOUSING AUTH. 11409
costs of housing without sacrifice of such sound
standards; (3) the use of new designs, materials,
techniques, and methods in residential construction,
the use of standardized dimensions and methods of
assembly of home-building materials and equipment,
and the increase of efficiency in residential construc-
tion and maintenance; (4) the development of well-
planned, integrated, residential neighborhoods and
the development and redevelopment of communities;
and (5) the stabilization of the housing industry at a
high annual volume of residential construction.
42 U.S.C. § 1441. As we and our sister circuits have recog-
nized, those goals create binding legal obligations on HUD.
Russell v. Landrieu, 621 F.2d 1037, 1041 (9th Cir. 1980);
United States v. Winthrop Towers, 628 F.2d 1028, 1034-36
(7th Cir. 1980); Pennsylvania v. Lynn, 501 F.2d 848, 855
(D.C. Cir. 1974); see also Shannon v. U.S. Dep’t of Hous. &
Urban Dev., 436 F.2d 809, 819-20 (3d Cir. 1970) (holding
that plaintiff residents of HUD-administered homes could
bring suit under the APA to challenge HUD actions allegedly
not in accordance with the Housing Act). Those obligations
apply to all HUD housing, however, and not just to housing
constructed by Indian housing authorities.
Under its regulations, HUD had two general controls over
Indian housing. First, HUD required that low-income housing
meet Minimum Property Standards, 24 C.F.R. §§ 200.929,
805.212 (1977). Second, new construction could not exceed
the “prototype costs” (HUD-approved ceiling or maximum
costs for each type of dwelling) for a project, 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),
841.204 (1977).
Three important points bear emphasis. First, neither restric-
tion was unique to Indian housing. Title 24 C.F.R. § 200.92511410 MARCEAU v. BLACKFEET HOUSING AUTH.
(1977) provided that all housing built under HUD programs,
and not just housing built by Indian housing authorities, “shall
meet or exceed HUD Minimum Property Standards.” See,
e.g., 24 C.F.R. § 800.205(c)(1) (1977) (mandating that devel-
opers provide “detailed information” concerning the applica-
tion 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 con-
struction projects had to comply with prototype cost limita-
tions. See, e.g., 24 C.F.R. §§ 841.115(b)(2), pt. 841, app. A
(1977) (establishing limitations on dwelling construction and
equipment costs based on the area prototype costs).
[9] Second, HUD regulations did not require the use of
pressure-treated wooden foundations. With respect to founda-
tions, HUD’s Minimum Property Standards provided two
alternative sets of minimum requirements, one for concrete or
masonry walls below grade and one for pressure-treated
wooden foundations. Dep’t of Hous. & Urban Dev., Hand-
book 4900.1: Minimum Property Standards for One and Two
Family Dwellings § 601-16 & app. E (1973 ed., rev. May
1979) (“Minimum Property Standards Handbook”).
[10] Third, Indian housing authorities were not rigidly
bound by either the Minimum Property Standards or the pro-
totype cost limitations.4 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),
4
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).
MARCEAU v. BLACKFEET HOUSING AUTH. 11411
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.
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.5 In
5
In 1988, Congress moved the authorization for Indian low-income
housing to Title II of the United States Housing Act and formalized the
11412 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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.
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 1996, 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 AUTH. 11413
Ultimately, no statute ever required tribes to form housing
authorities. No statute obliged Indian housing authorities,
once formed, to seek federal funds. No statute committed 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).
No statute has imposed duties on the government to man-
age or maintain the property, as occurred in Mitchell II, nor
has any HUD regulation done so. Unlike in White Mountain
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.
Instead, this case most closely resembles Navajo Nation.
Just as the Indian Mineral Leasing Act required Secretarial
approval of leases, but did not oblige the Secretary to negoti-
ate them, the United States Housing Act gave HUD a right of
final inspection with respect to construction and design mate-
rials, 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.
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
11414 MARCEAU v. BLACKFEET HOUSING AUTH.
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.
[11] 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
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 I, 455 F.3d at
983-85.
C. Administrative Procedure Act
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 . . . arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(1)-(2)(A).
MARCEAU v. BLACKFEET HOUSING AUTH. 11415
[12] In this case, the primary relief sought by Plaintiffs is
an injunction ordering HUD to repair (or, where necessary,
rebuild) their homes. The district court erred in dismissing
Plaintiffs’ APA claim before allowing adequate development
of the record. Plaintiffs’ claim rests on two separate legal
obligations that give rise to cognizable claims under the APA.
First, as discussed above, the regulations in effect when
HUD approved the 153 Blackfeet homes in the late 1970s
required that housing materials meet specified Minimum
Property Standards. 24 C.F.R. § 805.212 (1979); Indian
Housing Handbook §§ 3-19, 3-20. The Minimum Property
Standards permitted, but did not require, 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.;
see also Minimum Property Standards Handbook app. E, pp.
E-1 and E-2. According to the complaint, HUD required
Plaintiffs, in violation of its regulations, to use wooden foun-
dations and, further, to use arsenic-treated lumber.
Second, as discussed above, 42 U.S.C. § 1441 imposes
binding legal obligations on HUD. Of importance here, HUD
is required to “encourage and assist . . . the production of
housing of sound standards of design, construction, livability,
and size for adequate family life.” Id. Plaintiffs allege that, by
requiring the use of arsenic-treated lumber, HUD violated 42
U.S.C. § 1441.
[13] At this stage in the litigation, the record is silent about
whether HUD failed to comply with its own regulations and
whether arsenic-treated lumber was within industry standards
at the time. We therefore reverse the dismissal of Plaintiffs’
APA claim and remand to the district court for further factual
development.6
6
Plaintiffs also seek an injunction ordering HUD to respond to their
repeated requests for assistance. In Marceau II, 519 F.3d at 851-52, we
held that HUD was under a legal obligation to respond to those requests.
11416 MARCEAU v. BLACKFEET HOUSING AUTH.
[14] Under the APA, a plaintiff must seek “relief other than
money damages.” 5 U.S.C. § 702. Previously, we held that
“the substance of [Plaintiffs’] claim is that they are owed
money damages.” Marceau I, 455 F.3d at 985. On rehearing,
we now hold that Plaintiffs’ request for an injunction ordering
HUD to repair or rebuild their homes is not a suit for “money
damages,” as that term is used in § 702.
[15] In Marceau I, we followed the Fifth Circuit’s ruling in
Amoco Products Co. v. Hodel, 815 F.2d 352 (5th Cir. 1987),
and looked to whether an award of money damages could
substitute for the requested injunction. See Marceau I, 455
F.3d at 985 (“Here, money damages in an amount necessary
to repair or rebuild Plaintiffs’ home[s] would be a sufficient
remedy, and, therefore, an injunction is not an available reme-
dy.”). After Amoco, the Supreme Court emphasized that the
correct inquiry is whether the plaintiff seeks compensatory
relief or instead seeks specific relief; the former constitutes
“money damages” but the latter does not. Bowen v. Massa-
chusetts, 487 U.S. 879, 895 (1988); see also Dep’t of the
Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (“Bowen
held that Congress employed this language [‘money dam-
ages’] to distinguish between specific relief and compensa-
tory, or substitute, relief.”). At least one federal circuit court
has recognized that Amoco is no longer good law. Doe v.
United States, 372 F.3d 1308, 1313-14 (Fed. Cir. 2004); see
also Nat’l Ass’n of Counties v. Baker, 842 F.2d 369, 373
(D.C. Cir. 1988) (rejecting the Amoco rule in a case that pre-
dated Bowen).
We relied on the obligations found in 24 C.F.R. § 905.270 (1977), and 25
U.S.C. §§ 4111 and 4132(1). On rehearing, we now hold that HUD had
no legal obligation to respond to Plaintiffs’ requests, sufficient to give rise
to a claim under the APA. Read broadly, those regulations and statutes
impose an obligation on HUD to respond to properly formed requests for
assistance by housing authorities. They do not require HUD to respond to
requests by homeowners such as Plaintiffs, and there is no evidence in the
record of a properly formed request for assistance by the Blackfeet Hous-
ing Authority.
MARCEAU v. BLACKFEET HOUSING AUTH. 11417
[16] Plaintiffs seek an injunction, which constitutes specific
relief. The injunction sought by Plaintiffs seeks not to com-
pensate, but to “give the plaintiff[s] the very thing to which
[they] w[ere] entitled.” Bowen, 487 U.S. at 895 (internal quo-
tation marks omitted). We therefore conclude that this relief
is not “money damages” under 5 U.S.C. § 706. See Bowen,
487 U.S. at 893 (“[I]nsofar as the complaints sought declara-
tory and injunctive relief, they were certainly not actions for
money damages.”); Tucson Airport Auth. v. Gen. Dynamics
Corp., 136 F.3d 641, 645 (9th Cir. 1998) (“The remedy that
[the plaintiff] seeks in its complaint is, at bottom, specific per-
formance of the . . . [c]ontract. An action for specific perfor-
mance is not an action for ‘money damages’ under APA
§ 702, even if the remedy may actually require a payment of
money by the government.”). Consequently, Plaintiffs’ APA
claim seeking injunctive relief is not barred.
D. Breach of Contract Claims
[17] We readopt our earlier opinion, Marceau I, 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 exhaustion of tribal
remedies and the Administrative Procedure Act. I dissent with
regard to the majority’s analysis of federal trust responsibility,
and write separately on that issue.
11418 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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
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 AUTH. 11419
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
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
11420 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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
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-
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.
MARCEAU v. BLACKFEET HOUSING AUTH. 11421
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,
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,
3
Where tribes resisted allotment, it could be imposed. See Act of June
28, 1898, ch. 517, 30 Stat. 495 (“Curtis Act”).
11422 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11423
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
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
11424 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11425
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
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
11426 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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.
MARCEAU v. BLACKFEET HOUSING AUTH. 11427
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
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)
11428 MARCEAU v. BLACKFEET HOUSING AUTH.
(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
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11429
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-
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.
11430 MARCEAU v. BLACKFEET HOUSING AUTH.
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.
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11431
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
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
11432 MARCEAU v. BLACKFEET HOUSING AUTH.
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-
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-
MARCEAU v. BLACKFEET HOUSING AUTH. 11433
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
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
11434 MARCEAU v. BLACKFEET HOUSING AUTH.
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-
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11435
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).
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).
11436 MARCEAU v. BLACKFEET HOUSING AUTH.
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
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
MARCEAU v. BLACKFEET HOUSING AUTH. 11437
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
repair or rebuild the homes. Accordingly, I concur in part, dis-
sent in part.