Sovereign immunity concerns loom after housing decision
9th Circuit Court: Blackfeet Nation can be sued for faulty homes
WASHINGTON - In a widely watched case, the 9th Circuit Court of Appeals has ruled that the Blackfeet Nation of Montana can be sued for placing tribal members in faulty homes.
The ruling prevents the Department of Housing and Urban Development from being sued by dozens of ailing families who currently live in several black mold-infested Blackfeet reservation homes. According to Blackfeet documentation, it was HUD that unilaterally created the rules and financing mechanisms for how the tribe built the homes in the late-1970s.
Blackfeet lawyers unsuccessfully argued that the tribe should be protected under both the doctrine of tribal sovereign immunity and the U.S. government;s trust responsibility toward tribes. Lawyers from the Confederated Salish and Kootenai Tribes of the Flathead Reservation and the Navajo Nation filed amicus briefs supporting the Blackfeet Nation arguments regarding trust responsibility. Other tribal officials, including those from the Crow and Fort Peck reservations, have closely followed the developments.
As a result of the March 19 ruling, some tribes, politicians and legal advocacy groups are concerned that the court is treading on sovereign immunity, while concurrently helping the federal government shirk its trust responsibility to tribal citizens.
''A concern we have is that the 9th Circuit excused the liability of the United States based on the doctrine of sovereign immunity, basically saying that the United States is shielded from suit by tribal members,'' said Richard Guest, a legal expert with the Native American Rights Fund. ''However, the Blackfeet Tribal Housing Authority, which entered into an agreement with HUD that had a boilerplate waiver, is subject to suit by tribal members - even though the money and rules were being dictated by the United States.''
Montana state Rep. Shannon Augare, D-Browning, is also perplexed by the ruling. ''The judicial branch believes that the Blackfeet Tribe waived its sovereign immunity; but the federal government, with its relationship with the Blackfeet Tribe through HUD, also waived its immunity,'' he said. ''The federal government should be held accountable.''
Under the sovereign immunity doctrine, tribes are often protected from liability lawsuits - in much the same way that states, local governments and the federal government are immune from many lawsuits. Tribes often retain this limited immunity in order to protect government funds and discretionary governmental functions.
''Tribal agencies, as well as tribal officials acting in the representational capacity and within the scope of their authority, enjoy the same presumption of immunity as tribes themselves,'' Steve Doherty, a lawyer for the Blackfeet Housing Authority, wrote in one brief involving the case.
Still, in a 2 - 1 split opinion issued by the 9th Circuit Court of Appeals, the court's majority said the Blackfeet Nation ''waived tribal immunity'' as a result of signing a waiver with HUD, which effectively established the tribe's housing authority in 1977. The waiver contained a ''sue and be sued'' clause, which is believed to be common in many older tribal housing authority agreements with HUD.
Some legal experts argue that had the Blackfeet Nation decided not to create a housing authority back in 1977, HUD would likely not have granted the tribe any money to build homes. It is believed that the department created the waiver as a prerequisite to providing funds for tribes.
Dozens of homes built on the Blackfeet Nation under guidelines established and approved by HUD have created health problems for their residents. A study by the University of Montana found that 75 percent of homes tested on the Blackfeet Nation contained high levels of toxins, including black mold, which is known to cause respiratory problems in children and can lead to death in elderly populations. The use of cheap wood and unsatisfactory building guidelines are largely to blame for the problems.
Approximately 150 Blackfeet families who have been affected by poor housing conditions live in Augare's district. Many of the affected victims continue to live in the houses to this day. And the Blackfeet Nation has little money to pay for their medical expenses, let alone for new homes.
Few health experts believe that plagued homes stemming from HUD funding are isolated to the Blackfeet Nation.
Augare, who hears regularly from his constituents about the sickened families, said the federal government, by not taking action, is ''pitting my own Blackfeet Nation against its own citizens.'' He added that several U.S. Congress members from Montana have noted the problems, essentially paying lip service to the crisis in public statements, but doing little to actually solve the problem.
Augare, along with Montana Sen. Carol Juneau, D-Browning, has requested immediate assistance from Congress in seeking funds to fix the moldy homes.
John T. Harrison, a lawyer with the Confederated Salish and Kootenai Tribes who filed the tribe's amicus brief in this case, worries that a precedent could be set by this case where the federal government could ''handcuff'' how a tribe could use federal money - with the tribe then facing sole responsibility if something goes wrong in the end.
''The federal government would essentially get to wash their hands of trust obligations by funding tribal programs,'' Harrison said.
The dissenting judicial voice in the appellate case seems to agree with Harrison's concerns. ''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,'' Judge Harry Pregerson wrote in his dissenting brief. ''The tribe had little choice but to accept the government housing program.''
Pregerson added in his dissent that the Native American Housing Assistance and Self-Determination Act creates a trust duty from the federal government to the tribe and its members. The 1996 law reorganized the system of tribal housing assistance provided by HUD by ending several separate programs and replacing them with a block grant program.
Legal experts say the current ruling will not likely end the liability issues at hand, and the ruling itself invited petitions for rehearing.
Lawyers for HUD have long contended that the department should not be held responsible for the ramifications of the faulty homes.