By Randi Hicks Rowe

THE 9TH CIRCUIT COURT OF APPEALS, which had held that the Blackfeet Nation Housing Authority can be sued for unhealthy homes, has invited an appeal, according to Tim Humphrey of the Stetson Law Offices in Albuquerque.

“Everything is there for a trust responsibility case,” Humphrey said.

The focus of the Housing Authority attorneys’ arguments in Marceau v. Blackfeet Housing Authority should be aimed at proving the liability of the U.S. Department of Housing and Urban Development and not whether the tribe has sovereign immunity, he said.

The Court of Appeals made a 2-1 holding, with Judge Harry Pregerson dissenting from the majority. Pregerson cited several statutes, including the Native American Housing Assistance and Self-Determination Act, which he said created a trust duty for HUD on behalf of the tribe and its members. The difference of opinion makes it likely that either another three-judge panel or an en banc panel will hear the case again.

The housing ordinance the tribe adopted, which included a “sue and be sued clause,” was “boilerplate” for what HUD recommended in the mid 1970s, Humphrey said. Many tribes changed their laws after the Native American Housing and Self Determination Act (NAHASDA) was passed and no longer have the “sue and be sued” clause. When the houses were built, HUD had the final say about the construction and significantly influenced how the houses were built because it controlled the funding, he said.

Even though residents of the homes can now sue the housing authority, they will be able to recover very little, Humphrey said. The Court of Appeals holding does not prevent the residents filing suit against HUD under the Administrative Procedures Act.

Humphrey, who is Blackfeet and has relatives living in the homes, noted that the wood basements were treated with creosote and built in an area with a high water table. This can lead to cancer, he said.

A University of Montana study found that 75 percent of the homes tested on the Blackfeet reservation were contaminated by a high level of toxins. Most of the toxins came from black mold, which can lead to cancer, asthma, kidney failure, respiratory problems and other ailments. The study found that 71 percent of the residents reported mold-related symptoms and that 37 percent of the children were suffering from asthma.