Blackfeet Nation fights for sovereign rights

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Posted: May 21, 2008

by: Rob Capriccioso

Asks Ninth Circuit to reconsider housing decision

WASHINGTON - In response to a ruling by a Ninth Circuit Court of Appeals

three-judge panel, which found that the Blackfeet Nation of Montana can be sued

for placing tribal members in faulty homes, the tribe's housing authority has

filed a petition for rehearing before the full court.

The ruling, issued March 19, prevented the Department of Housing and Urban

Development from being sued by dozens of ailing families who currently live in

several black mold-plagued Blackfeet reservation homes.

Lawyers for Blackfeet Housing argue in their petition that a rehearing is

necessary because the court's opinion ''continues the violence to bedrock Indian

law issues'' and ''confuses settled law on tribal court exhaustion and conflicts

with established legal principles governing implied sovereign immunity waivers

by tribal entities.''

They also say the court's most recent ruling ''creates a loophole which

absolves HUD of trust responsibility when the United States filters monies

through tribal programs.''

Many tribal and state officials are disgusted that the U.S. government has

failed to make any moves to remedy the situation, instead leaving a relatively

poor tribe to fight for its rights in the legal system while Indian families

continue to suffer.

''I think it's important for the Blackfeet Nation to continue on with the legal

process,'' said Montana state Rep. Augare, D-Browning. ''But the U.S.

government needs to realize that immediate action is needed now.''

Augare and several of his colleagues in the state Legislature have written

letters to congressional leaders, requesting action. Not a single reply has come

in, according to Augare, who said he and other state leaders vow to start

working the phones to get a response.

In the initial case, Blackfeet lawyers argued that the tribe should be

protected from suit under both the doctrine of tribal sovereign immunity and the

U.S. government's trust responsibility toward tribes. Lawyers from several

tribes supported that contention by filing amicus briefs and are expected to do

so once again on the Blackfeet petition for rehearing.

Still, in a controversial 2 - 1 split opinion issued by the Ninth Circuit, the

court's majority said the Blackfeet Nation ''waived tribal immunity'' as a

result of signing a waiver with HUD, which established the tribe's housing

authority in 1977.

Many tribes signed similar agreements with HUD in the late 1970s, which

contained ''sue and be sued'' clauses. Had the tribes not signed the agreements,

they would likely not have been able to receive HUD funding to build sorely

needed housing, according to legal experts.

Blackfeet lawyers say in their petition that the Ninth Circuit decision not

only treads on sovereign immunity and violates federal trust responsibility, but

also appears to contradict established case law.

Two previous Ninth Circuit rulings held that courts in the circuit should not

rule on a tribal housing authority's immunity until the tribal court has done

so, which did not happen in this instance.

Another previous Ninth Circuit ruling held that a ''sue and be sued'' provision

alone does not waive immunity when a tribe acts in a constitutional, not

corporate, capacity. The Ninth Circuit's previous ruling in this case held that

Blackfeet Housing is a corporation, but tribal lawyers say it is not.

Judge Harry Pregerson, who sits on the Ninth Circuit, has already expressed

disagreement with his fellow judges regarding tribal rights.

''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,'' Pregerson wrote in his dissenting

brief in the original case. ''The tribe had little choice but to accept the

government housing program.''

Many tribal leaders are closely watching the proceedings, and are concerned

that a precedent could be established by the Ninth Circuit's decision whereby

the federal government could dictate how a tribe uses federal money - with the

tribe then facing sole responsibility if something goes wrong.

Approximately 150 Blackfeet families live in homes built on the Blackfeet

Nation under guidelines established and approved by HUD. The residences were

built using chrome copper arsenate wood, now banned for residential use by the

Environmental Protection Agency due in part to its propensity to grow black

mold, especially in moist areas.

Robin Saha, an environmental health researcher with the University of Montana,

has seen the mold-infested homes firsthand. He's found that their occupants

experience an array of health problems, ranging from chronic headaches to much

more serious ailments, including asthma, pulmonary hemorrhaging, chronic

coughing and cancer.

Saha said he understands why the tribe is fighting for its rights, but at the

same time he finds it hard to comprehend that so many people are living in

devastating conditions while a protracted legal fight plays out.

''These people need immediate relief from their clear suffering,'' he said,

noting that he supports intervention from the federal government. He feels HUD

should take responsibility for forcing substandard housing on a tribe at a time

when their housing department wasn't in a position to be pushing back.

''It doesn't matter to me how the federal government takes responsibility, as

long as it happens in time to protect the health and safety of the residents.''

Neither U.S. lawyers representing HUD nor plaintiffs who are suing the

Blackfeet Nation as a result of issues stemming from faulty homes filed

petitions for rehearing.

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