Marceau v. Blackfeet Housing Authority

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN MARCEAU; CANDICE 

LAMOTT; JULIE RATTLER; JOSEPH

RATTLER, JR.; JOHN G. EDWARDS;

MARY J. GRANT; GRAY GRANT;

DEANA MOUNTAIN CHIEF, on behalf

of themselves and others similarly

situated,

Plaintiffs-Appellants, No. 04-35210

v.

 D.C. No.

CV-02-00073-SEH

BLACKFEET HOUSING AUTHORITY,

and its board members; SANDRA OPINION

CALFBOSSRIBS; NEVA RUNNING

WOLF; KELLY EDWARDS; URSULA

SPOTTED BEAR; MELVIN MARTINEZ,

Secretary; DEPARTMENT OF

HOUSING AND URBAN DEVELOPMENT,

United States of America,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

June 16, 2005—Seattle, Washington

Filed July 21, 2006

Before: Harry Pregerson, Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Pregerson

8071

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8075

COUNSEL

Jeff Simkovic, (argued and briefed), Billings, Montana,

Thomas E. Towe, (briefed), Towe, Ball, Enright, Mackey &

Sommerfeld, Billings, Montana, and Mary Ann Sutton

(argued and briefed), Missoula, Montana, for the plaintiffs-

appellants.

Timothy J. Cavan, Assistant United States Attorney, Depart-

ment of HUD, Billings, Montana, Stephen A. Doherty for

8076 MARCEAU v. BLACKFEET HOUSING AUTHORITY

Blackfeet Housing, Great Falls, Montana, and Harold J. Ren-

nett for Government, Washington, D.C., for the defendants-

appellees.

OPINION

PREGERSON, Circuit Judge:

Plaintiffs represent members of the Blackfeet Indian tribe

who purchased or leased homes built under the auspices of the

Department of Housing and Urban Development (“HUD”)

Mutual Help and Homeownership Program (“MHHO Pro-

gram”). Plaintiffs’ homes were built with wood foundations,

using wood pressure-treated with arsenic and other toxic

chemicals. Plaintiffs allege that this use of wood foundations

caused their homes to deteriorate, and that the present condi-

tion of the homes has caused and continues to cause severe

health problems for the homes’ residents. They sued both

HUD and the Blackfeet Tribal Housing Authority (“Housing

Authority”) and its board members alleging numerous statu-

tory and contractual violations. We have jurisdiction under 28

U.S.C. § 1291, with the limitations discussed below. We

reverse the district court’s dismissal of the claims against the

Housing Authority, and affirm dismissal of the claims against

HUD.

I. Factual Background1

Pursuant to the goals set out in the United States Housing

Act of 1937, 42 U.S.C. §§ 1437-1440 (2005), HUD developed

the MHHO Program. The MHHO Program was designed to

1

These facts, except as noted, are taken from Plaintiffs’ complaint,

which is presumed true for purposes of this Rule 12(b)(6) proceeding. For

a more vivid description of the Plaintiffs’ plight, see Jessie McQuillan,

Rotten Deal, Missoula Indep., April 6, 2006, available at http://

www.missoulanews.com/News/News.asp?no=5625.

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8077

meet the housing needs of low-income American Indian fami-

lies. HUD entered into agreements called “Annual Contribu-

tions Contracts” with tribal housing authorities under which

HUD agreed to provide a specified amount of money to fund

projects undertaken by the housing authorities and pre-

approved by HUD. See 24 C.F.R. § 805.102 (1979); id.

§ 805.206. After securing funding from HUD, the Housing

Authority, in turn, would contract with eligible American

Indian families. See id. § 805.406. The families were required

to contribute land, labor, or materials to the building of their

house, see id. § 805.408, and after occupying the house, each

family was required to make monthly payments in an amount

calibrated to their income, see id. § 805.416(a)(1)(ii). The

homebuyers were made responsible for maintenance of the

house. See id. § 805.418(a). Until 1988, when the program

was formalized in the Indian Housing Act of 1988, 42 U.S.C.

§§ 1437aa-1437ee (1988), repealed by Native American

Housing Assistance and Self-Determination Act of 1996, Pub.

L. No. 104-330, 110 Stat. 4016 (1996), HUD operated the

MHHO Program under a series of regulations and its own “In-

dian Housing Handbook.” See H.R. Rep. No. 100-604 (1988),

reprinted in 1988 U.S.C.C.A.N. 791, 793.

In 1977, the Blackfeet Tribe established a separate entity,

the Blackfeet Housing Authority, as required by HUD’s regu-

lations. See 24 C.F.R. § 805.109(c) (1979) (requiring, as a

prerequisite to receiving MHHO funding, that tribes form a

tribal housing authority). The Blackfeet Tribe adopted HUD’s

model enabling ordinance, reprinted in 24 C.F.R. § 805,

subpt. A, app. I (1979).2 In the enabling ordinance, the Black-

feet Housing Authority was charged with “[a]lleviating the

acute shortage of decent, safe and sanitary dwellings for per-

sons of low income” and “[r]emedying unsafe and

2

The Board of the Blackfeet Housing Authority has since been dis-

banded, and the entity is now simply an arm of the tribal government cal-

led “Blackfeet Housing.” This fact makes no difference to our analysis,

and we use “Housing Authority” to refer to this entity in both its iterations.

8078 MARCEAU v. BLACKFEET HOUSING AUTHORITY

[u]nsanitary housing conditions that are injurious to the public

health, safety and morals.” Blackfeet Tribal Ordinance No. 7,

art. II, §§ 1-2 (Jan. 4, 1977). Thereafter, HUD granted the

Housing Authority authorization and funding to build 153

homes.

Construction of the homes took place between 1979 and

1980. The homes, at least in retrospect, were not constructed

well. The homes were built with wood foundations, and the

wood products used to build the foundations were chemically

treated with arsenic and other toxic chemicals. Plaintiffs

allege, as the crux of their claim, that HUD required the use

of wood foundations over the objection of tribal members,

and that the Housing Authority acceded to that directive.

In the ensuing years, the foundations were, predictably,

vulnerable to moisture accumulation and structural instability.

Today, some of the houses are uninhabitable due to toxic

mold and dried sewage residues. There has been a high inci-

dence of cancer, asthma, kidney failure, respiratory problems,

and other serious health problems among residents of the

homes. Many residents have been advised to leave their

houses for health reasons; some residents cannot leave

because there are, quite simply, no affordable housing options

in the area.

Plaintiffs represent those who purchased or leased these

MHHO homes either directly or indirectly from the Housing

Authority. They have made significant monthly payments and

investments of their own time and/or resources, as required

under the MHHO program. After it became clear that the

houses were substandard and possibly hazardous, Plaintiffs

sought assistance from the Housing Authority and from HUD

in remedying the construction defects. When they received no

assistance from either entity, Plaintiffs filed this class action

complaint on August 2, 2002, in the District Court for the

District of Montana seeking declaratory and injunctive relief

and damages. They named, as Defendants, the Housing

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8079

Authority, its board members, and Mel Martinez, then-

secretary of the Department of Housing and Urban Develop-

ment. Plaintiffs allege that HUD and the Blackfeet Housing

Authority violated statutory, contractual, and fiduciary duties

owed to them.

HUD Defendants filed a motion to dismiss for lack of sub-

ject matter jurisdiction and a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6).

The Tribal Defendants filed a similar motion to dismiss based

on tribal immunity. After hearings and further briefing, the

district court granted both parties’ motions to dismiss. Plain-

tiffs appealed.

II. Standard of Review

We review the question of subject matter jurisdiction de

novo. See Coyle v. P.T. Garuda Indon., 363 F.3d 979, 984 n.7

(9th Cir. 2004). Questions of tribal and sovereign immunity

are also reviewed de novo. See Orff v. United States, 358 F.3d

1137, 1142 (9th Cir. 2004); Linneen v. Gila River Indian

Cmty., 276 F.3d 489, 492 (9th Cir. 2002). Dismissal for fail-

ure to state a claim is likewise reviewed de novo. See Decker

v. Advantage Funding, Ltd., 362 F.3d 593, 595-96 (9th Cir.

2004).

III. Analysis

A. Tribal Immunity for Board Members of the Blackfeet

Housing Authority

[1] An Indian tribe enjoys sovereign immunity from suit

except where Congress authorizes the suit or the tribe waives

its immunity. See Kiowa Tribe of Okla. v. Mfg. Techs., Inc.,

523 U.S. 751, 754 (1998). Tribal immunity extends to both

the corporate and governmental activities of the tribe. See id.

at 754-55. It extends to agencies and subdivisions of the tribe,

and has generally been held to apply to housing authorities

8080 MARCEAU v. BLACKFEET HOUSING AUTHORITY

formed by tribes. See, e.g., Dillon v. Yankton Sioux Tribe

Hous. Auth., 144 F.3d 581, 583 (8th Cir. 1998). Moreover,

tribal immunity covers “tribal officials when acting in their

official capacity and within their scope of authority.” United

States v. Oregon, 657 F.2d 1009, 1013 n.8 (9th Cir. 1981).

Thus there is little doubt that the Blackfeet Tribe’s sovereign

immunity extends to the Blackfeet Housing Authority and to

the members of the Blackfeet Housing Authority’s board.

[2] We turn next to the question of waiver. Congressional

abrogation of tribal immunity “cannot be implied but must be

unequivocally expressed.” Santa Clara Pueblo v. Martinez,

436 U.S. 49, 58 (1978) (citation omitted). Similarly, a tribe

may voluntarily subject itself to suit by issuing a “clear”

waiver. See C & L Enters., Inc. v. Citizen Band Potawatomi

Indian Tribe of Okla., 532 U.S. 411, 418 (2001).

Plaintiffs claim that a “sue and be sued” clause in the

Enabling Ordinance that created the Blackfeet Housing

Authority is a clear waiver of tribal immunity. The Enabling

Ordinance states:

The Council hereby gives its irrevocable consent to

allowing the Authority to sue and be sued in its cor-

porate name, upon any contract, claim or obligation

arising out of its activities under this ordinance and

hereby authorizes the Authority to agree by contract

to waive any immunity from suit which it might oth-

erwise have; but the Tribe shall not be liable for the

debts or obligations of the Authority.

Blackfeet Tribal Ordinance No. 7, art. V, § 2 (Jan. 4, 1977).

For the reasons set forth below, we conclude that the “sue and

be sued” clause of the Enabling Ordinance is a clear and

unambiguous waiver of tribal immunity, and we reverse the

district court’s dismissal of the claims against the Housing

Authority.

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8081

1. Caselaw

[3] The federal courts have had frequent occasion to inter-

pret this “sue and be sued” clause. The text was proposed in

HUD’s model enabling ordinance, and is repeated in the

enabling ordinance of many tribal housing authorities. See

Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous.

Auth., 207 F.3d 21, 30 (1st Cir. 2000) (commenting that

“[d]ue to HUD’s formulaic approach, several other decisions

have dealt with substantially identical ordinances”). The

courts have not, however, agreed in their interpretations. See

Felix S. Cohen et al., Cohen’s Handbook of Federal Indian

Law § 4.04[3][a][ii] (2005) (“Some courts have held this lan-

guage to be a waiver of the immunity of the tribal corporation,

and others have not.”).

[4] Two main lines of cases have emerged. First, there is

a line of cases stating that the very existence of a “sue and be

sued clause” waives the tribal immunity of housing authori-

ties. In Namekagon Development Co. v. Bois Forte Reserva-

tion Housing Authority, 395 F. Supp. 23 (D. Minn. 1974),

aff’d, 517 F.2d 508 (8th Cir. 1975), the district court held that

a construction contractor could sue the Bois Forte Reservation

Housing Authority over a contract claim. The court rested its

decision on the similarity between the model ordinance’s “sue

and be sued” clause and the “sue and be sued” clause used by

the federal government when it creates a corporation. See id.

at 27. The court noted that federal corporations are not

immune from suit unless expressly created to be immune

from suit, but that in the case of tribal housing authorities, it

did not need to go that far because the “sue and be sued”

clause was a clear expression that the corporation itself had

surrendered its sovereign immunity. See id. at 26-27. More-

over, the court stated that it would be “grossly unfair” to dis-

miss the suit against the housing authority, where the tribe

had “purported to create an independent corporation which

would be legally responsible for its promises . . . [and] invited

8082 MARCEAU v. BLACKFEET HOUSING AUTHORITY

outsiders to do business with it on a contractual basis.” Id. at

29.

Subsequent cases followed Namekagon without adding

much more to the analysis. See, e.g., Weeks Constr., Inc. v.

Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986);

Whitebird v. Kickapoo Hous. Auth., 751 F. Supp. 928, 929-30

(D. Kan. 1990); Snowbird Constr. Co. v. United States, 666

F. Supp. 1437, 1441 (D. Idaho 1987); Duluth Lumber & Ply-

wood Co. v. Delta Dev., Inc., 281 N.W.2d 377, 383-84 (Minn.

1979). The only authority in our circuit, R.J. Williams Co. v.

Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir.

1983), also tracks this line of cases. In R.J. Williams Co., we

noted, in dictum, that the tribal immunity of the Fort Belknap

Housing Authority was waived by the “sue and be sued”

clause in the ordinance establishing the Housing Authority.

See id. at 982 n.2. Similarly, the Blackfeet Tribal Court of

Appeals has followed Namekagon and has permitted a con-

tractual suit against the Housing Authority. See DeRoche v.

Blackfeet Indian Hous. Auth., 17 Indian L. Rptr. 6036, 6042

(Blackfeet Trib. Ct. App. 1989) (“Contrary to the housing

authority’s position, this tribal ordinance is an indisputable

qualified waiver of immunity by the Blackfeet Tribe and

housing authority for a breach of contract action. . . . With

[this] tribal ordinance, the tribe waived, to some extent, the

housing authority’s immunity from suit.” (citing Namekagon,

517 F.2d at 510)); see also Davis v. Turtle Mountain Hous.

Auth., 17 Indian L. Rptr. 6035 (Turtle Mountain Trib. Ct.

1990) (allowing a suit for declaratory relief against the hous-

ing authority based on shoddy workmanship on a MHHO

house: “The court refuses to ‘force plaintiffs out into the street

or into the bush’ as the defense of tribal immunity would do.

. . . If the defendants let contractors off with substandard

work, the immunity defense will not save the housing author-

ity from declaratory relief.”).

[5] Another line of cases from the Eighth and Second Cir-

cuits diverges from Namekagon. The Eighth Circuit, in Dillon

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8083

v. Yankton Sioux Housing Authority, 144 F.3d 581 (8th Cir.

1998), held that the “sue and be sued” clause alone did not

waive tribal immunity. The court relied heavily on its own

opinion in Weeks Construction to support its decision, stating

that, in Weeks Construction “and the cases cited therein,”

there was a contract that expressly waived sovereign immu-

nity. Id. at 583-84. The court held that, because the employee

who sued the Yankton Sioux Housing Authority had no con-

tract for employment, the tribe retained its immunity from

suit.

We believe that Dillon provides little support for the propo-

sition that the “sue and be sued” clause is not sufficient to

waive tribal immunity, because it misreads Weeks Construc-

tion. Although both Weeks Construction and Namekagon

dealt with a contract dispute, neither court relied on any

explicit waiver of immunity in the contract in reaching its

decision that the housing authority had waived its sovereign

immunity. See Weeks Constr., 797 F.2d at 670 (“Weeks con-

tends that federal jurisdiction over this action exists because

the “sue and be sued” clause contained in the tribal ordinance

chartering the Housing Authority represents a waiver of sov-

ereign immunity. . . . The Housing Authority does not dispute

that it is amenable to suit.”); Namekagon, 395 F. Supp. at 27

(“The Court finds that one of the purposes of the Ordinance

[that created the Housing Authority] was to cut the corpora-

tion off from the protection of sovereign immunity . . . .”). In

fact, neither court even mentioned whether the contracts at

issue contained any kind of explicit waiver. Dillon’s lack of

citation on this point is thus conspicuous.3 We refuse to com-

pound this error by putting any stock in Dillon.

The Second Circuit went further when it held that the “sue

3

Accordingly, the cases that rely on Dillon with little or no additional

analysis are similarly flawed. See, e.g., Ninigret, 207 F.3d at 30; Buchanan

v. Sokaogon Chippewa Tribe, 40 F. Supp. 2d 1043, 1047 (E.D. Wis.

1999).

8084 MARCEAU v. BLACKFEET HOUSING AUTHORITY

and be sued” waiver was only a waiver in tribal courts, and

did not confer any right on the federal courts to hear the case.

See Garcia v. Akwesasne Hous. Auth., 268 F.3d 76 (2d Cir.

2001). In Garcia, the court based its analysis on a rule that a

waiver of sovereign immunity by a foreign sovereign or a

state sovereign waives immunity only in the courts of that

sovereign. See id. at 87. Thus, the Second Circuit held that the

“sue and be sued” clause waived sovereign immunity only in

tribal courts. Id.

We believe that Garcia’s approach is also problematic. The

Namekagon court specifically considered and rejected the

proposition that a tribe’s waiver of immunity waived immu-

nity only in that tribe’s courts. As the Namekagon court noted,

there is no language in the enabling ordinance that limits the

“sue and be sued” waiver to tribal courts. 395 F. Supp. at 28.

To reach its holding in Garcia, then, the court was forced to

read quite a bit into the clause.

Moreover, the Garcia court was probably wrong to do so,

given that some tribes — including the St. Regis Mohawk

Tribe that was at issue in Garcia — did not have a tribal court

at the time they entered into the model ordinances creating the

housing authority. See Garcia, 268 F.3d at 90 (Katzmann, J.,

concurring in part and concurring in the judgment). As Judge

Katzmann wrote, “it is a little awkward to read the ‘sue and

be sued’ ordinance . . . as a waiver of sovereign immunity

only in (apparently yet-to-be-envisioned-or-created) Tribal

Courts.” Id. The Blackfeet Housing Authority has not asked

us to go as far as the Second Circuit, nor given us any addi-

tional reasons that we should limit the “sue and be sued”

clause to tribal courts, and we see no reason to do so.

2. The Plain Meaning of the Housing Authority

Enabling Ordinance

[6] Independent of the precedent on both sides, the plain

meaning of the ordinance supports the approach taken in

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8085

Namekagon. First, the “sue and be sued” clause expressly per-

mits suit on “any contract, claim or obligation arising out of

its activities.” Blackfeet Tribal Ordinance No. 7, art. V, § 2

(Jan. 4, 1977). This wording forecloses the argument that

some further waiver must be obtained by a later contract; such

a holding renders “claim or obligation” as surplusage. More-

over, the phrase “arising out of its activities” signals that the

“sue and be sued” clause opens the door to liability that was

not necessarily the product of negotiation, but rather liability

that arose by virtue of the Housing Authority’s conduct.

[7] Second, interpreting the “sue and be sued” clause as

sufficient to waive the Housing Authority’s immunity allows

us to interpret the entire section consistently. The enabling

ordinance has two clauses: (1) that the council “gives its irrev-

ocable consent to allowing the Authority to sue and be sued

in its corporate name”; and (2) that the council “authorizes the

Authority to agree by contract to waive any immunity from

suit which it might otherwise have.” Id. The first clause

clearly has some present effect. To give meaning to the first

clause, we must interpret it to mean that the tribe waived the

Housing Authority’s immunity from suit, i.e., that no further

tribal consent was required. Moreover, by doing so, we do not

render the second clause — authorizing the Housing Author-

ity to agree by contract to waive any immunity “it might oth-

erwise have” — surplusage. Given the unclear nature of the

tribe’s right to waive its own authority at the time the ordi-

nance was written, see Cohen, § 7.05[1][c], at 642, such clari-

fication is not superfluous. See Namekagon, 395 F. Supp. at

27 (noting that the second clause “simply indicates a desire to

make the corporation’s amenability to suit unqualifiedly

clear”). Thus, the language of the enabling ordinance supports

the conclusion that the “sue and be sued” clause effected a

waiver of the Housing Authority’s tribal immunity.

[8] Third, Article VII, clause 7 of the Enabling Ordinance

provides that “any judgment against the [Housing] Authority”

shall not be a charge or lien against Blackfeet Housing’s prop-

8086 MARCEAU v. BLACKFEET HOUSING AUTHORITY

erty, but instead could be satisfied out of “its rents, fees or

revenues.” This section clearly countenances that the Housing

Authority would be subject to a judgment against it, and only

limits the funds out of which such a judgment could be satis-

fied.

[9] Thus a plain reading of the Blackfeet Housing Authori-

ty’s enabling ordinance supports Plaintiffs’ argument that the

Blackfeet Housing Authority intended to waive its immunity

when it enacted the enabling ordinance.

3. Additional Reasons for Adopting Namekagon’s

Approach

[10] Moving away from the text of the ordinance, the con-

text in which such housing authorities were created also

informs the interpretation we give these clauses. In 1934,

Congress passed the Indian Reorganization Act, 48 Stat. 984

(1934) (codified as amended at 25 U.S.C. §§ 461-494), which

permitted tribes to form corporate and quasi-corporate entities

that could enter into and compete in the world of commerce.

Tribes could ratify a constitution, write bylaws and otherwise

organize “for its common welfare” under Section 16 of the

Indian Reorganization Act. See 25 U.S.C. § 477. While per-

forming sovereign acts, a tribe organized under Section 16

enjoyed immunity as a sovereign. See, e.g., Linneen, 276 F.3d

at 493 (“The ‘sue and be sued’ clause in the Community’s

corporate charter in no way affects the sovereign immunity of

the Community as a constitutional, or governmental, entity.”).

[11] Under Section 17 of the Indian Reorganization Act,

tribes were also permitted to form corporate organizations —

business corporations through which they could enter the

world of commerce. See White Mountain Apache Tribe v.

Williams, 810 F.2d 844, 866 n.17 (9th Cir. 1987). Housing

authorities are Section 17 organizations. See Cohen,

§ 4.04[3][a], at 256 (citing housing authority cases in exam-

ples of Section 17 organizations). Housing authorities are

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8087

public corporations with enabling ordinances that resemble

articles of incorporation, and contain a hierarchical structure

similar to a board of directors. Charters for Section 17 organi-

zations often contain “sue and be sued” clauses like the one

at issue here. See Cohen, § 4.04[3][a], at 256. And, although

the Housing Authority “occupies a role quintessentially

related to self-governance,” EEOC v. Karuk Tribe Hous.

Auth., 260 F.3d 1071, 1080 (9th Cir. 2001), a tribal housing

authority is nonetheless a “public corporation carrying on

public enterprises,” see Eligibility of Indian Tribes for Loans

and Grants under National Housing Act of 1937, 57 Interior

Dec. 145, 149, 1940 WL 4162, at *4 (Dep’t of the Interior

1940).

[12] The designation of an entity as a Section 16 or a Sec-

tion 17 organization affects how we interpret any waiver of

immunity. This court has been careful to separate a tribe’s

corporate functions from its governmental functions. Accord-

ingly, we have refused to read a waiver of immunity in the

Section 17 corporate context as abrogating immunity for the

tribe’s governmental actions as a Section 16 entity. See, e.g.,

Linneen, 276 F.3d at 492. In the same way, however, a “sue

and be sued” clause in the enabling ordinance of a Section 17

entity must be examined in light of the rationale of Section

17. The purpose of allowing tribes to create Section 17 corpo-

rations, even corporations that perform some quasi-

governmental role, is to allow tribal entities to fully partici-

pate in the world of commerce. See 78 Cong. Rec. 11732

(1934) (noting that, in allowing tribes to incorporate under

Section 17, Congress sought to promote the organization of

tribal business enterprises and to enable those enterprises “to

enter the white world on a footing of equal competition”).

And:

It is repugnant to the American theory of sovereignty

that an instrumentality of the sovereign shall have all

the rights and advantages of a trading corporation,

and the ability to sue, and yet be itself immune from

8088 MARCEAU v. BLACKFEET HOUSING AUTHORITY

suit, and able to contract with others, or to injure oth-

ers, confident that no redress may be had against it

as a matter of right.

Namekagon, 395 F. Supp. at 29 (citing Fed. Sugar Ref. Co.

v. U.S. Sugar Equalization Bd., 268 F. 575, 587 (S.D.N.Y.

1920)). Where there is an express waiver of tribal immunity,

such as this “sue and be sued” clause, we should read that

waiver in light of the purpose of Section 17. Because “devel-

opers and lenders will be reluctant to deal with a corporation

which is legally irresponsible and cannot be made to answer

for its debts,” id. at 29, tribes can compete fully in the busi-

ness world only if they voluntarily agree to limit their right to

immunity.

Finally, the language of Namekagon that it is “grossly

unjust” to interpret such a clear “sue and be sued” clause as

anything less than a waiver of tribal immunity rings true here

as well. The Housing Authority invited individuals to do busi-

ness with it. It signed contracts with these Plaintiffs, bound

the homeowners to make payments, and had contractual rem-

edies in the event that Plaintiffs breached their promises. To

interpret the “sue and be sued” clause in the manner suggested

by the Housing Authority would render the Housing Authori-

ty’s contractual obligations illusory.

[13] For these reasons, we hold that the Tribe waived the

immunity of the Housing Authority when it enacted the

enabling ordinance with its “sue and be sued” clause, subject

to the limitations contained in the enabling ordinance. Of

course, the enabling ordinance contains two important limita-

tions on the Housing Authority’s liability: (a) Article V, Cl.

2: the Tribe shall not be liable for the debts or obligations of

the Authority; and (b) Article VII, Cl. 7: No judgment shall

be a lien upon Authority property; judgments may only be

enforced out of the Authority’s rents, fees or revenues.

Because a sovereign is entitled to set the terms on which it

waives its immunity, such limits restrict the ability of Plain-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8089

tiffs to collect damages against the Housing Authority. We

remand Plaintiffs’ claims against the Housing Authority to the

district court for further proceedings.

B. Motion to Dismiss by the Secretary of the

Department of Housing and Urban Development

Plaintiffs appeal dismissal of the following claims against

HUD: (a) a claim based on a violation of the trust responsibil-

ity; (b) a claim based on a violation of the Administrative Pro-

cedures Act; and (c) a claim for breach of contract. We affirm

the district court’s decision on each claim.

1. Violation of Trust Responsibility and Fiduciary

Duties

Plaintiffs allege that HUD has violated its trust responsibil-

ity to tribal members.4 Plaintiffs’ trust responsibility claims

are based on the Mitchell Doctrine, which derives its origins

from United States v. Mitchell, 445 U.S. 535 (1980)

(“Mitchell I”) and United States v. Mitchell, 463 U.S. 206

(1983) (“Mitchell II”). These two cases concerned a suit by

tribal members who lived on the Quinault Indian Reservation.

The plaintiffs sued the Secretary of the Interior for damages

based on alleged mismanagement of timber resources on land

held in trust. In Mitchell I, 445 U.S. at 542, the Supreme

Court found that the General Allotment Act, under which

tribal land was taken into trust, created only a limited trust

relationship between the United States and the tribal member

as it related to timber management. The Court noted that the

4

Count Three of Plaintiffs’ original complaint alleged that HUD has

violated: (a) the United States Housing Act of 1937, 42 U.S.C. §§ 1437-

1437x; (b) the Indian Housing Act, 42 U.S.C. §§ 1437aa-1437ee; (c) the

Native American Housing Assistance and Self-Determination Act of 1996,

25 U.S.C. §§ 4101-4243; and (d) the Housing Act of 1949, 42 U.S.C.

§§ 1441-1490. On appeal, Plaintiffs did not challenge the district court’s

holding that no express or implied right of action existed under those stat-

utes. Accordingly, we do not consider those statutes here.

8090 MARCEAU v. BLACKFEET HOUSING AUTHORITY

statute did not impose any responsibility for timber manage-

ment on the federal government and left all beneficial use of

the land in the allottee, not in the government. See id. at 542-

55. The case was remanded to consider whether any other

basis existed to find a full trust responsibility.

When the case returned to the Supreme Court, the Plaintiffs

framed the trust responsibility on statutes that gave the

Department of the Interior “ ‘comprehensive’ control over the

harvesting of Indian timber.” Mitchell II, 463 U.S. at 209.

This time, the Court found that the general trust relationship

between the federal government and the tribal members cul-

minated in full fiduciary responsibility because the Secretary

of the Interior was granted statutory authority to exercise sub-

stantial control over the harvest of tribally-owned timber.

Under the statute, the Secretary was required to consider

“ ‘the needs and best interests of the Indian owner and his

heirs.’ ” Id. at 209 (quoting 25 U.S.C. § 406(a)). Pursuant to

this authority, the Secretary of the Interior promulgated regu-

lations that addressed “virtually every aspect of forest man-

agement,” essentially squeezing the tribe out of the

opportunity to manage its own timber. Id. at 220. The Court

concluded that this decision to take control of a tribally-

owned resource and to manage it for the benefit of the tribe

created fiduciary responsibilities, the breach of which man-

dated damages. See id. at 226.

[14] This pair of cases sets the stage for how we consider

Mitchell claims: the general “ward-custodian” relationship

between the federal government and the tribes does not give

rise to fiduciary duties. But where the government takes full

control of a tribally-owned resource and manages it to the

exclusion of the tribe, a fiduciary relationship is created and

the government bears responsibilities as a fiduciary.

HUD’s control over the MHHO projects is certainly perva-

sive. HUD set minimum property standards for MHHO hous-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8091

ing. See 24 C.F.R. § 805.212(a) (1979).5 Although the

Housing Authority initially designed the projects, HUD

retained the authority to alter those designs. See id.

§ 805.212(b)-(c). The Housing Authority had to keep the cost

of the houses they designed within a HUD-mandated “proto-

type cost” for each area. See id. §§ 805.213(a), (c),

805.214(b). The Housing Authority was not permitted to enter

any contract for materials or labor without HUD’s approval.

See id. § 805.211(a)-(b).

[15] There is a fatal flaw, however, in Plaintiffs’ Mitchell

claim. Plaintiffs rely solely on the general trust responsibility

that exists between the federal government and American

Indians. But fiduciary duties arise under Mitchell only where

the federal government pervasively regulates a tribally-owned

resource. Plaintiffs offered no argument as to why a grant of

HUD funds should be considered a tribal resource or why the

general trust responsibility between the federal government

and American Indians was focused into specific fiduciary

duties. To say that government funding, conditioned on the

performance of certain acts and heavily regulated by a gov-

ernment agency, is a tribal resource subject to Mitchell fidu-

ciary duties is a step we are unwilling to take in the absence

of precedent extending the doctrine that far. Because Plain-

tiffs have not shown that HUD took a pervasive role in the

management of a tribal resource, we hold that no Mitchell

fiduciary duty existed.

Later congressional acts dealing with Indian Housing have

not provided any additional concrete duties that would give

rise to a claim against HUD. Under the Indian Housing Act

of 1988 and the Native American Housing Assistance and

Self-Determination Act of 1996, HUD was permitted, not

required, to provide additional money to housing authorities

5

These minimum property standards, incidentally, appear to permit the

use of wood foundations such as those used in Plaintiffs’ home. See 24

C.F.R. pt. 200, subpt. S, app. (1976).

8092 MARCEAU v. BLACKFEET HOUSING AUTHORITY

for the repairs. See 25 U.S.C. § 4132(1)-(5). Moreover, main-

tenance duties lay exclusively with individual home owners.

See 24 C.F.R. § 805.418(a)(1) (1979). Because the Indian

Housing Act and the Native American Housing Assistance

and Self-Determination Act of 1996 did not add to the man-

agement responsibilities of HUD, they do not alter our Mitch-

ell analysis. Accordingly, on the claims presented to us, we

conclude that no Mitchell fiduciary duty existed.

2. Violation of the Administrative Procedure Act

[16] Plaintiffs alleged that they are entitled to relief under

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702-

706. The APA grants a cause of action to persons injured by

administrative action. See 5 U.S.C. § 702. A claim under the

APA requires, inter alia, that the claimant seeks “relief other

than money damages.” Id.; see also Bowen v. Massachusetts,

487 U.S. 879, 895-902 (1988). Examination of the relief

Plaintiffs sought does not stop at the parties’ allegations.

Instead, “the substance of the pleadings must prevail over

their form.” Amoco Prod. Co. v. Hodel, 815 F.2d 352, 361

(5th Cir. 1987) (interpreting monetary damages under the

Tucker Act). Our task, then, is to “discern the nature of the

relief being sought and focus on the type of relief that will

result from the action.” Id. at 362.

In this case, although Plaintiffs nominally claim equitable

and injunctive relief, the substance of their claim is that they

are owed money damages from the federal government. As

Plaintiffs admitted at oral argument, their purpose in seeking

a declaratory judgment is that it would enable them to seek

monetary damages in other fora. Under the APA, however,

Plaintiffs cannot seek relief that is essentially the equivalent

of monetary damages. See id. at 362 (finding that the plain-

tiffs were, in essence, seeking monetary relief where “money

would ‘flow from,’ or be the ‘natural consequence’ of” a

review of agency action); Gray v. Rankin, 721 F. Supp. 115,

119 (S.D. Miss. 1989) (noting that “a complaint seeks relief

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8093

other than money damages within the meaning of the Admin-

istrative Procedure Act only if the equitable relief sought has

a ‘significant prospective effect or considerable value apart

from merely determining monetary liability of the govern-

ment’ ”) (citations omitted); cf. Bakersfield City Sch. Dist. of

Kern County v. Boyer, 610 F.2d 621, 628 (9th Cir. 1979)

(“[I]t is firmly established that, where the real effort of the

complaining party is to obtain money from the federal gov-

ernment, the exclusive jurisdiction of the court of claims over

non-tort claims exceeding $10,000 cannot be evaded or

avoided by framing a district court complaint to appear to

seek only injunctive, mandatory or declaratory relief against

government officials or the government itself.”).

[17] Similarly, an injunction is not available to Plaintiffs in

this case. Injunctions are generally not permissible unless a

legal damages remedy would be insufficient. See Cont’l Air-

lines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir.

1994); Charles Wright et al., Federal Practice and Procedure

§ 2944 (2d ed. 1995). Here, money damages in an amount

necessary to repair or rebuild Plaintiffs’ home would be a suf-

ficient remedy, and, therefore, an injunction is not an avail-

able remedy. Because Plaintiffs have no remedy apart from

legal damages, a claim under the APA is not appropriate.

In the alternative, Plaintiffs have argued that their claims

are permitted under Bowen v. Massachusetts, 487 U.S. 879

(1988). In Bowen, the Court noted that a claim under the APA

is not precluded simply because a “judicial remedy may

require one party to pay money to another.” Id. at 893. Rather,

the APA forbids claims based on “a sum of money used as

compensatory relief . . . to substitute for a suffered loss.” Id.

at 895. A plaintiff can, however, bring a claim under the APA

if the plaintiff seeks money as a “specific remed[y] . . . the

very thing to which he was entitled.” Id. (citing Dan B.

Dobbs, Handbook on the Law of Remedies 135 (1973)). Thus,

for example, a claim under the APA is appropriate where a

statute entitles a claimant to a specific amount of money, and

8094 MARCEAU v. BLACKFEET HOUSING AUTHORITY

an administrative agency wrongfully withholds that money

from the claimant.

Plaintiffs in this case clearly seek compensatory damages,

not money as a specific equitable remedy. Plaintiffs claim that

they were harmed because HUD caused their houses to be

constructed in a substandard manner. Plaintiffs want a sum of

money that would redress a wrong caused to them — a legal

damage, not an equitable one. Accordingly, their claims can-

not be brought under the APA.

3. Breach of Contract Claims

[18] Finally, the district court properly found that it was

without jurisdiction to review Plaintiffs’ breach of contract

claims. The Tucker Act vests the Court of Federal Claims

with exclusive jurisdiction for contract claims against the

United States. See 28 U.S.C. § 1491(a)(1). The Little Tucker

Act carves out a minor exception, creating concurrent juris-

diction in the district courts for contract claims against the

United States not exceeding $10,000. See 28 U.S.C.

§ 1346(a)(2). While parties may waive their right to receive

more than $10,000, see United States v. Johnson, 153 F.2d

846, 848 (9th Cir. 1946), Plaintiffs have not done so in this

case. Thus, given that Plaintiffs seek monetary damages in

excess of $10,000, the District Court correctly determined that

it was without jurisdiction to hear Plaintiffs’ contract claims

against HUD.6 We likewise, then, lack jurisdiction to review

Plaintiffs’ contract claims.

6

Contrary to Plaintiffs’ assertions, where a case falls under Tucker Act

jurisdiction, federal question jurisdiction cannot serve as an alternative

basis for jurisdiction. Plaintiffs cite a Seventh Circuit case holding that

federal question jurisdiction can be an alternative basis for jurisdiction, W.

Sec. Co. v. Derwinski, 937 F.2d 1276, 1280-81 (7th Cir. 1991), and indeed

the circuits appear to be divided on this question. Compare C.H. Sanders

Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 118-20 (2d Cir. 1990)

(finding Tucker Act jurisdiction not exclusive, where there is federal ques-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8095

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

dismissal of claims against HUD. We REVERSE, however,

the dismissal of Plaintiffs’ claims against the Blackfeet Tribal

Housing Authority, and REMAND for proceedings in accor-

dance with this opinion. The parties shall bear their own costs

on appeal.

PREGERSON, Circuit Judge, specially concurring:

I write separately to point out the manifest injustice of

releasing the federal government from responsibility in this

suit. The relationship between the federal government and the

tribes has been one of promises carelessly made and callously

broken. Here we see that in the area of tribal housing, as in

so many other areas, we as a nation have ignored the collat-

eral consequences of our conduct toward American Indians

and have utterly failed to live up to our promises. We have a

moral duty, if not a legal duty, to remedy the harm caused to

these Plaintiffs.

tion jurisdiction and a waiver of sovereign immunity), with A.E. Finley &

Assoc. v. United States, 898 F.2d 1165, 1167 (6th Cir. 1990) (“[I]f an

action rests within the exclusive jurisdiction of the Claims Court under the

Tucker Act . . . the district court does not have jurisdiction regardless of

other possible statutory bases.”). The Ninth Circuit has not squarely con-

fronted the particular arguments raised in those two cases, but has gener-

ally held that Tucker Act jurisdiction is exclusive. See, e.g., Skokomish

Indian Tribe v. United States, 410 F.3d 506, 511 (9th Cir. 2005) (en banc);

M-S-R Pub. Power Agency v. Bonneville Power Admin., 297 F.3d 833,

840 (9th Cir. 2002); Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.

2002). We see no reason to disturb that conclusion here. Because Tucker

Act jurisdiction is exclusive, except where the Little Tucker Act provides

concurrent district court jurisdiction, such claims are properly reviewed in

the court of claims, not in the federal district courts.

8096 MARCEAU v. BLACKFEET HOUSING AUTHORITY

Much tribally-owned land, including the land at issue here,

is held in trust “indefinitely.” 25 U.S.C. § 462. The decision

to hold the land in trust was made, in part, to prevent tribes

from unwisely alienating their land. As the Supreme Court

noted: “[W]hen Congress enacted the General Allotment Act,

it intended that the United States ‘hold the land . . . in trust’

not because it wished the Government to control use of the

land and be subject to money damages for breaches of fidu-

ciary duty, but simply because it wished to prevent alienation

of the land and to ensure that allottees would be immune from

the state taxation.” See United States v. Mitchell, 445 U.S.

535, 544 (1980) (emphasis added). In so doing, we promised

to guard the tribes’s property rights for a period of time, while

they prepared to “cope on equal footing” with the “white man

who might attempt to cheat him out of his newly acquired

property.” See 18 Cong. Rec. 190 (1886) (statement of Repre-

sentative Skinner).

However admirable the government’s motivations, the

decision to take tribal land in trust had adverse consequences:

by holding tribal land in trust and preventing alienation, the

federal government prevented the tribe from developing its

own private housing market. For example, in a recent publica-

tion, the United States Commission on Civil Rights reported

that American Indians have consistently found it difficult to

obtain mortgages on their land because the land is held in

trust and therefore cannot be used as collateral. See U.S.

Comm. on Civil Rights, A Quiet Crisis: Federal Funding and

Unmet Needs in Indian Country 63, available at

http://www.usccr.gov/pubs/na0703/na0204.pdf [hereinafter A

Quiet Crisis]; see also H.R. Rep. 100-604 (1988), reprinted

in 1988 U.S.C.C.A.N. 791, 795. Similarly, private housing

developers have been deterred from entering tribal housing

markets because the property, once developed, cannot be

alienated. See A Quiet Crisis, at 63.

The federal government has exercised pervasive control

over tribal land, and in so doing, has severely limited the

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8097

tribe’s control over its own economic development. In fact,

according to one House Report relating to the passage of the

Indian Housing Act, HUD’s Mutual Help and Homeowner-

ship Program was the “only reasonable source of housing in

many reservations,” see H.R. Rep. 100-604, reprinted in 1988

U.S.C.C.A.N. 791, 795, in part because the land was held in

trust. That is, while the goal of the General Allotment Act was

to prevent unwise alienation of the land, the result was to pre-

vent any encumbrance of the land for the purpose of building

or improving housing. The effect was to freeze out developers

from entering the private tribal housing market, and to leave

the tribes with no option but to wait for the federal govern-

ment to provide safe, decent, and sanitary housing.

Congress has, in more recent years, recognized that the fed-

eral government’s control over the land and its general trust

relationship with the tribes creates a responsibility for the fed-

eral government to remedy the deplorable housing conditions

on reservations. See Native American Housing Assistance and

Self-Determination Act of 1996 (“NAHASDA”), 25 U.S.C.

§ 4101(2)-(5). NAHASDA recognizes that:

[T]he Congress, through treaties, statutes, and the

general course of dealing with Indian tribes, has

assumed a trust responsibility for the protection and

preservation of Indian tribes and for working with

tribes and their members to improve their housing

conditions and socioeconomic status so that they are

able to take greater responsibility for their own eco-

nomic condition; . . . [Moreover,] providing afford-

able homes in safe and healthy environments is an

essential element in the special role of the United

States in helping tribes and their members to

improve their housing conditions and socioeconomic

status.

25 U.S.C. § 4101(4)-(5).

8098 MARCEAU v. BLACKFEET HOUSING AUTHORITY

As suggested in the findings under NAHASDA, the federal

government’s duty to remedy tribal housing conditions

existed even before NAHASDA — it derives from treaties

and the “general course of dealing” with tribes. During the

process of forcing the tribes onto reservations, many tribes

were explicitly promised housing in exchange for land ces-

sion. See Virginia Davis, A Discovery of Sorts: Reexamining

the Origins of the Federal Indian Housing Obligation, 18

Harv. BlackLetter L.J. 211, 215-23 (2002). Others were

promised money that was intended to “promote their civiliza-

tion.” See id. at 218-19; see, e.g., White Mountain Apache

Tribe of Arizona v. United States, 26 Cl. Ct. 446, 465, 466-67

(1992).1 The Court of Claims has held that treaty language

such as the “requisites to ‘promote civilization’ ” includes a

covenant to provide housing. Thus, the federal government

has long promised that it would assist American Indian tribes

in providing housing.

Later, when much of tribal land was taken into trust under

the General Allotment Act, it was done with an eye toward

ensuring that every American Indian had a “homestead of his

own with assistance by the government to build houses and

fences, and open farms.” See Davis, 18 Harv. BlackLetter L.J.

at 224 (quoting Comm’r of Indian Affairs, Annual Report iv-v

(1885)). Henry Dawes, proponent of the General Allotment

Act, stated that holding tribal land in trust as a means of “civi-

lizing” the American Indian would not work unless housing

was also provided: “If [the American Indian] starts wrong; if

he comes upon the homestead and is left there with no house

to put himself in . . . what is to become of him? He had better

never have been put there.” See Davis, 18 Harv. BlackLetter

1

Indeed, the Blackfeet Indian signed such a treaty. Treaty with the

Blackfoot Indians, art. X, October 17, 1855, 11 Stat. 727 (“The United

States further agree to expend annually, for the benefit of the aforesaid

tribes of the Blackfoot Nation, a sum not exceeding fifteen thousand dol-

lars annually, for ten years, in establishing and instructing them in agricul-

tural and mechanical pursuits, and in educating their children, and in any

other respect promoting their civilization and Christianization.”)

MARCEAU v. BLACKFEET HOUSING AUTHORITY 8099

L.J. at 224 (quoting Henry Dawes, Defense of the Dawes Act

(1887)). Once again, when the government took the land in

trust, it committed itself to play a major role in housing the

trust land’s occupants.

We have failed miserably in this duty. For much too long,

our nation simply ignored our responsibility to assist the

tribes in building houses. In 1966, the Bureau of Indian

Affairs estimated that 75% of houses on Indian reservations

and in the territory of the Alaska Natives were substandard,

and that two-thirds “were too run down even to merit

improvement.” See A Quiet Crisis at 52. And yet, despite the

advances made in the general population with the passage of

the United States Housing Act of 1937, the federal govern-

ment did little to remedy the substandard housing conditions

on the reservations.

When HUD finally decided to extend its aid to the tribes in

the 1960s, see Susan J. Ferrell, Indian Housing: The Fourth

Decade, 7 St. Thomas L. Rev. 445, 452-53 (1995), the chosen

vehicle was the Mutual Help and Homeownership Program

(“MHHO Program”), through which homes were to be “com-

pleted at the lowest possible cost.” U.S. Dep’t of Hous. &

Urban Dev., Manual 7440.1: Interim Indian Housing Hand-

book 3-40 (1976). In HUD’s zeal to save money, it forced

Plaintiffs’ families — and probably members of countless

other tribes — to decide between rejecting HUD funding alto-

gether or living in homes that were cheaply built, homes that

tribal members knew would not withstand the Montana cli-

mate for any period of time. These Plaintiffs, understandably,

chose to take what they could get. And, as a result, Plaintiffs

now live in homes infested with black mold and other toxins,

plagued with structural disintegration, and that have caused

high incidence of kidney failure, cancer, headaches and

bloody noses in the home’s residents. Yet many Plaintiffs

remain in MHHO housing because, in many cases, “it is the

only housing they can afford.” See Jessie McQuillan, Rotten

8100 MARCEAU v. BLACKFEET HOUSING AUTHORITY

Deal, Missoula Indep., April 6, 2006, available at

http://www.missoulanews.com/News/News.asp?no=5625.

Even after this situation was brought to HUD’s attention,

the federal government refused to step in and remedy the

harm. Before filing this suit, Plaintiffs tried unsuccessfully for

years to obtain funding to repair their houses, but their pleas

fell on deaf ears. As HUD’s counsel stated at oral argument,

despite HUD’s present desire to try to settle the case, Con-

gress has not allocated sufficient discretionary funding to

allow HUD any latitude to alleviate this most grievous situa-

tion on the Blackfeet Reservation.

The lack of affordable housing alternatives and the federal

government’s callousness to Plaintiffs’ suffering have con-

demned Plaintiffs to live in dangerous houses that are making

them sick. Under the theories presented here, we cannot offer

Plaintiffs any relief against HUD. But our nation’s responsi-

bility to the Blackfeet Tribe and its members is deeper than

a legal responsibility; it is also a moral responsibility. If we

are serious about this duty, the federal government should rec-

ognize the consequences of its actions. We as a nation should

live up to the promises that we have made. We should come

to the assistance of the men, women, and children who will

continue to live in absolute squalor until we step in.