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 July 21, 2006

Amended March 19, 2008

Before: Harry Pregerson, Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

2545

2546 MARCEAU v. BLACKFEET HOUSING AUTHORITY

Opinion by Judge Graber;

Dissent by Judge Pregerson

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2549

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 by the amended opinion filed concurrently

with this order. Further petitions for rehearing and petitions

for rehearing en banc may be filed.

2550 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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) the Housing Authority forfeited

its claim to tribal exhaustion and, in any event, waived its

tribal immunity; (2) the government did not undertake a trust

responsibility toward Plaintiffs to construct houses or main-

tain or repair houses; and (3) Plaintiffs alleged sufficient facts

to state claims against HUD under the Administrative Proce-

dure 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.

FACTUAL AND PROCEDURAL BACKGROUND

Because the district court dismissed the amended complaint

for failure to state a claim, we construe the facts from Plain-

1

Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006).

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2551

tiffs’ amended 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 fac-

tual allegations.” 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

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

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.”

2552 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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 an ear-

lier opinion, we affirmed the dismissal of HUD and its Secre-

tary, but reversed with respect to the Housing Authority.

Marceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir.

2006). The Housing Authority filed a petition for rehearing.

The panel granted the petition and reheard the case. All par-

ties, as well as amici curiae, participated in the rehearing. 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.

2004) (concerning federal subject matter jurisdiction);

Demontiney v. United States, 255 F.3d 801, 805 (9th Cir.

2001) (concerning an Indian tribe’s sovereign immunity and

the waiver thereof, waiver of the United States’ sovereign

immunity, and dismissal for failure to state a claim under

Rule 12(b)(6)).

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2553

DISCUSSION

A. Tribal Immunity

[1] Indian tribes generally enjoy immunity from suit.

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”). In our earlier opinion, we held that the Black-

feet Tribe waived tribal immunity through the enabling ordi-

nance that established the Housing Authority.3 Marceau, 455

F.3d at 978 83. On rehearing, the Housing Authority urges us

to dismiss the claims against it, or at least to abstain from con-

sidering those claims until tribal courts rule on the question

whether the Housing Authority is immune from suit. For two

reasons, we are not persuaded that we should do either.

[2] We begin by recognizing that principles of comity gen-

erally require federal courts to dismiss, or abstain from decid-

ing, cases in which a party asserts that an Indian tribal court

possesses concurrent jurisdiction. Crawford v. Genuine Parts

Co., 947 F.2d 1405, 1407 (9th Cir. 1991); see also Wellman

v. Chevron U.S.A., Inc., 815 F.2d 577, 578 (9th Cir. 1987)

(“Considerations of comity require the exhaustion of tribal

remedies before the [tribal court’s jurisdiction] may be

addressed by the district court.”). Ordinarily, exhaustion of

tribal remedies is mandatory. Burlington N. R.R. Co. v. Crow

Tribal Council, 940 F.2d 1239, 1245 (9th Cir. 1991).

3

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

The [Blackfeet Tribal] Council hereby gives its irrevocable

consent to allowing the [Housing] Authority to sue and be sued

in its corporate name, upon any contract, claim or obligation aris-

ing 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 otherwise have; but the Tribe shall not be lia-

ble for the debts or obligations of the Authority.

(Emphasis added.)

2554 MARCEAU v. BLACKFEET HOUSING AUTHORITY

[3] But the Supreme Court has stated that the tribal exhaus-

tion rule is “prudential” rather than “jurisdictional.” Strate v.

A-1 Contractors, 520 U.S. 438, 451 (1997). Because it is a

non-jurisdictional principle, the preference for tribal exhaus-

tion may be forfeited. The Housing Authority forfeited the

argument that the tribal court should decide the immunity

issue by failing to raise it until the Housing Authority’s peti-

tion for rehearing. Talk of the Town v. Dep’t of Fin. & Bus.

Servs., 353 F.3d 650, 650 (9th Cir. 2003). That being so, we

readopt our earlier opinion on this issue, Marceau, 455 F.3d

at 978-83.

Moreover, in this case, the tribal court already has ruled on

the question. In DeRoche v. Blackfeet Indian Housing Author-

ity, 17 Indian L. Rptr. 6036 (Blackfeet Trib. Ct. App. 1989),

the Blackfeet Tribal Court of Appeals considered a breach of

contract claim against the Housing Authority. That court

adopted the Eighth Circuit’s approach to interpreting a “sue

and be sued” clause. Id. at 6042 (citing Namekagon Dev. Co.

v. Bois Forte Reservation Hous. Auth., 517 F.2d 508, 510 (8th

Cir. 1975). The Blackfeet Tribal Court of Appeals held that

the original Housing Authority enabling ordinance “is an

indisputable qualified waiver of immunity by the Blackfeet

Tribe and housing authority for a breach of contract action”

and that, by adopting the clause,” the tribe waived, to some

extent, the housing authority’s immunity from suit.” Id. The

court thus allowed the contract claim to proceed. Id. DeRoche

is the only Blackfeet appellate decision, and it is on point.

Even if exhaustion in tribal court were warranted, abstention

would not be required. DeRoche is binding tribal precedent,

and we would defer to the tribal court’s extant interpretation.

See Hinshaw v. Mahler, 42 F.3d 1178, 1180 (9th Cir. 1994)

(“The Tribal Court’s interpretation of tribal law is binding on

this court.”).4

4

The Housing Authority points to Whiteman v. Blackfeet Indian Hous-

ing Authority, No. 97 CA 474 (Blackfeet Tribal Ct. Aug. 25, 1999), for the

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2555

[4] Thus, the tribal appellate court and this court agree that

the Tribe waived the Housing Authority’s tribal immunity.

Whether the Housing Authority forfeited the issue of defer-

ence to the tribal court, or whether exhaustion applies, the

result is the same.

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

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

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.5 In a pair of cases from

proposition that a tribal court has held that the ordinance in question did

not waive tribal immunity. Whiteman is a decision of a Blackfeet trial

court, while DeRoche is a published opinion of the Blackfeet Tribal Court

of Appeals. Whiteman can take away nothing from DeRoche, any more

than a district court’s later ruling can detract from an earlier holding of

this court concerning the same subject. “Binding authority must be fol-

lowed unless and until overruled by a body competent to do so.” Hart v.

Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001); see also id. at 1170 &

n.24 (“A district judge may not respectfully (or disrespectfully) disagree

with his learned colleagues on his own court of appeals who have ruled

on a controlling legal issue . . . . [C]aselaw on point is the law.”). There

is but one controlling precedent from the tribal courts, and that is De-

Roche.

5

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

2556 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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-

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 219-24.

Those statutes directed the government to manage Indian for-

est resources, obtain revenue thereby, and pay proceeds to the

Indian landowners. The Court held that those statutes imposed

strict and detailed duties on the government to manage forest

lands. In view of the pervasive and complete control exercised

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.

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2557

by the government over the lands, the statutes confirmed the

existence of a fiduciary relationship. Id. Thus, the statutes sat-

isfied 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

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.

2558 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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.

When the case reached the Supreme Court, the Court con-

firmed the primacy of Mitchell I and Mitchell II as “the path-

marking 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

“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-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2559

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-

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.”

2560 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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.

[6] 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. §§ 1437-1440 (1976). Under

that statute and its implementing regulations for Indian housing,6

HUD provided block grants with which an Indian housing

authority could organize the construction of homes through its

own contractors. In “Annual Contributions Contracts,” HUD

agreed to provide a specified amount of money to fund proj-

ects undertaken by a tribal housing authority and approved by

HUD. 24 C.F.R. §§ 805.102, 805.206 (1977). After securing

6

24 C.F.R. §§ 805.404(a), 805.415, 805.416, 805.421, 805.422 (1977).

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2561

funding from HUD, a tribal housing authority contracted 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).

[7] Significantly, the statute under which HUD established

that program, 42 U.S.C. § 1437 (1976), provided in relevant

part:

It is the policy of the United States to promote the

general welfare of the Nation by employing its funds

and credit, as provided in this chapter, to assist the

several States and their political subdivisions to rem-

edy the unsafe and unsanitary housing conditions

and the acute shortage of decent, safe, and sanitary

dwellings for families of low income and, consistent

with the objectives of this chapter, to vest in local

public housing agencies the maximum amount of

responsibility in the administration of their housing

programs.

(Emphasis added.) For the purpose of our analysis, two points

are notable. First, as the text just emphasized demonstrates,

Congress gave housing authorities the greatest responsibility

in administering their low-income housing programs. That is,

Congress specifically intended that HUD not assume more

responsibility in developing and managing housing projects

than was necessary. Second, Congress defined the term

“states” to include “Indian tribes, bands, groups, and

Nations.” 42 U.S.C. § 1437a(7). In other words, the block-

grant statute applied across the board to all low-income hous-

ing, not specially or specifically to Indian housing, even

though HUD promulgated separate regulations for Indian

housing. See Artichoke Joe’s Cal. Grand Casino v. Norton,

2562 MARCEAU v. BLACKFEET HOUSING AUTHORITY

353 F.3d 712, 729 (9th Cir. 2003) (reaffirming the rule that

statutes are construed liberally in favor of Indians only when

the statute is passed for the benefit of Indian tribes and the

statute is ambiguous).

[8] Under its regulations, HUD had two general controls

over Indian housing. First, HUD required that low-income

housing meet Minimum Housing Standards, 24 C.F.R.

§§ 200.929, 805.212 (1977). Second, new construction could

not exceed the “prototype costs” for the project,7 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)

(1977).

[9] Three important points bear emphasis. First, neither

restriction was unique to Indian housing. Title 24 C.F.R.

§ 200.925 (1977) provided that all housing built under HUD

programs “shall meet or exceed HUD Minimum Property

Standards.” See, e.g., 24 C.F.R. § 800.205(c)(1) (1977) (man-

dating that developers provide “detailed information” con-

cerning the application 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 construction projects had to comply with prototype

cost limitations. See, e.g., 24 C.F.R. §§ 841.115(b)(2), pt. 841,

app. A (1977) (establishing limitations on dwelling construc-

tion and equipment costs based on the area prototype costs).

[10] Second, HUD regulations did not require the use of

pressure-treated wooden foundations. With respect to founda-

tions, HUD’s Minimum Property Standards established mini-

mum criteria in section 601-16. Dep’t of Hous. & Urban Dev.,

Handbook 4900.1: Minimum Property Standards for One and

7

Prototype costs are the HUD-approved ceiling or maximum costs for

each type of dwelling. 24 C.F.R. § 841.204 (1977).

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2563

Two Family Dwellings § 601-16 (1973 ed., rev. May 1979)

(“Minimum Property Standards Handbook”). That regulation

provided two alternative sets of minimum requirements, one

for concrete or masonry walls below grade, id. § 601-16.4,

and one for pressure-treated wooden foundations, id. at app.

E.

[11] Third, Indian housing authorities were not rigidly

bound by either the Minimum Property Standards or the pro-

totype cost limitations.8 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),

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.

8

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).

2564 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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.9 In

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

9

In 1988, Congress moved the authorization for Indian low-income

housing to Title II of the United States Housing Act and formalized the

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 1966, 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 AUTHORITY 2565

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.

[12] Ultimately, no statute ever required tribes to form

housing authorities. No statute obliged Indian housing author-

ities, once formed, to seek federal funds. No statute commit-

ted 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).

[13] No statute has imposed duties on the government to

manage or maintain the property, as occurred in Mitchell II,

nor has any HUD regulation done so. Unlike in White Moun-

tain 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.

2566 MARCEAU v. BLACKFEET HOUSING AUTHORITY

[14] Instead, this case most closely resembles Navajo

Nation. Just as the Indian Mineral Leasing Act required Sec-

retarial approval of leases, but did not oblige the Secretary to

negotiate them, the United States Housing Act gave HUD a

right of final inspection with respect to construction and

design materials, 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.

[15] 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 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.

[16] 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

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2567

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, 455 F.3d at

983-85.

C. Administrative Procedure Act

[17] 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 (A) arbitrary, capricious, an abuse of dis-

cretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(1)-(2)(A). “[C]entral to the analysis . . . is that the only

agency action that can be compelled under the APA is action

legally required.” Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 63 (2004).

[18] As our earlier opinion explained, Marceau, 455 F.3d

at 985, a claim under the APA requires, among other things,

that the claimant seek “relief other than money damages.” See

also Bowen v. Massachusetts, 487 U.S. 879, 895-902 (1988)

(analyzing the meaning of “money damages” in 5 U.S.C.

§ 702). Examination of the relief that Plaintiffs seek 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); see also Tucson

Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th

Cir. 1998) (examining plaintiff’s APA claims and concluding

that the “claims are not ‘for money damages’ ”). We must

“discern the nature of the relief being sought and focus on the

type of relief that will result from the action.” Amoco Prod.

Co., 815 F.2d at 362.

2568 MARCEAU v. BLACKFEET HOUSING AUTHORITY

[19] In this case, Plaintiffs request equitable and injunctive

relief. Specifically, they seek a declaration that HUD has vio-

lated its legal obligations, and they seek equitable relief in the

form of repairs (or, where necessary, rebuilding) of their

homes.

[20] According to Plaintiffs, a judicial declaration that

HUD approved the construction designs and materials in a

manner that violated HUD regulations could be used as lever-

age with Congress to enact remedial legislation. In their alter-

native claim for injunctive relief, Plaintiffs ask that HUD

simply “fix” the construction defects that allegedly caused the

health problems suffered by some of the Blackfeet homeown-

ers. On reconsideration, we conclude that Plaintiffs’ claims

for declaratory and injunctive relief thus are distinct from

money damages.

[21] The district court erred in dismissing Plaintiffs’ claims

for declaratory and injunctive relief under the APA before

allowing adequate development of the record. According to

the Amended Complaint, HUD required the use of “materials

and construction techniques which do not meet HUD’s own

standards or standards used in the industry generally.” HUD

was required to approve “all contracts in connection with the

development of a Project, including contracts for work, mate-

rials, or equipment, or for architectural, engineering or legal

services.” See 24 C.F.R. § 805.211 (1977).10 The regulations

that were in effect when HUD approved the 153 Blackfeet

homes in the late 1970s provided that housing materials had

to meet minimum property standards. 24 C.F.R. § 805.212

(1979); Indian Housing Handbook §§ 3-19, 3-20. Those mini-

10

We note that HUD approval of contracts was common to all HUD

housing programs. See Indian Housing; final rule, 44 Fed. Reg. 64,204,

64,206 (Nov. 6, 1979 ) (“The requirement for HUD approval of develop-

ment contracts is in accordance with the standard rule for the entire public

housing program, Indian and non-Indian, and is not considered unduly

restrictive.”)

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2569

mum property standards permitted 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.

(permitting “[w]ater borne preservatives[,] [l]ight petroleum

solvent penta-solution [and] [v]olatile petroleum solvent

penta-solution”); see also Minimum Property Standards

Handbook app. E, pp. E-1 and E-2.

HUD’s regulations neither permitted nor proscribed the

particular chemicals (such as arsenic) that Plaintiffs allege

caused the unsafe housing conditions. Because the case is

before us on a motion to dismiss the Amended Complaint, the

record is silent about whether arsenic-treated lumber was

within industry standards at the time. The record is equally

silent about whether Plaintiffs requested the use of different

materials or methods and about whether HUD failed to com-

ply with its own regulations. At this stage in the litigation,

though, we must accept as true Plaintiffs’ allegations that the

construction materials and methods were substandard and that

HUD improperly mandated the use of the wooden foundations

at issue.

For a similar reason, the district court prematurely dis-

missed Plaintiffs’ claim for injunctive relief. Under Count

Two of the Amended Complaint, Plaintiffs allege that, for

more than 15 years, they “repeatedly asked the Blackfeet

Housing Authority and HUD to remedy the dangerous hous-

ing conditions.” NAHASDA permits a tribal authority to seek

block grants from HUD for “affordable housing authorities,”

see 25 U.S.C. § 4111, which include “operating assistance for

housing previously developed or operated under a contract

between the Secretary and Indian housing authority,” id.

§ 4132(1). To the extent that Plaintiffs requested remedial

measures under the repealed Indian Housing Act, HUD had

to consider their requests and then exercise discretion. See S.

Utah Wilderness Alliance, 542 U.S. at 64 (holding that a fail-

ure to act can be cognizable under the APA). In summary,

Plaintiffs’ allegations—that HUD arbitrarily and capriciously

2570 MARCEAU v. BLACKFEET HOUSING AUTHORITY

declined to consider requests for remedial funds, as required

by 24 C.F.R. § 905.270 before the Indian Housing Act’s

repeal and by 25 U.S.C. §§ 4111 and 4132(1) under

NAHASDA—suffice to bring the claim for injunctive relief

under the APA.

D. Breach of Contract Claims

We readopt our earlier opinion, Marceau, 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 tribal immunity and

the Administrative Procedure Act. I dissent with regard to the

majority’s analysis of federal trust responsibility, and write

separately on that issue.

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

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 AUTHORITY 2571

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

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

2572 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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

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

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-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2573

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

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,

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.

2574 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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,

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

3

Where tribes resisted allotment, it could be imposed. See Act of June

28, 1898, ch. 517, 30 Stat. 495 (“Curtis Act”).

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2575

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

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

2576 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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

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

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2577

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

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

2578 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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

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

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2579

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.

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

2580 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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)

(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

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2581

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

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-

2582 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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.

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.

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2583

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

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

2584 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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

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-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2585

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-

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

2586 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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

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-

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2587

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

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).

2588 MARCEAU v. BLACKFEET HOUSING AUTHORITY

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).

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

MARCEAU v. BLACKFEET HOUSING AUTHORITY 2589

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

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

2590 MARCEAU v. BLACKFEET HOUSING AUTHORITY

repair or rebuild the homes. Accordingly, I concur in part, dis-

sent in part.