Blackfeet mold lawsuit gains ground

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Blackfeet mold lawsuit gains ground

By JENNIFER BYRD

Associated Press writer Sunday, August 27, 2006

http://www.casperstartribune.net/articles/2006/08/27/news/regional/bf

77056f86a1198c872571d6002377e1.txt

BROWNING, Mont. -- LaMott calls her house " poison. "

There's black mold under the sink, holes in the walls and a

foundation made of chemically treated wood, conditions she believes

are responsible for illness in her family and even her mother's

death.

" When she got this house, she just thought it was a mansion, " LaMott

said of her mother, from whom LaMott inherited the house. " She

didn't care that the wood was going to kill her. "

LaMott is one of a number of low-income Blackfeet tribal members who

sued the tribe's housing authority and the U.S. Department of

Housing and Urban Development in 2002 to have their houses, which

were built in the late 1970s, replaced.

U.S. District Judge Sam Haddon dismissed both lawsuits in 2004. But

a recent ruling by the 9th U.S. Circuit of Appeals is giving the

homeowners some hope. That panel reinstated the lawsuit against the

tribal housing authority.

The ruling is drawing attention throughout Indian Country because of

its reasoning. The 9th Circuit said the Blackfeet tribe waived any

claim to sovereign immunity in the ordinance that created the tribal

housing authority. Lawyers say identical language is present in the

founding documents of most tribal housing authorities around the

nation.

" I think with this lawsuit, a lot of doors will open to Native

Americans, " LaMott said. " No longer should we stay in this type of

home. We do live in America, but it's just a whole different world

right here. "

About 150 houses on the reservation were built in the 1970s with

wooden foundations that were treated with arsenic and other toxic

chemicals as preservatives. The plaintiffs allege that the use of

the wood foundations caused their homes to deteriorate, and that the

conditions of the homes have caused severe health problems,

including asthma, kidney failure and respiratory problems. LaMott's

mother, Dorothy, died of kidney failure about five years ago.

The families purchased or leased the homes through the HUD Mutual

Help and Homeownership Program, which was designed to address

housing needs of low-income American Indian families.

To be eligible for federal grants, the tribe had to form a housing

authority charged with alleviating the shortage of " decent, safe and

sanitary " housing.

The plaintiffs claimed that HUD required the use of wood foundations

over the objection of tribal members and that both HUD and the

housing authority failed to live up to the program's obligations.

Haddon dismissed the lawsuit against HUD, ruling he lacked

jurisdiction to hear the matter. He dismissed the case against the

tribal authority, ruling that it had sovereign immunity.

A three-member panel of the appeals court, however, disagreed,

saying the Blackfeet tribe waived its immunity in this case when it

signed an ordinance creating the housing authority in the '70s.

While LaMott and her neighbors are pleased with the court's

decision, it is causing a buzz among American Indian legal experts

who say it conflicts with decisions by other courts and could have

unintentional consequences for all tribes.

" It's a case that is decided in the right way, but for the wrong

reasons, " said University of Montana law professor Cross.

" There certainly is a sense on the court that they need to provide

some remedy for these Indian homeowners, and that's certainly

understandable. Yet the legal means by which they do it, I think,

are going to create more problems than solutions in the long run. "

Cross said the ruling opens federal courts up to hearing cases that

typically would be heard by tribal or state courts. And, he said, it

opens tribal housing authorities to lawsuits from both tribal and

non-tribal members.

" I think the lower federal district courts are not going to thank

the 9th Circuit for doing that, " Cross said.

Steve Doherty, the housing authority's attorney, is asking the full

appeals court to rehear the matter. If the court refuses, an appeal

to the U.S. Supreme Court is likely, Cross said.

The appeals court pointed to a clause in the ordinance, saying it

was " a clear and unambiguous waiver of tribal immunity. " Many Indian

law attorneys who represent tribal housing authorities are concerned

by that finding, said Guest, a staff attorney with the

Native American Rights Fund in Washington.

" I would say the vast majority of housing authorities have that law

on their books, " Guest said. " It's that ordinance and that language

that is the concern because that was boilerplate, it was standard.

HUD required tribes to adopt that specific language or they wouldn't

get federal funding. "

, executive director of the Salish and Kootenai Housing

Authority on the Flathead Indian reservation, said he was

disappointed the court essentially let HUD " off the hook " for any

responsibility for the poor condition of the homes.

" HUD had an obligation to assure that those families were getting

decent safe and sanitary homes, " said. " Them being released of

any liability, I think, is a travesty; that's just terrible. "

Hammer, executive director of Ute Indian Tribal Housing

Authority in Utah and a board member of the National American Indian

Housing Council, also said HUD should be held responsible in the

case.

" HUD has a huge responsibility here and should have stood up with

and for the tribe, " Hammer said in a written statement. " During the

times that these homes were built, every single decision had to be

submitted and approved by HUD. The locations, the clients, the house

plans, the environmental issues, all of that was controlled by HUD. "

Jane Goin, a HUD spokeswoman in Denver, declined comment because the

case is pending. Attempts to reach Ray , executive director of

Blackfeet Housing, for comment were unsuccessful.

While the appeals court ruling was a small victory, LaMott and her

neighbors know it is far from the end of the battle. Even if they

get a jury or judge to agree the tribal authority needs to repair or

replace their homes, there's the bigger question of who would pay

for it -- since most of the housing authority's funding comes from

HUD.

" It would be robbing to help because that money is marked

for other housing needs, " said Ann Sutton, a Missoula attorney

representing the plaintiffs.

The real problem, Guest said, is that Congress is simply not putting

enough money toward Indian housing needs.

" In this day of huge deficits, one of many programs being cut is

money to Indian housing, " Guest said. " Money isn't being provided to

remedy this kind of problem. "

But the appeals court ruling may be a small step toward rectifying

the problems, Sutton said.

" It gives the tribal members a measure of accountability which, in

our position, should have always been that way, " she said.

As winter approaches, LaMott wishes the lawsuit would move along

quicker so she could get a new home that doesn't have cracks in the

walls and holes around the doors that let cold air in.

She understands the legal process takes time, but frustration is

setting in for her and her neighbors. They see new housing projects

go up around the reservation for other residents and wonder why that

money can't go to fixing or replacing their homes.

But, LaMott said, she has no choice but to stay in the house she

considers dangerous because she has no other options.

" This is the way we live, " LaMott said. " People need to know about

this. We're just like foreigners in the United States. There's no

way this type of housing would be allowed on the outside (of the

reservation.) "