FW: [ndn-aim] ICT: Inferior Blackfeet housing under fire

Craven, Jim jcraven at clark.edu
Thu Aug 14 13:06:14 MDT 2003

Inferior Blackfeet housing under fire

Blackfeet Indian Reservation resident Martin Marceau, lead plaintiff in a
federal lawsuit over substandard government housing, inspects the wooden
foundation and decaying siding of his home in March 2002. (Photo by
Ron Selden)
GREAT FALLS, Mont. - Two critical turning points are pending in a federal
lawsuit filed here last year over substandard housing on the nearby
Blackfeet Indian Reservation.
Plaintiffs in the case allege that the U.S. Department of Housing and Urban
Development (HUD) and the Blackfeet Housing Authority in the mid-1970s
knowingly built and sold 153 homes using inferior and potentially harmful
materials. Also named as defendants were the most-recent members of the
tribal housing board. 

Despite the area’s often-brutal winters, the homes were constructed on
wooden foundations, many of which are now buckling and leaking. In some
cases, the leakage has prompted stubborn growths of mildew and toxic molds.
The basement wood is also treated with toxic chromated copper arsenate, or
CCA, a substance the U.S. Environmental Protection Agency in 2001 decided
should be removed from commercial sale because of health concerns.
Numerous residents contend they or their relatives have been sickened by the
homes, most of which are still occupied and were mortgaged under HUD’s
Mutual Help Homeownership Opportunity Program. The residents, who want the
case certified as a class action, say their complaints and attempts to get
the problems rectified were largely ignored. The inaction prompted the
litigation "as a last resort," said lead plaintiff Martin Marceau.

"HUD has failed to fulfill its congressional mandate to provide decent,
suitable, safe, and sanitary housing for members of the Blackfeet Indian
Reservation, a recognized lower-income group, and to provide housing of
sound standards of design, construction and livability," court documents
filed by Billings attorneys Thomas Towe and Jeffrey Simkovic allege. "The
Housing Authority has sold homes to representative plaintiffs and other
class members that are substandard, unsafe, unsuitable, unsanitary,
unhealthy and uninhabitable." 
"The death and sickness is too numerous to be coincidence," Marceau
explains. "We had no other means except to go to a lawsuit."

But attorneys for the federal agency, HUD Secretary Mel Martinez and the
housing authority, which has now been formally dissolved and incorporated
under the wing of the Blackfeet Tribal Business Council, contend there has
been no wrongdoing. They’re asking U.S. District Court Judge Sam Haddon of
Great Falls to dismiss the case on a variety of grounds, including sovereign

"Tribal agencies, as well as tribal officials acting in the representational
capacity and within the scope of their authority, enjoy the same presumption
of immunity as tribes themselves," housing authority attorney Steve
Doherty wrote in one brief. "... As an arm of the Blackfeet Tribe, Blackfeet
Housing is presumptively immune from this private lawsuit."

Doherty, a former Democratic lawmaker who served as minority leader in the
2001 Montana Legislature, is also seeking a protective order from Haddon to
keep the plaintiffs from moving ahead with detailed discovery inquiries
before the immunity issues are decided. Court records show Towe and Simkovic
recently blasted the idea in reply briefs.

"Plaintiffs have learned that Blackfeet Housing was ordered by HUD to
require wooden foundations and was ordered to prescribe other cost-saving
measures in the construction of 153 homes ... and the Blackfeet Housing
Authority and the Blackfeet Housing (agencies) are both mere puppets
following the directions of HUD and had no genuine independence on matters
of policy or discretion," they argue. The attorneys add that a protective
order would harm their ability to fully develop the facts of the case.

Meanwhile, Assistant U.S. Attorney Timothy Cavan, representing both Martinez
and HUD, is arguing that issues raised in the lawsuit "either fail to state
a claim upon which relief can be granted, or are beyond the subject
matter jurisdiction of this court."
Court records also show that Cavan contends it was not until 1988, "well
after the completion of the Blackfeet homes in question," that specific
American Indian housing legislation was approved by Congress. Therefore, he
argues, the federal government is not responsible for the disputed
reservation housing, which was constructed in 1976 and 1977.
In addition, Cavan argues that HUD Secretary Martinez is being sued in his
official capacity even though he had nothing to do with housing decisions
being made three decades ago.

Towe and Simkovic, however, still maintain the agency - and whoever leads
it- is responsible for the ongoing problems.
"The Blackfeet Housing Authority was compelled by HUD to use the wooden
foundations and other defective products, even though they also know all the
wooden foundations were a violation of HUD regulations and state and local
building standards," Towe and Simkovic argue in an April 4 filing. 
Haddon is soon expected to wade through the arguments, including contentions
by Towe and Simkovic that Congress has "effectively waived" any
sovereign-immunity claims that could be applied to the case. Once Haddon
decides whether the case moves forward, a decision is also expected over
pending class-action status.

Towe says that after the plaintiffs’ discovery actions are exhausted, he
and Simkovic may request a quick end to the case.

"We think the facts are so strong that summary judgment wouldn’t be
denied," Towe contends.

Jim C.

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