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 August 22, 2008

Before: Harry Pregerson, Susan P. Graber, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Pregerson

11393
COUNSEL

Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP, Billings, Montana; Jeffrey A. Simkovic, Simkovic Law Firm, Billings, Montana; Mary Ann Sutton,

Attorney at Law, Missoula, Montana, for the plaintiffsappellants. 

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, and the amended opinion filed on March

19, 2008, slip op. 2545, and appearing at 519 F.3d 838, is

replaced in its entirety by the amended opinion filed concurrently with this order. 

With this amended opinion, Judges Graber and Gould have

voted to deny the Petition of the Federal Appellees for Panel

Rehearing and Blackfeet Housing’s Petition for Rehearing En

banc. Judge Pregerson has voted to grant the petitions. 

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on it.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. No further petitions for panel

rehearing or petitions for rehearing en banc may be filed. 

MARCEAU v. BLACKFEET HOUSING AUTH. 11397
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 Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil

Procedure 12(b)(6). 

On rehearing, we hold: (1) Plaintiffs must exhaust their

tribal court remedies before bringing their claim against the

Housing Authority; (2) the government did not undertake a

trust responsibility toward Plaintiffs to construct houses or

maintain or repair houses; and (3) Plaintiffs alleged sufficient

facts to state claims against HUD under the Administrative

Procedure 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.

1Marceau v. Blackfeet Hous. Auth. (Marceau I), 455 F.3d 974 (9th Cir.

2006). 

11398 MARCEAU v. BLACKFEET HOUSING AUTH.
FACTUAL AND PROCEDURAL BACKGROUND

Because the district court dismissed the complaint for failure to state a claim, we construe the facts from Plaintiffs’

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 factual 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 Plaintiffs’ complaint is that HUD directed the use of pressuretreated wooden foundations, over the objection of tribal members, 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

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.” 

MARCEAU v. BLACKFEET HOUSING AUTH. 11399
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

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 our original opinion, we affirmed the dismissal of HUD

and its Secretary, but reversed with respect to the Housing

Authority. Marceau v. Blackfeet Hous. Auth. (Marceau I),

455 F.3d 974 (9th Cir. 2006). We granted the Housing

Authority’s petition for rehearing and issued an amended

opinion. Marceau v. Blackfeet Hous. Auth. (Marceau II), 519

F.3d 838 (9th Cir. 2008). The Housing Authority and HUD

filed separate petitions for review. 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.

11400 MARCEAU v. BLACKFEET HOUSING AUTH.
2004) (concerning federal subject matter jurisdiction); Atwood

v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 946 (9th

Cir. 2008) (concerning exhaustion of tribal court remedies). 

DISCUSSION

A. Claim against the Housing Authority

Plaintiffs allege that the Blackfeet Housing Authority

breached the covenants of habitability, merchantability, and

good faith and fair dealing by selling defective homes to

Plaintiffs. We decline to reach the merits of this contract

claim because Plaintiffs first must exhaust their tribal court

remedies. 

[1] Principles of comity require federal courts to dismiss or

to abstain from deciding claims over which tribal court jurisdiction is “colorable,” provided that there is no evidence of

bad faith or harassment. Atwood, 513 F.3d at 948. Exhaustion

of tribal remedies is “mandatory.” Burlington N. R.R. Co. v.

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

The parties failed to raise this issue until after we issued our

opinion. Nevertheless, “[a] district court has no discretion to

relieve a litigant from the duty to exhaust tribal remedies prior

to proceeding in federal court.” Allstate Indem. Co. v. Stump,

191 F.3d 1071, 1073 (9th Cir.), amended, 197 F.3d 1031 (9th

Cir. 1999). Although Plaintiffs’ contract claim has not yet

been brought in tribal court, “[t]he absence of any ongoing litigation over the same matter in tribal courts does not defeat

the tribal exhaustion requirement.” Sharber v. Spirit Mountain

Gaming Inc., 343 F.3d 974, 976 (9th Cir. 2003) (per curiam);

see also United States v. Plainbull, 957 F.2d 724, 728 (9th

Cir. 1992) (holding that exhaustion of tribal remedies is “required even in the absence of a pending tribal court action”).

[2] Tribal court jurisdiction over the contract disputes here

is unquestionably colorable: Plaintiffs are tribal members,

Defendant Blackfeet Housing Authority is a tribal entity, and

MARCEAU v. BLACKFEET HOUSING AUTH. 11401
at least some key events—construction of the homes, for

instance—occurred on tribal lands. See Stock W. Corp. v. Taylor, 964 F.2d 912, 919 (9th Cir. 1992) (en banc) (holding that

tribal court jurisdiction was colorable where a non-tribe member sued a tribe in a contract and tort dispute and the key

events may have taken place on tribal lands). Because there

is no evidence of bad faith or harassment, we hold that Plaintiffs must exhaust their tribal court remedies. Accordingly, we

remand the case. Because of the lengthy course of this litigation, the district court should stay, rather than dismiss, the

action against the Housing Authority while Plaintiffs exhaust

their tribal court remedies. See Allstate Indem. Co., 191 F.3d

at 1076 (remanding with instructions to stay action while

party exhausted tribal court remedies). Cf. Atwood, 513 F.3d

at 948 (approving a district court’s discretionary decision to

dismiss a domestic relations action when tribal court proceedings were pending). 

[3] In our earlier opinions, we declined to require Plaintiffs

to exhaust their tribal court remedies. Instead, we held that the

Blackfeet Tribe had waived tribal immunity through the

enabling ordinance that established the Housing Authority.

Marceau II, 519 F.3d at 842-44; Marceau I, 455 F.3d at 978-

83; see also 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”). Our doing so was in error,

and we now vacate that holding and decline to reach the issue.

Whether or not the Tribe waived tribal immunity, the tribal

court must have the first opportunity to address all issues

within its jurisdiction, including that one. 

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 standards for constructing the homes, the standards for providing

11402 MARCEAU v. BLACKFEET HOUSING AUTH.
mortgages for the homes, [and] the standards for who qualifies to live in the homes.” Plaintiffs further allege that “[t]he

corpus of the trust agreement is found in the statutes” concerning Indian housing. Before examining those statutes, we

will set out some governing principles for interpreting them.

1. Governing Principles

[4] 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.3 In a pair of cases from

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 mismanagement 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 General 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 Gen3A cognizable claim that rests on the federal government’s trust obligation is enforceable through the Tucker Act, 28 U.S.C. § 1491, or the

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 Mitchell 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 AUTH. 11403
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 219-23.

Those statutes directed the government to manage Indian forest resources, obtain revenue thereby, and pay proceeds to the

Indian landowners. Id. The Court held that those statutes

imposed strict and detailed duties on the government to manage forest lands. Id. at 224-25. In view of the pervasive and

complete control exercised by the government over the lands,

the statutes confirmed the existence of a fiduciary relationship. Id. Thus, the statutes satisfied 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 government 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 Peabody 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 Secretary of the Interior to adjust the royalty rate to a “reasonable” level on the twentieth anniversary of the lease. Id. By

11404 MARCEAU v. BLACKFEET HOUSING AUTH.
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 production. Id. at 498-99. In 1987, after the Navajo Tribal Council approved amendments to the lease and a final agreement

was signed, the Secretary of the Interior approved the agreement. Id. at 500. 

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 Secretary of the Interior had breached the government’s trust obligations 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. 

[6] When the case reached the Supreme Court, the Court

confirmed the primacy of Mitchell I and Mitchell II as “the

pathmarking 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

MARCEAU v. BLACKFEET HOUSING AUTH. 11405
“must train on specific rights-creating or duty-imposing statutory 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 relationship,” 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 promulgate regulations governing mining operations.” Id. at 507

(citations omitted). Further, because the Indian Mineral Leasing Act “aim[ed] 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. 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 Interior to use any part of the land and improvements for administrative 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 designated 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 prop11406 MARCEAU v. BLACKFEET HOUSING AUTH.
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 property 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 relationship 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.”

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 inference 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 providing 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 government 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 violation 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. 

MARCEAU v. BLACKFEET HOUSING AUTH. 11407
[7] 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 (1976). Under that

statute and its implementing regulations for Indian housing, a

tribe could establish an Indian housing authority. 24 C.F.R.

§§ 805.108, 805.109 (1977). In “Annual Contributions Contracts,” HUD agreed to provide a specified amount of money

to fund projects undertaken by an Indian housing authority

and approved by HUD. Id. §§ 805.102, 805.206. After securing funding from HUD, an Indian 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). 

[8] The express intent of Congress was “to vest in local

public housing agencies the maximum amount of responsibility in the administration of their housing programs.” 42

U.S.C. § 1437 (1976). In other words, Congress specifically

intended that HUD not assume more responsibility in developing and managing housing projects than was necessary.

HUD was not without legal obligations, however. Congress

also provided:

The Department of Housing and Urban Development

. . . shall exercise their powers, functions, and duties

under this or any other law, consistently with the

national housing policy declared by this Act and in

such manner as will facilitate sustained progress in

attaining the national housing objective hereby

established, and in such manner as will encourage

and assist (1) the production of housing of sound

standards of design, construction, livability, and size

for adequate family life; (2) the reduction of the

11408 MARCEAU v. BLACKFEET HOUSING AUTH.
costs of housing without sacrifice of such sound

standards; (3) the use of new designs, materials,

techniques, and methods in residential construction,

the use of standardized dimensions and methods of

assembly of home-building materials and equipment,

and the increase of efficiency in residential construction and maintenance; (4) the development of wellplanned, integrated, residential neighborhoods and

the development and redevelopment of communities;

and (5) the stabilization of the housing industry at a

high annual volume of residential construction. 

42 U.S.C. § 1441. As we and our sister circuits have recognized, those goals create binding legal obligations on HUD.

Russell v. Landrieu, 621 F.2d 1037, 1041 (9th Cir. 1980);

United States v. Winthrop Towers, 628 F.2d 1028, 1034-36

(7th Cir. 1980); Pennsylvania v. Lynn, 501 F.2d 848, 855

(D.C. Cir. 1974); see also Shannon v. U.S. Dep’t of Hous. &

Urban Dev., 436 F.2d 809, 819-20 (3d Cir. 1970) (holding

that plaintiff residents of HUD-administered homes could

bring suit under the APA to challenge HUD actions allegedly

not in accordance with the Housing Act). Those obligations

apply to all HUD housing, however, and not just to housing

constructed by Indian housing authorities. 

Under its regulations, HUD had two general controls over

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

meet Minimum Property Standards, 24 C.F.R. §§ 200.929,

805.212 (1977). Second, new construction could not exceed

the “prototype costs” (HUD-approved ceiling or maximum

costs for each type of dwelling) for a project, 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),

841.204 (1977). 

Three important points bear emphasis. First, neither restriction was unique to Indian housing. Title 24 C.F.R. § 200.925

MARCEAU v. BLACKFEET HOUSING AUTH. 11409
(1977) provided that all housing built under HUD programs,

and not just housing built by Indian housing authorities, “shall

meet or exceed HUD Minimum Property Standards.” See,

e.g., 24 C.F.R. § 800.205(c)(1) (1977) (mandating that developers provide “detailed information” concerning 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 construction and

equipment costs based on the area prototype costs). 

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

pressure-treated wooden foundations. With respect to foundations, HUD’s Minimum Property Standards provided two

alternative sets of minimum requirements, one for concrete or

masonry walls below grade and one for pressure-treated

wooden foundations. Dep’t of Hous. & Urban Dev., Handbook 4900.1: Minimum Property Standards for One and Two

Family Dwellings § 601-16 & app. E (1973 ed., rev. May

1979) (“Minimum Property Standards Handbook”). 

[10] Third, Indian housing authorities were not rigidly

bound by either the Minimum Property Standards or the prototype cost limitations.4

 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),

4Variances 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). 

11410 MARCEAU v. BLACKFEET HOUSING AUTH.
805.213(c) (1977). In a handbook published for use by Indian

housing authorities, HUD characterized the introductory statements to the handbook on Minimum Property Standards as

“stress[ing] the importance of flexibility to meet local conditions.” 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 emphasized: 

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 administration and the Indian Self-Determination and Education Assistance Act emphasizes the importance of

maximum Indian self-determination. 

Indian Housing Handbook § 2-1(a). 

Indeed, a 1979 amendment to the Indian housing regulations 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 autonomy 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.5 In

5

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

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

MARCEAU v. BLACKFEET HOUSING AUTH. 11411
1996, Congress enacted the Native American Housing Assistance and Self-Determination Act of 1996 (“NAHASDA”), 25

U.S.C. §§ 4101-4243. As the 1996 statute’s statement of congressional findings recognized, federal Indian housing assistance 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 selfdetermination 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

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 certain 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 providing 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 responsibility consists primarily of oversight and audit, to ensure that

federal funds are spent for the intended purpose. 24 C.F.R.

§ 1000.520. 

Indian housing program. 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 (“NAHASDA”). The 1988 statute did not govern at the time the

Blackfeet housing was built, nor does it govern presently. For our purposes, the 1988 statute does not affect the analysis. 

11412 MARCEAU v. BLACKFEET HOUSING AUTH.
Ultimately, no statute ever required tribes to form housing

authorities. No statute obliged Indian housing authorities,

once formed, to seek federal funds. No statute committed 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 enforcement of warranties. 24 C.F.R. §§ 805.221(a), 805.417(a)

(1977). 

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 Mountain

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. 

Instead, this case most closely resembles Navajo Nation.

Just as the Indian Mineral Leasing Act required Secretarial

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. 

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

MARCEAU v. BLACKFEET HOUSING AUTH. 11413
or unwisely) cannot create the legal relationship that is a

threshold requirement for Plaintiffs to recover on a trust theory. 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. 

[11] 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

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 I, 455 F.3d at

983-85. 

C. Administrative Procedure Act

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 reviewing 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 conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(1)-(2)(A). 

11414 MARCEAU v. BLACKFEET HOUSING AUTH.
[12] In this case, the primary relief sought by Plaintiffs is

an injunction ordering HUD to repair (or, where necessary,

rebuild) their homes. The district court erred in dismissing

Plaintiffs’ APA claim before allowing adequate development

of the record. Plaintiffs’ claim rests on two separate legal

obligations that give rise to cognizable claims under the APA.

First, as discussed above, the regulations in effect when

HUD approved the 153 Blackfeet homes in the late 1970s

required that housing materials meet specified Minimum

Property Standards. 24 C.F.R. § 805.212 (1979); Indian

Housing Handbook §§ 3-19, 3-20. The Minimum Property

Standards permitted, but did not require, 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.;

see also Minimum Property Standards Handbook app. E, pp.

E-1 and E-2. According to the complaint, HUD required

Plaintiffs, in violation of its regulations, to use wooden foundations and, further, to use arsenic-treated lumber. 

Second, as discussed above, 42 U.S.C. § 1441 imposes

binding legal obligations on HUD. Of importance here, HUD

is required to “encourage and assist . . . the production of

housing of sound standards of design, construction, livability,

and size for adequate family life.” Id. Plaintiffs allege that, by

requiring the use of arsenic-treated lumber, HUD violated 42

U.S.C. § 1441. 

[13] At this stage in the litigation, the record is silent about

whether HUD failed to comply with its own regulations and

whether arsenic-treated lumber was within industry standards

at the time. We therefore reverse the dismissal of Plaintiffs’

APA claim and remand to the district court for further factual

development.6

6Plaintiffs also seek an injunction ordering HUD to respond to their

repeated requests for assistance. In Marceau II, 519 F.3d at 851-52, we

held that HUD was under a legal obligation to respond to those requests.

MARCEAU v. BLACKFEET HOUSING AUTH. 11415
[14] Under the APA, a plaintiff must seek “relief other than

money damages.” 5 U.S.C. § 702. Previously, we held that

“the substance of [Plaintiffs’] claim is that they are owed

money damages.” Marceau I, 455 F.3d at 985. On rehearing,

we now hold that Plaintiffs’ request for an injunction ordering

HUD to repair or rebuild their homes is not a suit for “money

damages,” as that term is used in § 702. 

[15] In Marceau I, we followed the Fifth Circuit’s ruling in

Amoco Products Co. v. Hodel, 815 F.2d 352 (5th Cir. 1987),

and looked to whether an award of money damages could

substitute for the requested injunction. See Marceau I, 455

F.3d at 985 (“Here, money damages in an amount necessary

to repair or rebuild Plaintiffs’ home[s] would be a sufficient

remedy, and, therefore, an injunction is not an available remedy.”). After Amoco, the Supreme Court emphasized that the

correct inquiry is whether the plaintiff seeks compensatory

relief or instead seeks specific relief; the former constitutes

“money damages” but the latter does not. Bowen v. Massachusetts, 487 U.S. 879, 895 (1988); see also Dep’t of the

Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (“Bowen

held that Congress employed this language [‘money damages’] to distinguish between specific relief and compensatory, or substitute, relief.”). At least one federal circuit court

has recognized that Amoco is no longer good law. Doe v.

United States, 372 F.3d 1308, 1313-14 (Fed. Cir. 2004); see

also Nat’l Ass’n of Counties v. Baker, 842 F.2d 369, 373

(D.C. Cir. 1988) (rejecting the Amoco rule in a case that predated Bowen). 

We relied on the obligations found in 24 C.F.R. § 905.270 (1977), and 25

U.S.C. §§ 4111 and 4132(1). On rehearing, we now hold that HUD had

no legal obligation to respond to Plaintiffs’ requests, sufficient to give rise

to a claim under the APA. Read broadly, those regulations and statutes

impose an obligation on HUD to respond to properly formed requests for

assistance by housing authorities. They do not require HUD to respond to

requests by homeowners such as Plaintiffs, and there is no evidence in the

record of a properly formed request for assistance by the Blackfeet Housing Authority. 

11416 MARCEAU v. BLACKFEET HOUSING AUTH.
[16] Plaintiffs seek an injunction, which constitutes specific

relief. The injunction sought by Plaintiffs seeks not to compensate, but to “give the plaintiff[s] the very thing to which

[they] w[ere] entitled.” Bowen, 487 U.S. at 895 (internal quotation marks omitted). We therefore conclude that this relief

is not “money damages” under 5 U.S.C. § 706. See Bowen,

487 U.S. at 893 (“[I]nsofar as the complaints sought declaratory and injunctive relief, they were certainly not actions for

money damages.”); Tucson Airport Auth. v. Gen. Dynamics

Corp., 136 F.3d 641, 645 (9th Cir. 1998) (“The remedy that

[the plaintiff] seeks in its complaint is, at bottom, specific performance of the . . . [c]ontract. An action for specific performance is not an action for ‘money damages’ under APA

§ 702, even if the remedy may actually require a payment of

money by the government.”). Consequently, Plaintiffs’ APA

claim seeking injunctive relief is not barred. 

D. Breach of Contract Claims

[17] We readopt our earlier opinion, Marceau I, 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 exhaustion of tribal

remedies and the Administrative Procedure Act. I dissent with

regard to the majority’s analysis of federal trust responsibility,

and write separately on that issue. 

MARCEAU v. BLACKFEET HOUSING AUTH. 11417
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 Homeownership Program to meet the housing needs of low-income American Indian families. HUD entered into agreements called

“Annual Contributions Contracts” with tribal housing authorities under which HUD agreed to provide a specified amount

of money to fund projects undertaken by the housing authorities and pre-approved by HUD. See 24 C.F.R. § 805.102

(1979); id. § 805.206. After securing funding from HUD, 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 SelfDetermination 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 Handbook.” See H.R. Rep. No. 100-604 (1988), reprinted in 1988

U.S.C.C.A.N. 791, 793. 

In 1977, the Blackfeet Tribe established a separate entity,

the Blackfeet Housing Authority, as 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

1These facts, except as noted, are taken from Plaintiffs’ complaint,

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

11418 MARCEAU v. BLACKFEET HOUSING AUTH.
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.” Blackfeet Tribal Ordinance No. 7, art. II, §§ 1-2 (Jan. 4, 1977).

Thereafter, HUD granted the Housing Authority authorization

and funding to build 153 homes. 

Construction of the homes took place between 1979 and

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

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

wood products used to build the foundations were chemically

treated with arsenic and other toxic chemicals. Plaintiffs

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

of wood foundations over the objection of tribal members,

and that the Housing Authority acceded to that directive. 

In the ensuing years, the foundations were, predictably,

vulnerable to moisture accumulation and structural instability.

Today, some of the houses are uninhabitable due to toxic

mold and dried sewage residues. There has been a high incidence 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 Program 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

MARCEAU v. BLACKFEET HOUSING AUTH. 11419
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 responsibility to tribal members.2

 The federal government has substantial

trust responsibilities toward Indians. These duties are part of

the nature of the government-Indian relationship. “[A] fiduciary 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 government’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. Norton, 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

2Count Three of Plaintiffs’ original complaint alleged that HUD has

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

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

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

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

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

holding that no express or implied right of action existed under those statutes. Accordingly, I do not consider those statutes here. 

11420 MARCEAU v. BLACKFEET HOUSING AUTH.
Indians onto reservations. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 

In the second half of the nineteenth century, the government replaced its policy of relocation with one of assimilation. 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,

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 individual tribal members, white settlers could purchase the lands

from tribe members. 

The federal government ceased allotting tribal lands to individuals 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 Congress adopted a “termination policy.” Under termination,

3Where tribes resisted allotment, it could be imposed. See Act of June

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

MARCEAU v. BLACKFEET HOUSING AUTH. 11421
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 relationship. 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

Congress enacted the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203 (1975).

Today, much tribally owned land is held in trust “indefinitely.” 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 General 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 General Allotment Act, the trust responsibilities of the federal

government under the statute were merely to prevent alienation 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

11422 MARCEAU v. BLACKFEET HOUSING AUTH.
the Court of Claims for consideration of whether other statutes 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

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 existence of a fiduciary relationship, especially given the pervasive 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 interpreted as mandating the payment of money — thereby satisfying 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 inadequate 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 indicate that the government’s obligation must go beyond the

mere general obligation that it owes to domestic dependent

MARCEAU v. BLACKFEET HOUSING AUTH. 11423
sovereigns. A tribe must demonstrate specific statutory language 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 Secretary of the Interior, entered into a lease with the corporate predecessor of the Peabody Coal Company for coal mining on

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 “reasonable” 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 twelveand-a-half percent, retroactive to 1984, and included other

concessions such as coal company acceptance of tribal taxation 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-anda-half percent negotiated). 

In 1993, the Navajo Nation filed suit in the Court of Federal Claims under both the Tucker Act and the Indian Tucker

Act, claiming that the Secretary of the Interior breached the

11424 MARCEAU v. BLACKFEET HOUSING AUTH.
government’s trust obligations by approving the 1987 amendments 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 maximize 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 continued primacy of Mitchell I and Mitchell II as “the pathmarking

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 rightscreating or duty-imposing statutory or regulatory prescriptions.” 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 mining 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

MARCEAU v. BLACKFEET HOUSING AUTH. 11425
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

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 Mountain Apache Tribe v. United States, 46 Fed. Cl. 20, 22 (1999).

In the 1920s, control of the fort was transferred to the Department 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 Interior to use any part of the land and improvements for administrative 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 exercised the statutory prerogative to use the property, but then

allowed Fort Apache to fall into disrepair and failed to perform 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 preservation. White Mountain Apache Tribe, 537 U.S. at 469. The

tribe brought suit in the Court of Claims arguing that the government had breached its fiduciary duty. 

11426 MARCEAU v. BLACKFEET HOUSING AUTH.
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 Government 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

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 likewise assumes an obligation as trustee to preserve those assets,

even absent express statutory delineation of duties of management and conservation. Id. As the Court observed, “elementary trust law, after all, confirms the commonsense

assumption that a fiduciary actually administering trust property 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 government’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)

MARCEAU v. BLACKFEET HOUSING AUTH. 11427
(summarizing these important cases and discussing their interplay 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, plaintiffs must go beyond asserting the general trust relationship

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 pervasive governmental control over a tribal resource, a specific

trust relationship and concomitant fiduciary duty are created.

In Navajo Nation, the Court examined the Interior Department’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 significant 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 relationship 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 attendant 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

11428 MARCEAU v. BLACKFEET HOUSING AUTH.
federal government exercises over the tribal asset at issue.

Here, the asset is housing. The federal government’s pervasive 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 practical 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 security. 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 admirable 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 Commission on Civil Rights reported that American Indians have consistently found it difficult to obtain mortgages on their land

because the land is held in trust and therefore cannot be used

as collateral. See 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 exercises 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 reasonable source of housing in many reservations,” see H.R. Rep.

100-604, reprinted in 1988 U.S.C.C.A.N. 791, 795, in part

because the land was held in trust. 

MARCEAU v. BLACKFEET HOUSING AUTH. 11429
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 operating on Indian lands prevent developers from entering the private tribal housing market, and leave tribes with no option but

to wait for the federal government to provide decent, safe, and

sanitary housing. 

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 conditions on reservations. See Native American Housing Assistance 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 preservation of Indian tribes and for working with tribes and

their members to improve their housing conditions

and socioeconomic status so that they are able to

take greater responsibility for their own economic

condition; . . . [Moreover,] providing affordable

homes in safe and healthy environments is an essential element in the special role of the United States

in helping tribes and their members to improve their

housing conditions and socioeconomic status. 

25 U.S.C. § 4101(4)-(5) (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

11430 MARCEAU v. BLACKFEET HOUSING AUTH.
process of forcing the tribes onto reservations, many tribes

were explicitly promised housing in exchange for land cession. 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

such a treaty. The Court of Claims has held that treaty language 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 government 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 government to build houses and fences, and open farms.” See Davis,

18 Harv. BlackLetter L.J. at 224 (quoting Comm’r of Indian

Affairs, Annual Report iv-v (1885)). Henry Dawes, proponent

of the General Allotment Act, stated that housing was a central 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 government’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 government 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 fiduciary obligation regarding the buildings and the land. The

MARCEAU v. BLACKFEET HOUSING AUTH. 11431
obligations surrounding the buildings had also been heightened 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 recognizing the trust relationship. 

The present case is similar in several respects. The federal

government controlled the design of the houses, set the building standards, approved all the designs and contracts, and provided 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 standards, standards that permitted the use of the wood foundations 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 HUDapproved. 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 adminis11432 MARCEAU v. BLACKFEET HOUSING AUTH.
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 control 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

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 involvement, and it stands in sharp contrast to the pervasive regulation 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

MARCEAU v. BLACKFEET HOUSING AUTH. 11433
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 timber management statutes and noted that the statutory framework 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 analysis, the determining factor in the present analysis lies in the

housing statutes that resulted in the construction of the substandard 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 “authorized” 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

11434 MARCEAU v. BLACKFEET HOUSING AUTH.
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 housing 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). 

HUD implemented, by regulation, a “Mutual Help Homeownership 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 legislation 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 programs out of the U.S. Housing Act consolidating the programs 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). 

MARCEAU v. BLACKFEET HOUSING AUTH. 11435
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 contracts. 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

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 materials used. Such a view, however, ignores the overarching housing 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 lowincome families. The tribe had little choice but to accept the

government housing program. HUD’s Homeownership Program was the “only reasonable source of housing in many reservations,” see H.R. Rep. 100-604, reprinted in 1988

U.S.C.C.A.N. 791, 795, 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 undertook 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

11436 MARCEAU v. BLACKFEET HOUSING AUTH.
through a pervasive regulatory structure, I would hold that the

federal government, having undertaken this task, had an obligation 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

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

MARCEAU v. BLACKFEET HOUSING AUTH. 11437