Martin Marceau and his neighbors were getting sick, and they knew why.
When the Blackfeet Tribal Housing Authority, headquartered in Browning, Montana, constructed their rent-to-own homes between 1979 and 1980, with oversight and funding from the US Department of Housing and Urban Development (HUD), it had foregone concrete foundations as a cost-saving measure and instead used chemically-treated wood foundations. Within a few years, this decision exposed residents to toxins like arsenic from the wood, black mold, and dried sewage residue. They began to suffer myriad health problems, including nosebleeds, asthma, kidney failure, and cancer.
Marceau’s situation is unfortunately common on U.S. reservations. According to a report from the U.S. Commission on Civil Rights, approximately forty percent of reservation housing is considered inadequate, compared to six percent nationwide. One in five houses lacks complete plumbing facilities and sixteen percent are without telephone service. Furthermore, due to the chronic shortage of housing on U.S. reservations, 90,000 Indian families are homeless or inadequately housed. Many others have “doubled up” with relatives, such that thirty percent of reservation households are considered crowded, and eighteen percent severely so. In the early 2000s, HUD estimated that its currently available funding would meet only five percent of the need on reservations and that 230,000 units were needed immediately. Since then, funding has remained static or has declined.
Poverty plays a large role in this situation: More than a quarter of Native Americans live below the federal poverty line, the highest rate of any racial group. More importantly, generations of confused and contradictory federal Indian policies have resulted in over-reliance on public housing. Since Cherokee Nation v. Georgia in 1831, the US government has recognized its trust responsibility toward tribes, which it described as “domestic dependent nations;” however, the meaning of that responsibility has shifted over time. From relocation and the Trail of Tears (early to mid-1800s), to attempts to assimilate Indians into the prevailing culture by allotting them individual plots of land, with the federal government as trustee to prevent alienation (1887–1940s), to termination of tribal governments (1950s), to today’s “self-determination” ethos, the relationship between Native Americans and the U.S. government has been historically tumultuous and unstable. Traditional ways of life and modes of self-sufficiency were forcibly ended, compelling dependence on the federal government, only to have the government abruptly decide that Indians should once again be self-reliant. This legacy is still very present in Indians’ lives today, perhaps nowhere more clearly than in the housing context.
Low-income Native Americans thus face a unique quandary in finding safe, affordable housing. Because much of the land they occupy is still held in trust by the U.S. government, neither individuals nor the tribe can use it as collateral on a private loan. Thus, obtaining mortgages to build homes is very difficult, and private investment in developing Indian land is rare. There is effectively no real estate market on most reservations. Compounding the problem, construction on reservations is expensive because sites are isolated, infrastructure (water lines, plumbing, electricity, roads, etc.) must often be installed before a project can begin, and harsh climates mean a short construction season. Red tape abounds due to the involvement of several federal, as well as tribal agencies. Thus, private homeownership is relatively rare, and public housing remains the major source of housing on many reservations. The U.S. Commission on Civil Rights found that only thirty-three percent of Native Americans own their own homes, compared to sixty-seven percent of all Americans.
Efforts to improve existing housing stock are stymied by a complex web of legal infrastructure, as Martin Marceau discovered when he filed a class-action lawsuit. Over the course of nearly ten years of litigation in federal and tribal courts, his legal team faced obstacles like tribal sovereign immunity, exhaustion of tribal remedies, limits on the federal government’s trust responsibility, and the statute of limitations. Ultimately, although the Housing Authority argued that HUD had imposed rigorous construction requirements, the agency was not held responsible for the condition of the homes because the Ninth Circuit found that it had only provided funding. Furthermore, the court found, the current federal policy was intended to “recognize the right of Indian self-determination and tribal self-governance” in order to promote “economic self-sufficiency and self-determination for tribes and their members.” The case was then filed in the tribal court system. The Blackfeet Tribal Court found that the Housing Authority was responsible for the homes and had waived its sovereign immunity to suit in the then-effective Tribal Ordinance No. 7. Whether the homes were actually repaired is unclear.
Although Circuit Judge Pregerson in a partial dissent argued that the government could not ignore its trust responsibility by merely limiting it to “financing,” the end result is that there is no remedy for people like Marceau under U.S. law. Although HUD has extended mortgage loan guarantees through its Section 184 program, that program realistically only helps middle-income Indians who can afford the down payment for a home.
International law may provide some respite—if it is followed. Article 11 of the International Covenant on Economic, Social, and Cultural Rights, for instance, provides for the right to an adequate standard of living, including housing, and for “the continuous improvement of living conditions.” It further promises that states parties (of which the US is one) will take steps to realize this right. Article 25 of the Universal Declaration of Human Rights (UDHR) echoes this right. The UDHR is not directly legally binding, but is recognized as an influential pillar of international human rights law and representative of universal values. Finally, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the General Assembly in 2007 over four dissenting votes (including the U.S.’s) similarly holds in Article 21 that indigenous peoples have the right “to the improvement of their economic and social conditions,” including housing. It also provides that “states shall take effective measures” to ensure improvement. Like the UDHR, the UNDRIP is not legally binding, but rather reflective of shared values and thus part of the field of customary international law.
The U.S. should accept its legal and moral responsibility to ensure that Native Americans have access to a standard of living commensurate with the rest of the population. If domestic law does not provide the appropriate basis for this duty, Congress and the courts should look to the clear obligation in international human rights law to improve existing housing stock, add new units, and make homeownership more available to low-income Indians.