Ruling clears way for suits over tribal housing

 

Ruling clears way for suits over tribal housing

By JENNIFER BYRD
Associated Press Writer

BROWNING — Candice LaMott calls her house "poison."

There's black mold under the sink, holes in the walls and a foundation made of chemically treated wood, conditions she believes are responsible for illness in her family and even her mother's death.

"When she got this house, she just thought it was a mansion," LaMott said of her mother, from whom LaMott inherited the house. "She didn't care that the wood was going to kill her."

LaMott is one of a number of low-income Blackfeet tribal members who sued the tribe's housing authority and the U.S. Department of Housing and Urban Development in 2002 to have their houses, which were built in the late 1970s, replaced.

U.S. District Judge Sam Haddon dismissed both lawsuits in 2004. But a recent ruling by the 9th U.S. Circuit of Appeals is giving the homeowners some hope. That panel reinstated the lawsuit against the tribal housing authority.

The ruling is drawing attention throughout Indian Country because of its reasoning. The 9th Circuit said the Blackfeet tribe waived any claim to sovereign immunity in the ordinance that created the tribal housing authority. Lawyers say identical language is present in the founding documents of most tribal housing authorities around the nation.

"I think with this lawsuit, a lot of doors will open to Native Americans," LaMott said. "No longer should we stay in this type of home. We do live in America, but it's just a whole different world right here."

About 150 houses on the reservation were built in the 1970s with wooden foundations that were treated with arsenic and other toxic chemicals as preservatives. The plaintiffs allege that the use of the wood foundations caused their homes to deteriorate, and that the conditions of the homes have caused severe health problems, including asthma, kidney failure and respiratory problems. LaMott's mother, Dorothy, died of kidney failure about five years ago.

The families purchased or leased the homes through the HUD Mutual Help and Homeownership Program, which was designed to address housing needs of low-income American Indian families.

To be eligible for federal grants, the tribe had to form a housing authority charged with alleviating the shortage of "decent, safe and sanitary" housing.

The plaintiffs claimed that HUD required the use of wood foundations over the objection of tribal members and that both HUD and the housing authority failed to live up to the program's obligations.

Haddon dismissed the lawsuit against HUD, ruling he lacked jurisdiction to hear the matter. He dismissed the case against the tribal authority, ruling that it had sovereign immunity.

A three-member panel of the appeals court, however, disagreed, saying the Blackfeet tribe waived its immunity in this case when it signed an ordinance creating the housing authority in the '70s.

While LaMott and her neighbors are pleased with the court's decision, it is causing a buzz among American Indian legal experts who say it conflicts with decisions by other courts and could have unintentional consequences for all tribes.

"It's a case that is decided in the right way, but for the wrong reasons," said University of Montana law professor Raymond Cross.

"There certainly is a sense on the court that they need to provide some remedy for these Indian homeowners, and that's certainly understandable. Yet the legal means by which they do it, I think, are going to create more problems than solutions in the long run."

Cross said the ruling opens federal courts up to hearing cases that typically would be heard by tribal or state courts. And, he said, it opens tribal housing authorities to lawsuits from both tribal and non-tribal members.

"I think the lower federal district courts are not going to thank the 9th Circuit for doing that," Cross said.

Steve Doherty, the housing authority's attorney, is asking the full appeals court to rehear the matter. If the court refuses, an appeal to the U.S. Supreme Court is likely, Cross said.

The appeals court pointed to a clause in the ordinance, saying it was "a clear and unambiguous waiver of tribal immunity." Many Indian law attorneys who represent tribal housing authorities are concerned by that finding, said Richard Guest,a staff attorney with the Native American Rights Fund in Washington.

"I would say the vast majority of housing authorities have that law on their books," Guest said. "It's that ordinance and that language that is the concern because that was boilerplate, it was standard. HUD required tribes to adopt that specific language or they wouldn't get federal funding."

Jason Adams, executive director of the Salish and Kootenai Housing Authority on the Flathead Indian reservation, said he was disappointed the court essentially let HUD "off the hook" for any responsibility for the poor condition of the homes.

"HUD had an obligation to assure that those families were getting decent safe and sanitary homes," Adams said. "Them being released of any liability, I think, is a travesty; that's just terrible."

Susan Hammer, executive director of Ute Indian Tribal Housing Authority in Utah and a board member of the National American Indian Housing Council, also said HUD should be held responsible in the case.

"HUD has a huge responsibility here and should have stood up with and for the tribe," Hammer said in a written statement. "During the times that these homes were built, every single decision had to be submitted and approved by HUD. The locations, the clients, the house plans, the environmental issues, all of that was controlled by HUD."

Jane Goin, a HUD spokeswoman in Denver, declined comment because the case is pending. Attempts to reach Ray Wilson, executive director of Blackfeet Housing, for comment were unsuccessful.

While the appeals court ruling was a small victory, LaMott and her neighbors know it is far from the end of the battle. Even if they get a jury or judge to agree the tribal authority needs to repair or replace their homes, there's the bigger question of who would pay for it — since most of the housing authority's funding comes from HUD.

"It would be robbing Peter to help Paul because that money is marked for other housing needs," said Mary Ann Sutton, a Missoula attorney representing the plaintiffs.

The real problem, Guest said, is that Congress is simply not putting enough money toward Indian housing needs.

"In this day of huge deficits, one of many programs being cut is money to Indian housing," Guest said. "Money isn't being provided to remedy this kind of problem."

But the appeals court ruling may be a small step toward rectifying the problems, Sutton said.

"It gives the tribal members a measure of accountability which, in our position, should have always been that way," she said.

As winter approaches, LaMott wishes the lawsuit would move along quicker so she could get a new home that doesn't have cracks in the walls and holes around the doors that let cold air in.

She understands the legal process takes time, but frustration is setting in for her and her neighbors. They see new housing projects go up around the reservation for other residents and wonder why that money can't go to fixing or replacing their homes.

But, LaMott said, she has no choice but to stay in the house she considers dangerous because she has no other options.

"This is the way we live," LaMott said. "People need to know about this. We're just like foreigners in the United States. There's no way this type of housing would be allowed on the outside (of the reservation.)"

Originally published August 27, 2006

http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=/20060827/NEWS01/608270303/1002

Why I share

I am sure that a lot of people wonder why I focus so much on Native American health issues and perhaps it is a good time to explain that I am in the medical profession, a registered nurse.

 

There is a great need to teach, and to share, but being a nurse does not affect me as deeply in needing to teach and to share as the fact that we, as a  people and of Native blood, are eliminating ourselves from the pages of history by accepting the ways of the outside world.

 

I believe that our flesh is a temple of the Creator and that we are a being made like the Creator......... and that one day we will will return to the sky to walk in freedom with our ancestors.

 

The "white man," per se, no longer kills off our people or destroys our ways, for WE are allowing death to walk freely among our people by the choices we make and the paths we  now walk...... paths and choices made by our own hands now.

 

Yes, we none chose to live on another man's land set aside and called a reservation. Yes, we none chose to be in poverty or be pushed down and aside by the government.

 

But we as a people have always had the freedom to choose how we will live and act and react to the world around us. We have always been free within our flesh. Free to live and to choose how our inner spirit man will rejoice or grieve.

 

There are schools and colleges and ways to learn and become more than what we other's think we are.

 

We, as human animals choose what food we will put into our mouths. 

 

We choose what we will drink.

 

We choose how we will live.

 

We choose to keep our souls and minds and flesh healthy and active and full.

 

No man can take the potential of what we can be away from us.

 

Poverty, alcoholism, addictions, renal disease, liver disease, illiteracy, spiritual death and emptiness and blatant neglect of our own physical bodies will be what kills off the Native American way if we so allow it.

 

Mother earth has provided all that we have need of. Fresh water to hydrate our body. The wisdom of the ancestor's and the animals and the ways of Mother Earth and all of creation to feed our soul..... to replenish and nourish the inner man.

 

The foods that we can eat to stay healthy  our Mother Earth still provides. ((Eating no more than that which is needful is still a way of wisdom.))

 

Walking and running were once a way of survival, to chase animals that were fast and moved like the wind. Our bodies stayed strong and healthy because we exercised our flesh and our minds to catch game and prey.

 

Now we eat poor quality foods and sit and do not move or chase. Our bodies have become weak like the old days when it was the white man's horses that could not run as fast as ours or his stamina compete with our young warriors.

 

Now the enemy is no longer the government or the white man, but it is our own laziness and weakness that we permit to rise up and become strong while the path of our ancestors become faded memories.

 

As a creation, as an animal, as a people, as a tribe, as a clan, as a Native, as a woman. I choose how I will live.

 

I want to share what I have learned,

 

................ and what I am still learning.

 

That is why I focus more on health issues.

 

 

 

Diabetes rising among Native Tribes

Diabetes still rising among Indians

 

OKLAHOMA CITY American Indians have the highest incidenceof diabetes among racial groups but health officials say there's still time for prevention.

Tribal leaders, health professionals and American Indian health specialists from across the country are attending the four-day Diabetes Prevention Conference that started Monday in Oklahoma City.

Speakers say studies show that lifestyle changes including diet, exercise and weight loss significantly reduce diabetes risk in all populations.

Experts project that a quarter of all non-Hispanic whites and 50 percent of all people of color born in 2000 will develop diabetes in their lifetimes.

But Doctor Richard Hamman of the University of Colorado's Department of Preventive Medicine says one study suggests that for every two-point-two pounds of weight loss, there is a 16 percent reduction in diabetes risk.

The conference is sponsored by the Indian Health Service and the Oklahoma Native American EXPORT Center.

Copyright 2006 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Construction reveals Native sites

Updated:2006-08-15 07:34:25

Construction unearths disputes

By Emily Bazar, USA TODAY

USA Today

Construction of homes, roads and bridges is stalling as bulldozers increasingly unearth Native American remains and artifacts.

Projects are taking longer and costing more as developers navigate laws on such discoveries and negotiate with Indians concerned about their ancestors' spirits and remains.

"They're developing land that had been left alone previously," says Carole Wilson, historic preservation specialist for the Lancaster County Planning Commission in Pennsylvania. "Now, there's development pressures."

Federal, state and local laws generally require landowners who discover remains or artifacts to take some action, such as halting work and calling a coroner.

"It's happening more and more and more, simply because of development," says Larry Myers, executive secretary of California's Native American Heritage Commission.

The discoveries can lead to disputes. Some are resolved quickly. Others bring delays, added costs and bitterness:

-- In Washington state, the Chinook Indian Nation is negotiating over a stalled project to expand Station Camp State Park and realign a highway.

After a village site and the remains of about 10 people were discovered last year, the state halted construction and the tribe reburied its ancestors' remains.

Recently retired tribal chairman Gary Johnson says tribe members didn't want their ancestors' spirits disturbed. "It's a very personal thing, and a huge responsibility that we have to protect them," he says.

Canceling the contract and other costs have totaled nearly $600,000, says Sylvia Ross of the Washington State Transportation Department.

-- The Washington State Transportation Department reported this summer on a bridge project it abandoned in 2004 after the remains of about 335 people were found. It says the failed Port Angeles venture cost $87 million, including about $6 million for meticulous excavation and other archaeological work.

-- In Phoenix and Tempe, Ariz., archaeologists are working with construction crews on a new light rail line and transit center where human remains are beingturned over to Salt River Pima-Maricopa Indians for reburial elsewhere.

The opening of the Tempe transit center has been delayed from December 2007 to spring 2008, partly because the findings have slowed work, says Tempe spokeswoman Amanda Nelson.

-- New York City's plan to build the world's largest ultraviolet water treatment plant was delayed by 13 months after arrowheads, pottery and other artifacts were discovered on the Westchester County site last year, says Ian Michaels, spokesman for the city's Department of Environmental Protection.

Because of the delay, the contractor hired to prepare the site abandoned the project. The city hired another firm for $2.3 million more, he says, and construction resumed in June.

-- In Santa Fe, preliminary work on a new civic center and underground parking garage stopped for two months last year after the discovery of remains and artifacts, some dating to 1200.

In negotiations with the Tesuque Pueblo, the city agreed to reduce the size of the garage from 600 spaces to 512, "so it would be built around the most sacred areas," city spokeswoman Laura Banish says.

The redesign and other costs from the delay total about $500,000, she says.

Working together

California's Native American Heritage Commission names a "most likely descendant" when remains are discovered. That person or tribe has 24 hours to recommend what should be done.

Landowners can accept or reject the recommendations, says the commission's Myers. If they reject them, the remains must be reburied on another portion of the property that won't be disturbed.

Lalo Franco was named most likely descendant last year after remains were discovered in the Central Valley city of Tulare.

Franco, cultural and historic preservation director for the Santa Rosa Rancheria Tachi Yokut Tribe, says his recommendations are based on the tribe's spiritual beliefs. Among them: Spirits sometimes return to the spot where they were buried. "The spirit returns to the earth it loved tremendously to rest and to visit," he says.

Franco conferred with Charlie Boghosian, owner of the 19-acre housing development.

Initially, Boghosian was worried. "You're thinking, 'This could be the end of it, big trouble, and I could be shut down,' " he says. "Human nature is, 'Let's try to figure out how we can get around this.' "

After meeting with Franco, Boghosian says he came to "a realization that these are human beings." He offered to create a memorial and walking trail nearby, where Franco's ancestors will be reburied.

Recovery of the remains of eight people and about 2,000 bone fragments delayed construction by about a month and cost about $30,000, Boghosian says.

"This is Lalo's family," he says. "They lived here before us and they should be respected."

No resolution

Another California dispute has not been resolved as amicably.

The Playa Vista development in West Los Angeles will have 5,846 residences, retail and office space. About 2,000 units have been built.

Earlier excavations unearthed Native American remains, so developers prepared for the likelihood of discovering more, says project spokesman Steve Sugerman.

They made a plan before breaking ground: When Native American remains were found, Sugerman says, they would be excavated, stored on the site and reburied elsewhere in the development.

The remains of 391 people were unearthed, he says.

Robert Dorame, tribal chairman of the Gabrielino/Tongva Indians of California Tribal Council, was named most likely descendant and agreed to the company's plan before the extent of the remains was known. Once he realized how large the burial ground was, he says, he asked developers to stop and relocate the project around it. "It's a sacred ground," he says.

The company says it couldn't redesign a streambed it needed for flood control and water treatment. So, Sugerman says, it excavated the remains sensitively and carefully.

"We spent many millions of dollars to do it," he says. "We really tried our best. This was a meticulous process."

Dorame says he still agonizes over removal of his ancestors' remains. He fears his ancestors' spiritual journeys have been disrupted.

Choking back tears, he says, "I was devastated."

http://news.aol.com/topnews/articles/_a/construction-unearths-disputes/n20060815073409990019