Marceau

Plaintiffs represent members of the Blackfeet Indian tribe who purchased or leased homes built under the auspices of the Department of Housing and Urban Development (“HUD”) Mutual Help and Homeownership Program (“MHHO Program”). Plaintiffs’ homes were built with wood foundations, using wood pressure-treated with arsenic and other toxic chemicals. Plaintiffs allege that this use of wood foundations caused their homes to deteriorate, and that the present condition of the homes has caused and continues to cause severe health problems for the homes’ residents. They sued both HUD and the Blackfeet Tribal Housing Authority (“Housing Authority”) and its board members alleging numerous statutory and contractual violations. We have jurisdiction under 28 U.S.C. § 1291 , with the limitations discussed below. We reverse the district court’s dismissal of the claims against the Housing Authority, and affirm dismissal of the claims against HUD.

I. Factual Background

Pursuant to the goals set out in the United States Housing Act of 1937, 42 U.S.C. §§ 1437-1440 (2005), HUD developed the MHHO Program. The MHHO Program was designed to meet the housing needs of low-income American Indian…

specially concurring:

I write separately to point out the manifest injustice of releasing the federal government from responsibility in this suit. The relationship between the federal government and the tribes has been one of promises carelessly made and callously broken. Here we see that in the area of tribal housing, as in so many other areas, we as a nation have ignored the collateral consequences of our conduct toward American Indians and have utterly failed to live up to our promises. We have a moral duty, if not a legal duty, to remedy the harm caused to these Plaintiffs.

Much tribally-owned land, including the land at issue here, is held in trust “indefinitely.” 25 U.S.C. § 462 . The decision to hold the land in trust was made, in part, to prevent tribes from unwisely alienating their land. As the Supreme Court noted: “[W]hen Congress enacted the General Allotment Act, it intended that the United States ‘hold the land ... in trust’ not because it wished the Government to control use of the land and be subject to money damages for breaches of fiduciary duty, but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from the…

I. Factual Background1

Pursuant to the goals set out in the United States Housing Act of 1937, 42 U.S.C. §§ 1437-1440 (2005), HUD developed the MHHO Program. The MHHO Program was designed to 1 These facts, except as noted, are taken from Plaintiffs’ complaint, which is presumed true for purposes of this Rule 12(b)(6) proceeding. For a more vivid description of the Plaintiffs’ plight, see Jessie McQuillan, Rotten Deal, Missoula Indep., April 6, 2006, available at http:// www.missoulanews.com/News/News.asp?no=5625. MARCEAU v. BLACKFEET HOUSING AUTHORITY 8077 meet the housing needs of low-income American Indian fami- lies. HUD entered into agreements called “Annual Contribu- tions 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, the Housing Authority, in turn, would contract with eligible American Indian families. See id. § 805.406. The families were required to contribute land, labor, or materials to the building of their house, see id. § 805.408,…