Dewakuku v. Cuomo

• Decision Date: 14 July 2000
• Docket Number: No. CIV.A.98-00415-PCT-P.,CIV.A.98-00415-PCT-P.
• Citation: 107 F.Supp.2d 1117
• Parties: Serena DEWAKUKU, Plaintiff, v. Andrew M. CUOMO, Secretary of the United States Department of Housing and Urban Development, Defendant.
• Court: U.S. District Court — District of Arizona

Page 1117

107 F.Supp.2d 1117

Serena DEWAKUKU, Plaintiff, v. Andrew M. CUOMO, Secretary of the United States Department of Housing and Urban Development, Defendant.

No. CIV.A.98-00415-PCT-P.

United States District Court, D. Arizona.

July 14, 2000.

Samuel Davis Gollis, DNA People's Legal Services Inc., Keams Canyon, AZ, for Plaintiff.

James C. Hair, Jr., U.S. Attorney's Office, Phoenix, AZ, Veronika Fabian, DNA-People's Legal Services, Flagstaff, AZ, for Defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.¹

I. Introduction

Serena Dewakuku ("Dewakuku") is a member of the Hopi Indian Tribe. The Hopi Indians live on a reservation of nearly 4000 square miles in northeastern Arizona. Anthropologists believe that the general area in northern Arizona upon which the Hopi Reservation now stands has been occupied for as long as 10,000 years and continuously occupied for at least 2000 years.²

Beginning as early as 500 A.D., Hopi settlements were built on the tops of three mesas.³ Dewakuku currently lives in the pueblo of Kykolsmovi on Third Mesa, very near the pueblo of Oraibi which is said to be the oldest continuously settled community in the United States.⁴ The pueblos consisted of terraced apartment buildings of adobe arranged around streets and plazas. The structures were two or more stories in height.⁵ Residence was matrilocal and extended families lived together.⁶

In light of the foregoing, it is rather ironic that this case involves a house — a house built in 1991 pursuant to a federal housing assistance program whose espoused purpose was to provide safe and decent housing to Native Americans. All parties agree this "modern" house was shoddy and inferior on the very day it was constructed.

II. Background

Dewakuku brings this action against Andrew M. Cuomo (the "Secretary"), Secretary of the Department of Housing and Urban Development ("HUD") to obtain correction and repairs of the design and construction defects in her home. Dewakuku alleges three specific claims: (1) the Secretary violated the Indian Housing Act and its implementing regulations; (2) the Secretary breached his obligations under the Annual Contributions Contract of which Dewakuku is an intended beneficiary; and (3) the Secretary violated the Administrative Procedure Act ("APA") by failing to enforce the standards and perform his duties.⁷

Dewakuku is a home buyer under the federal Mutual Help Ownership Opportunity Program (the "Homeownership Program"), of a home built by the Hopi Tribal Housing Authority (the "Hopi Housing Authority") under contract with HUD. See Def.'s Exs. 6-11. She claims that the Secretary breached his regulatory, statutory, and contractual responsibilities, and as a result, she is living in an ill-designed, poorly constructed home with a malfunctioning electrical system, cracking walls and floors, a leaky roof, and popping nails, that is unsafe and expensive to heat. It is well documented that Dewakuku's attempts to obtain corrections of the defects through the Hopi Housing Authority were unsuccessful. See Def.'s Exs. 13-18.

Dewakuku seeks a declaratory judgment that the Secretary failed to meet his legal obligations under the Indian Housing Act of 1988 and its implementing regulations to provide her with a decent, safe, and sanitary home. She asks this Court to issue an order directing the Secretary to comply with his responsibilities by curing the defects in design and construction of her home either by repair or reconstruction. In addition, she seeks money damages for the breach of contract claim.

The Secretary admits that Dewakuku's home is substandard. He insists, however, that HUD is not responsible for the correction of these defects. According to the Secretary, the Indian Housing Act and its implementing regulations do not create any legally enforceable duties. Instead, he says Dewakuku must pursue a claim against the Hopi Housing Authority.

In a letter to this Court on October 13, 1999, the parties agreed that this action could be decided on their cross-motions for summary judgment. As there are no disputed issues of fact, the Court agreed.

III. Discussion

A. Historical Context

"To understand the present, you must first learn about the past. That is the Hopi way ...."⁸

"Too often we neglect the past. Even more than other domains of law, `the intricacies and peculiarities of Indian law deman[d] an appreciation of history.'"⁹

1. Federal Policy

To appreciate the nuances and complexities of the legal issue before this Court, an understanding of the relationship between the United States government and Native American tribes is necessary. An overview of the evolution of federal policy¹⁰ toward Native peoples sets the stage for a closer examination of Indian housing generally and the specific difficulties faced by Dewakuku.

For over two hundred years, Congress has vacillated between two conflicting policies: self-government for tribes and assimilation of Native peoples into mainstream America. The tension between these two goals is obvious. Moreover, their implementation has wrought havoc on the survival of the Native tribes and their individual members. Historically, policy implementation can be divided into a series of eras, each marked by new legislation to achieve federal goals.

The basis of these policies is the Indian trust doctrine. In the nineteenth century, the concept of "trust" crept into Indian law when the Supreme Court declared that treaties with Indian tribes made them into "domestic dependent nations" whose relationship with the United States "resembles that of a ward to its guardian." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). This trust relationship has been the source of two opposing visions, one emphasizing federal power, the other federal responsibility.¹¹ Congress has used the trust doctrine to implement a variety of programs.

Between 1881 and 1934, during the Era of Allotment and Assimilation, the federal government drastically reduced Indian land holdings from 156 million acres (an already diluted quantity) to 48 million acres.¹² Large tracts of tribal lands were opened to homesteading by non-Indians. This era also marked the advent of the Indian boarding schools at which Indian youth, removed from their homes and families, were required to abandon their languages, native dress, religious practices, and other traditional customs.¹³

In 1934, following a report by the Brookings Institute that chronicled the severe conditions faced by Native Americans,¹⁴ Congress attempted to undo the damage inflicted during the Era of Allotment and Assimilation.¹⁵ New legislation re-established tribal governments, provided funds to recover lost lands, and set up programs to encourage tribal economic development. The government's benevolent attitude, however, was short-lived.

In 1953, during what became known as the Termination Era, Congress made a radical shift in its relationship with Native American tribes. Legislation unilaterally terminated federal recognition of more than 100 tribes and, consequently, federal services and protection.¹⁶ Large tracts of Indian lands were once again allowed to pass into non-Indian hands, further exhausting an already scarce resource.¹⁷ During this period, a "relocation program" was instituted, Indians were encouraged to move away from the reservation to urban areas, and tribal economic development was largely ignored.

During the present era, referred to as the Era of Self-Determination, the federal government has attempted to work with the Native American tribes to aid them in establishing tribal sovereignty while still recognizing its special duties to the welfare of Native people.¹⁸ President Nixon summarized this new approach in his Special Message on Indian Affairs. "[W]e must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support."¹⁹ This has been a balance that has been difficult to achieve.

2. Indian Housing Legislation

Not surprisingly, the vacillating federal policies and resulting disruption and dislocation has helped create a Native American housing crisis. Twenty-eight percent of all Indian and Alaska Native families live in substandard, overcrowded housing that lack the basic amenities of indoor plumbing, electricity and heating. See 142 Cong. Rec. S12405 (daily ed. Oct. 3, 1996) (remarks of Senator McCain). By way of comparison, less than five and one-half percent of all Americans live in similar conditions. See id. Additionally, more than 90,000 Native American families are estimated to be under-housed or homeless. See id. These severe housing problems are compounded by poverty and unemployment levels in Native American communities that have reached epidemic proportions. See id. The number of Indian families with incomes below the poverty line is nearly three times the average rate for families throughout the rest of the nation. The average income of Native Americans is less than $4,500 per year. See id.

The lack of housing available on Native lands amplifies the devastating effects of the federal government's ambivalence toward the American Indian. As late as 1992, the first year Dewakuku lived in her home, a report on Indian Housing stated:

Indian housing has been and remains grossly substandard in comparison with housing nationwide. Public health, social conditions, education, economic opportunity, and a host of other facets of Indian life have been negatively affected by the protracted housing crisis suffered by our nation's first residents.²⁰

While national housing legislation to help Americans find decent, safe, and sanitary living conditions was introduced in 1937, programs for Native Americans were not created for another thirty years. This gap of nearly three decades is not surprising, however, given the federal policy regarding assimilation and the slow erosion of tribal lands.

It wasn't until 1962 that the Public...