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Tribal Appeallate Court Victory

Wabanaki Legal News, 2007 edition


On February 19, 2007 the Passamaquoddy Appellate Court upheld the dismissal of an eviction action filed by the Housing Authority at Indian Township. The tenant was represented by the Native American Unit.

Previously the trial judge, Rebecca Irving, had dismissed the complaint on the grounds that the Housing Authority had failed to provide the tenant a proper notice of termination as required by its own written policies. The Housing Authority appealed that ruling. While upholding the decision by Judge Irving, the Appellate Court went further to clarify the procedural rights of tribal housing tenants.

The Court found that the Housing Authority had failed to give proper written notice of its intention to seek termination of the lease.  It also found that its staff had no independent authority to terminate the lease without approval by the Housing Board, and that the tenant was denied the due process to which she was entitled under the terms of the Indian Township Passamaquoddy Housing Authority Manual. The Appellate Court confirmed Judge Irving's finding that the Manual requires a written 30-day notice of termination that includes explicit information about the tenant's right to request both informal and formal hearings with the Housing Board.  It also confirmed that, only after the Housing Authority complies with the procedures required by the Manual, may it file a complaint for eviction in the Tribal Court. The Appellate Court stated that the termination notice that was given in this case was “grievously flawed in that it erroneously stated that the [the tenant's] lease was terminated in seven (7) days and it fails to account for the fact that only the Housing Authority Board of Commissioners, not the Housing Authority staff, has the power to terminate the lease.

This decision clarifies other questions of law as well. First, it states that, given the nature of Maine winters, the lease requirement that a tenant not leave a unit empty for more than 14 consecutive days is reasonable. Second, the court states emphatically that the Tribe has the authority to control tribal housing as an internal tribal matter within the meaning of the Maine Implementing Act and that the tribal Housing Code supersedes conflicting State of Maine laws that may have applied to tribal housing prior to the enactment of comprehensive tribal housing laws. The court completely rejected the Housing Authority's contention that the Tribal Court should ignore the tribal housing laws and policies and instead follow state law as it applies to eviction actions against tenants-at-will as defined under Maine law. 

The decision in this case is an important victory for tenants in tribal housing. It requires the Housing Authority to strictly follow the due process requirements of the written policies that the tribe has adopted pursuant to its sovereign powers, and not to arbitrarily apply state law when it might be more convenient in evicting a tribal tenant. In the past the Housing Authority, under different tribal leadership, had failed to follow a coherent and fair process for eviction that complied with its own written policies, the due process standard of the Indian Civil Rights Act, and the lease requirements of the federal Native American Housing and Self-Determination Act. The tribal courts have now brought clarity to a situation that was confusing not only for the tenants but also for the staff and board at the Housing Authority. Hopefully these decisions will be welcomed by all concerned, including the new leadership at the Housing Authority, and will provide the structure for fair and consistent eviction procedures at Indian Township.

Publication Volume: 
2007.2
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