Appeals Court sides with tribe on health care

RAPID CITY—Back in 2016, health care on the Rosebud Reservation had hit rock bottom. There were no emergency room services, hospital operating hours were cut, and patients had to drive fifty miles in any direction for surgical and other more specialized services. The tribe insisted that the federal government was treaty obligated to provide health care and filed suit against the federal government. The South Dakota District Court ruled in the tribe’s favor in 2020, and that ruling went to the Eighth Circuit Court of Appeals. On August 25 the Eighth Circuit, in a 2-1 ruling, affirmed the lower court decision.

All tribes signatory to the 1868 Fort Laramie Treaty will be equally impacted by this affirmation, and non-signatory tribes with similar language in their treaties can use this decision as precedent. Judge Ralph Erickson of the Eighth Circuit did conclude that “in this specific case, the government must do better,” but the details of what “do better” entails were not critically defined.

Brenda Johnson, an attorney that represented the tribe called the affirmation a “great victory,’ and added, “My hope is that the decision also assists our congressional delegation in their efforts to improve Indian Health Service (IHS).”

The tribe had asked for a determination that established health care “at the highest possible level.” This is not language they created but is lifted directly from the 1976 Indian Health Care Improvement Act (IHCIA), establishing the Indian Health Service, which stated “a major national goal of the United States is to provide the quantity and quality of health services which will permit the health status of Indians to be raised to the highest possible level.” It can be argued that a “major national goal” is aspirational and is not a mandated guarantee.

However, in the dissenting opinion, Judge Jonathan Kobes of South Dakota wrote: “I conclude that no one—neither the government nor the Sioux—understood the treaty require a single physician to take care of every tribe member’s health needs for centuries to come.” In response to that the majority decision cites the 1921 Snyder Act as evidence the government subsequently understood and undertook that long-term obligation by authorizing Congress to “direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States.”

In their ruling the Eighth Circuit attempted to define the level of health care the 1868 Treaty did allow and agreed with the lower court that the “Government owed the Tribe a judicially enforceable duty ‘to provide competent physician-led health care to the Tribe’s members.’” Given increased tribal populations, if the 1921 Snyder Act is to be observed, one physician would be inadequate to meet any tribe’s health care needs. Once a clinic or hospital is established, an expanded staff would be operationally necessary. The extent of that supporting staff, and the funding to maintain services, became the issue at Rosebud, prompting the lawsuit.

Since the demarcation line between the “highest possible level,” which the appeals court did not affirm, and “competent physician-led health care,” which they did affirm, is never defined in the affirmation, operationally, it can be argued that the government still has wriggle room to deny health care and limit funding.

The Government’s appeal was based upon the Indian Trust Law Doctrine, and they asserted the tribe could not establish the existence of a trust corpus and so the duty to provide healthcare by the Government did not exist. The Eighth Circuit held that the Government “overstates the application of the trust law doctrine under the circumstances presented here.”

The appeals court concluded: “… it is difficult to imagine a set of circumstances in which the Tribe would have agreed to the Government’s delivery of ‘incompetent’ healthcare. The declaratory judgment below gives meaning to promises made, and it assigns to the Government a measure of accountability for persistent deficiencies at Rosebud Hospital.”

Tying their decision to the limited scope of the 1868 Treaty, the appeals court established rationale for why it was not ruling that the tribe was owed healthcare “at the highest possible level”: “We do not aim to assign any greater responsibility to the Government than the circumstances of this case, and the Treaty at issue here, require. In this specific case, the Government must do better.”

Tribes across South Dakota have been decrying the state of IHS health care for decades. In seeming defiance of the language in the 1976 IHCIA, the IHS has been arbitrarily, and without consultation, restricting services on every reservation in South Dakota. This includes Rapid City’s health care, where services at the Rapid City Indian Hospital have not only be reduced, but patients have had to pay for things like eyeglasses. In addition, referrals have been denied to any patient living outside Pennington County, even if that person lives within a couple of miles of the hospital in Meade County and the Pennington County patient lives fifty miles away in Wall. Children eligible for IHS, but non-enrolled through no fault of their own, cannot get a specialist referral and are not eligible for healthcare where their parents are enrolled.

Whether the August 25 ruling by the Eighth Circuit can help with these deficiencies, or whether they will be cited as examples of highest possible level health care, which the ruling did not support, remains to be seen. What also remains to be determined is what specific structural health care changes the ruling will bring about on the Rosebud Reservation, but the court ruling does mandate the government “do better,” so the present level of health care cannot persist unimproved.

 

(Contact James Giago Davies at skindiesel@msn.com)

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