Sioux San case pending before Supreme Court

RAPID CITY — Three Oglala women, who have been fighting the change of management at Sioux San Hospital for years, may have their day in the U.S. Supreme Court. Donna Gilbert, Charmaine White Face and Julie Mohney will be representing themselves in a case to force an injunction to end the contract between the Indian Health Service (IHS) and the Great Plains Tribal Chairmen’s Health Board, which took over management of the hospital in 2019.

“This is unique; three Native women going in front of the U.S. Supreme Court pro se, by ourselves, without an attorney,” said White Face.

The three plaintiffs, along with over 150 others signed onto the class action, claim the contract is illegal and that the community was not sufficiently consulted about the management change.

The tribal chairman’s board “is a state organization, not a tribal organization,” said White Face. She explained that any non-tribal entity managing health care services for Native people is a violation of the Indian Self-Determination Act. She said it also violates the 1868 Treaty of Fort Laramie, in which the U.S. government promises to provide adequate healthcare.

While the plaintiffs say the IHS did not conduct any public meetings about the management change, the agency solicited resolutions from the Oglala Sioux Tribe, Cheyenne River Sioux Tribe and Rosebud Sioux Tribe.

Rosebud later withdrew its resolution after learning that an earlier Oglala Sioux Tribal Court ruled that the board is not a tribal organization. Accordingly, the plaintiffs argue these resolutions cannot be used to approve changes to a hospital in Rapid City.

“Constitutional resolutions are only valid within the boundaries of the reservation,” said Gilbert. “Those resolutions should be invalid because they have no jurisdiction and validity in Rapid City. They shouldn’t be a factor in this at all.” The group says the community surrounding the hospital should have been consulted about the decision.

“We told them they needed community participation,” said White Face. “And that means in Rapid City, not just from the tribes. That would be like asking people from Philadelphia what should be done in Minneapolis.”

One of the greatest concerns for the plaintiffs is what precedent will be set for the rest of the country if the courts validate the board’s presence.

“If we don’t get this changed, it’s going to be okay for the [U.S. government] to choose who gets to be a tribal organization, and perhaps even a tribal government,” Mohney said. “That means they get to decide who is going to be eligible for those services, and it will be an open market for resolutions going to the highest bidder. How is this not a civil rights violation?”

Mohney had worked at Sioux San for eight years before the board took over. She was one of the more than 50 employees who had received a Reduction in Force (RIF). When she went to her labor union for support, they said they couldn’t get involved because the tribes are involved, mistaking the board for a tribal entity.

“My case was dismissed because the IHS claimed the Oglala Sioux Tribe and the Cheyenne River Sioux Tribe had obtained a 638 contract,” said Mohney. “Technically, they are not part of this contract. The IHS just wants to use the tribes as a shield to keep the truth from coming out.”

When asked what they ultimately wanted to see happen with the management of Sioux San, they acknowledged an irony embedded in their goal.

“It’s kind of a double-edged sword,” Gilbert said. “We’re fighting the IHS so that the power of management can go back to the IHS. That’s the legal obligation they have to Native American people – to take care of us.”

Gilbert, Mohney and White Face are the plaintiffs in this case. The defendant is the federal government, specifically Michael D. Weahkee, Principal Deputy Director of Indian Health Service (IHS); James Driving Hawk, Great Plains IHS Area Director; and William Barr, United States Attorney General..

Jeffrey Viken was Chief Judge for the United States District Court for the District of South Dakota. He was appointed to that position by President Obama in 2009. When Mario Gonzalez was empowered by the Oglala Sioux Tribe to file an eleventh-hour injunction to stop distribution of payment for the Black Hills in 1980, Viken was opposing counsel. Gonzalez prevailed.

Viken’s order, first addressed the plaintiffs, Gilbert, Mohney and White Face: “Native Americans residing in Rapid City, South Dakota, bring this action challenging the decision of the Indian Health Service (“IHS”) to enter into a self-determination contract with the Great Plains Tribal Chairmen’s Health Board (“the Health Board”). (Docket 5). The contract permits the Health Board to operate portions of IHS’s facilities in Rapid City, including the Sioux San hospital, now known as the Oyate Health Center. Plaintiffs assert the contract violates the Fort Laramie Treaty of 1868 between the United States and the Great Sioux Nation and the Indian Self-Determination and Education Assistance Act (“ISDEAA”). They ask the court to enjoin the contract and reinstate IHS control over the Rapid City facilities.”

The crux of Viken’s dismissal rests on this conclusion: “The court finds plaintiffs, who seek to abrogate the contract between IHS and the Health Board, do not fall within the zone of interests protected by the ISDEAA. Nothing in the ISDEAA indicates Congress intended to permit individuals to interfere with self-determination contracts.”

Gilbert, Mohney and White Face did not let Viken’s ruling dissuade them. They eventually filed a petition for the United States Supreme Court to hear their case. According to Rapid City Attorney Mario Gonzalez: “A Petition for a Writ of Certiorari is a petition filed by a losing party that asks the US Supreme Court to review a final decision of a US Court of Appeals.  The petition sets forth legal issues and arguments raised in the appeals court that the losing party wants the Supreme Court to review.  Review of an appeals court’s decision is discretionary, not a matter of right, and a Petition is granted only for compelling reasons, such as US Appeals Court decisions that raise important questions of federal law or decisions that conflict with prior decisions of the Supreme Court. If a Petition is granted, the Appeals Court is ordered to deliver its record to the Supreme Court for review and decision, which it can either affirm or reverse.  The Court, however, grants very few petitions each year. If a Petition for Certiorari is ‘pending,’ it means that the Supreme Court hasn’t decided whether to grant or deny the petition.”

At present Gilbert v Weahkee is listed as cert pending and the court has not yet decided to hear the case. There was a time the Supreme Court heard almost every appeal brought up from lower courts. As the country grew, the number of appeals grew, and the first response, in 1869, was to increase the number of justices from seven to nine. This fix was soon inadequate. The Judiciary Act of 1891 created the Circuit Court of Appeals, which took over almost the entire case load, except for special cases the Supreme Court still agrees to hear at its discretion, through the granting of a writ of certiorari.

It is hard to say, given the Conservative bent of this court, through appointments by Bush and Trump, whether they will agree to hear Gilbert v Weahkee, but the ace-in-the-hole is Justice Neil Gorsuch. After the death of Antonin Scalia, President Trump nominated Gorsuch. This was an odd selection, given the hostility the Trump Administration had shown toward tribal interest, and Trump’s long history of contentious dealings with tribal casino operations. Gorsuch was respected as knowledgeable and sympathetic towards tribal interest. Gorsuch has sided with the liberal justices in three important tribal cases, supporting the Yakima Nation and siding against the State of Washington, which sought to tax the tribe for transporting gasoline. He sided with Clayvin Herrera, the Crow tribal member, seeking hunting rights in Wyoming. He also sided with the Creek Nation in the landmark McGirt v Oklahoma case, where for purposes of law enforcement, the boundaries of land reserved for the tribe in the 19^th century still remain in place. This decision had far reaching implication beyond law enforcement.  If Gilbert v Weahakee is to be heard, Gorsuch will be the critical cog in that decision, and if it is then to receive a favorable ruling, his vote may prove to be the deciding one.

(Contact Justine Anderson at justinekanderson@gmail.com)

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

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