Supreme Court declines to hear Sioux San case

RAPID CITY— Exactly two months after receiving a writ of certiorari to be heard before the United States Supreme Court, the Court has declined to hear the appeal in Gilbert v Weahkee, upholding the decision of Judge Jeffrey Viken at the district court level.

A June 10, 2021 press release from the plaintiffs described their case as follows: “Three (3) Sioux women from Rapid City, Donna M. Gilbert, Julie Mohney, and Charmaine White Face, filed suit in the local SD federal court only to have their suit dismissed. Proceeding on their own, pro se, the women took their case to the 8^th Circuit Court of Appeals and had their case again dismissed. Undaunted, as many of the patients at the hospital were being harmed in a number of ways, the three women proceeded to the U.S. Supreme Court. They were trying to stop fraud by a federal agency, save their hospital, and make sure the American Indian community members had good health care as provided in the 1868 Fort Laramie Treaty.”

The plaintiffs asserted that a 638-self-determination contract with the Indian Health Service, awarded to the Great Plains Health Board, a nontribal state organization, which allowed them to establish and operate Oyate Health Care at the former Sioux San Indian Hospital, violated Public Law 93-638, the Indian Self-Determination and Education Assistance Act (ISDEAA).

The plaintiffs had been instrumental in thwarting a previous plan by Great Plains to establish and operate a health care facility in Rapid Valley on fee land. Regrouping, Great Plains then opened Oyate Health Care at the Sioux San facility, based upon support resolutions from the Cheyenne River Sioux Tribe (CRST), the Rosebud Sioux Tribe (RST) and the Oglala Sioux Tribe (OST). The plaintiffs were then instrumental in getting RST to rescind their resolution, but Great Plains was allowed to proceed despite not having approval from all three tribes. The consequence being Oyate took over the ground floor at the Sioux San facility, while IHS retained control of the second floor, providing patients with an IHS option, which many have chosen.

Viken’s conclusion in his district court ruling makes clear that political remedies may be the only option the Rapid City Indian Community has in addressing the threat and legitimacy of Oyate Health Care: The conclusion reads: “But the lack of a judicial remedy does not mean plaintiffs have no remedy at all. The RST already rescinded its authorization for the Health Board to assume the functions of the Rapid City Service Unit and it appears there is opposition to the OST’s and CRST’s assumption. Plaintiffs retain a political remedy through engagement with their tribal governments. In any event, the Health Board’s sovereign immunity and the impossibility of avoiding prejudice to the Health Board by proceeding with this litigation tip the scales in favor of dismissing this case for lack of joinder.”

A cornerstone in the plaintiff’s objection to the 638-contract was that the Health Board was a state organization. In their previous successful battle to keep the Health Board from relocating to Rapid Valley, the plaintiffs correctly pointed out that the Health Board had zero experience or expertise in operating a health care facility. But Viken’s decision only addressed whether the Health Board could legally engage in a 638-contract with IHS, not whether their actions or intent are harmful or beneficial to the Rapid City Indian Community. The Eighth District concluded: “Contrary to plaintiffs’ argument, it does not matter that the Health Board is incorporated under state law, as opposed to tribal law. (Docket 33 at pp. 2-4). The ISDEAA’s definition of tribal organization does not preclude state-chartered organizations.”

After the plaintiff’s had already filed their writ of certiorari, they finally obtained legal representation. Charmaine White face told NSNT: “We have an attorney now and his name is Mark Goldstone, and he has been working in the Supreme Court for 35 years, and he lives in Washington, DC. Some of my friends who live on the east coast have used him before and they were the ones who asked him after they read the last press release we sent out. They asked him if he would take our case and he did.”

Rapid City Attorney Mario Gonzalez, an OST tribal member, had a petition before the Supreme Court in 1980. He prevailed. He describes a writ of certiorari as follows: “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.”

Goldstone’s top priority was to provide compelling reasons, and this was best done in a supplemental brief, something he needed to submit given he came on board after the writ had already been filed. From Goldstone’s supplemental brief: “In Gilbert v. Weahke, the question is whether a federal agency, the Indian Health Service (“IHS”), violated the law and its authority to award a multi-million dollar contract to manage an IHS facility, the Sioux San Hospital, in Rapid City, South Dakota, to a state non-profit corporation which is not a ‘Tribal Organization.’ The decision made by this Court in Gilbert v. Weahke will not just clarify and decide the definition of a Tribal Organization, but also brings to the table, the legitimacy of the actions of a federal agency which is currently impacting the health and welfare of thousands of people who currently receive medical care at the Sioux San Hospital.

The ‘Federal Recognition’ clause which restricts Congress to a government-to-government relationship with sovereign Indian Tribes and provides the exclusive authority to the Indian Tribes to establish Tribal Organizations, and not to a federal agency, is discussed prominently during the Supreme Court oral argument on April 19, 2021, in the afore-mentioned pending case of Yellen v. Confederated Tribes, Case No. 20-543:” Yellen v Confederated Tribes is no longer pending, but arguments have been heard before the Court although no ruling has been rendered. This case concerns whether nontribal Alaska Natives can receive benefits under the 2020 COVID-19 Relief Act.

Goldstone was in a tough spot. Ideally, he would want to wait until the Court ruled favorably on Yellen, but he also needed to hitch the Gilbert v Weahkee wagon to some case that was similar and had been granted a hearing, and if he had waited for a ruling on Yellen, then Gilbert v Weahkee might be denied hearing before he had a chance to submit a supplemental brief critical enough to tip the scales in favor of a hearing. In any event, the Court declined to hear the Gilbert v Weahkee appeal, based upon Viken’s reasons in his initial unfavorable ruling.

In a June 14 press release from the plaintiffs, Goldstone said: “I was so proud and honored to stand with these three brave Native women in their fight for Native self-determination. I was looking forward to speaking with the Supreme Court and using my voice to prevent this injustice in which a non-Tribal organization, a state nonprofit was improperly awarded this contract to manage the Sioux San Hospital. The fight for Native rights will continue, however.”

Concerning the Court’s denial, White Face said, “I’m still in shock, but more importantly, this is a devastating blow to Indian self-determination.”

Many deeper issues were at play in Gilbert v Weahkee, beyond even non-tribal entities being granted 638-contracts; whether “the people served” wording denotes the Rapid City Indian Community, and not any federally recognized tribe, and that the community had the right to demand a consultation with the IHS director, and that he had the power to decide based upon their input. The Rapid City Indian Hospital has always been in an ambiguous limbo that could one day be economically exploited by those capable of recognizing an opportunity and organizing the resources necessary to take advantage of it.

According to official government websites, the Sioux San was not considered a tribal health care facility, nor was it considered an Urban Indian Health Care facility. The exact nature of what the Rapid City Indian Hospital was or is has never been unambiguously addressed by IHS. Previous attempts by NSNT to have the regional IHS define the status of the Rapid City Indian Hospital failed. IHS erroneously stated that Rapid City was not large enough to have an Urban Indian Health facility, like Sioux Falls does, even though Pierre has such a facility, and they are far smaller than Rapid City.

Historically, many issues which seemed to only have a legal remedy, ended up being resolved by political remedy. This option still remains open for the plaintiffs in Gilbert v Weahkee, and for the rest of the Rapid City Indian Community.

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

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