The United States has an ongoing treaty obligation to provide competent physician-led healthcare to the Rosebud Sioux Tribe. That ruling was issued by South Dakota Federal Circuit Judge Roberto Lange and has now been upheld by the Eighth Circuit Court of Appeals. At oral arguments before the Eighth Circuit in March, lawyers argued whether the language of a document more than 150 years old is still valid.
The Rosebud Sioux Tribe sued the U.S. government in 2016 because the RosebudHospital had stopped providing emergency services. Patients in crisis were diverted to emergency departments 50 miles away, either in Winner or in Valentine, Nebraska. Staffing shortages eventually led to the diversion of surgical and obstetrics patients and reduction in hours of available services.
At oral arguments before the 8th C in March, the Tribe’s lawyer, Tim Billion, lays out the problems at RosebudHospital.
“The care the government was providing at the RosebudHospital was so poor that it constituted an immediate danger to patients and the public and resulted in the facility being shut down."
Billion says the facts are real, well-documented, and tragic. He turns appellate judges’ attention to a federal report and reads from it.
"The impacts of these deficiencies are not theoretical. These persistent failures have led to unnecessary suffering by patients, by families, and by whole communities. In fact, they have led to multiple patient deaths.”
In March 2020 Federal Circuit Judge Roberto Lange issued a ruling that the United States is required to provide competent, physician-led healthcare to the Rosebud Sioux Tribe.
He says under Congressional acts, federal common law, and the Fort Laramie Treaty of 1868, the U.S. government has a trust duty enforceable by the courts.
The United States appeals, claiming the Fort Laramie Treaty of 1868 does not create a trust obligation.
One sticking point is the language in the treaty. The United States agrees to furnish the signatory tribes with, quote, “the physician, teachers, carpenter, miller, engineer, farmer, and blacksmiths.”
Only teachers and blacksmiths are plural. That one physician, along with one carpenter, miller, engineer and farmer, could be understood to now serve the 16 federally recognized tribes in the Great Plains region, which includes North Dakota, South Dakota, and Nebraska.
At oral arguments, Justice Department attorney John Koppel speaks for the United States. He argues that a single physician is still the only healthcare obligation the treaty demands.
Appellate Judge Bobby Shepherd of El Dorado, Arkansas, questions that logic.
“Is it the position of the United States that its obligation under the treaty in 2021 is to provide one physician and a house at a cost not to exceed $3,000?”
Koppel says yes, the terms of the treaty do require only a single physician, a house, and an appropriation of $3,000. But he says Congress has passed laws that established Indian Health Services in 37 states that serve approximately 2.6 million people.
“Your honor, certainly the US is providing infinitely more than that through the statutory … discretionary statutory programs, but those fully satisfy any obligation created by the treaty.”
Koppel says Congress has taken on the duty to provide a certain level of medical care. But he says that obligation comes through federal legislation, not out of a permanent trust duty through the Treaty of 1868.
“Now if Congress were to revoke that and to eliminate the IHS, then perhaps plaintiffs could bring a claim if they’re (stammering) not receiving any medical services, but that obviously is a far cry from what has happened here.”
The federal legislation attorneys discuss includes the Snyder Act of 1921 that allows Congress to appropriate money for Indian healthcare, and the 1976 Indian Health Care Improvement Act that raises expectations for quality healthcare and established Indian Health Services, or I-H-S.
Tim Billion says passage of those statutes, as well as the Affordable Care Act, reflects Congress’s understanding of its treaty obligation.
He engages in an exchange with Judge Jonathan Kobes of Sioux Falls.
BILLION: “The key difference with healthcare is not only is it in this treaty from 1868, but it’s subsequently recognized in statute after statute, and not just to provide single physician, but to provide healthcare.”
KOBES: “Doesn’t that indicate simply that the government went beyond its treaty obligations, and doesn’t the (?) case suggest that those sorts of general statutes cannot impose trust or treaty obligations on the federal government?”
BILLION: “No, your honor, I would frame it a little differently. I think that those statutes reflect how one party to the treaty understands its obligation. And so they’re not merely gratuitous appropriations on top of a single physician…”
KOBES: “The problem with that is, the other party to the treaty is here suggesting that they don’t understand it that way.”
BILLION: “Well, the other party to the treaty in the sense of arguing this lawsuit is taking one position, but I would argue Congress of US has taken a much different position, and we’ve seen that in report after report after report, study after study, hearing after hearing, where Congress has reaffirmed its obligation to provide healthcare.”
During oral arguments, Judge Ralph Erickson of Fargo, ND, asks Tim Billion how this case escapes a ruling by the Ninth Circuit on the influence of federal statutes.
“We’re going to run right smack up into reasoning of what the 9C said, that those don’t create an enforceable trust obligation.”
Judge Erickson says the plain language of the 1868 treaty doesn’t clearly lead to Judge Lange’s conclusion that there’s a broader obligation for competent physician-led healthcare.
“How do we move beyond the plain meaning of the treaty language itself to find some other obligation that’s broader, right? The obligation that the district court found here.”
Tim Billion points out that the Ninth Circuit decision dealt with a plaintiff not protected by a treaty.
“Your honor that was an unpublished single page decision where the court rejected a fiduciary duty claim based solely on the acts. And I think it’s distinguishable here for a number of reasons, first we do have a treaty and… those treaties, interpretation of that treaty is informed by the subsequent passage of the statutes that evidence congress’s understanding of its obligation to provide healthcare that first arose in the treaty.”
Judge Erickson wrote the opinion for the court, and in it he notes that the Treaty of 1868 promised healthcare in order to encourage Tribal members to abandon traditional medicine. He writes that the historical record reflects that the U.S has provided healthcare for decades, in exchange for the Tribe’s continued trust in government.
Judge Kobes dissents, saying that neither the tribes nor the feds would have had the understanding that a single physician would have taken care of every tribal member’s healthcare needs for centuries to come.
He says the government intended the professionals listed in the treaty to teach the Sioux to quote “live like white Americans.”
Kobes says the circuit court’s “wishful and admirable thinking about the Government’s benevolence towards Indian tribes in 1868 rewrites the raw deal the Government forced upon the Sioux,” and he asserts that the government at that time would not have accepted the continuing obligation.
Kobes says it’s up to Congress, not the courts, to wield treaty-making power.