The United States has an ongoing treaty obligation to provide competent physician-led health care to the Rosebud Sioux tribe. The ruling was made by South Dakota Federal Circuit Judge Roberto Lange and has now been upheld by the Eighth Circuit Court of Appeals. During argument before the Eighth Circuit in March, lawyers questioned whether the language of a document over 150 years old was still valid.

The Rosebud Sioux tribe sued the US government in 2016 because the RosebudHospital stopped providing emergency services. Patients in crisis were referred to emergency departments 50 miles away in either Winner or Valentine, Nebraska. Staff shortages ultimately led to the diversion of surgical and obstetrical patients and the reduction in the hours of available services.

In argument before the 8th C in March, tribal attorney Tim Billion exposes the issues to the RosebudHospital.

“The care provided by the government at RosebudHospital was so poor it posed an immediate danger to patients and the public and resulted in the closure of the facility. “

Billion says the facts are real, well documented and tragic. He drew the attention of appellate judges to a federal report and read an excerpt from it.

“The impacts of these impairments are not theoretical. These persistent failures have resulted in unnecessary suffering for patients, families and entire communities. In fact, they have resulted in the deaths of many patients. “

In March 2020, Federal Circuit Judge Roberto Lange ruled that the United States is required to provide competent, physician-led health care to the Rosebud Sioux tribe.

According to him, under the laws of Congress, federal common law and the Treaty of Fort Laramie of 1868, the US government has a duty of trust enforceable by the courts.

The United States is appealing, arguing that the Fort Laramie Treaty of 1868 does not create a fiduciary obligation.

One sticking point is the language of the treaty. The United States agrees to provide the signatory tribes, among others, with “the doctor, teachers, carpenter, miller, engineer, farmer, and blacksmiths.”

Only masters and blacksmiths are plural. This doctor, along with a carpenter, miller, engineer, and farmer, could now serve all 16 federally recognized tribes in the Great Plains region, which includes North Dakota, South Dakota, and Nebraska. .

In oral argument, Department of Justice attorney John Koppel speaks on behalf of the United States. He argues that a single doctor is still the only health care obligation required by the treaty.

Appeals Judge Bobby Shepherd of El Dorado, Arkansas, questions that logic.

“Is it the position of the United States that their treaty obligation in 2021 is to provide a doctor and a home at a cost of no more than $ 3,000?” “

Koppel says yes, the terms of the treaty only require one doctor, a house and a $ 3,000 loan. But he says Congress has passed laws that established Indian health services in 37 states that serve an estimated 2.6 million people.

“Your Honor, the United States certainly provides infinitely more than that through statutory… discretionary programs, but these fully satisfy any obligation created by the treaty. ”

Koppel says Congress has taken on the duty of providing some level of medical care. But he says that this obligation arises from federal law, not from a permanent duty of trust arising from the Treaty of 1868.

“Now, if Congress were to revoke that and eliminate the IHS, then maybe the plaintiffs could file a complaint if they (stammered) don’t get any medical service, but that’s obviously a long way from what happened. passed here. “

Federal legislation discussed by lawyers includes the Snyder Act of 1921 which allows Congress to allocate funds for Indian healthcare, and the Indian Healthcare Improvement Act 1976 which raises expectations for care. Quality Health and Established Indian Health Services, or IHS.

Tim Billion says the passage of these laws, along with 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 main difference with health care is not only in this treaty of 1868, but it is then recognized law by law, and not just to provide a single doctor, but to provide health care. “

KOBES: “Doesn’t that just indicate that the government has gone beyond its treaty obligations, and the case (?) Does not suggest that this kind of general laws cannot impose trust or treaty obligations to the federal government?

BILLION: “No, Your Honor, I would phrase it a little differently. I think these laws reflect how a party to the treaty understands their obligation. And so it’s not just free credits on a single doctor… ”

KOBES: “The problem is that the other party to the treaty is suggesting here 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 a position, but I would say the United States Congress has taken a very different position, and we’ve seen it report after report. after report, study after study, hearing after hearing, where Congress reaffirmed its obligation to provide health care.

During oral argument, Judge Ralph Erickson of Fargo, ND, asks Tim Billion how this case escapes a Ninth Circuit ruling on the influence of federal laws.

“We will rush into reasoning what the 9C said, that these do not create a binding trust obligation.”

Justice Erickson says that the plain language of the 1868 Treaty does not clearly lead to Justice Lange’s conclusion that there is a broader duty of competent physician-led health care.

“How can we go beyond the ordinary meaning of the text of the treaty itself to find another broader obligation, right?” The obligation that the district court found here.

Tim Billion points out that the Ninth Circuit decision concerned an unprotected claimant.

“Your Honor, this was an unpublished one-page decision in which the court dismissed a deed-based fiduciary duty claim. And I think it stands out here for a number of reasons, first we have a treaty and … these treaties, the interpretation of that treaty is informed by the subsequent passage of the statutes which prove the congress understanding of its obligation. to provide health care that first appeared in the treaty. “

Judge Erickson drafted the opinion for the court, and in it he notes that the 1868 treaty promised health care to encourage tribal members to abandon traditional medicine. He writes that the historical record shows that the United States has provided health care for decades, in return for the tribe’s continued trust in government.

Justice Kobes disagrees, saying neither the tribes nor the federal government would have understood that a single doctor would have taken care of the health needs of each tribe member 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 that the “desirable and admirable thought of the circuit court on the government’s benevolence to the Indian tribes in 1868 rewrites the crude deal that the government imposed on the Sioux,” and he asserts that the government of the day no would not have accepted the continuing obligation.

Kobes says it’s up to Congress, not the courts, to exercise the treaty-making power.


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