Rosebud Sioux Tribe v. United States

• Decision Date: 25 August 2021
• Docket Number: No. 20-2062,20-2062
• Citation: 9 F.4th 1018
• Parties: ROSEBUD SIOUX TRIBE, a federally recognized Indian tribe, and its individual members, Plaintiff - Appellee v. UNITED STATES of America; Department of Health and Human Services, an executive department of the United States; Xavier Becerra, Secretary of Health and Human Services; Indian Health Service, an executive agency of the United States; Elizabeth A. Fowler, Director of Indian Health Service; James Driving Hawk, Director of the Great Plains Area Health Service, Defendants - Appellants
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.4th 1018

ROSEBUD SIOUX TRIBE, a federally recognized Indian tribe, and its individual members, Plaintiff - Appellee

v.UNITED STATES of America; Department of Health and Human Services, an executive department of the United States; Xavier Becerra, Secretary of Health and Human Services; Indian Health Service, an executive agency of the United States; Elizabeth A. Fowler, Director of Indian Health Service; James Driving Hawk, Director of the Great Plains Area Health Service, Defendants - Appellants

No. 20-2062

United States Court of Appeals, Eighth Circuit.

Submitted: March 18, 2021

Filed: August 25, 2021

Timothy W. Billion, Brendan V. Johnson, Robins & Kaplan, Sioux Falls, SD, Matthew Lee Campbell, Kim Gottschalk, Native American Rights Fund, Boulder, CO, Bruce A. Finzen, Eric John Magnuson, Denise S. Rahne, Robins & Kaplan, Minneapolis, MN, Timothy Q. Purdon, Robins & Kaplan, Bismarck, ND, for Plaintiff-Appellee.

Kevin Koliner, Assistant U.S. Attorney, Daniel Tenny, U.S. Attorney's Office, District of South Dakota, Sioux Falls, SD, John Samuel Koppel, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendants-Appellants.

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.

ERICKSON, Circuit Judge.

In this appeal, we are asked to consider whether the district court¹ erred by declaring the United States has a duty to provide "competent physician-led healthcare" to the Rosebud Sioux Tribe ("the Tribe") and its members. In light of promises made to the Tribe more than 150 years ago, and relevant legislation since that time, we find the district court correctly articulated the existence and scope of the duty and declaratory judgment was proper. We affirm.

I. BACKGROUND

A. Relevant Law and History

On April 29, 1868, representatives of the United States and "the different bands of the Sioux Nation of Indians" including what is now the Tribe signed the Treaty of Fort Laramie of 1868 ("the Treaty"). The Treaty established the Great Sioux Reservation and temporarily put an end to fighting between the United States and party tribes in the Great Plains. Under the Treaty, the United States acquired vast acreage of land and in exchange made a number of promises to the party tribes. The promise that is central here is found at Article XIII of the Treaty, which states: "The United States hereby agrees to furnish annually to the Indians the physician, teachers, carpenter, miller, engineer, farmer, and blacksmiths, as herein contemplated, and that such appropriations shall be made from time to time ... as will be sufficient to employ such persons." In Article IV, the United States also agreed to provide a residence for the physician. And, in Article IX, the United States reserved a privilege to withdraw the physician after 10 years, but only if the United States paid $10,000 annually to the tribes. Because they were not proficient in the English language, each of the Sioux representatives indicated their signature on the Treaty by marking an "X."

In the years that followed, we know from the Annual Reports of the Commissioner of Indian Affairs that the Agencies assigned throughout what is now the Great Plains Region² worked on behalf of the United States to improve conditions of tribal life with regard to health and sanitation, farming, education and the like. For example, in 1878 the Cheyenne River Agency reported that sanitary conditions were "improving but still far from satisfactory," with the physician reporting favorably that "the native medicine men are now but rarely consulted by the Indians, who generally come to the agency for treatment and medicines." 1878 ANN. REP. OF THE COMMISSIONER OF INDIAN AFF. 23. In 1882, the Pine Ridge Agency likewise reported "good progress in gaining the confidence of the Indians and inducing them to abandon their native medicine," but noted that the physician would need at least one assistant in the village to meet the tribe's needs. 1882 ANN. REP. OF THE COMMISSIONER OF INDIAN AFF . 38. That same year, the Standing Rock Agency requested that a hospital be erected as soon as practicable, to give proper care to the sick, "inspire ... greater confidence ... and be another convincing proof of the good intention of the government toward them." Id. at 46. Similar reports continued into the 1900s. See e.g., 1905 ANN. REP. OF THE COMMISSIONER OF INDIAN AFF. 278 (referencing two changes in the resident physician and reporting a measles

epidemic at the Devils Lake Agency).

More than a half century after the Treaty, in 1921, the Snyder Act authorized 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 ... [f]or relief of distress and conservation of health." 42 Stat. 208 (codified at 25 U.S.C. § 13 ).³ In 1976, Congress passed the Indian Health Care Improvement Act ("IHCIA"), which established the Indian Health Service ("IHS")⁴ and recognized 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." Pub. L. No. 94-437, §§ 2, 601, 90 Stat. 1400 (codified as amended at 25 U.S.C. §§ 1601, 1661 ). The IHCIA states: "[I]t is the policy of this Nation, in fulfillment of its special trust responsibilities and legal obligations to Indians ... to ensure the highest possible health status for Indians ... and to provide all resources necessary to effect that policy." 25 U.S.C. § 1602. The Snyder Act thus marked the beginning of Congressional funding for healthcare to all federally-recognized tribes, and the IHCIA established the structure to deliver healthcare services throughout Indian country.

B. Facts and Procedural History

Because the Tribe is federally-recognized, its members are eligible to receive healthcare services from IHS. IHS operates the Rosebud Hospital in Rosebud, South Dakota. Rosebud Hospital is the primary source of healthcare services to approximately 28,000 Native Americans in the south-central region of South Dakota. In November 2015, the Centers for Medicare & Medicaid Services ("CMS") found considerable deficiencies in the emergency care provided by the Rosebud Hospital. CMS determined the identified deficiencies resulted in "an immediate and serious threat to the health and safety of patients." As a result, on December 5, 2015, IHS placed the Rosebud Hospital Emergency Department on "divert" status, which meant emergency patients were diverted approximately 50 miles away to hospitals in either Winner, South Dakota, or Valentine, Nebraska. Shortly thereafter, the hospital's operating hours were reduced. In June 2016, surgical and obstetrics services were diverted as a result of staffing shortages. The Emergency Department eventually reopened on July 15, 2016.

The persistent deficiencies at Rosebud Hospital prompted the Tribe to file a Complaint against the United States, HHS and its Secretary, IHS and its Acting Director, and the Acting Director of the Great Plains Area of the IHS (collectively, "the Government"), seeking declaratory and injunctive relief. The district court granted the Government's motion to dismiss several statutory and constitutional claims. Allowed to proceed was the Tribe's claim alleging the Government has a "specific, special trust duty, pursuant to the Snyder Act, the IHCIA, [the Treaty], and federal common law, to provide healthcare services to the Tribe and its members and to ensure that health care services provided ... do not fall below the highest possible standards of professional care." Complaint at ¶61.

After discovery, the parties filed cross-motions for summary judgment. The district court denied the Government's motion, while granting the Tribe's motion in part and denying it in part. Specifically, the district court held the Tribe overstated the Government's duty when it asserted the Government had "breached its duty to provide the level of care that will raise the health status of the Tribe to the ‘highest possible level.’ " Rosebud Sioux Tribe v. United States, 450 F.Supp.3d 986, 1003 (D.S.D. 2020). The district court did, however, decide that the Government owed the Tribe a judicially enforceable duty "to provide competent physician-led health care to the Tribe's members." Id. The Government appeals.

II. DISCUSSION

We review de novo a district court's decision granting summary judgment. Green Plains Otter Tail, LLC v. Pro-Environmental, Inc., 953 F.3d 541, 545 (8th Cir. 2020). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

On appeal, the Government asserts the doctrine of Indian trust law controls and no duty to provide healthcare exists because the Tribe cannot establish the existence of a trust corpus. The Government, however, misapprehends the holding below and overstates the application of the trust law doctrine under the circumstances presented here.

Each of the foundational cases in the area of Indian trust law have a common source of jurisdiction: the Tucker Act, 29 U.S.C. § 1491. But, the Tucker Act confers jurisdiction to individual claimants premised originally in the Court of Claims. See United States v. Mitchell, 445 U.S. 535, 538–40, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ( Mitchell I ). The same is true for tribal claimants who bring claims pursuant to § 24 of the Indian Claims Commission Act, 28 U.S.C. § 1505, which is commonly referred to as the Indian Tucker Act. United States v. Mitchell, 463 U.S. 206, 211–15, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ( Mitchell II ). Neither the Tucker Act nor the Indian Tucker Act, however, confer any substantive right against the United States to recover money damages. The right to claim money damages must be found in "some other source of law, such as ‘the Constitution, or any Act of Congress,...