Rosebud Sioux Tribe v. United States

• Decision Date: 30 March 2020
• Docket Number: 3:16-CV-03038-RAL
• Citation: 450 F.Supp.3d 986
• Parties: ROSEBUD SIOUX TRIBE, A Federally Recognized Indian Tribe, and Its Individual Members, Plaintiff, v. UNITED STATES of America, Department of Health and Human Services, an executive department of the United States; Alex M. Azar II, Secretary of Health and Human Services; Indian Health Service, an executive agency of the United States; Michael D. Weahkee, Principal Deputy Director of Indian Health Service; James Driving Hawk, Director of the Great Plains Area Indian Health Service, Defendants.
• Court: U.S. District Court — District of South Dakota

450 F.Supp.3d 986

ROSEBUD SIOUX TRIBE, A Federally Recognized Indian Tribe, and Its Individual Members, Plaintiff,

v.UNITED STATES of America, Department of Health and Human Services, an executive department of the United States; Alex M. Azar II, Secretary of Health and Human Services; Indian Health Service, an executive agency of the United States; Michael D. Weahkee, Principal Deputy Director of Indian Health Service; James Driving Hawk, Director of the Great Plains Area Indian Health Service, Defendants.¹

3:16-CV-03038-RAL

United States District Court, D. South Dakota, Central Division.

Signed March 30, 2020

Brendan V. Johnson, Timothy W. Billion, Robins Kaplan LLP, Sioux Falls, SD, Denise S. Rahne, Bruce A. Finzen, Pro Hac Vice, Kaitlyn J. Johnson, Pro Hac Vice, Lisa L. Beane, Pro Hac Vice, Robins Kaplan LLP, Minneapolis, MN, Timothy Q. Purdon, Pro Hac Vice, Robins Kaplan LLP, Bismarck, ND, for Plaintiff.

Cheryl Schrempp DuPris, U.S. Attorney's Office, Pierre, SD, Diana J. Ryan, U.S. Attorney's Office, Sioux Falls, SD, for Defendants.

OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, CHIEF JUDGE

On December 5, 2015, Indian Health Services (IHS) placed the Rosebud IHS Hospital Emergency Department in Rosebud, South Dakota, on "divert status." Doc. 1 at ¶ 37. This action prompted the Rosebud Sioux Tribe (the Tribe) to file a Complaint against the United States of America, the Department of Health and Human Services (HHS) and its Secretary, the IHS and its Acting Director, and the Acting Director of the Great Plains Area of IHS (collectively the Government) for declaratory and injunctive relief, alleging violations of the Indian Health Care Improvement Act (IHCIA); the Administrative Procedures Act (APA); treaty, statutory, and common law trust duties; and equal protection and due process. Doc. 1. The Government re-opened the Rosebud IHS Hospital Emergency Department and then moved to dismiss based on jurisdictional grounds and for failure to state a claim upon which relief could be granted. Doc. 17. This Court dismissed all claims except those based on the treaty, statutory, and common law trust duties owed to the Tribe. Doc. 36. The parties have engaged in discovery and now move this Court for summary judgment. Docs. 80, 88. For the reasons stated herein, the Government's motion for summary judgment is denied and the Tribe's motion for summary judgment is granted in part and denied in part.

I. Summary Judgment Standard

"A party may move for summary judgment," which a court shall grant, "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. When ruling on a motion for summary judgment, "a court must view the evidence in the light most favorable to the nonmoving party." U.S. ex rel. Bernard v. Casino Magic Corp., 384 F.3d 510, 513 (8th Cir. 2004) (quotation omitted). On cross motions for summary judgment, a court's normal course is to "consider each motion separately, drawing inferences against each movant in turn." E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st Cir. 1995). Because the parties have differing views on which facts are relevant to the legal claims at issue, this Opinion and Order sets forth the facts from each party's perspective separately and, of course, construes those facts in the light most favorable to the nonmoving party when considering each motion for summary judgment.

II. Factual Background

A. Undisputed Facts Relevant from the Government's Perspective

On April 29, 1868, the United States entered into the Treaty of Fort Laramie² with the Great Sioux Nation seeking to end hostilities between what the Government called the Sioux tribes (more accurately, Lakota, Nakota, and Dakota peoples) and the United States. Doc. 92 at ¶ 2. The 1868 Treaty of Fort Laramie involved multiple tribes, including what now is called the Rosebud Sioux Tribe,³ a federally recognized tribe. Doc. 92 at ¶¶ 1, 2. As a federally recognized tribe, the Tribe's members are eligible to receive health care services from IHS. Doc. 92 at ¶ 1.

IHS is the federal agency operating under the U.S. Department of Health and Human Services (HHS) that provides health care services to American Indians and Alaska Natives throughout the United States. Doc. 1 at ¶ 6; Doc. 92 at ¶¶ 3, 5. Congress funds IHS through annual appropriations to the U.S. Department of the Interior, and the agency receives lump-sum appropriations for services, facilities, and contract support costs. Doc. 92 at ¶¶ 3, 7; Doc. 83-6 at 2. IHS maintains a Headquarters Office and twelve Area Offices with service units operating within each Area. Doc. 92 at ¶ 4. Area Offices oversee health care facilities in specific geographic areas and are responsible for distributing funds to facilities, monitoring operations, and providing guidance and technical assistance. Doc. 91-25 at 11–12. IHS provides health care services through federally-operated facilities and through contracts and grants to tribes, tribal organizations, and urban Indian organizations. Doc. 92 at ¶ 5. The Rosebud IHS Hospital is a service unit in Rosebud, South Dakota, that operates under the Great Plains Area and provides health care services to the Tribe's members and other IHS beneficiaries. Doc. 92 at ¶ 10. IHS is the payer of last resort, meaning that all other health care resources like private insurance, state health programs, and other federal programs must be exhausted before IHS resources are used. Doc. 92 at ¶ 6.

IHS uses a "bottom's up process" for developing its annual budget proposal. Doc. 92 at ¶ 9. Every Area Office asks the tribes in its Area for their budget priorities and then representatives from at least two tribes from each Area meet in Washington D.C. to consult and develop one set of national, tribal budget recommendations. Doc. 92 at ¶ 9. IHS then submits its budget request to HHS which in turn submits the Department's request to the Office of Management and Budget. Doc. 92 at ¶ 8. After reviewing budget requests, meeting with agencies, and deliberating, the Office of Management and Budget finalizes the President's budget request which is submitted to Congress. Doc. 92 at ¶ 8.

On November 23, 2015, the Centers for Medicare and Medicaid Services (CMS) notified the Rosebud IHS Hospital that the service unit was out of compliance with the Medicare conditions of participation and that CMS intended to terminate the unit's participation in the Medicare Program the following month. Doc. 94 at ¶ 11. The Rosebud IHS Hospital Emergency Department was placed on divert status on December 5, 2015. Doc. 94 at ¶ 12. The Emergency Department reopened on July 15, 2016. Doc. 19-8. IHS worked with CMS to improve the conditions at the Rosebud IHS Hospital and satisfactorily completed a Systems Improvement Agreement in September 2017. Doc. 92 at ¶ 16. At various times, although somewhat inconsistently, IHS has employed physicians, nurses, physician assistants, medical assistants, lab technicians, x-ray technicians, medical records health care information specialists, and contract employees to provide services at the Rosebud IHS Hospital. Doc. 92 at ¶ 15.

After this Court granted in part the Government's motion to dismiss, the Tribe's only remaining claim alleged a violation of treaty, statutory, and common law trust duties. Doc. 36 at 22; Doc. 92 at ¶ 17. Through discovery, the Government submitted interrogatories that asked the Tribe to define the scope of the duty it allegedly owes to the Tribe and to cite specific sources of law that establish that duty, but the Tribe objected to those interrogatories because they relate to issues of pure law. Doc. 92 at ¶¶ 18–25. The Government now moves for summary judgment on the grounds that the Tribe cannot identify a substantive source of law which establishes that the Government has a duty to provide health care to the Tribe, that the Tribe lacks standing, and that this Court lacks jurisdiction. Doc. 81.

B. Undisputed Facts Relevant from the Tribe's Perspective

Despite IHS's mission to raise the physical, mental, social, and spiritual health of American Indians and Alaska Natives to the highest level, health disparities and inadequate health care for those populations continue. Doc. 94 at ¶ 1. Federally-operated IHS facilities have seen a significant increase in their user populations over the last three decades, and between fiscal years 1986 and 2013, the population of registered users across the 28 IHS hospitals has increased by 70%, compared to the overall United States population growth of only 32% during that time period. Doc. 94 at ¶ 1(b); Doc. 91-1 at 7–8. Reports have found long-standing challenges at IHS facilities that affect the agency's ability to provide quality care, including problems with ensuring access to needed care, maintaining clinical competence, recruiting and retaining essential staff, monitoring and providing oversight to contracted providers, and utilizing outdated buildings and equipment. Doc. 94 at ¶¶ 1(a), 1(c); Doc. 91-1 at 13–14, 17. Healthy People 2020, an HHS initiative, found that Americans with access to comprehensive quality health care services have better health outcomes, fewer health disparities, and greater patient-provider relationships. Doc. 94 at ¶ 2; Doc. 91-2. IHS has recognized that American Indians and Alaska Natives experience lower health status, lower life expectancy,⁴ and disproportionate disease burdens compared to other Americans. Doc. 70-1 at 5; Doc. 94 at ¶ 3.

The Rosebud IHS Hospital is a service unit under the supervision of the Great Plains Area of IHS. See Doc. 91-13. The facility is located on the Rosebud Indian Reservation in south-central South Dakota, and it provides health care services to approximately 28,000 Native Americans with various conditions. Doc. 91-18. It is the primary means of health care for Native Americans in the area, and the Tribe's...