Mary Annette Pember
Indian Country Today

Native people may now claim a higher legal authority in calling for health services. The 8th Circuit Court of Appeals ruled 2-1 on Aug. 25 that healthcare is a treaty right guaranteed to the Rosebud Sioux Tribe by the 1868 Treaty of Fort Laramie.

Although a number of treaties call for the provision of medical services for tribes, federally funded health care for Native people is authorized by legislation, such as the Snyder Act of 1921 and the permanent reauthorization of the Indian Health Care Improvement Act.

In ruling that competent health care is a treaty right, however, the court imbues it with the power of the U.S Constitution in which treaty rights are considered to be the supreme law of the land.

“The judgement affirms a trust duty by the federal government beyond the minimum health care that’s been provided to tribes,” said Jerilyn LeBeau Church, president and CEO of the Great Plains Tribal Leaders Health Board.

Church, a citizen of the Cheyenne River Sioux tribe, noted that per capita spending by the Indian Health Service is considerably less than other federal health care services. For instance, IHS spends $3,779 per user versus Medicaid which spends $8,093 per user.

Language in the Treaty of Fort Laramie encourages tribes to abandon use of traditional medicines in favor of Western health care.

“This was a system of failure from the very start,” Church said.

The history of inadequate funding for IHS has contributed to health disparities among Native people, according to Church.

“We asked the circuit court to declare that there is a treaty duty by the United States to provide competent physician-led healthcare at Rosebud; this decision is really important for tribes,” said Tim Purdon, partner with the Robbins Kaplan law firm. Purdon and Brendan Johnson, also with the law firm, are former U.S. states’ attorneys for North and South Dakota.

The circuit court’s ruling emerged from a 2016 lawsuit by the Rosebud Sioux tribe v. United States of America et al over the closure of the IHS’ emergency room on the reservation. Patients were diverted to hospitals more than 50 miles away; this presented danger to patients seeking emergency care according to the lawsuit.

In 2020, South Dakota District Court found in favor of the tribe; the U.S. Department of Justice appealed the decision claiming there was no treaty duty to provide healthcare to signatory tribes to the Ft. Laramie treaty.

The case is a pro bono effort for the Rosebud tribe by the law firm, according to Purdon.

Although government separation of powers prevent a federal judge from ordering Congress to appropriate more money for IHS, the court's ruling declared that healthcare is a treaty duty by the U.S.

In its decision, the court wrote, “In this specific case, the government must do better.”

“The Treaty created a duty, reinforced by the Snyder Act and the Indian Health Care Improvement Act, for the government to provide competent, physician-led healthcare to the tribe and its members. We affirm.”

This declarative ruling can help tribes in pressuring Congress to appropriate more money for health care, according to Purdon.

“I am extremely hopeful that this decision will now get the attention it needs in Washington at the Department of Health and Human Services, the Department of Justice and the White House,” Purdon said.

“The Rosebud Sioux tribe is located in one of the poorest counties in the country; the U.S. government should stop wasting resources in fighting with them and turn instead toward fixing the problem of inadequate health care which is devastating Indian Country,” he said.

Purdon noted that the Justice Department opted to appeal the 2020 South Dakota’s favorable decision during the Donald Trump administration.

“I was shocked that President Biden’s administration chose to go forward with the appeal,” Purdon said.

“I’m hopeful that this ruling will encourage Congress to take a hard look at appropriations for tribal health care; in order to provide adequate care, services need to be funded at an appropriate level,” Church said.

In response to an email from Indian Country Today, Wyn Hornbuckle, deputy director of the Department of Justice’s Office of Public Affairs wrote, “We are reviewing the ruling.”

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Correction: The subhed has been corrected to show the Treaty of Fort Laramie happened in 1868.