Donna Gilbert, Julie Mohney and Charmaine White Face
From left: Donna Gilbert, Julie Mohney and Charmaine White Face were plaintiffs in a lawsuit against the Indian Health Service. Courtesy photo
Supreme Court declines to hear Sioux San case
Thursday, June 24, 2021

RAPID CITY, South Dakota — Exactly two months after receiving a writ of certiorari to be heard before the United States Supreme Court, the Court has declined to hear the appeal in Gilbert v Weahkee, upholding the decision of Judge Jeffrey Viken at the district court level.

A June 10, 2021, press release from the plaintiffs described their case as follows: “Three (3) Sioux women from Rapid City, Donna M. Gilbert, Julie Mohney, and Charmaine White Face, filed suit in the local South Dakota federal court only to have their suit dismissed. Proceeding on their own, pro se, the women took their case to the 8th Circuit Court of Appeals and had their case again dismissed.”

“Undaunted, as many of the patients at the hospital were being harmed in a number of ways, the three women proceeded to the U.S. Supreme Court,” the plaintiffs continued. “They were trying to stop fraud by a federal agency, save their hospital, and make sure the American Indian community members had good health care as provided in the 1868 Fort Laramie Treaty.”

Sioux San Hospital
The Sioux San Hospital is an Indian Health Service facility in Rapid City, South Dakota. A portion of the facility is operated by the IHS. The remainder is run by the Great Plains Tribal Leaders Health Board and is known as Oyate Health Center. Photo by Kevin Abourezk

The plaintiffs asserted that a self-determination contract with the Indian Health Service, awarded to the Great Plains Tribal Leaders Health Board, a nontribal state organization, which allowed them to establish and operate Oyate Health Care at the former Sioux San Indian Hospital, violated Public Law 93-638, the Indian Self-Determination and Education Assistance Act (ISDEAA).

The plaintiffs had been instrumental in thwarting a previous plan by Great Plains to establish and operate a health care facility in Rapid Valley on fee land. Regrouping, Great Plains then opened Oyate Health Care at the Sioux San facility, based upon support resolutions from the Cheyenne River Sioux Tribe (CRST), the Rosebud Sioux Tribe (RST) and the Oglala Sioux Tribe (OST).

The plaintiffs were then instrumental in getting RST to rescind their resolution, but Great Plains was allowed to proceed despite not having approval from all three tribes. The consequence being Oyate took over the ground floor at the Sioux San facility, while IHS retained control of the second floor, providing patients with an IHS option, which many have chosen.

Supreme Court Order List June 14, 2021
Without comment, the U.S. Supreme Court denied a petition in Gilbert v. Weahkee, No. 20-1847, in an order list issued on June 14, 2021.

Viken’s conclusion in his district court ruling makes clear that political remedies may be the only option the Rapid City Indian Community has in addressing the threat and legitimacy of Oyate Health Care. The conclusion reads: “But the lack of a judicial remedy does not mean plaintiffs have no remedy at all. The RST already rescinded its authorization for the Health Board to assume the functions of the Rapid City Service Unit and it appears there is opposition to the OST’s and CRST’s assumption.”

“Plaintiffs retain a political remedy through engagement with their tribal governments,” Viken adds. “In any event, the Health Board’s sovereign immunity and the impossibility of avoiding prejudice to the Health Board by proceeding with this litigation tip the scales in favor of dismissing this case for lack of joinder.”

A cornerstone in the plaintiff’s objection to the 638-contract was that the Health Board was a state organization. In their previous successful battle to keep the Health Board from relocating to Rapid Valley, the plaintiffs correctly pointed out that the Health Board had zero experience or expertise in operating a health care facility. But Viken’s decision only addressed whether the Health Board could legally engage in a 638-contract with IHS, not whether their actions or intent are harmful or beneficial to the Rapid City Indian Community.

In a footnote, Viken pointed out: “Contrary to plaintiffs’ argument, it does not matter that the Health Board is incorporated under state law, as opposed to tribal law. The ISDEAA’s definition of tribal organization does not preclude state-chartered organizations.”

After the plaintiff’s had already filed their writ of certiorari, they finally obtained legal representation. Charmaine White Face told NSNT: “We have an attorney now and his name is Mark Goldstone, and he has been working in the Supreme Court for 35 years, and he lives in Washington, DC.”

“Some of my friends who live on the East Coast have used him before and they were the ones who asked him after they read the last press release we sent out,” White Face continued. “They asked him if he would take our case and he did.”

Concerning the Supreme Court’s denial, White Face said, “I’m still in shock, but more importantly, this is a devastating blow to Indian self-determination.”

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Contact James Giago Davies at skindiesel@msn.com

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