Indianz.Com Video: Secretary of Health and Human Services Xavier Becerra and Indian Health Care #HonorTheTreaties
‘No one else needs to die’
Biden administration faces another test of commitment to Indian Country with health care case
Friday, December 17, 2021
Indianz.Com

A deadline is fast approaching for the Joe Biden administration to live up to its promise to improve the federal government’s relationship with tribes and their citizens.

In August, the Rosebud Sioux Tribe won a major victory in a long-running lawsuit against the United States. The 8th Circuit Court of Appeals ruled that the 1868 Treaty of Fort Laramie requires the federal government to provide “competent physician-led healthcare” to the Sioux Nation and its people, many of whom often suffer from substandard services on their homelands.

“This decision is an important acknowledgment of the Rosebud Sioux Tribe’s treaty rights as well as every other tribe that signed on to the Fort Laramie Treaty of 1868,” then-president Rodney Bordeaux said at the time of the August 25 decision. “As the court noted, the federal government must do better.”

Indianz.Com Video: 8th Circuit Court of Appeals – Rosebud Sioux Tribe v. United States

But while the litigation began during the prior presidential era, when relations with Indian Country were often rocky, the case has proven to be a difficult one for the Biden administration. So far, government attorneys have requested — and received — two extensions to determine whether to keep fighting the tribe in court.

The first extension would have required the government to make a move by November 12. The timing was potentially embarrassing, coming on the eve of the White House Tribal Nations Summit, when President Joe Biden vowed that his initiatives to “Build Back Better” would improve health care for tribes and their citizens.

“These efforts — again, to use the word my dad would use much — are a matter of dignity,” Biden said on November 15. “That’s the foundation of our nation-to-nation partnership. That’s what this summit is all about.”

But before the first deadline arrived, attorneys from the Department of Justice, whose leader also spoke at the summit, sought another extension. The second request cited a heavy workload on other Indian health care cases, unrelated litigation and the holiday season as reasons for needing more time to decide whether to appeal.

Indianz.Com Video: President Joe Biden – White House Tribal Nations Summit – November 15, 2021

The 8th Circuit granted the extension on November 4, giving the Biden administration until December 20 to make its next move.

By this time, though, the dispute had already attracted attention across Indian Country. Tribes throughout the nation, including many in the Great Plains region, where health care has been considered the worst within the Indian Health Service, had already been lobbying Biden to drop any potential appeals.

“With the firm conviction, the Biden administration states: ‘Health care is a right, not a privilege,’” Chairman Harold Frazier of the Great Plains Tribal Chairmen’s Association observed in a letter to the president.

“That’s true for Native Americans, as other Americans, yet in violation of our treaty rights we have been subjected to the worst health care in America,” added Frazier, who also leads the Cheyenne River Sioux Tribe, another signatory to the Fort Laramie Treaty of 1868.

Members of Congress, Democrat and Republican alike, have taken notice too. On the eve of Thanksgiving, a holiday that wouldn’t exist without the sacrifices of the Wampanoag people, nine lawmakers from the U.S. House of Representatives told Biden to accept the victory secured by the Rosebud Sioux Tribe.

“We believe an appeal of this case by the federal government would be detrimental because it would signal an unacceptable disregard for trust-based treaty responsibilities,” the five Democrats and four Republicans wrote on November 23. “Meeting treaty responsibilities is the cornerstone of sound federal Indian policy.”

And during the White House Tribal Nations Summit a week prior, another signatory to the 1868 treaty tried to get a key member of Biden’s presidential cabinet on the record. Vice President Alicia Mousseau of the Oglala Sioux Tribe asked the leader of the Department of Health and Human Services, which includes the IHS, to explain the “trust responsibility of the U.S. government to provide quality health care to sovereign tribal nations.”

Outlining what he said was his “personal belief,” Secretary Xavier Becerra admitted that the U.S. hasn’t always lived up to its responsibilities, despite being mandated by treaties, federal laws and even court decisions. But he declined to go into specifics about the nature of these health care duties due to ongoing “litigation.”

“What I will tell you there is that the courts will give us a more clear definition of what we mean by that trust relationship,” Becerra, a former member of Congress and former attorney general of California, said on November 15, sidestepping the question in his official capacity as Secretary of Health and Human Services.

White House Tribal Nations Summit
From left, Anthony Fauci, Chief Medical Advisor to President Joe Biden; Secretary Xavier Becerra of the Department of Health and Human Services and Vice President Alicia Mousseau of the Oglala Sioux Tribe participate in a panel discussion at the White House Tribal Nations Summit on November 15, 2021. Photo: U.S. Department of the Interior

In a September 21 letter, President Scott Herman of the Rosebud Sioux Tribe said the IHS hospital on his people’s reservation in South Dakota is “failing.” The facility, which is operated by the federal government, is no longer able to provide surgical services, emergency care or programs for pregnant people due to repeated cutbacks.

“A Rosebud mother gave birth on a hospital bathroom floor, when IHS medical personnel ignored her labor pains,” Herman told President Biden, Secretary Becerra and other members of Biden’s cabinet.

A second child was also born without adequate assistance at the facility during a period in which the Great Plains Area of the IHS was under intense scrutiny toward the end of the Barack Obama administration. Despite a Congressional investigation that drew widespread media attention more than five years ago, no major increases in funding or improvements to facilities have occurred in the region, according to tribal leaders.

“Currently, my people are sitting in Indian Health Service hospital waiting rooms for more than 36 hours desperately in need of attention and cannot even be admitted to a bed,” Frazier wrote in an opinion published on Indianz.Com after the conclusion of the Tribal Nations Summit. “The last tribal member sent off the reservation was sent to another state hundreds of miles from family and familiar faces.”

The COVID-19 pandemic has only worsened conditions in Indian Country, Herman added. According to government data, Native Americans have suffered from the highest infection, hospitalization and death rates since the arrival of the coronavirus nearly two years ago.

“It would be unconscionable for America to continue to fail to honor our treaty by continuing to leave us a generation behind on health care facilities,” Herman stated as he urged Biden not to appeal the case.

“The United States must scrap its broken health care facility structure and put in a new system that recognizes and addresses real health care and economic needs,” said Herman, who took office in early September.

Extension letters submitted on September 28 and on November 2 by the Department of Justice in Rosebud Sioux Tribe v. United States, No. 20-2062

According to the extension letters submitted in Rosebud Sioux Tribe v. United States, No. 20-2062, the Solicitor General of the United States is the government official who makes the call on whether to ask the 8th Circuit Court of Appeals for a rehearing en banc of the case. The decision is being made in “extensive deliberations and consultation” with the Department of Health and Human Services, one of the defendants in the lawsuit, as well as the Department of Justice, which is led by Attorney General Merrick Garland.

“When it comes to building on our nation-to-nation partnership, we understand the importance of open, honest conversations approached with respect, humility and sincerity,” Garland said at the Tribal Nations Summit last month. “This means listening to you as leaders of your governments and representatives of your citizens. “It also means responding respectfully to the thoughtful recommendations and information that you share with us.”

The August 25 court decision was issued by a panel of three judges, one of whom dissented with the majority that ruled in favor of the Rosebud Sioux Tribe. Although Judge Jonathan A. Kobes agreed there have been “considerable deficiencies” in the care provided by the IHS, he argued for a different interpretation of the 1868 Treaty of Fort Laramie.

“The historical evidence makes it clear that the physician was supposed to be a temporary instructor, not a permanent service provider,” argued Kobes, who was nominated to the bench by Republican former president Donald Trump. “The treaty promised only one physician because the doctor’s role was to teach the Sioux how to administer medicine — not to provide healthcare to the entire tribe.”

Should the Biden administration pursue a rehearing en banc, additional briefing would be required. If the request is granted, a larger set of judges on the 8th Circuit would hear the case all over again, potentially leading to a different — even a less favorable — outcome for the tribe.

“The United States and the Biden administration must honor and recognize its treaty and trust obligations and fulfill those promises of health care secured by tribal nations,” reads a letter to Biden that was signed by every major tribal organization in the U.S. “Upholding the Rosebud decision would be a significant step reflecting the Biden Administration’s commitment to honoring those treaties and trust obligations by providing adequate health care services to American Indians and Alaska Native people.”

The Biden administration now has until Monday to file a petition for a rehearing. The November 4 order granting the extension warns: “No further extensions will be granted absent extraordinary circumstances.”

With the case in limbo, leaders of the Sioux Nation have been meeting all week in Rapid City, South Dakota, for the Oceti Sakowin Titunwan Lakota Oyate Treaty Conference. They are expected to host a prominent guest on Friday: Secretary of the Interior Deb Haaland, who is the first Native person to serve in a presidential cabinet.


Oceti Sakowin Titunwan Lakota Oyate Treaty Conference

Day 1 | Day 2 | Day 3 | Rosebud Sioux Tribe on YouTube

The numerous letters urging Biden not to appeal the treaty rights victory have also been sent to Haaland. As one of the first two Native women in the U.S. Congress, she was given a Lakota name for her efforts in support of the descendants of the December 1890 Wounded Knee Massacre. The anniversary of the attack on a peaceful camp of Lakota people, which occurred at the hands of the U.S. military, is fast approaching.

“The Rosebud Sioux Tribe is one of the Great Sioux Nation tribes, the Oceti Sakowin — Seven Council Fires of the Lakota, Nakota, Dakota,” President Herman of the Rosebud Sioux Tribe told Indianz.Com amid the historic treaty gathering. “In the days of our great-grandfathers, the Creator watched over our people and sent us the sacred White Buffalo Calf Pipe. Our people were happy and prosperous.”

“Now, the United States, has taken our best lands and the Rosebud Sioux Reservation is a remote rural reservation, wracked with poverty, unemployment, and premature death for generations,” Herman added.  “The average life expectancy of a Rosebud Sioux man is 47 years, which is comparable to third world countries.”

Rosebud Sioux Tribe
The flag of the Rosebud Sioux Tribe. Photo: Heather Paul

The IHS was required to shut down the emergency unit at the Rosebud Hospital in December 2015 following a federal review of its operations. A case study made public almost four years later cited staffing shortages — but also substandard care — as the reasons for the closure.

The shutdown forced Rosebud patients to travel great distances to secure health services at off-reservation facilities in South Dakota and even in neighboring Nebraska. In just the seven months following the diversion of care, at least nine people are known to have died while being transported, according to tallies that were kept by the tribe at the time. At least five babies were born in ambulances.

“That drive time is well past the ‘golden hour’ when physicians have the best chance to save lives,” Herman pointed out.

Rosebud Sioux Tribe
A welcome sign on the Rosebud Sioux Reservation in South Dakota. Photo: Juliana Clifford / 350.org

But with the meeting in the sacred Black Hills, which was taken from the Sioux Nation in violation of their treaties, Herman is looking to Haaland to help carry his people’s message back to Washington, D.C.

“We’re just waiting to get ‘competent’ health care, and we’ve waited long enough,” Herman told Indianz.Com of the 153 years since the signing of the treaty at Fort Laramie.

“No one else needs to die for us to get ‘competent’ Indian health care,” Herman said.

Turtle Talk has posted documents from the case, Rosebud Sioux Tribe v. United States.

8th Circuit Court of Appeals Decision
Rosebud Sioux Tribe v. United States (August 25, 2021)

Letters of Support in Rosebud Sioux Tribe v. United States
Members of Congress

Indian Country Organizations

Great Plains Tribal Chairmen’s Association

President Scott Herman of Rosebud Sioux Tribe

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