Feds Still on the Hook for Indian Health Care Woes

ROSEBUD, S.D. (CN) – The U.S. government is not off the hook for problems plaguing American Indian health care in South Dakota, even though it successfully reopened several troubled reservation emergency rooms, a federal judge ruled Friday.

The Rosebud Sioux Tribe sued the federal government in April 2016, claiming that its chronic underfunding of Indian health care led to the closure of its emergency room in December 2015. The facility lost its eligibility for Medicare funds by failing to provide adequate screenings and treatment, among other issues.

Since then, Indian Health Service has contracted with a private staffing firm to reopen the Rosebud emergency room, as well as two other troubled facilities on the Pine Ridge reservation in South Dakota and the Winnebago Reservation in Nebraska.

But just because the emergency rooms are up and running again doesn’t mean the federal government is absolved of responsibility, U.S. District Judge Roberto Lange ruled.

Although most of the Rosebud Sioux Tribe’s claims against the government were dismissed in light of the reopening of the emergency room, Lange advanced the tribe’s breach of trust claims because they were not “strictly based on an alleged violation of the [Indian Health Care Improvement Act] that has been rectified.”

In a 26-page opinion, he found that failure to provide adequate health care funding to the tribe in the first place may have violated the 1868 Treaty of Fort Laramie, which promised that the government would provide “a physician” to the Sioux tribes in exchange for the tribe handing over much of its land. If the government wanted to withdraw the physician, it needed to provide the tribe with additional funding.

Congress has reiterated its intent to provide health care to American Indians since then, according to Lange, most recently in 2010 when it updated the Indian Health Care Improvement Act to read, “Congress declares that it is the policy of this Nation, in fulfillment of its special trust responsibilities and legal obligations to Indians” to provide the health care necessary to “ensure the highest possible health status for Indians.”

What remains for the court to decide is whether the federal government has a “trust” obligation to the tribes that goes beyond the mere appropriation of funds.

“Where money is appropriated to fulfill a treaty obligation, a trust responsibility attaches; where money is a ‘gratuitous appropriation,’ no trust responsibility is created,” Lange explains.

He goes on to note that the Rosebud Sioux Tribe’s original complaint includes five pages detailing why the IHS has a specific trust obligation to the tribes to provide adequate care, as evidenced by statutory language and a specific treaty.

“[T]he allegations … are sufficient to survive a motion to dismiss,” Lange finished.

Timothy Purdon, an attorney representing the tribe with Robins Kaplan out of Bismarck, North Dakota, indicated interest in discussing the case’s latest development but could not be reached by phone prior to deadline.

Cheryl Schrempp Dupris with the U.S. Attorney’s Office in Sioux Falls is representing the federal government and did not respond to an emailed request for comment.

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