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Feds Urge Eighth Circuit to End Sioux Tribe’s Suit Over Health Care

The Justice Department says the government is meeting its obligations at Rosebud Sioux hospital.

(CN) — The federal government argued Thursday before the Eighth Circuit that the government does not owe the level of health care to members of the Rosebud Sioux Tribe that the tribe demands at the Rosebud Hospital under an 1868 treaty.

The Rosebud Sioux Tribe sued the federal government in 2016, claiming that the emergency room at the Rosebud Hospital in South Dakota was closed and patients diverted to other hospitals due to the poor quality of care. The emergency room has since reopened under a contract with an outside service provider, but the tribe still maintains that the government is falling short of meeting its obligation to provide quality care.

U.S. District Judge Roberto Lange dismissed three of four counts of the suit in 2017 but denied the government’s motion to dismiss a count that claimed it failed in its “special trust duty” under common law, federal statutes and the 1868 treaty to provide health care services to the tribe that does not fall below the “highest possible standards of professional care.” The suit on that count could move forward if the Eight Circuit upholds the finding.

The Treaty of Fort Laramie of 1868 between the United States and “the different bands of the Sioux Nation of Indians” requires, among other things, that the government provide sufficient appropriations to employ “one physician” and up to $3,000 for a residence for the physician for the Sioux Tribes.

Congress has subsequently passed legislation to provide health care to the tribes, which the Rosebud Sioux argues translates into the special trust obligation that it failed to meet at the Rosebud Hospital.

John Koppel, an attorney with the U.S. Department of Justice, told a three-judge panel of the Eighth Circuit Thursday that the health care provided to the Rosebud Sioux Tribe by the government under the Indian Health Service more than fully satisfies the government’s obligation under the 1868 treaty. He pointed out that the Indian Health Service spends more than $2 billion a year to operate 600 health clinics for Native Americans in the U.S. and Alaska.

To support its claim that the government has failed its special trust obligation under the 1868 treaty, Koppel said the Rosebud Sioux Tribe must show there is a “trust corpus,” which requires that an Indian asset be managed on behalf of the tribe.

He said there is no “corpus,” or asset, at issue in this case.

“That is really the crux of the dispute here,” Koppel said.

Sioux Falls attorney Timothy Billion of Robins Kaplan, which represents the tribe, told the judges that the government’s obligation to the tribe is clear in the treaty and subsequently recognized in numerous statutes.

In response to questions from Eighth Circuit Judges Ralph Erickson and Jonathan Kobes, both Trump appointees, on how the government’s obligations under the 1868 treaty can be stretched as far as the tribe suggests, Billion said the treaty has been “informed by subsequent statutes” that show that “Congress understands its obligations under the treaty.”

Billion said in an email following Thursday’s argument that his clients are determined to press their case for better health care.

“The Department of Justice argued that a single physician and a $3,000 building is sufficient to meet the federal government’s healthcare trust responsibility to the entire Rosebud Sioux Tribe,” Billion said. “We vehemently disagree, and the Tribe will not stand down when it comes to pressing for adequate healthcare for their people.”

Koppel declined a request from Courthouse News for comment Thursday.

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