Excerpted From: Hailey Trawick, The Legacy of Trust Promises: Native American Healthcare, 25 Scholar: St. Mary's Law Review on Race and Social Justice, 301 (2023) (177 Footnotes) (Full Document)


HaileyTrawickFrom European colonialism to the establishment of the United States, the rights, history, and independence of Native Americans have been systematically stripped away. The American government expanded rapidly, forcibly displacing indigenous populations from their native lands and moving them to reservations with inferior resources and space. During a forced removal, often instituted by treaties between American Indian tribes and the federal government, government officials offered protection and access to resources in exchange for vast tribal land. Although treaty-making with American tribes ended over a century ago, their deleterious and often broken promises continue to haunt us.

The Eighth Circuit in Rosebud Sioux Tribe v. United States of America Department of Health and Human Services recently addressed one of the most prominent present-day tribal treaty issues: whether “the United States has a duty to provide 'competent physician-led healthcare’ to the Rosebud Sioux Tribe (the Tribe) and its members.” As part of its analysis of the question of health care in the Rosebud Sioux Tribe, the court looked back to the Treaty of Fort Laramie, signed in April 1868, between the United States and the Sioux Nation. This treaty established a reservation and attempted to end the conflict between the White settlers and the Sioux Nation. It promised that the United States would “furnish annually to the Indians the physician, teachers, carpenter, miller, engineer, farmer, and blacksmiths,” along with any appropriations necessary to employ these workers, and a residence for the physician. In exchange, the Tribe agreed to stop attacking the settlers and relinquish thousands of acres of their ancestral land.

In the years following this treaty, the government, through the Indian Health Service (IHS), built Rosebud Hospital in South Dakota and provided physicians for the Tribe's health care. However, in 2015, the Centers for Medicare & Medicaid Services discovered significant deficiencies in the hospital's emergency care, causing IHS to place the Emergency Department on “divert status, meaning emergency patients were diverted [to hospitals] approximately 50 miles away.” Moreover, although the Emergency Department reopened eventually, IHS placed the surgical and obstetrics services on divert status due to staffing shortages. The Rosebud Sioux Tribe eventually sued the federal government for continuous health care deficiencies, alleging that the federal government had a special trust duty to provide adequate health care services. On appeal, the Eighth Circuit reasoned that because of the “promises made to the Tribe more than 150 years ago, and [the] relevant legislation since that time ... the district court correctly articulated the existence and scope of the [government's] duty.”

In the case of Rosebud Sioux Tribe, the majority opinion sparked a circuit split on the issue of whether the United States government bears an obligation to provide competent health care to federally recognized Native American tribes. By holding that the federal government indeed carries this obligation, the Eighth Circuit properly departed from the Ninth Circuit's prior ruling that “the federal-tribal trust relationship, in and of itself, does not give rise to a judicially enforceable duty.”

However, this issue transcends a mere legal dispute between circuits. On average, a Native American's life expectancy is five years shorter than any other race population in the United States. Moreover, “[Native Americans] continue to die at higher rates than other Americans in many categories of preventable illness, including chronic liver disease and cirrhosis, diabetes, and chronic lower respiratory disease.” Despite Congress's ongoing statutory revisions and assurances of remedial action, Native American health remains far below an acceptable standard.

Part I of this paper explores the evolution of the trust doctrine and the obligations it created between the federal government and Native Americans. This section illustrates how treaties and legal precedents gave rise to the trust doctrine presumption and its ultimate codification in the Snyder Act and the Indian Health Care Improvement Act (IHCIA). Part II compares the Eighth and Ninth Circuits' reasonings and argues that the Ninth Circuit's analysis falls short on several fronts. Finally, Part III argues that the Supreme Court should resolve this circuit split and specify the federal government's trust obligations in the healthcare sector. Then, Congress should amend the IHCIA to clearly determine how health care should apply to all federally recognized tribes, regardless of the specific terms of their respective treaties.

[. . .]

It is imperative to eliminate the major disparities in Native American health care and to bring this issue to the forefront. The higher death rate among Indians exposes the inadequacy of their health services and the failure of the federal government to uphold its basic trust obligations. Through the centuries, the government's trust duties to Native Americans have evolved from mere treaty promises to statutory requirements. However, the lack of specificity within the two most important statutes for Indian health care, the Snyder Act and the IHCIA, caused the funding and services to the tribes to lapse and fall far below acceptable health care standard. Moreover, the lack of clarity has produced disparate circuit court holdings to the question of whether Congress's obligation to provide adequate health care is even judicially enforceable. Thus, it is imperative that the Supreme Court resolve this circuit split and establish a more straightforward test for lower courts to follow. Specifically, the Court should hold that because federal obligations have evolved far beyond centuries-old treaty language, courts need only look at the applicable statutes to see whether a trust duty is enforceable. Then, once the Court has made its ruling, Congress should work with the tribes to institute amendments to the Snyder Act and the IHCIA to make the acts more applicable and enforceable. Without these necessary steps, Native American lives will continue to be endangered, and Indian health care will deteriorate even further.

Juris Doctorate from University of San Diego School of Law, May 2023. B.A., University of San Diego, 2018.