To Trust or Not to Trust: Native American Healthcare Improvement in the Supreme Court's Hands

• Publication year: 2022

To Trust or Not to Trust: Native American Healthcare Improvement in the Supreme Court's Hands

Katherine Graham
University of Georgia School of Law

To Trust or Not to Trust: Native American Healthcare Improvement in the Supreme Court's Hands

Cover Page Footnote
J.D. Candidate, 2022, University of Georgia School of Law; B.A., 2019, University of Georgia. I would like to thank the 2020-21 and 2021-22 law review staff members for their thoughtful and diligent assistance with this Note. I would also like to thank my family and my fiancé for their constant support.

TO TRUST OR NOT TO TRUST: NATIVE AMERICAN HEALTHCARE IMPROVEMENT IN THE SUPREME COURT'S HANDS

Katherine Grace Graham^*

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The United States federal government's relationship with Native American tribes has long been tenuous. Despite years of unjust and inhumane treatment of Native Americans by the government, Congress has attempted to rectify or limit the government's harm to Native American people but has fallen short of upholding all agreements intended to improve United States-tribal relations. In particular, the government has not always followed treaties between the government and tribes, and the United States Supreme Court has failed to protect Native American rights in many cases. Central to this issue is the 1868 Treaty of Fort Laramie, in which the United States government agreed to provide physician-led healthcare to tribes, including the Rosebud Sioux Tribe. Prior to the treaty's execution, the Court held that the government has a unique, general trust responsibility to tribes. Since the treaty's execution, Congress has passed legislation on the implementation of tribal healthcare. The Eighth Circuit has concluded that the United States has a trust duty to provide healthcare to Native Americans, while the Ninth Circuit has concluded that the United States has no such duty. The Supreme Court has never expressly addressed this question.
This Note examines Supreme Court precedent to create an analytical framework for determining when trust duties attach to the government in its dealings with tribes in the healthcare context. This Note concludes that, considering this framework, the current composition of the Supreme Court, and policy concerns surrounding racial justice, the Court will likely hold

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that the United States has a trust duty to provide healthcare to Native Americans.

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Table of Contents

I. Introduction..................................................................1284

II. Background..................................................................1287

A. the general trust duty.....................................1287
B. the specific trust duty.....................................1289

III. Significant Caselaw: Mitchell and Its Progeny .. 1292

A. supreme court....................................................1296
B. eighth circuit.....................................................1302
C. ninth circuit.......................................................1304

IV. Interpreting the Relevant Substantive Law in Rosebud........................................................................1306

A. framework for analysis....................................1306
B. substantive sources of law relied on by the rosebud sioux tribe in rosebud.......................1309

1. Conventional Trust Relationship...................1309
2. Indian Healthcare Improvement Act.............1310
3. Snyder Act.......................................................1313
4. Treaty of Fort Laramie...................................1314

V. The Supreme Court and Rosebud..............................1316

A. factors influencing how the supreme court will likely rule in cases such as rosebud..............1316

1. Composition of the Court................................1317
2. COVID-19 and the IHS..................................1319

B. how the supreme court will likely rule in cases such as rosebud..................................................1320

VI. Conclusion..................................................................1322

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I. Introduction

In 1868, the United States and the Sioux Nation signed the Treaty of Fort Laramie.¹ Under the terms of the treaty, the United States agreed to provide for and to fund a physician for the Sioux Nation.² Since the treaty's enactment, the Unites States has established the Indian Health Service (IHS), an agency within the U.S. Department of Health and Human Services.³ The IHS's mission is "to raise the physical, mental, social, and spiritual health of American Indians and Alaska Natives to the highest level" by providing "comprehensive, culturally appropriate personal and public health services."⁴ The U.S. Congress funds the IHS,⁵ but the IHS has proven ineffectual and inadequate, largely due to underfunding,⁶ and the health of Native Americans suffers disproportionately as a result.⁷

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Since 2020, the fight for racial justice in the United States has moved to the center stage.⁸ For example, the Standing Rock Sioux Tribe recently protested the construction of the Dakota Access Pipeline because of the threats that the pipeline poses to the tribe's physical health and cultural resources, garnering national attention.⁹

The United States' duties to Native Americans arise from a general trust duty between the government and the tribes, recognized by the Supreme Court numerous times.¹⁰ This general trust duty serves as a baseline that can be bolstered by treaties and federal legislation to create a specific trust duty.¹¹ When the United States has a specific trust duty to Native Americans, the United States, as a trustee, has fiduciary duties, and a tribe can sue the government for breach of those fiduciary duties.¹²

The U.S. Supreme Court may have the opportunity to promote racial equality by narrowing the healthcare disparity for Native Americans. If a case like Rosebud Sioux Tribe v. United States¹³ reaches the Court, the Court will likely settle the circuit split regarding whether the United States has a trust duty to provide healthcare to Native Americans. The Eighth and Ninth Circuits disagree on whether the United States has a specific trust duty to provide healthcare to Native Americans.¹⁴ In Rosebud Sioux Tribe

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v. United States, the U.S. Court of Appeals for the Eighth Circuit held that "[t]he Treaty created a duty, reinforced by the Snyder Act and the [Indian Healthcare Improvement Act (IHCIA)], for the Government to provide competent, physician-led healthcare to the Tribe and its members."¹⁵ Previously, the Eighth Circuit also held that the United States has a duty to provide healthcare to tribes, stemming from the general trust relationship between the United States and tribes, in addition to treaties and acts of Congress.¹⁶ The Ninth Circuit has held that the United States does not have such a specific duty because no trust corpus exists; therefore, no specific trust duty attaches to the United States' promises to provide healthcare to tribes.¹⁷ A district court in the Ninth Circuit has also held that no specific trust duty attaches for the same reason and determined that the government can only assume trust duties expressly via statutes.¹⁸ The U.S. Supreme Court has not specifically addressed whether the federal government has a specific trust duty to provide healthcare to Native Americans.

This Note addresses the legal question presented by Rosebud: Does the United States have a specific trust duty to provide healthcare to Native Americans? The United States' general trust relationship with tribes, the 1868 Treaty of Fort Laramie, the IHCIA, the Snyder Act, and the Court's methods of interpretation used in similar cases all support the argument that the United States has a specific trust duty to provide healthcare to Native Americans. Therefore, the Supreme Court will likely hold that the

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United States has a trust duty to provide healthcare to Native Americans.

Part II of this Note examines the U.S. government's trust duty to tribes. Part III lays out the U.S. Supreme Court's method of interpretation for determining when specific trust duties attach to the government and demonstrates how the Supreme Court and the Eighth and Ninth Circuits have applied this interpretive framework. Part IV applies the Court's method of interpretation to the Treaty of Fort Laramie, the IHCIA, and the Snyder Act to determine whether a specific trust duty attaches to the U.S. government's obligations to provide healthcare to Native Americans. Part V discusses how the Supreme Court will likely rule in a case like Rosebud considering current events. Part VI concludes.¹⁹

II. Background

A. the general trust duty

A trust is an interest in specific property held by one person at the request of another person for the benefit of a third person.²⁰ Therefore, the elements of a trust are that (1) the trustor's words are imperative and impose an obligation on the trustee, (2) the trust corpus is ascertainable, and (3) the beneficiary of the trust is ascertainable.²¹

The general trust relationship between the United States and Native American tribes arises from the U.S. Constitution, treaties

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between the U.S. government and tribes, and congressional acts.²² The general trust relationship "entails duties of good faith, loyalty, and protection."²³ Additionally, the American Law Institute's draft provision on the Restatement on Federal Indian Law states the following:

The United States' trust relationship with Indians and tribes authorizes the federal government to provide services to Indians and tribes. Through the treaty process, and the federal government's acquisition of and control over Indian and tribal trust assets, the United States agreed to provide Indians with access to governmental services, including without limitation education, housing, health care, and the preservation of law and order. Congress is fulfilling what it perceives as a

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