Health | Law

Native Sun News: Tribal health group wins immunity decision





The following story was written and reported byJesse Abernathy, Native Sun News Editor. All content © Native Sun News.


Ron His Horse Is Thunder

Donald Warne

RAPID CITY, SOUTH DAKOTA –– An off-reservation multi-tribal entity created primarily to improve the overall health status of members of regional Native American tribes through a partnership with the Aberdeen Area office of the Indian Health Service claimed a definitive, though not final, victory in federal court recently with regard to the domain of sovereign immunity.

On Jan. 13, Great Plains Tribal Chairmen’s Health Board was granted a partial motion in U.S. District Court in Pierre to dismiss a lawsuit brought against the organization by J.L. Ward Associates Inc., a California-based consulting firm specializing in Native American affairs. The ruling was handed down by Judge Roberto Lange.

The Native American-owned J.L. Ward initially sued GPTCHB for breach of contract and copyright infringement following a series of informal commitments from GPTCHB, beginning in August of 2009, to retain the services of J.L. Ward in securing an Access to Recovery (ATR) grant through the Substance Abuse and Mental Health Services Administration, a division of the U.S. Department of Health and Human Services.

The health board had previously established a contractual relationship with the consulting firm in August 2007 for work relating to an unsuccessful ATR grant proposal.

Additionally, in a separate amended complaint, J.L. Ward claimed the court had federal diversity jurisdiction over the case because the amount in controversy exceeds $75,000 and the entities are alleged to be “citizens” of different states.

In his three-part decision, Lange extensively cited previous legal cases involving the sovereign immunity of tribes. The judge ultimately concluded that “Great Plains has sovereign immunity from the claims as pleaded in the complaint.”

Lange also granted J.L Ward 21 days to file another amended complaint to force arbitration of the contract dispute through an objective third party, inclusive of the copyright infringement claim only. If the consulting firm fails to act on the judge’s order within the 21-day period, Great Plains’ motion to dismiss shall be fully granted through adjudged default.

The parties’ 2007 contract contained the proviso that “(i)f the (Great Plains) 2007 ATR grant application is not approved and funded, this Agreement shall terminate and neither party shall have any further obligation to the other or duty under this Agreement,” with the exception that three specific sections of the contract will extend beyond termination.

These sections delineate a dispute resolution clause that allows for neutral third party mediation with regard to interpretation and enforcement of the contract and address the parties’ intellectual and copyright interests in the grant application.

In response to J.L. Ward’s civil suit, GPTCHB filed a motion to dismiss on the grounds that the court lacks subject-matter jurisdiction. The health board’s claim is based on the premise that, as a tribally incorporated and controlled entity, it inherently possesses sovereign immunity and is therefore not subject to lawsuits unless its governing body chooses to allow such actions.

GPTCHB further contended that the federal court lacked diversity jurisdiction over the case because “Indian tribes are not citizens of any state for purposes of diversity jurisdiction.”

Established in 1992, GPTCHB is a nonprofit organization with a representative governing body comprised of the tribal chairpersons and presidents of 16 federally recognized tribes throughout the Great Plains region of South and North Dakota, Nebraska and Iowa. The representative agency as a whole strives to improve the historically ongoing health disparities that exist among the Native peoples of the quad-state service area.

According to court documents, Dr. Donald Warne, former GPTCHB executive director, initially entered into a verbal agreement with James Ward, president and chief executive officer of J.L. Ward, in August of 2009 for the consulting firm to provide ATR grant proposal and contingent support services over a four-year period to the health board. At the time, Ward’s service offer was based on the imminent public announcement by SAMHSA of the availability of funding for ATR grants.

In his affidavit, Ward claimed that the arrangement Warne verbally agreed to was identical to the parties’ 2007 contract. Warne, who is Oglala Lakota, currently serves as the senior policy advisor for GPTCHB.

On Feb. 11, 2010, according to court documents, Great Plains passed a resolution which authorized J.L. Ward to prepare and submit an ATR grant application to SAMHSA in collaboration with the executive director and staff of Great Plains. J.L. Ward subsequently “planned and developed the 2010 ATR grant application at no cost to Great Plains” based on existing proposals and materials owned by the consulting firm.

The following month, the grant application was signed by Warne and submitted to SAMHSA.

In the interim between final submission of the grant application and a final decision by SAMHSA, Warne was replaced as executive director of Great Plains by Ron His Horse Is Thunder, a member of the Standing Rock Sioux Tribe.

Great Plains received an official ATR grant award notification from SAMHSA in September of 2010. The funding amount was $13,119,400, to be disbursed over a four-year period.

The ATR program is charged with providing clinical substance abuse treatment and recovery support services for targeted individuals through intermediary agencies such as GPTCHB. The immediate goals of the program are to “expand capacity, support client choice and increase the array of faith-based and community-based providers for clinical treatment and recovery support services,” according to SAMHSA’s ATR website.

According to Ward, His Horse Is Thunder continued to correspond with him via email regarding the alleged 2010 ATR contract. Ward claims that on Oct. 4, 2010, he emailed His Horse Is Thunder a copy of the original 2007 ATR contract as a template for the 2010 contract and, in seeming contradiction, stipulated that the language would remain the same but that dollar amounts and the detail of the scope of work would be altered.

His Horse Is Thunder allegedly agreed to promptly sign and return the 2010 contract to Ward once it had been drafted. On Oct. 7, 2010, Ward emailed the 2010 contract to His Horse Is Thunder for authorization.

“You have our commitment to you, to pay for your work on our ATR project commencing today,” said His Horse Is Thunder in an Oct. 8, 2010, email to Ward. “We will put in place the official binding contract as soon as we receive an updated scope of work, etc.,” he said.

The consulting firm subsequently began its informally contracted work on Great Plains’ ATR program.

Almost one month later, Ward received an email from His Horse Is Thunder requesting that work on the health board’s ATR program be discontinued immediately, citing concern “about many issues to say the least.” The request came following a full review of Ward’s proposal by His Horse Is Thunder and other health board employees.

J.L. Ward’s copyright infringement claim apparently stems from nonpayment by Great Plains for the consulting firm’s primary use of its already existing 2007 ATR project template to develop the health board’s 2010 program. Five days after His Horse Is Thunder’s email request to cease work, Ward received a correspondence fax from Great Plains’ attorney.

The fax stated, in part, “It appears that on October 8, 2010, Ron His Horse Is Thunder indicated to you that he would pay for your work on their Access to Recovery project commencing on October 8, 2010. There was no contract, but merely this instruction to begin work, subject to you providing him with an updated scope of work and other materials.”

His Horse Is Thunder is anticipating that Ward will file yet another amended complaint on behalf of J.L. Ward Associates Inc. to compel arbitration of the ongoing contractual dispute.

“I hope (Ward) doesn’t, but my gut feeling is that his lawyer’s going to file an amended complaint,” said His Horse Is Thunder.

There is still a dispute as to whether or not there was ever a contract in 2010, according to His Horse Is Thunder.

“No one’s made a decision on the 2010 contract, whether it exists or not. But J.L. Ward has to amend its complaint before the judge will even consider that.” His Horse Is Thunder said he believes the judge in this case made the right decision with regard to GPTCHB’s sovereign immunity as a multitribal entity.

“This organization and other tribal organizations are considered arms of the tribal government, or governments, in our case, so that sovereign immunity follows most tribal organizations. I’m glad the judge made that decision, basically following precedent that’s been set already in our area,” he said.

The services provided through the organization’s ATR program will not be impacted by the continuing litigation, His Horse Is Thunder said.

Ward could not be reached directly for comment. He instead instructed his attorney, Paul Tschetter of Sioux Falls, to contact Native Sun News.

“We won’t comment on pending litigation, other than we plan to proceed as ordered by Judge Roberto Lange in last week’s order,” said Tschetter.

(Contact Jesse Abernathy at staffwriter@nsweekly.com)