Native Sun News Today: Battle continues over urban Indian hospital

Thursday, December 20, 2018  

Case called premature
By Ernestine Chasing Hawk
Native Sun News Today Staff Writer
nativesunnews.today

RAPID CITY – A judge called a case heard in federal court last week “premature” and dismissed a motion for an emergency injunction filed to stop the Great Plains Tribal Chairmen’s Health Board from taking control of Sioux San Hospital.

Charmaine White Face a member of the Oglala Sioux Tribe and resident of Rapid City filed the case against Indian Health Service and the Great Plains Tribal Chairmen’s Health Board asking for a permanent injunction that would stop the transfer of management of Sioux San from IHS to the GPTCHB via a PL93 638 Indian Self Determination Contract.

The case was heard in Federal Court last Thursday December 13, before the Honorable Judge Jeffrey Viken.

White Face cited treaty violations and a lack of consultation with the Rapid City Urban Indian community who utilize Sioux San as a basis for her lawsuit.

White Face was represented by Dr. Patrick Lee, former faculty at Oglala Lakota College and former OST Judge who is also a member of the Oglala Sioux Tribe and a resident of Rapid City.

The pair brought into question whether three tribes, the Cheyenne River Sioux Tribe, the Rosebud Sioux Tribe and the Oglala Sioux Tribe, have jurisdiction and decision making power over tribal members living off the reservation in Rapid City and the surrounding Black Hills. The question seems simple but the answer appears to be more complicated.

According to IHS, 80 percent of the 22,000 patients who utilize Sioux San are members of these three tribes and the reason cited as to why the Unified Health Board, made up of representatives from the three tribes, were given statutory oversight of the Rapid City Indian Health facility on the Sioux San campus.

Lee argued that urban Indians are not allowed to vote in tribal elections and therefore not given equal representation as afforded by the U.S. Constitution and therefore did not elect the tribal officials who gave authority to GPTCHB to initiate negotiations over management of Sioux San.

US Attorney Diana J. Ryan, arguing on behalf of Acting Director of the Great Plains IHS Area James Driving Hawk, said “If that [inability to vote in tribal elections] is a concern, then she [White Face] needs to take that up with her tribe.”

It appears the US Attorney’s stance on the matter is that tribes have jurisdiction over tribal members living off the reservation. “I understand the unfairness of it but that is something you have to take up with your tribes,” Ryan said.

Ryan also called White Face’s filing the request for an injunction “premature” because she said the 638 contract has not been awarded, “This is still in negotiation, and we are so far from a final decision.”

Ryan also argued that the case be dismissed because White Face filed is an individual and treaties only recognize government to government relations and that as an individual, White Face’s remedy is to file a TORT Claim against IHS if she believes she has been injured as a result of the 638 contract. White Face had asked for $100,000 in damages in her lawsuit.

Lee also argued that community members affected by the transfer were not consulted as required by Public Law 638. Lee offered as evidence a 1973 amendment of the Transfer Act, 42 U.S. Code § 2001, subsection (b): "In carrying out his functions, responsibilities, authorities, and duties under this subchapter, the Secretary is authorized, with the consent of the Indian people served, to contract with private or other non-Federal health agencies or organizations for the provision of health services to such people on a fee-for-service basis or on a prepayment or other similar basis.”

Lee argued that only the Secretary of Health and Human Services Alex Azar, has the authority to negotiate for Urban Indians and must have the consent of the Indian people served for transfer of services to the GPTCHB. His argument was that Azar did not meet with Indian people served and therefore not part of the negotiation process.

Attorney for the GPTCHB Attorney Colin C. Hampson countered that a subsequent amendment to Public Law 638 42 U.S. Code § 2001, negates subsection (b).

Hampson also presented evidence that the GPTCHB is protected by tribal sovereign immunity and therefore not subject to lawsuits.

Viken asked if White Face was speaking on behalf of other 22,000 Indian community members who utilize Sioux San as she had not enjoined them in her lawsuit.

Viken issued an order on December 14 dismissing the Motion for Permanent Injunction without prejudice, which he said allows the plaintiff to file at a later date after the 638 contract is signed and after she has the opportunity to enjoin the community in a class action lawsuit.

Viken also granted GPTCHB Motion to Dismiss for Failure to State a Claim; granted Indian Health Services Motion to Dismiss for Lack of Jurisdiction and denied as moot the Cheyenne River and Oglala Sioux Tribes Motion for Leave to file an amicus brief.

According to Rosebud Sioux Tribe Soldier Creek District Council Representative Kathleen Wooden Knife the Rosebud Sioux Tribal Council voted not to enjoin the GPTCHB in filing an amicus brief. The GPTCHB issued the following statement hailing the dismissal as a victory.

“The court filing attempted to halt the transfer of managerial control of the Sioux San Hospital over to the GPTCHB. Currently, the hospital at Sioux San is operated by the Indian Health Service, however, the Rosebud Sioux Tribe, the Oglala Sioux Tribe, and the Cheyenne River Sioux tribe voted to contract GPTCHB to take over full operational control of the facility by February 2019.”

“True triumph will be achieved when [we] fully engage, embrace and ensure the confidence of the users of Sioux San, and it’s dedicated, staff. We are on a new journey as a community as are the tribes. While there are divergent views on how to best achieve the best healthcare possible for our people, we all have a love of our people in our mind and hearts,” said Jerilyn Church, CEO of GPTCHB.

Contact Ernestine Chasing Hawk at staffwriter@nativesunnews.today

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