Abstract

Excerpted From: Katherine Grace Graham, To Trust or Not to Trust: Native American Healthcare Improvement in the Supreme Court's Hands, 56 Georgia Law Review 1281(Summer, 2022)(Footnotes)(Full Document)

In 1868, the United States and the Sioux Nation signed the Treaty of Fort Laramie. Under the terms of the treaty, the United States agreed to provide for and to fund a physician for the Sioux Nation. 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. 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.” The U.S. Congress funds the IHS, but the IHS has proven ineffectual and inadequate, largely due to underfunding, and the health of Native Americans suffers disproportionately as a result.

 Since 2020, the fight for racial justice in the United States has moved to the center stage. 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.

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. This general trust duty serves as a baseline that can be bolstered by treaties and federal legislation to create a specific trust duty. 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.

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 States 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. In Rosebud Sioux Tribe 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.” 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. 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. 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. 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 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.

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Although lower courts are divided, if a case like Rosebud reaches the Supreme Court, the Court will likely hold that the United States has a trust duty to provide healthcare to Native Americans. Although the Ninth Circuit and District of Arizona disagree, the Eighth Circuit and the District of South Dakota have highlighted that substantive sources of law can give rise to a trust duty for the United States to provide healthcare to Native Americans. The Court will likely follow the Eighth Circuit's approach because it is consistent with Supreme Court precedent, including Mitchell and its progeny, and upholds the United States government's obligation to honor Native American rights.

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J.D. Candidate, 2022, University of Georgia School of Law; B.A., 2019, University of Georgia