“Gilbert v. Weahkee Headed to Supreme Court”
Rapid City, SD ---Less than two weeks after submitting their Petition for a Writ of Certiorari to the U.S. Supreme Court, Donna M. Gilbert, Julie Mohney, and Charmaine White Face received notification that their case will be heard by the Supreme Court. The case, Donna M. Gilbert et al v. RADM Michael D. Weahkee et al was placed on the Supreme Court docket as Case No. 20-1487. Weahkee was the Director of the Indian Health Service (IHS), James Diving Hawk is the Great Plains Area IHS Director, and former U.S. Attorney General William Barr are named as respondents.
After having their case dismissed at the local federal District Court level, the three Oglala women proceeded Pro Se, meaning by themselves without a lawyer, through the Eighth Circuit Appellate Court. The Appellate Court upheld the District Court’s decision, so the three petitioned the Supreme Court to hear their case.
Donna Gilbert stated, “It’s been nearly two years since we started this lawsuit against the Indian Health Service. Now we’re making history and have our foot in the door as our case resides in the US Supreme Court. We’re the voice supporting this Rapid City Native American Community and fighting for our Treaty Right to Healthcare. Our ancestors fought hard for this Treaty and today we’re fighting to keep it viable for future generations. Whether we win or lose in the Supreme Court, at least I can say I fought for my people.”
The three women and more than one-hundred fifty (150) other people signed on as a class action asking for an injunction to stop the illegal contract by the IHS with the Great Plains Tribal Chairmen’s Health Board (GPTCHB). Their motion for ‘class action’ was dismissed at the local District level. The contract is for the administration and management of the Sioux San Hospital.
The IHS established the GPTCHB in 1992 as a state non-profit corporation under the jurisdiction of South Dakota to act as a liaison with the Region’s Tribes, not as a health management organization. Furthermore, according to the law, only Tribes or Tribal Organizations can enter into Indian Self-Determination Act (P.L. 93-638) contracts with the IHS. Therefore, IHS’s contract with their own state non-profit corporation is illegal. In addition, the IHS violated numerous laws including those which say they must have the maximum participation of the Indian people being served. The Indian people being served are the 28,000 patients served at the Sioux San Hospital.
IHS did not conduct any public meetings but only solicited Resolutions from the three (3) nearest Tribes: Oglala Sioux Tribe (OST), Rosebud Sioux Tribe (RST) and Cheyenne River Sioux Tribe (CRST). Upon learning of a court case in the Oglala Sioux Tribal Court which ruled that GPTCHB was NOT a Tribal Organization, the Rosebud Sioux Tribe withdrew their Resolution.
“When both the District Court and the Appellate Court did not consider the Oglala Sioux Tribal Court decision, they violated what is known as the Abstention Doctrine. What those courts did is a slap in the face to all Tribal Courts. Yet the Eighth Circuit Appellate Court did, in fact, uphold an OST court case in the past setting a precedent. This only shows that the federal judicial system will use only what they want to use, not what is already precedent and lawful practice. All of this is also in our Petition,” said Charmaine White Face.
The U.S. Attorney for the IHS must submit 40 copies of their Brief in Opposition to the Petition by May 24, 2021. If the U.S. Attorney decides not to participate, the U.S. Solicitor General will represent the IHS.
Another law, 25 U.S. Code § 175 entitled “United States attorneys to represent Indians” was also included in the Petition as the three women, all members of the Oglala Sioux Tribe, have been proceeding Pro Se, on their own, without an attorney through the Appeals Court and now the Supreme Court processes. A ‘Go Fund Me’ account was set up on social media for their legal fees but only raised a little more than a thousand dollars, most of which was taken up by the Supreme Court process.
At the same time, the OST and CRST are also involved in a Supreme Court case with a number of other tribes who are all trying to stop Alaska state Native corporations from receiving federal funds as they are not considered to be Tribal Organizations and do not have government-to-government relationships with the federal government. However, both tribes, OST and CRST, have resolutions of support for this South Dakota corporation which has been proven in Tribal Court not to be a Tribal Organization.
Julie Mohney said, “Look what is happening within. It is our own people in IHS and the Tribes who are not honoring the Treaty. Weahkee is a Native American. Driving Hawk is a Native American. It’s our own people hurting us. Maybe just once the Tribes need to stand up for us tribal members.”
Health care is protected by the 1868 Fort Laramie Treaty for the Sioux people who are served by IHS in this geographic region and are patients at the Sioux San Hospital. “Our great-great grandparents made a Treaty with the United States, not with a non-profit corporation under the jurisdiction of the state of South Dakota,” said Charmaine White Face. “South Dakota wasn’t even a state when the 1868 Treaty was signed,” she said. When the U.S. government through their federal agency, the IHS, violates the 1868 Treaty by not providing adequate health care, it is a violation of Article Six of the U.S. Constitution which protects the Treaty.