Amicus Curiae Brief — Lincoln v. Vigil

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No. 91-1833

OFFICE OF THE ciEex

In The

Supreme Court of the United States

October Term, 1992

EVERETT R. RHOADES, M.D., DIRECTOR OF THE

INDIAN HEALTH SERVICE, et al.,

Petitioners,

VS.

GROVER VIGIL, et al.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF AMICI CURIAE NATIONAL CONGRESS

OF AMERICAN INDIANS, NATIONAL INDIAN

COUNCIL ON AGING, NORTHWEST AREA

INDIAN CHILD WELFARE ASSOCIATION IN

SUPPORT OF RESPONDENTS

Steven C. Moore, Esa. M. HeLen Srencer, Esa.

Counsel of Record Evergreen Legal Services

Native American Rights 510 Larson Building

Fund 6 South Second Street

1506 Broadway Yakima, WA 98901

Boulder, CO 80302 (509) 575-5593

(303) 447-8760

Attorneys for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225 694

OR CALL COLLBCT (402) 42 28M

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ....................

SUMMARY OF ARGUMENT.......................

ARGUMENT

THE UNITED STATES BEARS A TRUST

RESPONSIBILITY TO PROVIDE HEALTH CARE

TO INDIAN PEOPLE WHICH DERIVES FROM

TWO CENTURIES OF THE UNITED STATES’

SELF-IMPOSED OBLIGATION.................

A. The United States Has a Distinct Obligation,

Growing Out of Two Centuries of History, to

Deal Fairly With Indian People in the Deliv-

ery of Health Care Services...............

B. The Government’s Characterization of the

Trust Responsibility As Extending Only to

Indian Property Ignores the Full History and

Evolution of the Obligation, and Would

Require the Court to Overturn its Decision

OD Senet OD TE cennsnecncnuscncaneseenns

THE HISTORY OF DEALINGS BETWEEN THE

UNITED STATES AND INDIAN PEOPLE

EVINCES A SELF-IMPOSED OBLIGATION ON

THE UNITED STATES TO PROVIDE HEALTH

CARE TO INDIAN PEOPLE...................

A. The Early Historical Period Between the

United States and Indians is Marked by the

Catastrophic Decline in the Indian Popula-

tion Due to the Infestation of European Dis-

eases and the Rapid Loss of Land Base and

Access to Traditional Food Sources, and the

Consequent Expansion of Federal Health

Care Services to Indian People.............

TABLE OF CONTENTS - Continued

Page

1. Colonial Period to 1832: The United

States Began Providing Health Care to

Indian People Soon After Diseases Car-

ried by the Europeans First Devastated

the Indian Population .................

2. The Federal Responsibility for Indian

Health Care was Expanded Through the

DOD TUREIED 6 ois ceciccocccceeces

3. The Treaty Period, 1832 to 1871: Confine-

ment of Indian People to Reservations

During the Treaty Period of 1832 to 1871

Resulted in Stronger Federal Respon-

sibility in Indian Health Programs Due

to the Deterioration of Health Caused by

the Inability to Gather Food, and the

Restricted Access to Health Care.......

4. The Allotment Period, 1871 to 1921: The

Bureau of Indian Affairs Expanded the

Number of Medical Personnel Serving

Individual Indians, Who, Due to the

Increased Breakdown of Tribal Connec-

tions Caused by Allotment Policies,

Were Continuing to Experience Unmet

ED Pah cecccccccesdsctéecceses

B. The Modern Era Evinces a Continuing, and

Expanding Self-Imposed Trust Obligation on

the United States to Provide Health Care to

SD SEED dad cccceenccceceucdsoceccsces

1. The Snyder Act and the Indian Reorgani-

Ge Ge cccccceccces peeesencstosseses

TABLE OF CONTENTS - Continued

Page

a. The Snyder Act of 1921 provided for

the first time a permanent legislative

authorization for congressional

appropriations in the area of Indian

PE esaebsevevencecsecsctscess

b. The Indian Reorganization Act,

which was passed as an attempt to

strengthen Indian tribal institutions,

also contained an increase of feder-

ally provided health services.......

2. The Johnson O’Malley Act (JOM), Passed

in 1934, Acknowledged the United

States’ Responsibility to Provide Com-

prehensive Medical Services for Indian

PND NetbSdeekesucedieccudcécaecece.

The Transfer Act Further Strengthened

Government Commitment to Provide

Health Care for Indians Even During the

Termination Era When the Government

Questioned its Relationship with Indian

a i

The Indian Health Care Improvement

Act, Passed When the United States Had

Returned to a Policy of Strengthening

Indian Tribes, Continued the Govern-

ment’s Commitment to Health Care for

SE NN 6 6ebdkcesdeusenacudkcness

CONCLUSION . 22... cece cece

TABLE OF AUTHORITIES

Page

Cases

Blue Legs v. Bureau of Indian eunees 867 F2d

EE I PE adcuida dl bbb eeadchecdeccackes 11

Board of County Commissioners v. Seber, 318 US.

PNG 6h sdb bkwesdicn codons | 4

Cherokee Nation v. Georgia, 30 US. (5 ae 3

Pi idetkcwedacccabsntaccendnanatiedebees .4, 9, 15

Cherokee Nation v. Hitchcock, 187 US. 294 (1902) 21

Conners v. United States and the Cheyenne

ov 33 Ct. Cl. 317 (1898), ve. 180 U.S. 271

Ae md oe aes ia ie oe ee 17

County of Oneida, New York v. Oneida Indian

Nation of New York State, 470 U.S. 226 (1985) 4

Covelo Indian Community v. Federal Energy

ulatory Commission, 895 F.2d 581 (9th Cir 1 ). 11

Fort Sill A Tribe of Oklahoma v. United

States, 201 Ct. Cl. 630, 477 F.2d 1360 (1973), cert.

denied, 416 U.S. 993 (1974).................. 17

Kenai Oil & Gas, Inc. v. Department of the Inte-

rior, 671 F.2d 383 (10th Cir 1982)... ssi 11

Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) 3

McNabb v. Bowen, 829 F.2d 787 (9th Cir 1987) 11

Miss: | Band of Choctaw Indians v Holyfield,

490 . BW (1989) | 5

Morton v. Mancari, 417 US. 535 (1974) 5. 6,7

Morton v. Ruiz, 415 US. 174 (1974) 4.5. 7. 9. 10

TABLE OF AUTHORITIES - Continued

Page

Nance v. Environmental Protection Agency, 645

F2d 701 (9th Cir 1981) 7 11

Natonabah v. Board of Education of Gallup,

McKinley County School District, 355 Sates

716 (D.N.M. 1973)

Quick Bear v. Leupp, 210 US. 50 (1908). s

Scholder v. United States, 428 F.2d 1228 (9th Cir

1970), cert. denied, 400 US. 942 (1970) 5

Seminole Nation v United States, 316 US 286

(1942) 4,5, 7

Squire v. Capoeman, 351 US. 1 (1956) 4

Stephens v. Cherokee Nation, 174 US. 445 (1899) 21

United States v Candaleria, 271 US. 432 (1926) 4

United States v Cherokee Nation of Oklahoma,

480 US. 700 (1987) 5

United States v Creek Nation, 295 US. 103 (1935) 4

United States v Kagama, 118 US 375 (1886) 4,5, 7

United States v Patrick, 73 F 800, 20 CCA 11

(CCA. 8, 1896). error dismissed. 18 S.Ct. 949, 42

L.Ed 1216 (1898) 1

Vigil v. Andrus, 667 F 2d 931 (10th Cir 1982) 11

White v. Califano, 437 oe 543 (DS.D. 1977),

aff'd 581 F2d 697 (10th Cir 1978) 9. Il

STATLTES

Snyder Act, 25 USC. 13, 42 Stat. 208 7 & ta ae

25 USC. 261, 262 l4

TABLE OF AUTHORITIES - Continued

Page

RE aN ee ey ee a 5

General Allotment (Dawes) Act of 1887, Act of

February 6, 1887, 24 Stat. 368............... 0.008, 19

Johnson O'Malley Act, 25 U.S.C. §§ 452-454....5, 8, 25

Indian Child Welfare Act, 25 U.S.C. §§ 1901-1952..... 5

Indian Health Care Improvement Act of 1976, 25

US.C. 1601 et seq., 90 Stat. 1400............ 9, 28, 29

Health Maintenance anization Act of 1973, 42

USC. 2001 et seq., Es ede eae de as 26

Indian Sanitation Facilities and Services Act of

1959, Pub. L. 86-121, 42 USC. 2004............ 26

Indian Health Facilities Act of 1957, Pub. L.

Sk Se ana aa eee 26

Trade and Intercourse Act of 1793, 1 Stat. 329

DM Giukacevs sl uuuns oknaaltdteds cote. 14

Transfer Act, Act of August 5, 1954, 68 Stat. 674... . 26

Ags oS Diese SB, BOSD, 3 Gdad. G06... nc ccccccccccess 14

Act of May 5, 1832, 4 Stat. 514 livdbddibtnctbasnenes 15

Act of March 3, 1849, 9 Stat. 395 ................... 15

Act of March 1, 1861, 12 Stat. 221, 237.............. 18

Act of March 3, 1863, 12 Stat. 774, 790....... —

Act of June 18, 1860, 12 Stat. 44, 57.................18

Act of July 5, 1862, 12 Stat. 512, 528.. wevesseeou

vil

TABLE OF AUTHORITIES - Continued

Page

Act of March 3, 1865, 13 Stat. 541, 558.............. 18

Act of June 25, 1864, 13 Stat. 161, 179 .............. 18

Act of March 2, 1867, 14 Stat. 492, 514.............. 18

Act of July 26, 1866, 14 Stat. 255, 278............... 18

Article Il of the Treaty of October 14, 1865, 14 Stat.

Pe Sit dthbddh ee rsnaetoenss 4eedszeescnseessds 17

Act of July 27, 1868, 15 Stat. 198................. icone

Act of March 3, 1871, 16 Stat. 544, 545.............. 18

Act of April 10, 1869, 16 Stat. 13, 14................ 18

Act of July 15, 1870, 16 Stat. 335.................... 18

Act of February 14, 1873, 17 Stat. 437, 440. ...... 14, 18

Act of February 14, 1873, 17 Stat. 437, 461.......... 14

Act of May 29, 1872, 17 Stat. 165, 166 .............. 18

Act of March 3, 1875, 18 Stat. 420, 423.............. 18

Act of Jume 22, 1874, 18 Stat. 146-147............ 18, 19

Act of June 22, 1874, 18 Stat. 146, 148 .............. 18

Act of March 3, 1877, 19 Stat. 271, 272.............. 18

Act of February 17, 1879, 20 Stat. 295, 297.......... 18

Act of May 27, 1878, 20 Stat. 63, 66............... 18

Act of March 3, 1881, 21 Stat. 485, 501 .............18

Act of May 11, 1880, 21 Stat. 114, 116 .............. 18

Act of March 1, 1883, 22 Stat. 433, 449.............. 18

Act of March 6, 1882, 22 Stat. 7,9............... 18

Act

viii

TABLE OF AUTHORITIES - Continued

Page

of May 17, 1882, 22 Stat. 68, 86................. 18

of March 3, 1885, 23 Stat. 362, 380.............. 18

of July 4, 1884, 23 Stat. 76, 94.................. 18

of March 2, 1887, 24 Stat. 449, 464.............. 18

of May 15, 1886, 24 Stat. 29, 43................. 18

of March 2, 1889, 25 Stat. 980, 997.............. 18

of June 29, 1888, 25 Stat. 217, 233............... 18

of March 3, 1891, 26 Stat. 989, 1008............. 18

of August 19, 1890, 26 Stat. 336, 355............ 18

of March 3, 1893, 27 Stat. 612, 632.............. 19

of July 13, 1892, 27 Stat. 120, 138............... 19

of August 14, 1894, 28 Stat. 286, 306............ 19

of March 2, 1895, 28 Stat. 876, 879.............. 19

of June 10, 1896, 29 Stat. 324..................., 19

of March 1, 1899, 30 Stat. 924-926 .............. 19

of March 1, 1899, 30 Stat. 924, 927........... 19, 20

of June 7, 1897, 30 Stat. 62, 65.................. 19

of July 1, 1898, 30 Stat. 321, 571, 574........... 19

of May 31, 1900, 31 Stat. 221, 224, 241 iieseunude 19

of April 21, 1904, 33 Stat. 189, 192.............. 19

TABLE OF AUTHORITIES -— Continued

Page

Act of March 1, 1907, 34 Stat. 1015, 1052............ 20

Act of June 21, 1906, 34 Stat. 325, 328 .............. 20

Act of June 21, 1906, 34 Stat. 325, 330, 339.......... 19

Act of April 30, 1908, 35 Stat. 70, 74................ 19

Act of March 3, 1901, 31 Stat. 1058, 1061, 1071...... 19

Act of March 3, 1903, 32 Stat. 982, 985.............. 19

Act of May 27, 1902, 32 Stat. 245, 248 .............. 19

Act of March 3, 1905, 33 Stat. 1048, 1050............ 19

Act of March 3, 1909, 35 Stat. 781, 784.............. 19

Act of April 4, 1910, 36 Stat. 269, 271............... 19

Pub. L. 100-713, November 23, 1988, 102 Stat. 4784 .... 29

Pub. L. 102-573, October 29, 1992, 106 Stat. 4526.... 29

LecisLaTive MATERIALS

H.R. Doc. No. 203, 27th Cong., 3rd Session (1843) .... 14

H.R. Rep. No. 275, 67th Cong., Ist Sess. (1921)...... 23

S. Rep. No. 294, 67th Cong., ist Sess. (1921)........ 23

H.R. Rep. No. 864, 73 Cong., 2d Sess. (1934)........ 25

S. Rep. No. 511, 73 Cong., 2d Sess. (1934)........ 25

S. Rep. No. 1530, 83rd Cong., 2d sess. (1954)....... 27

48 Cong. Rec. 10643 (August 10, 1912)............... 20

61 Cong. Rec. 4671 (August 4, 1921)................. 23

TABLE OF AUTHORITIES - Continued

100 Cong. Rec. 8952-8962 (June 25, 1954).............

U.S. Cong., American Indian Policy Review

Comm., Task Force Six: Indian Health, Final

Report to the American Indian Policy Review Com-

mission (Washington, D.C. U.S. Government

TO MN WI oa va coda cdadevasGaunadoce 11,

U.S. Cong., Office of Technology Assessment,

Indian Health Care, OTA-H-290 (Washington,

D.C. U.S. Government Printing Office 1986).......

A Study of the Indian Health Service and Tribal

Involvement in Health, Hearings before the Per-

manent Subcommittee on Investigations of the

Committee on Government Operations of the

United States Senate, 93rd Cong., 2d Sess., U.S.

Government Printing Office, Washington, D.C.

SE SU I nad dadiuaeicnaheccsédeeeedcckc 3.

Fourth and Sixth Offenses, Regulations of the

Indian Office, April 1, 1904 Secretary of the

Interior (Washington: Government Printing

I a ea

Tuberculosis Among the North American Indians:

Report of a Committee of the National Tuberculosis

Association Appointed on Octobe*28, 1921, Senate

Committee Print, 67th Congress, 4th Sess.,

Printed for the Use of the Committee on Indian

Affairs, Washington, D.C., Government Printing

<i ktaRRRRIat itis Mpinint haan

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

“American Indian Policy Review Commission’s

Report on Indian Health,” American Indian Jour-

nal, Vol. 3, No. 2 (February 1977)................. 17

Cartwright, Frederick F.; Biddiss, Michael D., Dis-

ee I II dna vend okeees bhseeencedcececs: 13

Chambers, Reid Payton, Judicial Enforcement of the

Federal Trust Responsibility to Indians, 27 Stan. L.

ee MIS So corac 45s ou sence cweecs cock ews 3, 4

Cohen, Felix, Handbook of Federal Indian Law (New

Mexico University Press 1st ed. 1942) 14, 15, 16, 18, 19

Cohen, Felix, Handbook of Federal Indian Law (Mic-

hie Bobbs-Merrill 2d ed. 1982)........ 3, 4, 24, 26, 27

Dobyns, Henry F., Native American Historical

Demography: A Critical Bibliography (1976) ......... 13

Duffy, John, The Healers: The Rise of the Medical

RELL ESE BE Ted ESE PE OID OP 13

McGegor, Gordon, “Barriers to Economic Devel-

opment,” American Indians, Facts and Future:

Toward Economic Development for Native American

Communities, Report of the Joint Economic

Committee, Congress of the United States (Arno

ERR se ee ee so ee a at ae ee 17

Raup, Ruth M., The Indian Health Program from

1800 to 1955 (unpublished paper).............. 20, 25

Schoolcraft, Henry R., Narrative of an Expedition

through the Upper Mississippi to Itasca Lake in

1832, (New York, Harper Brothers, 1834).......... 13

xii

TABLE OF AUTHORITIES —- Continued

Stern and Stern, The Effect of Smallpox on the Des-

tiny of the American Indian (1945) .................

Thompson and Homans, Laws of the Colonial and

State Governments Relating to Indians and Indian

Affairs from 1633 to 1831, Inclusive, Containing

the Proceedings of the Congress of the Confederation

and the Laws of Congress from 1800 to 1830 on the

oe ee

Tyler, S. Lyman, A History of Indian Policy (United

States Government Printing Office 1973) ..........

The 1928 Meriam Report (“The Problem of Indian

Administration”), Brookings Institution............

Pursuant to Rule 36.2 of the Rules of the Supreme

Court of the United States, the National Congress of

American Indians, 900 Pennsylvania Ave., S.E., Washing-

ton, DC 20003; the Northwest Area Indian Child Welfare

Association, c/o Regional Research Institute, P.O. Box

751, Portland, OR 97207; and the National Indian Council

on Aging, 6400 Uptown Blvd., N.E., City Center 510W,

Albuquerque, NM 87110 file the attached brief amici cur-

iae in support of Respondents to the above-captioned

case. Both parties have consented in writing to the filing

of this brief; said letters of consent accompany this brief,

as required by Rule 36.

INTEREST OF AMICI CURIAE

The National Congress of American Indians is dedi-

cated to protecting the rights and improving the welfare

of American Indians and Alaska Natives, to enlightening

the public toward a better understanding of Indian peo-

ple, and to preserving rights under Indian treaties or

agreements with the United States. NCAI is the oldest

and largest national organization of Indian governments

and individuals in the United States. NCAI routinely files

briefs amicus curiae in Supreme Court cases.

The National Indian Council on Aging, a non-profit

organization, is the Nation’s foremost advocate for Indian

elders, dedicated to improvement of the lives of Amer-

ica’s 200,000 American Indians and Alaska Native elders,

and preservation of the federal trust duty owed to them.

The Northwest Indian Child Welfare Association, Inc.

is an organization, the primary goals of which are to

provide tribal social service professionals with training

and information that can enhance their practice; to facili-

tate community prevention efforts in tribal communities

centered around protecting and nurturing Indian chil-

dren; and to increase access to a broad range of services

for Indian children and families.

Amici Curiae have two general concerns about the

impact of Rhoades v. Vigil. First, there is the potential for

the future arbitrary termination of services to some of the

Indian community’s neediest children. With the current

federal response to the needs of Indian children and

families being woefully inadequate, a court decision with

the potential to exclude more Indian children from des-

perately needed services is unconscionable. The second

concern focuses on the impact of the overall trust respon-

sibility that the United States government has to Indian

people. This trust responsibility has been well defined in

treaty, law, and federal administrative policy. The Indian

Health Service’s decision to discontinue services to these

handicapped children could abrogate this trust respon-

sibility and, if upheld, could set a dangerous precedent

for future efforts to enforce the trust responsibility.

SUMMARY OF ARGUMENT

The Supreme Court has ruled in several instances

that the United States’ trust relationship imposes a duty

of fairness on the government's dealings with Indian

people. Respondents in this case contend, and the Tenth

Circuit has ruled, that a duty of fairness requires the

United States to consult with them before terminating the

Indian Childrens Program (ICP), a program benefitting

severely mentally, physically and emotionally hand-

icapped Indian children. The government disagrees, on

the grounds that, first, the federal trust duty extends only

to matters involving Indian property and, second, that

Congress has never passed a statute expressly creating

the ICP and, thus, Respondents do not have a legitimate

expectation to be consulted.

Amici believe the government is wrong on both of

these points. First, through numerous decisions of the

Court and congressional’ enactments it is clear that both

the United States and Indian people understand the trust

duty - and hence the duty of fairness - extends beyond

matters involving only property. Second, there is an

unambiguous history, spanning nearly two centuries,

evincing a self-imposed trust duty on the government to

deliver health care to Indian people. These factors com-

bine to produce a legitimate expectation in Respondents

to be consulted in the ultimate decision by the govern-

ment whether to terminate the ICP.

ARGUMENT

I. THE UNITED STATES BEARS A TRUST RESPON-

SIBILITY TO PROVIDE HEALTH CARE TO

INDIAN PEOPLE WHICH DERIVES FROM TWO

CENTURIES OF THE UNITED STATES’ SELF-

IMPOSED OBLIGATION

A. The United States Has a Distinct Obligation,

Growing Out of Two Centuries of History, to

Deal Fairly With Indian People in the Delivery

of Health Care Services.

Generally speaking, the federal trust responsibility

doctrine has been developed by the Supreme Court and

lower federal courts over the past one hundred and sev-.

enty years to explain the unique status of Indian tribes

and their members and their unique relationship to the

United States government.! The doctrine is intended to

protect Indians whose lives are inextricably intertwined

with —- and thus dependent upon - the federal govern-

ment, as is the situation in the case presently before the

Court.

The earliest judicial pronouncements of the trust rela-

tionship between Indian tribes and the United States

came in the 1823 and 1831 decisions of Johnson v.

' Chambers, Reid Payton, Judicial Enforcement of the Federal

Trust Responsibility to Indians, 27 Stanford Law Review 1213,

1215-1234 (1975); Cohen, Handbook of Federal Indian Law (Michie

Bobbs-Merrill 2d ed. 1982) at 220.

M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), and Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), now cor-

nerstones of federal Indian law.? In those cases Chief

Justice John Marshall described the status of Indian tribes

as “domestic dependent nations”,? an intermediate gov-

ernmental status more sovereign than states, but less

sovereign than foreign nations. Chief Justice Marshall

explained the tribes’ relationship to the federal govern-

ment as being “that of a ward to his guardian.”4 The

guardian-ward, or trust, relationship between the United

States and Indian tribes and tribal members has remained

at the core of federal Indian law.5

In the seminal decision Morton v. Ruiz, 415 U.S. 174,

236-7 (1974), this Court reiterated the “distinctive obliga-

tion of trust incumbent upon the Government in its deal-

ings with these dependent and sometimes exploited

people,” (quoting Seminole Nation v. United States, 316

U.S. 286, 296 (1942)), and found that this distinct obliga-

tion of trust compelled an “overriding duty of our Fed-

eral Government to deal fairly with Indians... . ”

(quoting Seminole Nation and Board of County Commission-

ers v. Seber, 318 U.S. 705 (1943)). The Court in Seminole

Nation had previously described the trust duty as

“humane and self-imposed”; that by virtue of “many acts

of Congress and numerous decisions of this Court,” the

United States has “charged itself with moral obligations

2 Chambers, id.; Cohen at 221.

3 Cherokee Nation v. Georgia, supra, 30 U.S. (5 Pet.) at

16-17.

4 Id.

° United States v. Kagama, 118 U.S. 375 (1886); United

States v. Candaleria, 271 U.S. 432 (1926); United States v. Creek

Nation, 295 U.S. 103 (1935); Seminole Nation v. United States,

316 U.S. 286 (1942); Squire v. Capoeman, 351 U.S. 1 (1956).

of the highest responsibility and trust.” Seminole Nation v.

United States, supra, 316 U.S. at 296-297.°

The unique relationship between the United States

and Indian people is repeatedly acknowledged by Con-

gress as extending to all areas of Indian life. For example,

in enacting the Indian Self-Determination and Education

Assistance Act Amendments of 1988, slightly revising

previous language, “Congress declare[d] its commitment

to the maintenance of the Federal government's unique

and continuing relationship with, and responsibility to,

individual Indian tribes and the Indian people as a whole

through the establishment of a meaningful Indian self-

determination policy.”” The direct trust responsibility the

federal government has assumed for the welfare of

Indian children, in particular, is clearly demonstrated by

the Indian Child Welfare Act of 1978.8 The congressional

findings which accompany the Act make specific mention

of the United States’ position as Indian childrens’ trustee:

Recognizing the special relationship between

the United States and the Indian tribes and the

Federal responsibility to Indian people, Con-

gress finds -

® The Court’s 1886 decision in Kagama goes to the very

essence of the reason for describing the trust duty as humane

and self-imposed: “These Indian tribes are the wards of the

nation. They are communities dependent on the United States;

dependent largely for their daily food; dependent for their

political rights. . . . From their very weakness and helplessness, so

largely due to the course of dealing of the Federal Government with

them and the treaties in which it has been promised, there arises the

duty of protection, and with it the power. This has always been

recognized by the Executive and by Congress, and by this court

whenever the question has arisen.” United States v. Kagama,

118 U.S. 375, 383-385 (1886) (emphasis added).

7 25 U.S.C. § 450a(b); see also the Johnson O'Malley Act,

infra, at 25.

8 25 U.S.C. §§ 1901-1952.

* * *

(2) that Congress, through statutes, treaties,

and the general course of dealing with Indian

tribes, has assumed the responsibility for the

protection and preservation of Indian tribes and

their resources.

(3) that there is no resource that is more vital

to the continued existence and integrity of

Indian tribes than their children and that the

United States has a direct interest, as trustee, in

protecting Indian children who are members of or

are eligible for membership in an Indian tribe.’

The interest of the federal government and Indian

tribes in protecting Indian people and particularly Indian

children is clearly independent of any connection to trust

land, and extends beyond reservation boundaries. See

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30

(1989); Morton v. Ruiz, supra.

In Morton v. Mancari, 417 U.S. 535 (1974), this Court

relied upon “unique legal status of Indian tribes under

federal law and upon the plenary power of Congress,

based on a history of treaties and the assumption of a

‘guardian-ward’ status, to legislate on behalf of federally

recognized tribes” and upheld Indian preference in

Bureau of Indian Affairs hiring and job promotion.

Again, the special relationship between the federal gov-

ernment and Indian people extends to individual Indian

interests, and is not limited to protection of their natural

resources.

The present dispute, like that in Ruiz, involves a benefit

program created by the United States solely for Indian peo-

ple. And, just as in Ruiz, this dispute raises the issue of

whether the government treats Indian people fairly in the

administration of the program and in the distribution of the

* 25 U.S.C. § 1901 (emphasis added).

benefits therefrom. From this perspective, the lessons of

Kagama, Seminole Nation, Seber, Mancari and Ruiz teach us

that the same distinctive obligation to deal fairly with

Respondents, a class of severely emotionally and physically

handicapped Indian children, attaches to the conduct of the

government in this case. Dealing fairly with the Indian chil-

dren here means, simply, to provide the affected families

with meaningful access to the administrative process by way

of Federal Register notice and comment prior to making a

decision on the disposition of the Indian Childrens Program.

B. The Government's Characterization of the Trust

Responsibility As Extending Only to Indian

Property Ignores the Full History and Evolution

of the Obligation, and Would Require the Court

to Overturn its Decision in Morton v. Ruiz.

The present case involves a fact situation virtually

identical to Ruiz wherein the aggrieved Indians chal-

lenged the denial of Snyder Act benefits (off-reservation

Bureau of Indian Affairs general assistance payments). In

Ruiz this Court specifically discussed the nature of the

federal trust responsibility as it applies to Indian people

rather than to Indian trust land. The Court first found

that Congress’ general directives in the Snyder Act (to

spend appropriated money for “Indians throughout the

United States . . . for relief of distress and conservation of

health”"'), together with the general, lump-sum appro-

priation language of the 1968 Department of Interior and

Related Agencies Appropriation Act, were ample author-

ity to require the Bureau of Indian Affairs to make off-

reservation general assistance payments.!? Clearly the

" 42 Stat. 208, 25 U.S.C. § 13; see further discussion infra, at

22-24.

'2 The Court disregarded a contrary provision in the BIA’s

Indian Affairs Manual, limiting benefits to reservation resi-

dents, as well as Congress’ failure to appropriate funds for

Court does not limit the trust responsibility to cases

involving only trust lands, but rather extends the federal

responsibility to the interests of individual indians as

well.

Despite the clear language of Ruiz, the government

relies on United States v. Cherokee Nation of Oklahoma, 480

U.S. 700 (1987), for the proposition that the trust respon-

sibility is implicated only where Indian property is at

stake and that, as a result, the trust does not enter into

this case because the funds at issue are “gratuitous

appropriations, not trust funds belonging to the Indians.”

Government Brief at 13-14, 24-25, citing Scholder v. United

States, 428 F.2d 1228, 1229 (9th Cir. 1970), cert. denied, 400

U.S. 942 (1970), and Quick Bear v. Leupp, 210 U.S. 50, 80-81

(1908).

Scholder and Quick Bear are easily distinguished from

the present case. The Ninth Circuit in Scholder mentioned

the Quick Bear phrase, “gratuitous appropriations of pub-

lic money,” in dicta discussing a Fifth Amendment “tak-

ing” claim where the Court had already found the

challenged use of the federal appropriations (to the bene-

fit of a non-Indian irrigator within an Indian irrigation

project) was permitted by the Snyder Act.

The Quick Bear'? “gratuitous appropriations” versus

“tribal” /“treaty” money distinction has no significance in

contemporary Indian education law‘ where all federal

Indian education programs are funded from public

money,'* or Indian health programs, which are all sim-

ilarly funded from general revenues of the federal gov-

ernment, under the authority of the Snyder Act or the

off-reservation general assistance payments. Ruiz, supra, at

210-213.

8 Quick Bear addressed the question of whether or not

federal education appropriations could be used for public

schools where appropriation acts prohibited payment for sec-

tarian education from “tribal” or “treaty” funds.

4 E.g., Johnson O'Malley (JOM) Act, 25 U.S.C. §§ 452-454.

Indian Health Care Improvement Act.'® The fact of gen-

eral funding does not mean that Indian people have no

right to challenge the termination, denial, or misuse of

federal program benefits.'©

The government's argument is flawed in its reliance

on a decision of this Court which is inapposite to this

case. The Court’s decision in the 1987 Cherokee Nation case

only involves asserted Indian property interests — in that

case an interest in the mineral estate under a portion of

the Arkansas River - so that the Court did not have

before it a fact situation involving congressional appro-

priations, as it does here. Cherokee Nation does not sup-

port the argument that the trust responsibility applies

only to Indian lands.

Indeed, quite the contrary is true. While many if not

most of the Supreme Court decisions on the trust rela-

tionship may have involved Indian property, these deci-

sions by no means limit the imposition or enforceability

of the trust to property matters. In fact the dispute in

Morton v. Ruiz, supra, involved Snyder Act appropriations

—- not property - which funded the Bureau of Indian

Affairs’ General Assistance program, and the issue of the

scope of the agencies’ distribution of those appropriated

funds among the national Indian community. The Court

in Ruiz never characterized those appropriations as “gra-

tuitous;” indeed, it found that the Bureau was bound by a

“distinctive obligation of trust” to “deal fairly with

Indians” in the distribution of the funds.'”

15 25 U.S.C. 1601 et seq.

16 See, e.g. Natonabah v. Board of Education of Gallup,

McKinley County School District, 355 F.Supp. 716 (D.N.M. 1973)

(challenging inappropriate use of JOM education funds by a

school board), White v. Califano, 437 F.Supp. 543 (D.S.D. 1977),

aff'd 581 F.2d 697 (10th Cir. 1978) (challenging denial of mental

health services under the Snyder Act).

17 Ruiz, supra, 415 U.S. at 236.

For this Court to agree with the government and

limit the application of the United States’ trust respon-

sibility to matters involving property, it would be required

to overturn the decision in Ruiz on this point, a result not

even the government is seeking. Amici believe there is no

principled way to distinguish Ruiz on the issue of

whether the government bears a solemn trust respon-

sibility to Indians in the administration of Indian health

care programs funded by the Snyder Act, the Indian

Health Care Improvement Act, and numerous congres-

sional appropriation acts.

The government attempts to distinguish Ruiz on the

basis that the Court there found a distinctive obligation to

deal fairly with the Indians “only after the Court had

concluded that Congress had made Indians living near

reservations eligibie for benefits,” and as a result the duty

of fairness was triggered by “the legitimate expectation

of... [the] Indians.” Government Brief at 41-42, quoting

Ruiz, supra, 415 U.S. at 236. But this is a distinction

without substance. If the test is, as the government

asserts, whether the Indians’ expectations of a trust duty

in Ruiz are triggered by that one passage in the Snyder

Act, that that test is met here, based on the entire body of

federal legislative, judicial and administrative actions

over the past two hundred years in matters involving

Indian health.

The Court in Ruiz was also influenced substantially

by the representations which the agency had made to

Congress concerning the operation and administration of

the general assistance program, as a means of justifying

its budget request. These representations to Congress

helped inform the Court on the agencies’ interpretation

and understanding of the trust duties it had accepted.'*

As in Ruiz, the Court here can apply the trust duty by

deferring to representations made to Congress by the

Indian Health Service and the Bureau of Indian Affairs

18 Ruiz, supra, 415 U.S. at 214-228, 236.

concerning the success of the Indian Childrens Program

and the importance of continued funding thereof.'%

Il. THE HISTORY OF DEALINGS BETWEEN THE

UNITED STATES AND INDIAN PEOPLE EVINCES

A SELF-IMPOSED OBLIGATION ON THE UNITED

STATES TO PROVIDE HEALTH CARE TO INDIAN

PEOPLE

To enable the Court to more fully understand why

the government is bound in this case by this distinctive,

self-imposed obligation, amici believe it is vital to trace the

factual history of the United States’ provision of health

care to Indians and, importantly, the impact of the trends

in general federal Indian policy which in many respects

are directly responsible for the status of Indian health

today.?°

1® Lower courts examining similar issues have found the

trust obligation to extend to the government's delivery of health

care to Indian people, in part on the basis of history, but also on

the acknowledgement of the obligation as a matter of federal

law and policy. McNabb v. Bowen, 829 F.2d 787 (9th Cir. 1987);

White v. Califano, supra; Blue Legs v. Bureau of Indian Affairs,

867 F.2d 1094 (8th Cir. 1989). For a discussion of the trust in

other contexts see Vigil v. Andrus, 667 F.2d 931 (10th Cir. 1982);

Nance v. Environmental Protection Agency, 645 F.2d 701 (9th

Cir. 1981); Kenai Oil & Gas, Inc. v. Department of the Interior,

671 F.2d 383 (10th Cir. 1982); Covelo Indian Community v. Fed-

eral Energy Regulatory Commission, 895 F.2d 581 (9th Cir.

1990).

2° See also, United States Congress, American Indian Policy

Review Commission, Task Force Six: Indian Health, Final Report

to the American Indian Policy Review Commission (Washington,

D.C. United States Government Printing Office 1976)(hereafter

AIPRC Report); United States Congress, Office of Technology

Assessment, Indian Health Care, OTA-H-290 (Washington, D.C.

United States Government Printing Office 1986).

A. The Early Historical Period Between the United

States and Indians is Marked by the Cata-

strophic Decline in the Indian Population Due

to the Infestation of European Diseases and the

Rapid Loss of Land Base and Access to Tradi-

tional Food Sources, and the Consequent Expan-

sion of Federal Health Care Services to Indian

People.

1. Colonial Period to 1832: The United States

Began Providing Health Care to Indian Peo-

ple Soon After Diseases Carried by the

Europeans first Devastated the Indian Popu-

lation.

It is popular belief that few government services in

the area of health were provided to Indians in the 19th

Century, that few tribes received these services, and only

then on the basis of sporadic agreements made in treaties

with the United States.2! Similarly, many inaccurately

believe that Congress’ involvement in Indian health care

delivery did not commence until the enactment in 1921 of

the Snyder Act.??

One popular misconception is that the Indian nations

of the western hemisphere were “conquered” by domi-

nant European governments.?> Wars of military conquest

indeed played a minor role in the settlement of the

United States. However, the majority of Indian people

were most commonly “conquered” by European diseases

which, even if unintentionally spread,24 were nonetheless

21 AIPRC Report, supra, note 20, at 27-32.

22 25 U.S.C. 13.

23 See, e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543,

587-591 (1823).

24 There are at least two documented instances in which

Indian tribes were deliberately infected with smallpox by Euro-

peans. The best known case was perpetrated by General Jeffrey

deadly.*° Malaria, typhoid, typhus, smallpox, cholera,

measles, scarlet fever, diphtheria, and a host of other

diseases did not exist on this cominent before the arrival

of European explorers. The indigenous populations of

North America were entirely vulnerable to, and defense-

less against, the ravages which followed contact with

Europeans.?6

It is believed today that prior to contact the Native

population was at least 10 million people; by 1887 that

number had been reduced to 250,000. Most scholars

attribute this decline, referred to in the literature as

“depopulation,” primarily to European disease.?7 In the

ensuing social and political disintegration and disarray it

was relatively easy for the European explorers and set-

tlers to establish themselves as “conquerors.”28

In the history of the legal relationship between the

United States and Indian tribes there has been a tendency

Amherst during Pontiac's Rebellion in 1763. See Duffy, John, The

Healers: The Rise of the Medical Establishment, at 6. In the Seven-

teenth Century, the Chippewa Tribe was deliberately infected

with smallpox by representatives of a fur trading company in

retaliation for having killed a white man. Schoolcraft, Henry R.,

Narrative of an Expedition through the Upper Mississippi to Itasca

Lake in 1832, (New York, Harper Brothers, 1834) at 254-255.

25 See Dobyns, Henry F., Native American Historical Demog-

raphy: A Critical Bibliography (1976).

26 For an explanation of how biological immunities occur

and how they affect the course of a disease among a given

populaiion, see Cartwright, Frederick F., in collaboration with

Michael D. Biddiss, Disease and History, at 54-81.

27 See Dobyns, supra, at n.8; Stern and Stern, The Effect of

Smallpox on the Destiny of the American Indian (1945).

28 Stern and Stern, supra, at n.8.

to focus on laws asserting control over trade and land

transactions.2? This emphasis has often obscured the his-

tory of the relationship between early colonial, continen-

tal and state governments and Indian people in such

matters as health and education. Nonetheless, the early

history forms an important backdrop against which the

contemporary federal obligation must be measured.

2. The Federal Responsibility for Indian

Health Care was Expanded Through the Leg-

islative Process.

The Continental Congress appropriated money for

education as early as 1775. In 1819 the United States

Congress passed the Civilization Act which established a

permanent annual appropriation of $10,000 to be distrib-

uted by the President to charitable groups, usually mis-

sionary societies, to finance Indian education.*!

Significantly, a portion of these appropriations were set

aside for health care for the Indian students.*? Colonia!

governments such as those in Massachusetts organized

tribes into “praying towns” subject to considerable colo-

nial control. “Guardians,” who were appointed to oversee

these praying towns, were given authority in many areas

29 See Trade and Intercourse Act of 1793 (Nonintercourse

Act) 1 Stat. 329 (1793); County of Oneida, New York v. Oneida

indian Nation of New York State, 470 U.S. 226 (1985); 25 U.S.C.

261, 262 (federal licensing of traders on Indian reservations).

3%© Cohen, Felix, Handbook of Federal Indian Law (New Mex-

ico University Press Ist ed. 1942) at 47, 238-244.

31 Act of March 3, 1819, 3 Stat. 516.; repealed, Act of Febru-

ary 14, 1873, 17 Stat. 437, 461.

32 U.S. Serials, Vol. 423, House Document No. 203, House of

Representatives, 27th Congress, 3rd Session, “Amount Dis-

bursed for Civilization of the Indians 1819 to 1842,” dated

March 2, 1843 (e.g. pp. 21, 22, 23, 25, 27); Cohen, note 30, supra,

at 243.

of personal life, including the power to support those

who were sick or otherwise unable to work.

Other medical services such as vaccinations were

provided to Indian people for many years, beginning in

1802, through military doctors.** In 1832, Congress

appropriated funds to be used to vaccinate Indian people

against smallpox and authorized the use of both military

and private doctors to administer the vaccinations.*5

In 1831 when Chief Justice John Marshall charac-

terized the federal-Indian relationship as “resembling

that of a ward to his guardian,”* the statement was not a

summation of what the relationship ought to be, but

rather a legal analogy describing the situation which actu-

ally existed. By the early 1830’s the federal government

had become the exclusive health care provider for Indian

people although the services were limited and by no

means adequate to fill the vast needs of the tribes. But for

the efforts of the United Stafes government, however,

Indian people would have had very limited access to

33 Laws of the Colonial and State Governments Relating to

Indians and Indian Affairs from 1633 to 1831, Inclusive, Containing

the Proceedings of the Congress of the Confederation and the Laws of

Congress from 1800 to 1830 on the Same Subject, Washington, D.C.

Thompson and Homans, 1832 at 15 (1758 law).

4 The administration of Indian affairs was under the juris-

diction of the War Department until 1849. Act of March 3, 1849,

9 Stat. 395; Cohen, note 30, supra, at 10-11; A Study of the Indian

Health Service and Tribal Involvement in Health, Hearings before

the Permanent Subcommittee on Investigations of the Commit-

tee on Government Operations of the United States Senate, 93rd

Cong., 2d Sess., U.S. Government Printing Office, Washington,

D.C. (Sept. 16, 1974) at 2.

35 Act of May 5, 1832, 4 Stat. 514.

% Cherokee Nation v. Georgia, supra, 30 U.S. (5 Pet.) at

16-17.

western medicine and science.*” Thus the obligation to

provide health care to Indian people arose from the gov-

ernment’s recognition of both its responsibility for the

severe decline in Indian health and its duty to rectify it.

3. The Treaty Period, 1832 to 1871: Confine-

ment of Indian People to Reservations Dur-

ing the Treaty Period of 1832 to 1871

Resulted in Stronger Federal Responsibility

in Indian Health Programs Due to the

Deterioration of Health Caused by the

Inability to Gather Food, and the Restricted

Access to Health Care.

The treaty period was defined by the United States

government's desire to limit the territory used and occu-

pied by Indian tribes, especially in the western United

States. As settlers moved westward, competition between

Indians and non-Indians for land, game and other natural

resources increased, and conflict heightened. Through a

combination of force and bargaining, the United States

was able to negotiate 393 treaties during this period,

resulting in a cession of 581,163,188 acres of land from the

tribes to the United States.**

But the impact of the treaty and reservation process

on the health of Indian people, and the corresponding

shift in federal policy to address the serious needs cre-

ated by this process, added greatly to the government's

already distinct responsibility for Indian health care.

37 In later years the United States would actually outlaw

the practice of traditional religions and medicine by Native

Americans as a matter of law and policy. See, Fourth and Sixth

Offenses, Regulations of the Indian Office, April 1, 1904 Secre-

tary of the Interior (Washington: Government Printing Office,

1904) at pp. 102-03 [outlawing the “sun dance”, “all other simi-

lar dances and so-called religious ceremonies” and the “usual

practices of so-called medicine men”].

38 Cohen, note 30, supra at 15, n. 115.

Through the process of establishing reservations Indian

people were, in many instances, confined to reservations.>?

Those who attempted to leave reservations were often bru-

tally forced back by the United States Army. Prior to the

reservation period, tribes had evolved economic systems

which were closely related to the characteristics of the lands

and natural resources within their aboriginal territories; e.g.,

in many instances there was great dependency on the prox-

imity to available fish and game.

Confining a tribe on a much smaller parcel of land,

even if the reservation lands were part of the much larger

aboriginal holdings, often meant the disruption and

destruction of the traditional means of subsistence. With

traditional food supplies destroyed or inaccessible, many

Indians were forced to depend on rations issued by the

local Indian agent, which in many cases were insufficient

or unsanitary.*' Lack of traditional iife practices contrib-

uted to declining individual fitness and health, and this

deterioration was compounded by the deliberate sup-

pression of tribal medicine practices.*2

” See, e.g., Article II of the Treaty of October 14, 1865, with

the Cheyennes and Arapahos, 14 Stat. 703, 704, which required

the Indians to have the written consent of the Indian agent to

leave their reservation. See also, the facts of the confinement of

Geronimo’s people, recounted in Fort Sill Apache Tribe of Okla-

homa v. United States, 201 Ct. Cl. 630, 477 F.2d 1360 (1973), cert.

denied, 416 U.S. 993 (1974).

hes See, e.g., Conners v. United States and the Cheyenne

Indians, 33 Ct. Cl. 317 (1898), aff’d., 180 U.S. 271 (1901).

*' McGregor, Gordon, “Barriers to Economic Develop-

ment,” American Indians, Facts and Future: Toward Economic

Development for Native American Communities, Report of the Joint

Economic Committee, Congress of the United States (Arno

Press, 1970) at 63.

@ “American Indian Policy Review Commission’s Report

on Indian Health,” American Indian Journal, Volume 3, Number 2

(February 1977) at 19.

Because confinement on a reservation left Indian peo-

ple considerably more vulnerable to disease,“ they

became even more dependent upon the federal govern-

ment for the provision of the necessities of life, including

access to health care. Recognition of this dependency is

mentioned in at least two dozen treaties which expressly

obligate the United States to some form of health care for

the Indian signatories thereto.“ In all cases between the

1850’s and 1910’s the government filled the void in medi-

cal care for Indians through annual congressional appro-

priations for Indian vaccinations and other medical

services, including the payment of physicians’ salaries.*

43 Tuberculosis Among the North American Indians: Report of a

Committee of the National Tuberculosis Association Appointed on

October 28, 1921, Senate Committee Print, 67th Congress, 4th

Sess., Printed for the Use of the Committee on Indian Affairs,

Washington, D.C., Government Printing Office (1923) at 11.

4 Cohen, note 30, supra, at 243 n. 86.

45 Act of June 18, 1860, 12 Stat. 44, 57; Act of March 1, 1861,

12 Stat. 221, 237; Act of July 5, 1862, 12 Stat. 512, 528; Act of

March 3, 1863, 12 Stat. 774, 790; Act of June 25, 1864, 13 Stat. 161,

179; Act of March 3, 1865, 13 Stat. 541, 558; Act of July 26, 1866,

14 Stat. 255, 278; Act of March 2, 1867, 14 Stat. 492, 514; Act of

July 27, 1868, 15 Stat. 198; Act of April 10, 1869, 16 Stat. 13, 14;

Act of July 15, 1870, 16 Stat. 335; Act of March 3, 1871, 16 Stat.

544, 545; Act of May 29, 1872, 17 Stat. 165, 166; Act of February

14, 1873, 17 Stat. 437, 440; Act of June 22, 1874, 18 Stat. 146, 148;

Act of March 3, 1875, 18 Stat. 420, 423; Act of March 3, 1877, 19

Stat. 271, 272; Act of May 27, 1878, 20 Stat. 63, 66; Act of Febru-

ary 17, 1879, 20 Stat. 295, 297; Act of May 11, 1880, 21 Stat. 114,

116; Act of March 3, 1881, 21 Stat. 485, 501; Act of March 6, 1882,

22 Stat. 7,9; Act of May 17, 1882, 22 Stat. 68, 86; Act of March 1,

1883, 22 Stat. 433, 449; Act of July 4, 1884, 23 Stat. 76, 94; Act of

March 3, 1885, 23 Stat. 362, 380; Act of May 15, 1886, 24 Stat. 29,

43; Act of March 2, 1887, 24 Stat. 449, 464; Act of June 29, 1888, 25

Stat. 217, 233; Act of March 2, 1889, 25 Stat. 980, 997; Act of

August 19, 1890, 26 Stat. 336, 355; Act of March 3, 1891, 26 Stat.

989, 1008; Act of July 13, 1892, 27 Stat. 120, 138; Act of March 3,

Federal Indian agents also had discretionary authority to

employ physicians for indians living on reservations; by

1874 about half of the sixty-nine Indian agencies had a

doctor in residence.*”

4. The Allotment Period, 1871 to 1921: The

Bureau of Indian Affairs Expanded the

Number of Medical Personnel Serving Indi-

vidual Indians, Who, Due to the Increased

Breakdown of Tribal Connections Caused by

Allotment Policies, Were Continuing to

Experience Unmet Medical Needs.

Between 1874 and 1900, the number of doctors in

residence on reservations had nearly tripled,4? and by

1893, 27 Stat. 612, 632; Act of August 14, 1894, 28 Stat. 286, 306;

Act of March 2, 1895, 28 Stat. 876, 879; Act of June 10, 1896, 29

Stat. 324; Act of June 7, 1897, 30 Stat. 62, 65; Act of July 1, 1898,

30 Stat. 321, 571, 574; Act of March 1, 1899, 30 Stat. 924, 927; Act

of May 31, 1900, 31 Stat. 221, 224, 241; Act of March 3, 1901, 31

Stat. 1058, 1061, 1071; Act of May 27, 1902, 32 Stat. 245, 248; Act

of March 3, 1903, 32 Stat. 982, 985; Act of April 21, 1904, 33 Stat.

189, 192; Act of March 3, 1905, 33 Stat. 1048, 1050; Act of June 21,

1906, 34 Stat. 325, 330, 339; Act of March 1, 1907, 34 Stat. 1015,

1018, 1025; Act of April 30, 1908, 35 Stat. 70, 74; Act of March 3,

1909, 35 Stat. 781, 784; Act of April 4, 1910, 36 Stat. 269, 271.

* United States v. Patrick, 73 F. 800, 20 C.C.A. 11 (C.C.A. 8,

1896), error dismissed, 18 S.Ct. 949, 42 L.Ed. 1216 (1898).

*” Cohen, note 30, supra, at 243. According to the Appro-

priations Act of June 22, 1874, 18 Stat. 146-147, there were

sixty-nine Indian agencies in that year.

* Allotment refers to the General Allotment (Dawes) Act of

1887, Act of February 8, 1887, 24 Stat. 388, and the well known

period wherein vast holdings of tribal, communal lands on

Indian reservations were broken up and “allotted” to individual

members of the tribe, to be held in trust by the government unti!

such time as the individual was deemed capable of managing his

or her own affairs. See, e.g., Cohen, note 30, supra, at Chapter 11.

* Act of March 1, 1899, 30 Stat. 924-926.

1912 the Bureau had 160 doctors in the field, two-thirds

of whom were full-time Bureau employees.”

During the late nineteenth century, hospitals funded

by the federal government became a part of the health

care delivery system for Indian people. The first Indian

service hospital was built in 1882, in conjunction with the

Carlisle Indian Boarding School, the first off-reservation

boarding school. By 1900, there were five Bureau of

Indian Affairs’ hospitals with a total capacity of 150

beds.5! Congress appropriated funds for the construction

of an insane asylum for Indian people at Canton, South

Dakota in 1899,52 and a tuberculosis sanitorium in

1906-1907.59

Despite these efforts, Indian health statistics still

lagged significantly behind those of the American public

at large. In 1912, for example, the death rate for Indian

people was 35 per thousand, more than twice the national

rate of 15 per thousand. Approximately 15% percent of

the national Indian population was estimated to have

trachoma and tuberculosis. Citing these grim statistics,

% Message of President Taft, 48 Cong. Rec. 10643 (August

10, 1912, Senate Doc. No. 907).

51 Tyler, S. Lyman, A History of Indian Policy, United States

Government Printing Office 1973, at 90; Raup, Ruth M., The

Indian Health Program from 1800 to 1955 at 3, 9 (unpublished

paper available from the National Indian Law Library, Boulder,

Colorado).

52 Act of March 1, 1899, 30 Stat. 924.

33 Act of June 21, 1906, 34 Stat. 325, 328; Act of March 1,

1907, 34 Stat. 1015, 1052.

4 Message of President Taft, supra, at n.50.

President Taft, in his statement in support of congres-

sional appropriations for Indian health, remarked that

“[ajs guardians of the welfare of the Indians, it is our

immediate duty to give the race a fair chance for an

unmaimed birth, a healthy childhood, and a physically

efficient maturity.”55

Federal policies regarding Indian health during the

allotment era followed the general! shift toward assimila-

tion and focused on the health care needs of individual

Indian people. The shift in philosophy was characterized

in federal policy by the elevation of the individual Indian

above the tribal community, fostering individual initia-

tive, education and Christianization. The real objects of

the guardianship relationship became Indian people

rather than the tribes. By weakening the identification

between individual Indians and their tribal communities,

allotment policies further strengthened the dependence

of individual Indians on the federal government. Indeed,

the Supreme Court justified the policies and process of

allotment on the ground that the federal government was

obligated to step in and protect individual Indians

because living in tribal communities had not resulted in

individual prosperity in the western sense of the term.

The impact of the allotment era on the federal

bureaucracy was immediate and significant. The Bureau

of Indian Affairs was given the responsibility within the

federal bureaucracy of transforming Indian people into

self-supporting, productive American farmers and citi-

zens. At a minimum, this meant educating and improving

the health of Indian people so that they could fulfill the

expectations of federal policy. The Bureau, which had

once only been concerned with the activities of a few

hundred tribes and reservations, was suddenly forced to

35 Id.

5% Cherokee Nation v. Hitchcock, 187 U.S. 294, 301-302

(1902), quoting in part Stephens v. Cherokee Nation, 174 US. 445,

450 (1899).

establish and institutionalize programs to serve several

hundred thousand individual Indians. The result was an

unprecedented era of growth; from 1887 to 1920 the

Bureau’s budget tripled, the bureaucracy flourished, and

along with it, medical services continued to expand.

B. The Modern Era Evinces a Continuing, and

Expanding Self-Imposed Trust Obligation on

the United States to Provide Health Care to

Indian People.

The modern era is characterized primarily by two

factors: significantly increased congressional appropria-

tions and, for the first time, comprehensive federal legis-

lation to deal comprehensively with Indian health care

issues. This legislation has continued to acknowledge the

United States’ obligation to meet the health care needs of

Indian people.

1. The Snyder Act and the Indian Reorganiza-

tion Act.

a. The Snyder Act of 19215” provided for

the first time a permanent legislative

authorization for congressional appro-

priations in the area of Indian health

care.

[T]he Bureau of Indian Affairs [shall] . . . direct,

supervise, and expends such monies as Con-

gress may from time to time appropriate, for

benefit, care, and assistance of the Indians

throughout the United States. . . . For the relief

of distress and conservation of health . . . and

[flor the employment of .. . physicians.... ™

There were procedural reasons for enacting a statute

which authorized the expenditure of federal funds to

57 Act of November 2, 1921, 42 Stat. 208, 25 U.S.C. 13.

8 Id.

meet the government’s duty to provide for Indian health

care services.5? Shortly before the passage of the act,

jurisdiction over appropriations for Indian affairs in the

House of Representatives had been transferred from the

Indian Affairs Committee to the Appropriations Commit-

tee. This move sparked a jurisdictional dispute between

the committees, during which the members of the Indian

Affairs Committee expressed their displeasure with the

new state of affairs by a spate of point of order objec-

tions.*' The Act was passed in part then as a reaction to

this procedural deadlock.

But of equal importance in the history of the enact-

ment of the Snyder Act, and what is missing from the

government's present characterization of the Act’s pur-

pose, is Congress’ recognition of the preexisting and con-

tinuing duty to provide Indians with health care.®

Government's Brief at 16-18. Most importantly the debate

on the Act demonstrates that Congress authorized Snyder

Act services to continue its obligations under the federal

trust responsibility.

Members of the House of Representatives debating

the Snyder Act were well aware of the guardianship

responsibility of the United States with respect to Indian

affairs,“ of the poor health status of Indian people,“ and

” H.R. Rep. No. 275, 67th Cong., Ist Sess. (1921); S. Rep.

No. 294, 67th Cong., Ist Sess. (1921).

” 61 Cong. Rec. at 4671-4672 (August 4, 1921).

*2 Programs providing Indian health services had been

viewed for years as “ .. . integral parts of the Indian service,

nearly all of which had been appropriated from year to year,

and which will continue, in all probability, as long as the service

does.” H.R. Rep. No. 275, 67th Cong., Ist Sess. (1921), and 61

Cong. Rec. at 4684.

® Id. at 4660, 4681, 4686.

“ Id. at 4663.

of the importance of health care to the future productivity

and well-being of Indian people.®> Indeed, during the

debate Representative Leatherwood of Utah went so far

as to characterize health care as one of the “fundamental”

obligations of the United States to Indian people.

b. The Indian Reorganization Act, which was

passed as an attempt to strengthen Indian

tribal institutions, also contained an

increase of federally provided health ser-

vices.

In 1934 Congress passed the Indian Reorganization

Act (IRA),°? expressly as a repudiation of the failed poli-

cies of allotment and assimilation.“ The IRA was part of

the genesis of new federal policies aimed at Indian coun-

try, commonly known as the “Indian New Deal.”® Con-

tinuing a trend established in previous historical periods,

the United States’ commitment to Indian health care was

further strengthen by the IRA. By 1940 the federal gov-

ernment was spending over $5 million annually to pro-

vide medical services to Indian people.” These increased

appropriations were coupled with an interagency agree-

ment which allowed the BIA to use Public Health Service

doctors on Indian reservations. By 1940 the BIA

employed 200 doctors and 600 graduate nurses working

6 Id. at 4664.

Id. at 4677.

&7 Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. 461 et seq.

68 The 1928 Meriam Report (“The Problem of Indian Admin-

istration”), published by the Brookings Institution, denounced

the results of fifty years of allotment policy and of federal

efforts to force Indian people into the American mainstream to

compete for jobs.

® Cohen, note 1, supra, at 147-151.

70 Cohen, note 30, supra, at 243 n. 94.

in hospitals that had a system-wide direct care capacity of

over 4,000 beds.7!

2. The Johnson O'Malley Act (JOM), Passed in

1934,77 Acknowledged the United States’

Responsibility to Provide Comprehensive”

Medical Services for Indian People.

The Johnson O’Malley Act authorized the Secretary

of the Interior to enter into contracts with state and local

governments to provide for the “education, medical

attention, agricultural assistance and social welfare”

Indian people in instances where, as a result of allotment,

tribal life was broken up and many Indian people were

no longer on reservations.”4 The federal government via

JOM would remain financially responsible f>r services to

individual Indians.75

71 Raup, note 51, supra, at 9-12.

72 Act of April 16, 1934, 48 Stat. 596, amended by the Act of

June 4, 1936, 49 Stat. 1458, 25 U.S.C. 452 et seq.

78 There is little doubt that the intent was to obligate the

federal government to provide comprehensive medical services

to Indians: “medical attention” in the act is defined to include

“. .. physical examinations, medical and surgical work and

treatments, hospitalization, dispensary and convalescent care,

nursing, sanitation and the application of such other public

health measures as might be necessary, including the preven-

tion, investigation, suppression and control of contagious and

communicable diseases.” S. Rep. No. 511, 73 Cong., 2d Sess. at

3-4 (1934); H.R. Rep. No. 864, 73 Cong., 2d Sess. at 3 (1934).

74S. Rep. No. 511, 73rd Cong., 2d Sess. at 1-2 (1934).

75 Id. at 3; H.R. Rep. No. 864, 73 Cong., 2d Sess., at 2 (1934).

3. The Transfer Act Further Strengthened Gov-

ernment Commitment to Provide Health

Care for Indians Even During the Termina-

tion Era When the Government Questioned

its Relationship with Indian Tribes.

Passed in 1954 at the height of the Termination Era in

Indian policy,”* the Transfer Act?” transferred “all func-

tions, responsibilities, authorities and duties of the

Department of the Interior, the Bureau of Indian Affairs,

the Secretary of the Interior and Commissioner of Indian

Affairs relating to the maintenance and operation of hos-

pital and health facilities for Indians .. . ” to the newly

created Indian Health Service of the Department of

Health Educaticn and Welfare (now Department of

Health and Humén Services).78

By its terms the Transfer Act implicitly acknowl-

edged the obligation of the United States to provide

health care to Indian people.”

76 The Termination Era describes the period of time

between 1943 and 1961 in which the United States Congress

unilaterally revoked the “recognized” political status of dozens

of Indian tribes. For an in depth discussion of termination, see

Cohen, note 1, supra, at 152-180.

77 Act of August 5, 1954, 68 Stat. 674, amended by Section

69(a) of the Health Maintenance Organization Act of 1973, 87

Stat. 935, 42 U.S.C. 2001 et seq.

78 68 Stat. 674.

7 Also enacted in the termination era were the Indian

Health Facilities Act of 1957, Pub. L. 85-151, 42 U.S.C. 2005

(authorized the Indian Health Service to contribute to the con-

struction costs of community hospitals), and the Indian Sanita-

tion Facilities and Services Act of 1959, Pub. L. 86-121, 42 U.S.C.

2004 (authorized IHS to provide sanitation facilities to Indian

people, including domestic and community water supplies and

facilities, drainage facilities, and waste disposal facilities for

Indian homes, communities, and lands).

The act is noteworthy since the acknowledgement of

continuing federal responsibility came at a time when the

prevailing mood was to eliminate tribalism in the United

States. The message was clear, the obligation to provide

health care for individual Indians would not be shirked.

The Senate report on the proposed transfer acknowl-

edged that “the Bureau of Indian Affairs is responsible,

under present law, for the total health program — both

preventive and curative medicine — for all Indians regis-

tered as members of the various tribes in the United

States and Indians and natives in Alaska.”™ Indeed, the

legislative history of the Act shows that the transfer was

motivated in large part by the desire to improve the qual-

ity of medical services provided to Indian people by

placing the administration of their health program under

the professionally administered and better funded Public

Health Service.®!

4. The Indian Health Care Improvement Act,

Passed When the United States Had

Returned to a Policy of Strengthening Indian

Tribes, Continued the Government’s Com-

mitment to Health Care for Indian People.

The first significant piece of Indian health care legis-

lation in the modern Self-Determination Era®2 is the

8S. Rep. No. 1530, 83rd Cong., 2d Sess., (1954), as

reprinted in the U.S. Code Cong. and Admin. News, 83rd Cong.,

2d Sess. (1954) Volume 2 at 2918-2919 (emphasis added).

81 Id. at 2926-2927, 100 Cong. Rec. 8959, 8960, 8963-8966. It

was the prevailing sentiment in the Congress that “the Indian

shall have a health service and hospital service comparable to

that which the white man receives.” Remarks of Senator Thye of

Minnesota, 100 Cong. Rec. 8962 (June 25, 1%" 4).

82 Generally considered to be from 1961 to the present date.

See Cohen, note 1, supra, at 180-206.

Indian Health Care Improvement Act of 1976 (IHCIA).*

The congressional findings in the introduction of the

legislation reflect the almost two hundred year history of

the federal government’s primary role as provider of

Indian health care services. These findings concisely state

the continuing problems and the continuing commitment

of the United States government to address them:

(a) Federal health services to maintain and

improve the health of the Indians are consonant

with and required by the Federal Government's

historical and unique legal relationship with

and resulting responsibility to the American

Indian people.

(b) A major national goal of the United States

is to provide the quantity and quality of health

services which will permit the health status of

Indians to be raised-to the highest possible level

and to encourage the maximum participation of

Indians in the planning and management of

those services.

* * *

(e) All other Federal services and programs in

fulfillment of the Federa! responsibility to

Indians are jeopardized by the low health status

of American Indian people.™

To fulfill the United States’ obligation the IHCIA estab-

lished a variety of programs-designed_to improve the

scope and quality of federal health services, including the

elimination of backlogs of known unmet needs, the

upgrading of inadequate facilities, and of urban and rural

® Act of September 30, 1976, 90 Stat. 1400, 25 U.S.C. 1601 et

seq.

™ 25 U.S.C. 1601(a), (b), and (e).

Indian health services.*° Subsequent amendments con-

tinue to improve and expand substantially the quality

and scope of Indian health programs.”

C. Summary.

In summary, the history of the dealings between the

United States and Indian people in matters involving

Indian health discussed in the preceding section shows

clearly the depth of the federal government’s commit-

ment to a trust responsibility. In passing the Snyder Act,

Congress created authorizing legislation for health pro-

grams which had been evolving over the years as part of

the federal-Indian trust relationship. Any perceived

ambiguities in the Snyder Act were clarified by subse-

quent legislation. The legislative history of the Johnson

O'Malley Act shows that Congress intended to provide

comprehensive medical services to all members of feder-

ally recognized tribes, even though many Indians were

no longer isolated geographically from the general popu-

lation.

That Congress continually reaffirmed the importance

of providing medical care to all tribal members can be

seen in the Transfer Act, passed in order to improve the

quality of medical services to Indians even in the height

of the termination era. In 1976 Congress passed the

Indian Health Care Improvement Act to make an

unequivocal statement that the government’s Indian

health care delivery system was “consonant with and

* See, e.g., Titles Il, Ill, and V of the IHCIA, 25 U.S.C. 1621,

1631, and 1651.

% See, e.g., Pub. L. 100-713, Nov. 23, 1988, 102 Stat. 4784;

Pub. L. 102-573, October 29, 1992, 106 Stat. 4526.

: 30

required by the unique legal relationship between the

federal government and Indian people.*”

From this almost two century history Indian people

have a well deserved expectation to be treated fairly by

federal agencies in the delivery of health care services. It

derives from the trust responsibility, which the United

States has a legal and moral obligation to uphold. The

federal courts deciding this case below understood this

obligation in ruling for the Respondent Indian children.

CONCLUSION

For the foregoing reasons the decision of the Tenth

Circuit Court of Appeals should be affirmed.

Respectfully submitted,

Steven C. Moore, Esq.

Counsel of Record

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

(303) 447-8760

M. Heven Spencer, Esq.

Evergreen Legal Services

510 Larson Building

6 South Second Street

Yakima, Washington 98901

(509) 575-5593

Attorneys for Amici Curiae

December 1992

8? 25 USC. 1601(a).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.