# Amicus Curiae Brief — Lincoln v. Vigil

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 182

## Text

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

S

BRIEF AMICI CURIAE NATIONAL CONGRESS
OF AMERICAN INDIANS, NATIONAL INDIAN
COUNCIL ON AGING, NORTHWEST AREA
INDIAN CHILD WELFARE ASSOCIATION IN
SUPPORT OF RESPONDENTS

SJ

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.............

1]

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

12

14

16

19

22

22

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

22

24

25

26

iv

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

v

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

vi

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
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
Act
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

x

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
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

13

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.

14

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.

15

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.

16

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.

17

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.

18

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,

19

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.

20

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.

21

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).

22

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.

23

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).
©! Id. at 4671-4673.

*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.

24

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.

25

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).

26

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).

27

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.

28

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).

29

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.

S

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0272%3A09. Public record. Not legal advice.