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TRIBE RISKS LOSING JUSTICE FOR OUR PEOPLE IF WE CONTINUE TO IGNORE IHS LAWSUIT

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COMMENTARY

By Calvin “Hawkeye” Waln

I want to address both the Oyate and elected officials of the Rosebud Sioux Tribe (Sicangu Nation) regarding the elephant standing in our midst; namely, the Indian Health Service (IHS) embodied in Rosebud Hospital.

My intentions are not to offend anyone, but to address a mammoth issue of Oyate concern, which should be welcomed with open arms by a tribal government that shouldn’t be complicit in IHS’s continuing neglect.  

I want to thank RST Council members who spoke up at a recent meeting with IHS officials. I applaud council members for stopping IHS from typically turning it into another “cover your ass” (CYA) session, and for speaking up for their trusting constituents, the Oyate.

I also commend the RST Health Administrator for bringing the cat out of the bag, so to speak, with the brief history of IHS, which gave people a basis from which they could start speaking out.

And I want to thank Sun-Times’ editor PR Gregg-Bear for the articles he’s published over the years informing readers about the horrendous neglect committed at Rosebud IHS Hospital against the very people it was intended to serve.

I know the history of IHS. When serving the Oyate for three years in my official capacity as an elected member of the RST Council, I heard firsthand from the Oyate about the bad, ugly and unspeakable horrors committed at IHS against its patients.

The critical history that U.S. Health & Human Services and its component IHS seem to ignore these days, are two powerful and legally binding documents known as the Treaties of 1851 and 1868.

Our precious treaties were not only adopted by U.S. Congress, but they were upheld by the Supreme Court, as the law of the land.

I challenge anyone unfamiliar with these documents—which gives our tribes the right to exist as lawful entities—to type on the Internet, “Cannons of Treaty Construction,” and hit return on Google.

Our tribal government should demand not only accountability when it comes to treaties, but we should hold our attorneys accountable for every penny they’re paid.

The days when our ancestors had to wait in line at a health station for a slim brown bottle is long over. Since the 1980s, HHS has never once used its vast resources, when Reaganomics was the law, to try increasing the manner in which funding has flowed to its IHS component.

Of course, a new hospital was added at Rosebud in the early 1990s, and at other select reservations, but despite our increased population, new medical funding has never been budgeted (much less proposed) to meet the growing needs of our people. A new clinic doesn’t make healthcare delivery better; it only makes it possible.

And today, even though our population on Rosebud continues to grow rapidly, especially among our youth, funding for health has not increased proportionately; instead, it is regularly cut to cover prioritized administrative costs.

I will always continue to maintain (along with the claims of our Oyate) that this represents a blatant violation of our treaty rights.

I have heard IHS officials claim that “Referred Care” (formerly Contract Health) does not rise to the level of treaty obligation, and therefore the federal government is not obliged to pay for it.

For years, we’ve watched IHS deny our families adequate preventive healthcare. For example, I have a problem; I go to the local IHS hospital, where it’s determined they can’t provide the level of care I need, so I’m referred off-reservation, where IHS refuses to pay referred costs because it doesn’t meet their priorities; I’m stuck owing thousands of dollars. I get sicker. But because I can’t pay my hospital bill, I’m denied all hope of followup care. I end up dying heavily in debt, which my family must now pay.

Sound familiar?

This happens countless times across our reservation every year. We are being sorted like cattle on IHS’s scale of priorities in what amounts to modern-day genocide. The byproduct is death.

An IHS area office was created in Aberdeen, S.D. to provide technical assistance to our tribe, per Indian Self-Determination & Education Act of 1978. Yet all this office has done is devolve into a glorified messenger service with hardly any approving authority, while its huge administrative salaries continue to eat into our healthcare funding, giving us only pennies on the dollar of the money filtered to us from Washington, DC.

In my three years as an elected official, all I ever heard from Aberdeen were broken promises and blatant lies.

You might recall one Aberdeen stonewalling tactic. It followed a poor evaluation report. So, they installed a so-called “watchdog” to monitor Rosebud Hospital. While the watchdog sat looking left and right, problems at Rosebud Hospital grew progressively worse. Problems got so bad that one day the watchdog just up and disappeared.

He left his post and never came back.

So, for Aberdeen officials to send lower echelon people to Rosebud to give RST Council the same song and dance was not only an insult to our people but to our entire nation.

In a recent news release, Aberdeen tried announcing the transfer of a low-level director from North Dakota to seek solutions. But this is just another political ploy, shuffling their deck of cards and creating a smokescreen, hoping he will weather the latest controversy.

More news releases suggested South Dakota’s governor, a Republican, suddenly recognizes healthcare as a treaty right, and that he may be reconsidering his opposition to Medicaid, which could help many Native Americans, and other poor people, under Obamacare. Of course, every Republican presidential candidate has promised he’ll wipe out Obamacare if elected, so the governor’s new position may not mean a lot.

I encourage our tribal government to stop meeting with officials, who claim they’ll forward our complaints to congressional delegates.

We’ve been doing this for years, and look where it’s gotten us—Rosebud IHS Hospital, the facility without an ER is nearly shut down.

I ask my former colleagues to please move ahead and file the class action lawsuit against IHS. I pushed hard in 2013 to file this lawsuit, and I’ve been told a resolution was approved to pay attorneys Terry Pechota and Dana Hanna the $50,000 retainer they’ve demanded. The excuse I heard firsthand was there was insufficient evidence, but tribal members familiar with a sponsored survey last year know this is patently untrue.

Tribal government can sponsor its own survey to obtain additional evidence. Tribal patients are ready to provide evidence if you give them the opportunity; if you show them you’re seriously ready to investigate; that you’re not just offering them another fly-by-night operation; and that you will make sure they’re protected and not hassled if they agree to testify.

If that seems too hard, why not piggyback on the other study?

If you’re serious about getting it done, motivate our tribal attorneys by doing some ground work. Hire tribal members with release forms, notepads and tape recorders to sit at the hospital, tribal building, and community buildings, and let the patients come forward to tell their own stories. Give them a deadline of three months, and make the effort to let everyone know what you’re doing.

But do the same to IHS.

The benefits of filing a lawsuit lies in the discovery, getting the federal court to set timelines on IHS (and I mean reasonable and prompt timelines). It prevents IHS from resorting to basic formalities, of stringing the Tribe (and its people) along for more years of bad healthcare, and it forces IHS officials to come to the table with prompt solutions. 

A lawsuit would also get congressional attention and put pressure on IHS officials, similar to the way pressure was brought to bear against the Veterans Administration.

Without a lawsuit, IHS’s solution would be to schedule meeting after meeting, and historically, we know the outcome of meeting something to death; we never get a solution.

If the Rosebud Sioux Tribe can file a lawsuit against the hog farm, then why not a lawsuit that will give our people and children hope of better healthcare to protect the next seven generations?

I researched our attorney’s legal activity after a motion was made on February 2014 to file the lawsuit. In the space of four months, two phone calls and a few emails were all that took place.

I know lawsuits can be messy and complicated, but when you’re paid a retainer to work on an issue that is literally a matter of life and death then you should be acting accordingly.

In my opinion, if this lawsuit is not filed immediately in federal court we risk getting more runaround from IHS not only through this tribal election phase but the ones that follow. I ask our council representatives to have a digest put together of all resolutions and motions pertaining to the lawsuit and cross reference them in relation to what has been paid to our attorneys, and see what you come up with.

I offer my assistance immediately if needed in this matter. Despite my less confident former constituents, I have faith in my tribal government. I believe if documents prove $50,000 or more has been paid to our attorneys in this matter, a special council meeting should be called to discuss an immediate plan of action to obtain additional evidence from our tribal patients, so that a filing (like they’ve been asking for) can finally take place.

The longer we wait the more likely the elders who have been pleading for justice in this case will not be around to see it through. Please don’t let that happen. Each day more of our language and wisdom of our elders is slowly being lost.

Wopila,

/s/ Calvin “Hawkeye” Waln

Rosebud Sioux Tribal Member

Mission, S.D.

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