Rosebud Sioux Tribe v. United States

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 20-2062
___________________________

Rosebud Sioux Tribe, a federally recognized Indian tribe, and its individual members

Plaintiff - Appellee

v.

United States of America; Department of Health and Human Services, an executive
department of the United States; Xavier Becerra, Secretary of Health and Human
Services; Indian Health Service, an executive agency of the United States; Elizabeth
A. Fowler, Director of Indian Health Service; James Driving Hawk, Director of the
Great Plains Area Health Service

Defendants - Appellants
____________

Appeal from United States District Court
for the District of South Dakota - Central
____________

Submitted: March 18, 2021
Filed: August 25, 2021
____________

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
____________

ERICKSON, Circuit Judge.
 In this appeal, we are asked to consider whether the district court1 erred by
declaring the United States has a duty to provide “competent physician-led healthcare”
to the Rosebud Sioux Tribe (“the Tribe”) and its members. In light of promises made
to the Tribe more than 150 years ago, and relevant legislation since that time, we find
the district court correctly articulated the existence and scope of the duty and
declaratory judgment was proper. We affirm.

I. BACKGROUND

A. Relevant Law and History

On April 29, 1868, representatives of the United States and “the different bands
of the Sioux Nation of Indians” including what is now the Tribe signed the Treaty of
Fort Laramie of 1868 (“the Treaty”). The Treaty established the Great Sioux
Reservation and temporarily put an end to fighting between the United States and party
tribes in the Great Plains. Under the Treaty, the United States acquired vast acreage
of land and in exchange made a number of promises to the party tribes. The promise
that is central here is found at Article XIII of the Treaty, which states: “The United
States hereby agrees to furnish annually to the Indians the physician, teachers,
carpenter, miller, engineer, farmer, and blacksmiths, as herein contemplated, and that
such appropriations shall be made from time to time . . . as will be sufficient to employ
such persons.” In Article IV, the United States also agreed to provide a residence for
the physician. And, in Article IX, the United States reserved a privilege to withdraw
the physician after 10 years, but only if the United States paid $10,000 annually to the
tribes. Because they were not proficient in the English language, each of the Sioux
representatives indicated their signature on the Treaty by marking an “X.”

1
The Honorable Roberto A. Lange, Chief Judge, United States District Court for
the District of South Dakota.

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 In the years that followed, we know from the Annual Reports of the
Commissioner of Indian Affairs that the Agencies assigned throughout what is now the
Great Plains Region2 worked on behalf of the United States to improve conditions of
tribal life with regard to health and sanitation, farming, education and the like. For
example, in 1878 the Cheyenne River Agency reported that sanitary conditions were
“improving but still far from satisfactory,” with the physician reporting favorably that
“the native medicine men are now but rarely consulted by the Indians, who generally
come to the agency for treatment and medicines.” 1878 ANN. REP. OF THE
COMMISSIONER OF INDIAN AFF. 23. In 1882, the Pine Ridge Agency likewise reported
“good progress in gaining the confidence of the Indians and inducing them to abandon
their native medicine,” but noted that the physician would need at least one assistant
in the village to meet the tribe’s needs. 1882 ANN. REP. OF THE COMMISSIONER OF
INDIAN AFF. 38. That same year, the Standing Rock Agency requested that a hospital
be erected as soon as practicable, to give proper care to the sick, “inspire . . . greater
confidence . . . and be another convincing proof of the good intention of the
government toward them.” Id. at 46. Similar reports continued into the 1900s. See
e.g., 1905 ANN. REP. OF THE COMMISSIONER OF INDIAN AFF. 278 (referencing two
changes in the resident physician and reporting a measles epidemic at the Devils Lake
Agency).

More than a half century after the Treaty, in 1921, the Snyder Act authorized
Congress to “direct, supervise, and expend such moneys as Congress may from time
to time appropriate, for the benefit, care, and assistance of the Indians throughout the
United States . . . [f]or relief of distress and conservation of health.” 42 Stat. 208

2
According to the Department of Interior, the Bureau of Indian Affairs Great
Plains Region now supports 16 tribes located in North Dakota, South Dakota and
Nebraska, including the Rosebud Agency. U.S. Dep’t of the Interior, Indian Affairs,
Great Plains Region, https://www.bia.gov/regional-offices/great-plains.

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(codified at 25 U.S.C. § 13).3 In 1976, Congress passed the Indian Health Care
Improvement Act (“IHCIA”), which established the Indian Health Service (“IHS”)4
and recognized 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.” Pub. L. No. 94-437, §§ 2, 601, 90 Stat. 1400 (codified
as amended at 25 U.S.C. §§ 1601, 1661). The IHCIA states: “[I]t is the policy of this
Nation, in fulfillment of its special trust responsibilities and legal obligations to Indians
. . . to ensure the highest possible health status for Indians . . . and to provide all
resources necessary to effect that policy.” 25 U.S.C. § 1602. The Snyder Act thus
marked the beginning of Congressional funding for healthcare to all federally-
recognized tribes, and the IHCIA established the structure to deliver healthcare services
throughout Indian country.

B. Facts and Procedural History

Because the Tribe is federally-recognized, its members are eligible to receive
healthcare services from IHS. IHS operates the Rosebud Hospital in Rosebud, South
Dakota. Rosebud Hospital is the primary source of healthcare services to
approximately 28,000 Native Americans in the south-central region of South Dakota.
In November 2015, the Centers for Medicare & Medicaid Services (“CMS”) found
considerable deficiencies in the emergency care provided by the Rosebud Hospital.

3
The Snyder Act originally directed those appropriations through the Bureau of
Indian Affairs, under the supervision of the Secretary of the Interior. In 1954, Congress
transferred relevant healthcare-related functions to what is now the Department of
Health and Human Services (“HHS”). See 25 U.S.C. § 13; 42 U.S.C. § 2001.
4
Today, IHS provides federal healthcare and health advocacy for approximately
2.6 million American Indians and Alaskan Natives among the 574 federally-recognized
tribes in 37 states. U.S. Dep’t of Health and Human Serv., Indian Health Serv., About
IHS, www.ihs.gov/aboutihs.

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CMS determined the identified deficiencies resulted in “an immediate and serious
threat to the health and safety of patients.” As a result, on December 5, 2015, IHS
placed the Rosebud Hospital Emergency Department on “divert” status, which meant
emergency patients were diverted approximately 50 miles away to hospitals in either
Winner, South Dakota, or Valentine, Nebraska. Shortly thereafter, the hospital’s
operating hours were reduced. In June 2016, surgical and obstetrics services were
diverted as a result of staffing shortages. The Emergency Department eventually
reopened on July 15, 2016.

The persistent deficiencies at Rosebud Hospital prompted the Tribe to file a
Complaint against the United States, HHS and its Secretary, IHS and its Acting
Director, and the Acting Director of the Great Plains Area of the IHS (collectively, “the
Government”), seeking declaratory and injunctive relief. The district court granted the
Government’s motion to dismiss several statutory and constitutional claims. Allowed
to proceed was the Tribe’s claim alleging the Government has a “specific, special trust
duty, pursuant to the Snyder Act, the IHCIA, [the Treaty], and federal common law,
to provide healthcare services to the Tribe and its members and to ensure that health
care services provided . . . do not fall below the highest possible standards of
professional care.” Complaint at ¶61.

After discovery, the parties filed cross-motions for summary judgment. The
district court denied the Government’s motion, while granting the Tribe’s motion in
part and denying it in part. Specifically, the district court held the Tribe overstated the
Government’s duty when it asserted the Government had “breached its duty to provide
the level of care that will raise the health status of the Tribe to the ‘highest possible
level.’” Rosebud Sioux Tribe v. United States, 450 F.Supp.3d 986, 1003 (D.S.D.
2020). The district court did, however, decide that the Government owed the Tribe a
judicially enforceable duty “to provide competent physician-led health care to the
Tribe’s members.” Id. The Government appeals.

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II. DISCUSSION

We review de novo a district court’s decision granting summary judgment.
Green Plains Otter Tail, LLC v. Pro-Environmental, Inc., 953 F.3d 541, 545 (8th Cir.
2020). Summary judgment is proper if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

On appeal, the Government asserts the doctrine of Indian trust law controls and
no duty to provide healthcare exists because the Tribe cannot establish the existence
of a trust corpus. The Government, however, misapprehends the holding below and
overstates the application of the trust law doctrine under the circumstances presented
here.

Each of the foundational cases in the area of Indian trust law have a common
source of jurisdiction: the Tucker Act, 29 U.S.C. § 1491. But, the Tucker Act confers
jurisdiction to individual claimants premised originally in the Court of Claims. See
United States v. Mitchell, 445 U.S. 535, 538–40 (1980) (Mitchell I). The same is true
for tribal claimants who bring claims pursuant to § 24 of the Indian Claims
Commission Act, 28 U.S.C. § 1505, which is commonly referred to as the Indian
Tucker Act. United States v. Mitchell, 463 U.S. 206, 211–15 (1983) (Mitchell II).
Neither the Tucker Act nor the Indian Tucker Act, however, confer any substantive
right against the United States to recover money damages. The right to claim money
damages must be found in “some other source of law, such as ‘the Constitution, or any
Act of Congress, or any regulation of an executive department.’” Id. at 216 (quoting
28 U.S.C. § 1491).

In Mitchell I and Mitchell II, the Supreme Court considered claims for money
damages brought pursuant to the Indian Tucker Act, alleging mismanagement of
timber resources held in trust by the Government on the Quinault reservation in
Washington. In Mitchell I, the Court held the Indian General Allotment Act of 1887

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(“IGAA”)5 created only a “limited trust relationship” because the IGAA did not give
the Government “full fiduciary responsibility” to manage timber resources. 445 U.S.
at 542–43. In Mitchell II, however, the Court analyzed the trust relationship under a
series of federal timber management statutes and other provisions. The Court
determined that the Government exercised “elaborate control” over tribal monies and
property, which “necessarily” created a fiduciary relationship. 463 U.S. at 225. “All
of the necessary elements of a common-law trust are present: a trustee (the United
States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands,
and funds).” Id. “Our construction of these statutes and regulations is reinforced by
the undisputed existence of a general trust relationship between the United States and
the Indian people.” Id.

Two decades later, Navajo I and Navajo II further defined the elements of a trust
relationship—again, in a suit for monetary damages. See United States v. Navajo
Nation, 537 U.S. 488 (2003) (Navajo I); United States v. Navajo Nation, 556 U.S. 287
(2009) (Navajo II). The Navajo Nation brought a suit against the Department of
Interior for breach of fiduciary duty related to the Government’s approval of coal lease
amendments negotiated years earlier by the tribe. The Supreme Court recognized the
existence of a fiduciary duty but held that monetary damages could not attach under
either the Indian Mineral Leasing Act of 19386 (Navajo I) or other statutes and
regulations that ostensibly showed Government control over the coal resources (Navajo
II). Although the “undisputed existence of a general trust relationship” between the
Government and the tribe could “reinforce” the existence of a fiduciary relationship,
“that relationship alone is insufficient” to support jurisdiction for a claim of money
damages under the Indian Tucker Act. 537 U.S. at 506. See also Navajo II, 556 U.S.

5
24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1976 ed.) (§§ 331–333
repealed 2000).
6
52 Stat. 347, 25 U.S.C. § 396a et seq.

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at 302 (money damages do not attach under the Indian Tucker Act where tribal litigant
“cannot identify a specific, applicable, trust-creating statute or regulation that the
Government violated”).

Here, the Tribe seeks only declaratory and injunctive relief arising under the
Treaty, the Snyder Act, the IHCIA, and federal common law. The Tribe makes no
claim for money damages, which necessarily means that the Indian Tucker Act cannot
provide jurisdiction. The Tribe’s case does not rely on Indian trust law doctrine but
instead on interpretation and construction of the Treaty, the trust relationship between
the Government and the Tribe, and the statutory scheme underlying the alleged duty
to provide healthcare.

Although the Tribe seeks a declaratory judgement, the Tribe still must identify
a substantive source of the duty. See United States v. Jicarilla Apache Nation, 564
U.S. 162, 176–177 (2011) (acknowledging “the undisputed existence of a general trust
relationship” between the Government and tribes; any trust obligations must be
grounded in a statutory scheme); Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d
1094 (8th Cir. 1989) (upholding judgment under Snyder Act provision creating
affirmative obligation to relieve distress and conserve health of Indians); Navajo Tribe
of Indians v. United States, 624 F.2d 981, 988 (Ct. Cl. 1980) (the existence of an
equitable obligation to a tribe depends on “the terms of some authorizing document
(e.g. statute, treaty, executive order)”). The question we address is whether the Treaty
and other relevant statutes when read in conjunction create a duty for the Government
to provide “competent physician-led health care” to the Tribe and its members. We
look first to the Treaty.

A.

“The canons of construction applicable in Indian law are rooted in the unique
trust relationship between the United States and the Indians. Thus, it is well

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established that treaties should be construed liberally in favor of the Indians, with
ambiguous provisions interpreted to their benefit.” County of Oneida v. Oneida Indian
Nation of N.Y., 470 U.S. 226, 247 (1985) (citations omitted). We apply the same
principle to statutory construction. Montana v. Blackfeet Tribe of Indians, 471 U.S.
759, 766 (1985). And, “we interpret Indian treaties to give effect to the terms as the
Indians themselves would have understood them.” Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 196 (1999).

First and foremost, the Treaty promised the Government would “furnish
annually” a physician and that “such appropriations shall be made from time to time
. . . as will be sufficient to employ” the physician. The Treaty also provided housing
to the physician. The Government reinforced that promised over the years following
the Treaty when it persistently delivered healthcare throughout the region and
encouraged tribal members to abandon their cultural medicines in favor of Government
healthcare. Under the Treaty, the Government established clinics and delivered
healthcare. We construe the Treaty liberally in favor of the Tribe. Both the language
of the Treaty and the conduct of the Government under its terms reflect an expectation
on the part of the Tribe that the Government would provide them with healthcare.
Moreover, that the tribal signatories spoke very little English and signed their names
with an “X” further emphasizes the need to carefully consider how the Government’s
actions may have impacted their understanding of the agreement. In short, the
historical record reflects decades of the Government providing healthcare after the
Treaty, in exchange for the Tribe’s continued trust in the Government.

B.

Years later, the Government’s promise was reinforced by the Snyder Act, which
authorized appropriations “for the benefit, care, and assistance of the Indians
throughout the United States . . . [f]or relief of distress and conservation of health,” 25
U.S.C. § 13, and by the IHCIA, which established the IHS with the stated goal to raise

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the health status of Indians “to the highest possible level,” 25 U.S.C. § 1601. Indeed,
the Supreme Court has acknowledged IHS’s “statutory mandate to provide health care
to Indian people.” Lincoln v. Vigil, 508 U.S. 182, 194 (1993).7 It is within this
context that the district court found a duty to provide healthcare. See also Blue Legs,
867 F.2d at 1100 (holding “the Snyder Act imposes affirmative obligations on [the
Government] to relieve distress and conserve Indian Health”); White v. Califano, 581
F.2d 697, 698 (8th Cir. 1978) (“We think that Congress has unambiguously declared
that the federal government has a legal responsibility to provide health care to Indians.
This stems from the ‘unique relationship’ between Indians and the federal government
. . . .”); Quick Bear v. Leupp, 210 U.S. 50 (1908) (a trust duty necessary attaches to
appropriations that fulfill treaty obligations, which are repayment of treaty debt in
installments).

We are unpersuaded by other cases cited by the Government for the principle
that no trust duty exists. In Quechen Tribe v. United States, the Ninth Circuit held that
“the federal-tribal trust relationship does not, in itself, create a judicially enforceable
duty.” 599 F.App’x 698, 699 (9th Cir. 2015). The Ninth Circuit explained: “Neither
the Snyder Act nor the [IHCIA] contains sufficient trust-creating language on which
to base a judicially enforceable duty. Both statutes ‘speak about Indian health only in
general terms,’ and neither requires the United States to provide a specific standard of
medical care.” Id. (quoting Lincoln, 508 U.S. at 194). However, Quechen Tribe did
not involve an operative treaty to create the specific trust relationship. In the instant
case, unlike in Quechen Tribe, the Treaty sets forth a duty that was consistently

7
In Lincoln, the Supreme Court considered whether IHS’s decision to reallocate
funding from a program that serviced disabled children in the Southwest to a
nationwide children’s health program was subject to judicial review under the APA,
and whether notice-and-comment rulemaking should have been used to make the
decision. 508 U.S. at 184. The Court acknowledged the “special trust relationship”
between tribes and the Government, and IHS’s “statutory mandate to provide health
care to Indian people.” Id. at 194.

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reinforced by the conduct of the Government decades before the adoption of the
Snyder Act and IHCIA. The Snyder Act and the IHCIA merely reinforced a prior
existing duty and relationship between the Tribe and the Government.

Likewise, in Yankton Sioux Tribe v. U.S. Dep’t of Health & Human Servs., we
upheld the district court’s dismissal of the tribe’s vague allegations, brought under the
APA, that general trust principles created a duty to continue emergency operations by
an IHS hospital. 533 F.3d 634 (8th Cir. 2008). In Yankton Sioux Tribe, the tribe
failed to allege the “violation of any statutory or treaty obligation that could be
characterized as a breach of trust or fiduciary duty.” Id. at 644. Not so here, where
the Tribe has specifically alleged that the Treaty, together with the Snyder Act and
IHCIA, create a such a duty.

Finally, we disagree with the Government’s argument that the declaratory
judgment issued below is too vague or abstract. The Declaratory Judgment Act
permits the judiciary to “declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought.” 28
U.S.C. § 2201(a). To proceed successfully under the Declaratory Judgment Act, there
must be a “substantial controversy” that presents a “concrete and specific” question.
Caldwell v. Gurley Refining Co., 755 F.2d 645, 649–50 (8th Cir. 1985) (quoting
Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273 (1941)). We
have that here.

The record confirms a history of documented deficiencies in the quality of
healthcare provided to members of the Tribe at Rosebud Hospital. The Tribe asks this
court to define the Government’s accountability for those deficiencies. Given the
special trust relationship between the Government and the Tribe, the history of
reinforced promises, and the unacceptable state of healthcare provided at Rosebud
Hospital, the district court’s order is a treaty-based declaration to define (and assign)
the duty owed to the Tribe in light of IHS’s stated purposed to raise the level of Indian

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healthcare. The “physician-led” portion of the duty is based on the Government’s
promise—originating from the Treaty—to furnish a physician and to appropriate funds
to employ the physician. The “competency” portion of the duty comes from the
recognition that some “adjustment and accommodation” must occur to make a tribe
whole when treaties are read decades later. See Washington v. Washington State
Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 681 (1979). After all, it
is difficult to imagine a set of circumstances in which the Tribe would have agreed to
the Government’s delivery of “incompetent” healthcare. The declaratory judgment
below gives meaning to promises made, and it assigns to the Government a measure
of accountability for persistent deficiencies at Rosebud Hospital.

We do not aim to assign any greater responsibility to the Government than the
circumstances of this case, and the Treaty at issue here, require. In this specific case,
the Government must do better.

III. CONCLUSION

The Treaty created a duty, reinforced by the Snyder Act and the IHCIA, for the
Government to provide competent, physician-led healthcare to the Tribe and its
members. We affirm.

KOBES, Circuit Judge, dissenting.

I share the court’s concern about healthcare in Rosebud. There have been
“considerable deficiencies in the emergency care provided by” Indian Health Services.
Maj. Op. at 4. Those and other problems have been “persistent.” Maj. Op. at 5. But
I am compelled to dissent because neither the 1868 Treaty of Fort Laramie nor the later

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statutes created a judicially enforceable duty to provide the Rosebud Sioux Tribe8 with
“competent physician-led health care.” D. Ct. Dkt. 101 at 30. The historical evidence
makes it clear that the physician was supposed to be a temporary instructor, not a
permanent service provider. The Treaty promised only one physician because the
doctor’s role was to teach the Sioux how to administer medicine—not to provide
healthcare to the entire Tribe.

I.

The statutes the court discusses do not create a duty to provide healthcare. As
the Ninth Circuit explained in Quechan Tribe of the Fort Yuma Indian Reservation v.
United States, “[n]either the Snyder Act nor the Indian Health Care Improvement Act
contains sufficient trust-creating language on which to base a judicially enforceable
duty.” 599 F. App’x 698, 699 (9th Cir. 2015) (unpublished). The court seems to
agree, distinguishing this case from Quechan Tribe only because “the Treaty sets forth
a duty that was consistently reinforced by the conduct of the Government decades
before the adoption of the Snyder Act and IHCIA.” Maj. Op. at 10–11 (emphasis
added). The court also says that those two statutes “merely reinforced a prior existing
duty and relationship between the Tribe and the Government.” Maj. Op. at 11
(emphasis added). If a duty exists, it must come from the Treaty. The court and I
disagree about whether the Treaty created that duty.

II.

8
As I understand it, the Rosebud Sioux Tribe’s Lakota name is Sicangu Lakota
Oyate. But because the Tribe, the Government, and the court all refer to the Tribe as
the Rosebud Sioux Tribe, so will I. I also refer more generally to the “Sioux,” even
though that term is an exonym used to describe the various bands of the Lakota,
Nakota, and Dakota people.

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 “Indian treaties must be interpreted in light of the parties’ intentions, with any
ambiguities resolved in favor of the Indians.” Herrera v. Wyoming, 139 S. Ct. 1686,
1699 (2019) (citation omitted). Because the Government held superior bargaining
power over tribes, “the words of a treaty must be construed in the sense in which they
would naturally be understood by the Indians.” Id. (citation omitted). “But the federal
government generally is not obligated to provide particular services or benefits in the
absence of a specific provision in a treaty, agreement, executive order, or statute.”
Vigil v. Andrus, 667 F.2d 931, 934 (10th Cir. 1982).

A.

The Government argues that there is no specific language in the Treaty that
“purport[s] to create any fiduciary duty [to provide healthcare].” Gov. Br. 16. The
Rosebud Sioux Tribe, on the other hand, says that the Government assumed a duty to
provide the Tribe with “competent, physician-led health care” when it promised to
provide a physician and pay for the physician’s housing and salary. Tribe Br. 19–20.

The Tribe points to Article XIII, which says: the Government “hereby agrees
to furnish annually to the Indians the physician . . . and that such appropriations shall
be made from time to time . . . as will be sufficient to employ [the physician].” Treaty
with the Sioux Indians, 15 Stat. 635. The Tribe acknowledges that “[c]ourts must
focus on the historical context of an agreement between the United States and a tribe”
to give meaning to the Treaty. Tribe Br. 26. But it offers no historical sources to
support its understanding of Article XIII. And despite the Tribe’s claim that the Sioux
“agree[d] to exchange millions of acres of their lands for the provision of health care
services” in a “bargained-for exchange,” Tribe Br. 22–23, the Sioux did not give up
quite that much.9

9
While the 1868 Treaty reduced by over half the roughly “60 million acres” of
land recognized as core Sioux territory in the 1851 Treaty of Fort Laramie, it did not

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grant complete control over that original Sioux territory—referred to in the 1868 Treaty
as “unceded Indian territory”—to the Government. Alan L. Neville & Alyssa K.
Anderson, The Diminishment of the Great Sioux Reservation Treaties, Tricks, and
Time, 33 Great Plains Q., Fall 2013 237, 238–39; see also Section 3: The Treaties of
Fort Laramie, 1851 & 1868, STATE HIST. SOC’Y OF N.D.,
https://www.ndstudies.gov/gr8/content/unit-iii-waves-development-1861-1920/lesso
n-4-alliances-and-conflicts/topic-2-sitting-bulls-people/section-3-treaties-fort-larami
e-1851-1868.

In fact, Article XVI of the 1868 Treaty required the Government to abandon its forts
and roads in that territory, and the Treaty forbade white Americans from settling on or
entering upon it without prior consent from the Sioux. So while the Sioux promised
not to permanently settle on the territory outside the Great Sioux Reservation, the
“unceded Indian territory” remained largely under Sioux control, at least under the
Treaty’s terms.

This scheme makes sense in historical context. To pressure the Sioux to adopt white
American customs, the Government got the Sioux to agree to permanently settle only
in a centralized agricultural region—something that had to happen before schools could
be built and before farmland could be divided up among families. At the same time,
the Treaty kept the unceded Indian territory under Sioux control and recognized the
Sioux’s exclusive right to use that land for hunting. Art. XI, 15 Stat. 635. Also, the
1868 Treaty actually expanded some Sioux territory, granting the Sioux exclusive
settlement rights to land that belonged to the Ponca tribe, with whom the Sioux had
long fought but never conquered. See SETH KING HUMPHREY, THE INDIAN
DISPOSSESSED 144, 149–50, 187–88 (1906). The Ponca’s land, “among the very best
in Dakota,” was later handed over to the Sioux by the Government. 1877 COMM’R OF
INDIAN AFF. ANN. REP. 48. The Sioux were not forced to sacrifice all control over
much of their land until the infamous 1876 “agreement” and 1877 Act of Congress,
which abrogated the Fort Laramie Treaty and which the Supreme Court held
unlawfully took the Black Hills and much of the unceded Indian territory away from
the Sioux without just compensation. See United States v. Sioux Nation of Indians,
448 U.S. 371, 382–83, 423–24 (1980).

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 Still, the Tribe argues that traditional canons of Indian law put the Government’s
obligation to provide “competent physician-led health care” beyond debate. Tribe Br.
20–21, 28. But neither the Tribe’s argument nor the court’s holding can be squared
with those canons. When interpreting Indian treaties, “we look beyond the written
words to the larger context that frames the Treaty, including the history of the treaty,
the negotiations, and the practical construction adopted by the parties.” Minnesota v.
Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196 (1999) (citation omitted).
We “cannot ignore plain language that, viewed in historical context and given a fair
appraisal, . . . clearly runs counter to a tribe’s later claims.” Oregon Dep’t of Fish &
Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985) (citation omitted). “We
stop short of varying [treaty] terms to meet alleged injustices” because doing that is a
task “for the Congress,” not courts. Nw. Bands of Shoshone Indians v. United States,
324 U.S. 335, 353 (1945). In short, “we may not interpret the 1868 Treaty in a way
that the United States would not reasonably have agreed to adopt at the time of
signing.” Jones v. United States, 846 F.3d 1343, 1356 (Fed. Cir. 2017).

B.

I start with the Treaty’s plain language: Article XIII says that the Government
must furnish and pay for “the physician, teachers, carpenter, miller, engineer, farmer,
and blacksmiths, as herein contemplated.” But contrary to the Tribe’s argument that
this means that “the federal government will provide health care,” Tribe Br. 22, the text
does not say that. The text makes one thing clear, though: the Government was
required to provide multiple “teachers” and “blacksmiths,” but only a single
“physician.” This plays out in other parts of the Treaty, too, as Articles VII and VIII
list events that trigger the introduction of additional teachers and the second
blacksmith, respectively. There is nothing about more doctors. A single physician
could not provide competent healthcare to more than fourteen thousand people spread

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over millions of acres.10 So, if the physician wasn’t required to provide medical care
to the entire Sioux population, what was this physician required to do? I look to the
entire structure of the Treaty next.

C.

The Treaty is quickly summarized. Article I declares a permanent end to war
and establishes rules for future disputes between the Sioux and the United States.
Article IV requires the Government to construct several buildings on the reservation,
including a house for the physician, and Article V requires the Government to provide
an agent for the Sioux.11 Article VI provides that the Sioux could establish homesteads
by farming the land and thereby become American citizens. Article VII declares that
“the necessity of education is admitted” “[i]n order to insure the civilization of the

10
While reliable historical population records for the various Sioux tribes are
difficult to find, a 1994 survey of historical sources estimated that the total Teton Sioux
population in 1868 was approximately between 13,860 and 14,370 people. See
Kingsley M. Bray, Teton Sioux: Population History, 1655–1881, 75 NEB. HIST. 165,
174–76 (1994),
https://www.nebraskahistory.org/publish/publicat/history/full-text/1994-Teton_Siou
x.pdf. For comparison’s sake, before the Civil War, “the United States had a peace
time army of 16,000 soldiers,” and “113 doctors”—roughly one doctor per 142
soldiers. Robert F. Reilly, Medical and Surgical Care During the American Civil
War, 1861–1865, 29 BAYLOR UNIV. MED. CTR. PROC. 138, 139 (2016).
11
The Indian Agent was required to live with the Sioux and was tasked with
keeping “an office open at all times for the purpose of prompt and diligent inquiry into
such matters of complaint by and against” the Sioux, in addition to “the faithful
discharge of other duties enjoined on him by law.” The Treaty also required the Indian
Agent to manage stored goods, help assign and record tracts of farming land, induce
children to attend school, take an annual census, hand out prize money for growing the
most valuable crops, and collect evidence in property disputes.

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Indians entering into this treaty.”12 It also provides that “for every thirty children
between [the age of six and sixteen],” a schoolhouse will be provided and a teacher
“shall be furnished . . . and faithfully discharge his or her duties as a teacher.”13 Article
VIII promises to aid the Sioux in becoming self-sufficient farmers. It provides that
each head of a family who begins to farm “shall receive instruction from the farmer
herein provided for,” and will be provided with “seeds and agricultural implements for
the first year” of farming and for three years thereafter. It also says that after “one
hundred persons shall enter upon the cultivation of the soil, a second blacksmith shall
be provided, with such iron, steel, and other material as may be needed.”

Several more Articles lay out additional promised benefits, such as clothing,
oxen, and prize money for growing the most valuable crops. Healthcare is not
mentioned. Finally, the Government reserved the right to withdraw the farmer,
physician, and other professionals (except for the teachers and second blacksmith) after
ten years so long as “an additional sum thereafter of ten thousand dollars per annum
shall be devoted to the education of said Indians.” Art. IX, 15 Stat. 635. In exchange,
the Sioux agreed not to attack any Americans or tribes allied with the Government and
to withdraw their opposition to railroad construction on the Great Plains, while ceding
the right to permanently settle on unceded Indian territory outside the Great Sioux
Reservation. Art. XI, 15 Stat. 635.

The Treaty’s purpose was to end violence between the Sioux, the United States,
and allied tribes. It did that by pressuring the Sioux to permanently settle onto a

12
The reader may take offense at the Treaty’s implication that the Sioux, a large
and diverse group of people with longstanding customs and traditions, were
“uncivilized.” I do, too. But that was the Government’s point of view. Here and
elsewhere, I present the historical sources on their own terms.
13
This is the only time a Treaty professional is obliged to “faithfully discharge”
the duties of his or her profession.

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somewhat-centralized agricultural reservation, see n.3, supra. The Treaty’s related
goal was to induce the Sioux to abandon their traditional way of life with promises of
temporary rations, individual property, protection, education, and citizenship. But the
Treaty does not discuss the physician with any detail, so the doctor’s role is still
unclear.

The Treaty’s structure offers a clue, though: While the Government promised
to construct buildings for all the Treaty professionals, including a schoolhouse and a
mill, no professional is given supplies except the second blacksmith. Because
including something for one Treaty professional implicitly excludes it for others, we
know the others were not supposed to be provided with supplies for their jobs. So, the
Treaty’s terms sketch out a purposeful design: with the exception of the teachers (who
were required by the Treaty to teach, regardless of the lack of supplies) and the second
blacksmith, no Treaty professional was required to provide their services for the Sioux.

D.

That is perhaps a surprising suggestion, but it is inescapable in light of the
historical record. Our task is not to figure out what the Treaty should have looked like,
but rather what the Sioux actually understood and assented to at the time the Treaty
went into force. Herrera, 139 S. Ct. at 1699. So, I move on to consider the “larger
context that frames the Treaty.” Mille Lacs Band, 526 U.S. at 196. To do that, I look
to the historical record, which “provides insight into how the parties to the Treaty
understood the terms of the agreement.” Id. That “insight is especially helpful to the
extent that it sheds light on how the . . . [Sioux] understood the agreement” at the time.
Id. This understanding is binding, even if it “runs counter to a tribe’s later claims.”
Klamath Indian Tribe, 473 U.S. at 774.

The Tribe does not point to any historical sources showing how the Sioux
understood the Treaty at the time. That is understandable because Sioux-authored

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records from then are rare. The only contemporaneous sources I have been able to find
are reports written on behalf of the various Sioux tribes by the Government’s Indian
Agents. But because those reports were written by federal employees with their own
biases, they are not the best record of how the Sioux understood the Treaty. Still, the
court relies on them, and even with their imperfections, they are the best sources
available.

An 1868 report from the Upper Missouri Agency includes the earliest reference
to the physician. The Indian Agent remarked that the agency physician, “Dr.
Livingston[,] has been very successful in his professional efforts among these Indians.”
1868 COMM’R OF INDIAN AFF. ANN. REP. 192. But, the report said, the physician “has
experienced great inconvenience in his practice for the want of necessary medicines.”
Id. Plus, “[t]he doctor has been more than a year in the service, but has not received
a dollar in compensation.” Id. The report closed with a request that Congress “make
an annual appropriation for the support of a physician and purchase of medicines for
these Indians.” Id.

At first glance, this seems to support the court’s interpretation of the
Treaty—after all, the physician is implied to have been providing medical services.
But those services were not offered with the Treaty in mind: Dr. Livingston had been
working for “more than a year” without Congressional appropriation or support as of
September 1868, id., which means he was there before the Treaty was signed, let alone
ratified.14 From this, and because the Indian Agent did not base his request for funds
on the Treaty, I don’t think that Dr. Livingston was acting to fulfill any Treaty
obligation.

14
The Treaty was ratified by the Senate in February 1869. President Andrew
Johnson’s Proclamation Regarding Treaty with the Sioux at Fort Laramie,
https://www.docsteach.org/documents/document/fort-laramie-treaty-ratification.

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 The Treaty’s goal was not to provide medical services to the Sioux for all of
time; rather, it was to instruct the Sioux about how to provide their own medical care.
The physician was primarily an instructor, not a healthcare provider. For example, the
1869 Grand River Agency report recounted that “[m]ost of the [Sioux there] seem
much pleased at their elevated position and speak favorably of peace and call upon the
whites for instructions.” 1869 COMM’R OF INDIAN AFF. ANN. REP. 319. The Indian
Agent’s report also said that the Sioux found the Government’s administration of the
agency “satisfactory,” and that “with the assistance of two or three whites to teach and
assist them . . . it would not be long ere they rivaled other more civilized tribes.” Id.

Other reports echoed similar sentiments and recorded that the Sioux understood
the Treaty’s terms. In 1869, the Whetstone Agency reported that the Sioux there were
“mostly inclined to cultivate the soil, and adopt the habits of civilized life.” Id. at 315.
The same report noted that “[t]hough the force of example [by whites who married into
Indian families] does not always work to the advantage of the Indians . . . yet in the
main it is to their advancement, they (the Indians) learning from the whites, whom they
recognize as relatives, much more readily than from others not connected with them.”
Id. at 315–16. And while the Treaty “ha[d] not been fulfilled” yet, it “was fully
explained to the chiefs and head men, entered into in good faith, and all its provisions
distinctly remembered [by them].” Id. at 316. Healthcare services are never
mentioned. Instead, the constant thread is that the Government, through its employees,
would instruct the Sioux about how to live like “civilized” white Americans rather than
provide for them.

Later reports, like the 1873 Grand River Agency report, continue that trend. The
Indian Agent said that because little progress had been made, “all operations should be
directed and assisted by skilled and intelligent agriculturalists . . . until such time as the
Indians may become sufficiently skilled.” 1873 COMM’R OF INDIAN AFF. ANN. REP.
231. The Indian Agent noted that a “considerable expenditure of money” would be
necessary, “but if progress is hoped for, in the effort to render the Sioux Indians self-

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sustaining on a civilized basis, the outlay seems to me to be most essential.” Id. The
physician from the 1868 Upper Missouri report recorded a similar sentiment: the 1873
Upper Missouri Agency report, authored by Dr. Livingston in his new capacity as
Indian Agent, noted that “these Indians will [soon] be thrown entirely upon their own
resources” because the Treaty’s provisions for rations were about to expire, but that the
Sioux there would be “wholly incapable of [surviving] at the present time,” and so
special legislation from Congress was necessary to temporarily provide for their needs.
Id. at 233.

Even the Sioux at the Flandreau Special Agency, Presbyterian converts who
survived without tribal or Government support for years, understood the Treaty
professionals as instructors, not providers. Their pastor, who doubled as their Indian
Agent after the Government learned of their settlement, recorded that the Flandreau
Sioux “desire[d] for rapid advance in civilization,” which they sought to secure by
“throwing every man on his own responsibility,” leaving their tribes and starting their
own family farms once they learned about the Treaty—three years before the
Government became aware of them. 1874 COMM’R OF INDIAN AFF. ANN. REP. 241.

The 1874 report explained that the new Flandreau Special Agency’s goal was
“to encourage [the Sioux] by counsel and the gift of farming-implements to rely upon
their own efforts for their support.” Id. And because there were several white settlers
around that agency, the Indian Agent reported that “it is believed [the settlers’]
example will do more to show [the Sioux] how they must labor if they would succeed
than an employed instructor, and therefore a superintendent of farming and other
[Treaty professionals] are not needed.” Id. Of particular note is that the Indian Agent
reported that most deaths at the agency were the result of whooping-cough, and
because the Sioux did not know “the proper management of sickness,” the Government
would “need to use every effort to enlighten them.” Id. Despite the obvious need in
this case for healthcare among a group of families that labored without outside support

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for three years, no mention is made of providing that service—instead, the focus was
on teaching the Sioux American methods of sanitation.

That focus extended to the other Treaty professionals, too: the same report notes
that “some of the young men have asked to learn the blacksmith and carpenter trades,
and, if a suitable place could be found for them, it would be an excellent thing.” Id.
at 242. Two years later, in 1876, the Flandreau Special Agency report explained that
“[n]o other trades have yet been learned.” 1876 COMM’R OF INDIAN AFF. ANN. REP.
28. Still, the Indian Agent reported that “[t]hey desire to be independent, and I hope
will soon be able to be so.” Id.

Sioux in other regions of the Great Sioux Reservation also understood the
Treaty’s goal as providing instruction for eventual self-sufficiency, rather than
healthcare from the Government in perpetuity. The Standing Rock Agency report from
1875 explained that the Sioux “appear to comprehend their situation and realize . . . the
necessity of adopting the same modes of living that white men do, in order to lay the
foundation for their future permanent welfare.” 1875 COMM’R OF INDIAN AFF. ANN.
REP. 245. The report also recounted that the Sioux at the agency “fully recognize the
obligations of their contract under the [Treaty], and manifest an anxiety to learn what
is required of them under its provisions.” Id. And in 1876, the report from Standing
Rock noted that the Sioux chiefs at the agency asked that Article XIII would be
“carried into effect,” and “expressed . . . their perfect willingness to cooperate with any
measure to be adopted for their material improvement and social progress.” 1876
COMM’R OF INDIAN AFF. ANN. REP. 39. The same report also recorded that the Sioux
had “shown great willingness to comply with the advice given to them.” Id. at 38.

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 These reports and others15 establish that the Treaty’s purpose—understood by
the Government and the Sioux alike—was to exert pressure on the Sioux to learn to
live like white Americans. Likewise, the Government and the Sioux understood that
most of the Treaty professionals’ duty was not to provide services, but rather to teach
the Sioux until they could reasonably take up the professions themselves. Like every
other Treaty professional (except the second blacksmith), the physician’s task was to
educate. See, e.g., 1882 COMM’R OF INDIAN AFF. ANN. REP. 90 (when a chief’s son
suffered from pneumonia, the community watched the physician take care of him;
during a later epidemic, community members took similar care of the ill). Nothing in
the Treaty’s text or the vast majority of historical sources suggests anything else.16

15
See 1878 COMM’R OF INDIAN AFF. ANN. REP. 32 (“I am led to believe that
many cases of death arise from ignorance of the simple laws of health . . . I recommend
for your consideration the employment of a competent person to attend the sick, and
especially to give them such instruction in the laws of health as their case demands.”);
see also 1882 COMM’R OF INDIAN AFF. ANN. REP. 88 (“The most of this labor has been
performed by Indian mechanics, under the supervision of a white master-
carpenter . . . .”); id. at 98 (“The present physician, Dr. Grinnell, has made good
progress in gaining the confidence of the Indians and inducing them to abandon their
native medicine men.”); id. (“To efficiently minister to the wants of so many Indians,
however, scattered as they are over the reserve, the physician should have at least one
assistant to attend to the village practice.”).
16
While there is no right to healthcare in the Treaty, the Tribe’s members have
access to a statutory remedy if a Government-employed physician practices medicine
so incompetently that it amounts to medical malpractice. The Federal Tort Claims Act
allows members of Indian tribes to sue the Government for personal injury or death
resulting from negligent medical care performed by IHS or IHS contractors. See The
Federal Tort Claims Act,
https://www.ihs.gov/riskmanagement/manual/manualsection07/ (citing 28 U.S.C. §§
1346(b), 2401(b), 2671–2680; and 25 U.S.C. §§ 458aaa-15, 5321(d)).

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 III.

I conclude that no one—neither the Government nor the Sioux—understood the
Treaty to require a single physician to take care of every Tribe member’s health needs
for centuries to come. The court’s wishful and admirable thinking about the
Government’s benevolence towards Indian tribes in 1868 rewrites the raw deal the
Government forced upon the Sioux—and, by rewriting the Treaty, the court
impermissibly morphs it into something the Government would not have accepted at
the time. Jones, 846 F.3d at 1356.

Despite the court’s promise that its opinion is limited to this specific case, it has
far-reaching consequences. Article XIII provides for much more than a single
doctor—the Government is also required to furnish the Tribe with “[a] carpenter, [a]
miller, [an] engineer, [and a] farmer.” The court’s reasoning would require the
Government to provide “competent carpenter-led construction”; “competent miller-led
grain processing and storage”; “competent engineer-led design”; and “competent
farmer-led agriculture.” Maybe that’s what the Government should have agreed to do.
But we are bound by the real agreement, and the Treaty did not provide for ongoing
healthcare.

Two centuries ago, Justice Story cautioned that courts lack “any treaty-making
power,” and that “to alter, amend, or add to any treaty, by inserting any clause, whether
small or great, important or trivial, would be on our part an usurpation of power, and
not an exercise of judicial functions.” The Amiable Isabella, 19 U.S. 1, 71 (1821).
“[O]ur duty is to follow [the text and original understanding of the Treaty] as far as it
goes, and to stop where that stops—whatever may be the imperfections or difficulties
which it leaves behind.” Id. The Government ought to do better by the Tribe. But we
are not the people’s elected representatives. Our duty is to the Constitution and the rule
of law. In keeping with the limits of the judicial power, I would refuse to write into

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the Treaty a promise the Government never made and the Sioux never accepted. I
respectfully dissent.
______________________________

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