IN THE UNITED STATES COURT OF APPEALS for the EIGHTH CIRCUIT NO

Case: 07-3096 Page: 1 Date Filed: 12/17/2007 Entry ID: 3383112 IN THE UNITED STATES COURT OF APPEALS for the EIGHTH CIRCUIT NO. 07-3096 Yankton Sioux Tribe, a federally-recognized tribe of Indians, and its individual members and Glenn Drapeau, an individual member of the Yankton Sioux Tribe, v. Appellants, United States Department of Health and Human Services, et al., Appellees. Appeal from the United States District Court for the District of South Dakota (4:06-cv-04180-LLP) The Honorable Lawrence L. Piersol United States District Judge, District of South Dakota, Southern Division PREPARED AND SUBMITTED BY: Charles Abourezk ABOUREZK & ZEPHIER, P.C. Attorney for Appellants 2020 W. Omaha Street P.O. Box 9460 Rapid City, SD 57709-9460 605-342-0097 (phone) 605-342-5170 (fax) APPELLANTS BRIEF

Case: 07-3096 Page: 2 Date Filed: 12/17/2007 Entry ID: 3383112 TABLE OF CONTENTS TABLE OF AUTHORITIES... SUMMARY OF THE CASE... i v i STANDARD OF REVIEW...2 STATEMENT OF ISSUES...4 JURISDICTIONAL STATEMENT....5 STATEMENT OF THE CASE...6 STATEMENT OF FACTS...7 SUMMARY OF ARGUMENT...15 DISCUSSION...16 CONCLUSION...30 CERTIFICATE OF SERVICE...31 CERTIFICATE OF FILING...32 F.R.A.P. 32(a)(7) AND EIGHTH CIR. RULE 28A(c) CERTIFICATION...... 3 3 i

Case: 07-3096 Page: 3 Date Filed: 12/17/2007 Entry ID: 3383112 CASES: TABLE OF AUTHORITIES Apache Tribe of Mescalero Reservation v. U.S., 43 Fed.Cl. 155, 171-72 (1999)....5,21,25 Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994)...3 Bell v. Sellevold, 713 F.2d 1396, 1399 (8th Cir.1983)...................... 4 Bryson v. Guarantee Reserve Life Ins. Co., 520 F.2d 563, 566 (8th Cir. 1975) (citing 1B Moore's Federal Practice P 0.410(1) (2d ed. 1974)............. 20,21 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).......................... Cherokee Nation of Oklahoma v. United States, 26 Cl.Ct. 798, 803 (1992)... 5,25 Chu Drua Cha v. Noot, 696 F.2d 594, 599-600 (8th Cir.1982) (vacating denial of preliminary injunction)................... 4 Clark v. United States, 150 Ct.Cl. 470, 281 F.2d 443, 446 (1960)....2 1 Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)......................... 2 Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998).....1 6 Doe v. South Iron R-1 School Dist., 498 F.3d 878, 880 (8th Cir. 2007).....2 Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).....2 ii

Case: 07-3096 Page: 4 Date Filed: 12/17/2007 Entry ID: 3383112 Friez v. First American Bank & Trust of Minot, 324 F.3d 580, 582 (8th Cir. 2003)... 4,16 Goss Intern. Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 362 (8th Cir. 2007)...3 Headley v. Bacon, 828 F.2d 1272, 1276 (8th Cir. 1987).................. 4,19 Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003) 355, 362 (8th Cir. 2007)................................. 2,3 Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1567 (10th Cir. 1984) (Seymour, J., concurring in part and dissenting in part), adopted as majority opinion as modified en banc, 782 F.2d 855 (10th Cir. 1986)................... th Lane v. Peterson, 899 F. 2d 737, 742 (8 Cir. 1990)........................ 2 3 Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006)................... 3,4 Lincoln v. Vigil, 502 U.S. 182 (1993)................................. 5,29 Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395, 399 (D.S.D. 1995)... 4,24 Mann v. City of Albany, Ga., 883 F.2d 999, 1003 (11th Cir.1989)............ 1 9 McCreary County v. ACLU, 545 U.S. 844, 867, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005)...2 Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 715 (8th Cir. 1979)..... 4,24 Petit v. City of Chicago, 766 F.Supp. 607, 612 (N.D.Ill.1991); In this case, 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 4457)...1 9 iii

Case: 07-3096 Page: 5 Date Filed: 12/17/2007 Entry ID: 3383112 Phil Crowley Steel Corp. v. Sharon Steel Corp., 702 F.2d 719, 722 (8th Cir. 1983)..... 4,19 Plaintiffs in Winstar-Related Cases v. United States, 37 Fed.Cl. 174, 189 (1997)... 5,25 Purcell v. Gonzalez, --- U.S. ----, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006).......... 2 Ripplin Shoals Land Co., LLC v. United States Army Corp of Engineers, th 440 F. 3d 1038, 1042-43 (8 Cir. 2006)................................ 4,22 Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 449 (8th Cir. 1979).....2 0 Tyus v. Schoemehl, 93 F.3d 449, 455 (8th Cir. 1996).................... 19,20 Wedow v. City of Kansas City, Mo., 442 F.3d 661, 666 (8th Cir.2006)...3 Winnebago Tribe of Nebraska v. Babbitt, 915 F.Supp. 157, 163 (D.S.D. 1996)... 4,24 Yankton Sioux Tribe v. U.S. Department of Health and Human Services, 496 F.Supp.2d 1044, 1051 (D.S.D. 2007)............. 2,4,6,10,14,16,22,23,25,27,29 Yankton Sioux Tribe v. United States Dept. of Health and Human Serv., CIV. 94-4073 (D.S.D.)...1 0 Yankton Sioux Tribe v. United States Dept. of Health and Human Serv., 869 F.Supp. 760 (D.S.D. 1994) (Hereinafter referred to as Yankton I")...... 5,10 Yantkon Sioux Tribe v. Kempthorne, 442 F.2d 774, (D.S.D. 2006)......... 4,24 iv

Case: 07-3096 Page: 6 Date Filed: 12/17/2007 Entry ID: 3383112 STATUTES: 28 U.S.C. 1362...5 28 U.S.C. 1361, Fed. R. Civ. P. 65...6 28 U.S.C. 2201 et seq...6 25 U.S.C. 1631(b)(1)...10,11,17,25,26 28 U.S.C. 1291...5 42 U.S.C. 3501 et seq....9 25 U.S.C. 1631(b)(1)(e)...1 1 OTHER AUTHORITIES: Restatement (Second) of Judgments 19 cmt. a (1982)..................... 2 1 v

Case: 07-3096 Page: 7 Date Filed: 12/17/2007 Entry ID: 3383112 SUMMARY OF THE CASE This appeal stems from the district court dissolving a temporary restraining order, and allowing Appellees to close the 24 hour emergency room at the Wagner Health Care Facility (hereinafter-whcf emergency room) - operated by the Indian Health Service. On September 26, 2006, the government Appellees, after threatening to do so numerous times, notified the Appellants that they were going to close the WHCF emergency room. Appellants sought a temporary restraining order and puliminary injuction to prevent the Appellees from closing the WHCF. Following a hearing, the district court granted the Appellants motion for a temporary restraining order, preserving a status quo. Following briefing by the parties the district court held a hearing to consider Appellees motion to dissolve the temporary restraining order and dismiss the case with prejudice on July 7, 2007.. The district court granted Appellees motions and issued a final judgment and order dismissing the case with prejudice. The Appellants are appealing, in this case six issues for this court to consider. First, Appellants argue that the district court erred when it granted Appellees motion to dismiss the temporary restraining order and dismiss the case with prejudice. Specifically, Appellants argue that the district court erred when it found that res judicata barred Plaintiffs complaint that the Appellees proposed vi

Case: 07-3096 Page: 8 Date Filed: 12/17/2007 Entry ID: 3383112 closure of the WHCF emergency room was illegal. Secondly, Appellants argue that the Appellees own Tribal Consultation Policy which the district court considered to be a claim that was not barred by res judicata, but in which the court held did not state a claim upon which relief could be granted in favor in Appellants was an error. Third, Appellants contend that the district court erred when it held that the continuing claims doctrine did not provide relief to the Appellants in maintaining a liable cause of action in the district court. Fourth, Appellants argue that when it held that the decision to close the WHCF emergency room was made in 1994, and therefore the shifting of funds from the Wagner service unit to the Winnebago service unit was the cause of the efforts of the Appellees to close the WHCF emergency room. Finally, Appellee believe that the district court erred when it held that the special trust relationship betqeen the parties was not violated when the Appellees announced their plans to close the WHCF emergency room. ORAL ARGUMENT Appellants respectfully request oral argument in this case as the issues involved may impact the trust relationship between the Appellees and the Appellants, not to mention all other Indian Tribes in the United States. The Appellants respectfully request thirty (30) minutes of oral argument before this 1

Case: 07-3096 Page: 9 Date Filed: 12/17/2007 Entry ID: 3383112 Honorable Court. STANDARD OF REVIEW When considering a motion to dismiss, a district court must assume all facts alleged in the Complaint are true[.] Yankton Sioux Tribe v. U.S. Department of Health and Human Services, 496 F.Supp.2d 1044, 1051 (D.S.D. 2007) (citing Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994)). All allegations in the Complaint shall be viewed in the light most favorable to the non-moving party, in this case the Appellants. Id. (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)). A motion to dismiss should be granted... only in the unusual case in which [the non-moving party, in this case, the Appellants] includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id. (emphasis added). The non-moving party s complaint must, however, contain facts which state a claim as a matter of law and must not be conclusory. Id. This Court reviews the grant of a preliminary injunction for abuse of discretion, giving deference to the discretion of the District Court. Doe v. South Iron R-1 School Dist., 498 F.3d 878, 880 (8th Cir. 2007); Purcell v. Gonzalez, --- U.S. ----, 127 S.Ct. 5, 7, 166 L.Ed.2d 1 (2006); McCreary County v. ACLU, 545 U.S. 844, 867, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Heartland Acad. Cmty. 2

Case: 07-3096 Page: 10 Date Filed: 12/17/2007 Entry ID: 3383112 Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003). Further, this Court reviews the District Court's material factual findings for clear error, its legal conclusions de novo, and the court s equitable judgment the ultimate decision to grant the injunction for an abuse of discretion. Goss Intern. Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 362 (8th Cir. 2007); (quoting Heartland Acad. Cmty, Church v. Waddle, 335 F.3d 684, 689-90 (8th Cir.2003). An abuse of discretion occurs where the district court rests its conclusion on clearly erroneous factual findings or erroneous legal conclusions. Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006); Wedow v. City of Kansas City, Mo., 442 F.3d 661, 666 (8th Cir.2006). An abuse of discretion occurs when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment. Goss Intern. Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 362 (8th Cir. 2007) (citing Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994)). When purely legal questions are presented, a Court of Appeals Court owes 3

Case: 07-3096 Page: 11 Date Filed: 12/17/2007 Entry ID: 3383112 no special deference to the district court. Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006); Bell v. Sellevold, 713 F.2d 1396, 1399 (8th Cir.1983); Chu Drua Cha v. Noot, 696 F.2d 594, 599-600 (8th Cir.1982) (vacating denial of preliminary injunction). STATEMENT OF ISSUES I. WHETHER THE DISTRICT COURT ERRED WHEN IT APPLIED THE DOCTRINE OF RES JUDICATA TO DISMISS APPELLANTS CASE. Yankton Sioux Tribe v. U.S. Dept. Of Health & Human Services, 496 F.Supp.2d 1044, 1052 (D.S.D. 2007); Friez v. First American Bank & Trust of Minot, 324 F.3d 580, 582 (8th Cir. 2003); Headley v. Bacon, 828 F.2d 1272, 1276 (8th Cir. 1987); Phil Crowley Steel Corp. v. Sharon Steel Corp., 702 F.2d 719, 722 (8th Cir. 1983). II. WHETHER THE DISTRICT COURT ERRED WHEN IT HELD THAT THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (HEREINAFTER HHS ) TRIBAL CONSULTATION ACTION POLICY DID NOT CREATE ADDITIONAL DUTY AND ENFORCEABLE RIGHTS, BECAUSE CLOSURE WAS A NEW DECISION. Ripplin Shoals Land Co., LLC v. United States Army Corp of th Engineers, 440 F. 3d 1038, 1042-43 (8 Cir. 2006); Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 715 (8th Cir. 1979); Yankton Sioux Tribe v. Kempthorne, 442 F.2d 774, (D.S.D. 2006); Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395, 399 (D.S.D. 1995); Winnebago Tribe of Nebraska v. Babbitt, 915 F.Supp. 157, 163 (D.S.D. 1996) III. WHETHER THE DISTRICT COURT ERRED WHEN IT RULED THAT THE CONTINUING CLAIMS DOCTRINE DID NOT APPLY IN THE PRESENT CASE. 4

Case: 07-3096 Page: 12 Date Filed: 12/17/2007 Entry ID: 3383112 Plaintiffs in Winstar-Related Cases v. United States, 37 Fed.Cl. 174, 189 (1997); Cherokee Nation of Oklahoma v. United States, 26 Cl.Ct. 798, 803 (1992)); Apache Tribe of Mescalero Reservation v. U.S., 43 Fed.Cl. 155, 171-72 (1999). IV. WHETHER THE DISTRICT COURT ERRED WHEN IT RULED THAT THE DECISION TO CLOSE THE EMERGENCY ROOM WAS NOT CAUSED BY THE APPELLEES UNLAWFULLY TAKING FUNDS FROM WAGNER SERVICE UNIT TO THE WINNEBAGO SERVICE UNIT. Lincoln v. Vigil, 502 U.S. 182 (1993); Yankton Sioux Tribe v. U.S. Dep t. of Health & Human Services, 869 F.Supp. 760 (D.S.D. 1994) V. WHETHER THE DISTRICT COURT ERRED WHEN IT RULED THAT DEFENDANTS DID NOT VIOLATE THEIR FEDERAL TRUST RESPONSIBILITY IN CLOSING THE EMERGENCY ROOM. JURISDICTIONAL STATEMENT The United States District Court in South Dakota had jurisdiction to hear Appellants Petitions and Verified Complaint against the Appellees pursuant to 28 1362 which states that district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States. Additional jurisdiction for the district court to hear Appellants claims for a Preliminary Injunction, or in the alternative, Petition for a Temporary Restraining Order; 5

Case: 07-3096 Page: 13 Date Filed: 12/17/2007 Entry ID: 3383112 Petition for a Writ of Mandamus; and Petition for Declaratory Relief derived from 28 U.S.C. 1361, Fed. R. Civ. P. 65, and 28 U.S.C. 2201 et seq. This Court has jurisdiction of this appeal pursuant to 28 U.S.C. 1291, which states that [t]he court of appeals... shall have jurisdiction of appeals from all final decisions of the district courts of the United States... The Appellants filed a time Notice of Appeal on September 5, 2007 from the judgment formally entered by the United States District Court on July 9, 2007. Appellants have satisfied this Court s jurisdictional requirements. STATEMENT OF THE CASE Plaintiffs filed suit to challenge the United States Indian Health Service s (hereinafter IHS ) determination to close the Emergency Room at the Wagner IHS Health Care Facility, (hereinafter WHCF ) and convert it to an urgent care facility. Yankton Sioux Tribe v. U.S. Dep t of Health & Human Services, 496 F.Supp.2d 1044, 1048 (D.S.D. 2007). After receiving formal notice from the IHS that they were going to close the WHCF s emergency room and convert it to a urgent care facility on September 20, 2006, cutting the hours and days that the WHCF would be operated, Plaintiffs filed a Motion for Temporary Restraining Order, (hereinafter TRO ) Preliminary Injunction and Permanent Injunction, and a Petition for Writ of Mandamus to 6

Case: 07-3096 Page: 14 Date Filed: 12/17/2007 Entry ID: 3383112 prevent Defendants from proceeding ahead with the closure. Id. A hearing was held before the Honorable Lawrence L. Piersol on September 29, 2006, to prevent the closure and preserve the status quo. Id. Following the hearing, the District Court granted the TRO, requiring that the Appellees maintain the status quo by maintaining the normal operation of the WHCF s emergency room. Id. Following the issuance of the TRO, the Appellees moved to dissolve the TRO and dismiss the case with prejudice. Id. Briefing of the parties, and oral argument was held on Appellees motion on June 29, 2007. Id. At the end of the hearing, the district court granted Appellees Motions to dissolve the TRO and dismissed the case with prejudice. Id. The district court issued its final judgment and memorandum opinion on July 9, 2007. Id. STATEMENT OF FACTS 1. Parties and General Background The Yankton Sioux Tribe (hereinafter Tribe ) is a federally-recognized Indian tribe. Verified Complaint, at 2 (Bates No. 342). The Tribe is responsible for the health, safety and welfare of its individual tribal members. Id. The Appellants who are individual members of the Tribe, notably Glenn Drapeau, are duly-enrolled members and American Indians who receive, or have received, medical treatment and health benefits, including but not limited to outpatient 7

Case: 07-3096 Page: 15 Date Filed: 12/17/2007 Entry ID: 3383112 services, nursing care, technical health care services, and 24-hour emergency room services at the WHCF, located within the Wagner Service Unit of the United States IHS. Id. at 3-4 (Bates No. 343). There are 29,406 patients registered within the Wagner Service Unit. Id. These tribal members are experiencing a high level of poverty. Id. In some areas of Charles Mix County, which largely encompasses the Yankton Sioux Reservation, according to the 2000 United States Census, over 51.1 percent of the population live below the poverty level. Id. The entire county, including both whites and American Indians and tribal members has a poverty rate of 26.9 percent. Id. The individual members of the Yankton Sioux Tribe are dependent upon the IHS for their medical and health care requirements, including 24-hour emergency room services that are free-of-charge to tribal members, due to treaty and legal obligations of the federal government. Id. According to the Congressional Research Service, the IHS-served population generally has a higher incidence of illness and premature mortality than the general population of the United States. Id. at 20 (Bates No. 350). The average life expectancy of people served by IHS is 5.9 years less than that of the general population of the United States. Id. With regard to causes of death that may have a relation to emergency room service, people generally served by IHS have a 208 percent greater chance of dying from injury and poisoning, a 181 8

Case: 07-3096 Page: 16 Date Filed: 12/17/2007 Entry ID: 3383112 percent higher chance of dying from homicide, a 144 percent greater chance of dying from firearm injury, a 120 percent greater chance of dying from heart diseases, and 304 percent greater chance of dying from accidents. Id. One reason for these statistics, according to the IHS, is that many Indians have less access to health care than do people in the general population of the United States. Id. The IHS is responsible for, among other things, the supervision, management, direction, and oversight of the Defendant United States Indian Health Service, which is a federal agency subsidiary to the Department of Health and Human Services, pursuant to the provisions of 42 U.S.C. 3501 et seq. Id. at 5 (Bates No. 343-344). The Appellees are also responsible for, among other things, ensuring that all Department of Health and Human Services obligations, policies and actions are fulfilled and carried out in accordance with the law, including but not limited to applicable, treaties, constitutional requirements, statutes, and federal regulations. Id. at 6 (Bates No. 344). The Appellees are responsible for ensuring that the Agency and Department properly follow its own Tribal Consultation Policy. Id. The Appellees are also responsible for providing timely notice and a timely and current study of the impact of any closure of an IHS facility or any portion of such facility, at least one year prior to such closure, to the United States Congress, under the provisions of 25 U.S.C. 1631 (b) (1). Id. 9

Case: 07-3096 Page: 17 Date Filed: 12/17/2007 Entry ID: 3383112 2. Previous litigation: Yankton Sioux Tribe v. United States Dep t of Health and Human Serv., CIV. 94-4073 (D.S.D.) and Yankton Sioux Tribe v. United States Dep t of Health and Human Serv., 869 F Supp. 760 (D.S.D. 1994) (Hereinafter referred to as Yankton I") In 1994, the Tribe and an individual member of the tribe, Joyce Golus, brought suit to challenge the decision of the IHS to eliminate both the Impatient and Emergency Medical services in the Emergency Room at the WCHF IHS Facility. Yankton Sioux Tribe, at 1048. The district court granted the Tribe s request for a TRO until a trial on the merits could be held. Id. Following the court trial, the district court granted declaratory relief, a writ of mandamus, and a permanent injunction requiring that the IHS comply with Federal Law, specifically 25 U.S.C. 1631(b)(1) which required the government to submit a written report to Congress and the President reporting on the impact that discontinuation of services at the WHCF IHS Facility would have on the Tribe. The Tribe s suit against the Government included constitutional claims that were never actually litigated, before the district court granted the Tribe s request for a permanent injunction and the district court entered its final judgment. Id. at 1050. (Emphasis added). The IHS appealed the district court s decision, but the appeal was later dismissed based upon the parties stipulation before this Court could entertain the appeal. Id. 10

Case: 07-3096 Page: 18 Date Filed: 12/17/2007 Entry ID: 3383112 In August of 2003 the Appellees moved to dissolve the district court s permanent injunction. Id. The Appellees justification for such a request was that some almost six years earlier, they had submitted a written report to Congress purportedly in compliance with 25 U.S.C. 1631(b)(1) which was submitted to the United States House of Representatives, the United States Senate, and the President of the United States by the Secretary of the U.S. Department of Health and Human Services. Id. Appellees argued that the permanent injunction should therefore be dissolved because, it was submitted pursuant to the district court s order and at least one year had elapsed from the date without any action taken by Congress regarding the report. Id. The district court disregarded the Appellant s arguments that the permanent injunction should not be dissolved because the Appellees had failed to provide meaningful consultation with the Tribe regarding the closure of the WHCF Emergency Room. Id. In doing so, the district court found that 25 U.S.C. 1631(b)(1)(e) did not require the Appellees to engage in any specific type of consultation as the Appellants contended. The district court held that the Appellees had complied with the permanent injunction by submitting said report and therefore the district court dissolved the permanent injunction on March 23, 2004. Id. at 1049. Notably, in dissolving the permanent injunction, the district court refused the Tribe s request to rule on the constitutional claims 11

Case: 07-3096 Page: 19 Date Filed: 12/17/2007 Entry ID: 3383112 initially raised back in 1994, finding that it did not have the authority to re-open the litigation and decide those constitutional issues. Id. at 1050. 3. Activity Following Yankton I. On January 14, 2005, then-secretary of the United States Department of Health and Human Services, who oversees the IHS, Tommy G. Thompson, issued a statement announcing the department s formal Tribal Consultation Policy. Verified Complaint, at 6 (Bates No. 355). In his statement, Secretary Thompson stated that the new Tribal Consultation Policy would emphasize the unique government to government relationship between the Indian Tribes and the Federal Government and help improve services in the Indian community through better communications. Id. The Department s Tribal Consultation Policy was developed in order to ensure that access to critical health and human services in maximized. To achieved this goal, and to the extent practical and permitted by law, it is essential that federally-recognized Indian Tribes and the H.H.S. engage in open, continuous, and meaningful consultation. Id. Such meaningful consultation policy, according to the Department s own standards, was to be acted upon before any action is taken that will significantly affect Indian Tribes. Id. The policy required that the department shall have an accountable process to ensure meaningful and timely input by Tribal officials in the development of 12

Case: 07-3096 Page: 20 Date Filed: 12/17/2007 Entry ID: 3383112 policies that have Tribal implications. Verified Complaint, at 37 (Bates No. 355). In 2005 the Appellees, even though they maintain that it satisfied all legal requirements by submitting the 1997 report to the Congress and the President, commissioned a week long visit to the Wagner IHS facility by the Sharpless, Inc. health care management company. Id. at 40 (Bates No. 356). Sharpless, Inc. issued a filed report (hereinafter Sharpless Report ) concerning its visit that contradicted the 1997 report to Congress and the President. Id. Specifically, the 1 Sharpless Report pointedly contradicted the 1997 report that there would be no adverse impact upon the population served by the closure of the Wagner IHS facility s emergency room. As stated in the Sharpless report: It was clearly understood by everyone that the sustaining or terminating of the Yankton Wagner service Unit Emergency Room (WHCFy Emergency Room) would have a major impact on a large and varied demographic area. In addition, that no one doubted that lives had been saved by virtue of the presence of the Yankton Wagner Service Unit Emergency Room and with its potential closing, it could be forecasted that lives would certainly be lost. Id. at 40-1 (Bates No. 357). (emphasis added). 1 The 1997 Report, in its opening Summary Statement, tells Congress that The IHS has conducted an evaluation in accordance with the criteria outlined in the law.... The conclusion reached was that there is no adverse medical impact on the eligible population caused by the closure of the hospital. Verified Complaint, 28 (Bates No. 353) (emphasis added). 13

Case: 07-3096 Page: 21 Date Filed: 12/17/2007 Entry ID: 3383112 Regardless of that dire warning from their own consultants, the Government proceeded with their plans to close the emergency room. January 26, 2006 appellants filed an action against the Appellees seeking a TRO and injunctive relief to prevent the closing of the emergency room. Yankton Sioux Tribe, at 1050. However, two days later the action was dismissed without prejudice on a motion from the Appellants, because the Appellees informed the Appellants by letter that the emergency room at the Wagner IHS facility would be kept open for the remainder of the fiscal year. Verified Complaint, at 33 (Bates No. 354). Prior to the end of the fiscal year, the Appellees informed the Appellants that they were going to close the emergency room on September 30, 2006 and converted to an urgent care facility, with the hours of operation and days that it would be open significantly shortened. Id. at 35 (Bates No. 355). Appellants commenced an action requesting a temporary restraining order, which was granted by the District Court on September 29, 2006. Following that, the Appellees filed a Motion to Dissolve Temporary Restraining Order and dismiss the case with prejudice and further filed an Objection to Plaintiff s Motion for a Preliminary Injunction. The district court held a hearing on Appellees motion. Following the hearing, the district court granted Appellees motions, dissolving the TRO and dismissing the case with 14

Case: 07-3096 Page: 22 Date Filed: 12/17/2007 Entry ID: 3383112 prejudice. SUMMARY OF ARGUMENT The Appellants are appealing, six issues for this Court to consider. Appellants argue that the district court erred when it granted Appellees motion to dismiss the temporary restraining order and dismiss the case with prejudice. Specifically, Appellants argue that the district court erred when it found that res judicata barred Plaintiffs complaint that the Appellees proposed closure of the WHCF emergency room was illegal under federal law. Secondly, Appellants argue that the Appellees own Tribal Consultation Policy, which the district court considered to be a claim that was not barred by res judicata, but in which the court held did not state a claim upon which relief could be granted in favor in Appellants was in error, given the canons of construction in Indian law and Eighth Circuit precedent. Third, Appellants contend that the district court erred when it held that the continuing claims doctrine did not provide relief to the Appellants in maintaining a liable cause of action in the district court, given the Indian law canons of construction and Eighth Circuit precedent. Four, Appellants argue that when it held that the decision to close the WHCF emergency room was made in 1994, and therefore the shifting of funds from the Wagner service unit to the Winnebago service unit was the cause of the efforts of the Appellees to close the 15

Case: 07-3096 Page: 23 Date Filed: 12/17/2007 Entry ID: 3383112 WHCF emergency room. Finally, Appellee believe that the district court erred when it held that the special trust relationship betqeen the parties was not violated when the Appellees announced their plans to close the WHCF emergency room. DISCUSSION I. THE DISTRICT COURT ERRED WHEN IT APPLIED THE DOCTRINE OF RES JUDICATA TO DISMISS PLAINTIFF/APPELLANT S CASE. Res Judicata bars litigation brought by a party only if a Court determines (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) both suits involve the same parties (or those in privity with them); and (4) both suits are based upon the same claims or causes of action. Yankton Sioux Tribe v. U.S. Dept. Of Health & Human Services, 496 F.Supp.2d 1044, 1052 (D.S.D. 2007) (quoting Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998)) (emphasis added). The burden was on the Appellees to establish that principles of res judicata bar the action against them. Friez v. First American Bank & Trust of Minot, 324 F.3d 580, 582 (8th Cir. 2003). Here, the Appellees failed in meeting this burden. 1. The prior judgment in Yankton I was a final judgment on the merits, but not a final judgment on the merits of the same nucleus of operative facts as in Yankton II. The District Court found that the prior judgment in Yankton I was final 16

Case: 07-3096 Page: 24 Date Filed: 12/17/2007 Entry ID: 3383112 judgment on the merits, therefore barring Appellants from bringing the Yankton II action. However, the final judgment in Yankton I the dismissal of the case and dissolution of the permanent injunction, involved a distinct and separate nucleus of operative facts than what is at issue in Yankton II. There is a unique nucleus of new operative facts here. They are as follows: 1. Appellees failure to adhere to their own consultation policies, in violation of law, before announcing the closure of the Wagner IHS Emergency Room; 2. The continuing claims doctrine being violated each time the Appellees proposed closing the Wagner IHS Emergency Room in violation of 25 U.S.C. 1631 (b) (1) and the U.S. Senate Committee Report interpreting the statute; 3. The willful extraction of monies for the Santee Sioux Tribe s shares under the Indian Self-Determination Act from the Wagner Service Unit budget, rather than the Aberdeen Area Office s budget on the Winnebago Service Unit s budget; and 4. The constitutional deprivations that were never actually litigated in Yankton I, as stipulated to by the parties, resulting in the conclusion 17

Case: 07-3096 Page: 25 Date Filed: 12/17/2007 Entry ID: 3383112 that res judicata cannot apply because the constitutional deprivations were never actually litigated. 2. The first suit was based upon proper jurisdiction. Appellants acknowledge that a prior judgment at issue in Yankton I was issued by the district court with proper jurisdiction, specifically the same court hearing the Appellants present case. As was the case in Yankton I, the district court had proper jurisdiction. That said, as set more fully below, Appellants contend the current case involves different parties and the suits at issue involve different and distinct claims and causes of action. 3. There are different parties in Yankton I and Yankton II, who are not in privity with one another. The individual Plaintiffs in Yankton I and II were completely different. Joyce Golus was the individual named tribal member in Yankton I, whereas Glenn Drapeau was the individual tribal member in Yankton II. Ms. Golus and Mr. Drapeau are not related, and beyond being tribal members who were employed by the tribe, do not share any other privities. Not all government employees and officials are in privity with the government... just as not every employee is in privity with his or her employer.... Moreover, even persons in such clearly policy-making positions may not be in 18

Case: 07-3096 Page: 26 Date Filed: 12/17/2007 Entry ID: 3383112 privity with the government. Headley v. Bacon, 828 F.2d 1272, 1276 (8th Cir. 1987). Privity is a term with different meanings in different contexts; for example, the concept of privity of parties for res judicata purposes is not the same as the concept of privity of contract. Phil Crowley Steel Corp. v. Sharon Steel Corp., 702 F.2d 719, 722 (8th Cir. 1983). Due to the equitable and fact-intensive nature of virtual representation, there is no clear test for determining the applicability of the doctrine. There are, however, several guiding principles. First, identity of interests between the two parties is necessary, though not alone sufficient. Tyus v. Schoemehl, 93 F.3d 449, 455 (8th Cir. 1996) (citing Mann v. City of Albany, Ga., 883 F.2d 999, 1003 (11th Cir.1989)). Other factors to be considered include a close relationship between the prior and present parties; participation in the prior litigation; apparent acquiescence; and whether the present party deliberately maneuvered to avoid the effects of the first action. Tyus v. Schoemehl, 93 F.3d 449, 455 (8th Cir. 1996) (quoting Petit v. City of Chicago, 766 F.Supp. 607, 612 (N.D.Ill.1991); In this case, 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 4457)). Glenn Drapeau is a completely new party and has no relationship with Joyce Golus in this matter asserting, among other claims, that his right to due process 19

Case: 07-3096 Page: 27 Date Filed: 12/17/2007 Entry ID: 3383112 under the Fifth Amendment to the United States Constitution, is in imminent danger of being denied. Given the particular facts of this case, it is clear that the parties in the two cases at issue here are not in privity to constitute representation. Tyus, 93 F. 3d at 455. 4. There are separate and distinct claims and causes of action in Yankton I and Yankton II. The final res judicata element to be met in order to bar Appellants from pursuing Yankton II has not been met. The critical issue is... whether plaintiffs are suing on a cause of action adjudicated in Yankton I. Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 449 (8th Cir. 1979). First, there are different causes of action in Yankton II. Most notably, in Yankton II, one of the core causes of action is the Appellees failure to adhere to their own Tribal Consultation Policy. The Tribal Consultation Policy was implemented and announced by the Defendants in 2005, over a year after the Yankton I lawsuit was dismissed. The cause of action for failing to consult in accordance with their own regulations, and in contravention of federal law, is a matter that could not have previously been litigated, as the policy was not implemented until 2005. The res judicata effect of a prior judgment is limited to the same cause of action. Bryson 20

Case: 07-3096 Page: 28 Date Filed: 12/17/2007 Entry ID: 3383112 v. Guarantee Reserve Life Ins. Co., 520 F.2d 563, 566 (8th Cir. 1975) (citing 1B Moore's Federal Practice P 0.410(1) (2d ed. 1974)). Therefore, res judicata does not apply to Appellants claim that the Appellees failure to adhere to their own Tribal Consultation Policy violated their rights under the law. In addition, the district court s contention that res judicata bars the Appellants from raising their Constitutional claims also must necessarily fail. Res judicata only prevents relitigation of all claims that were actually litigated as well as claims that could have been litigated. Apache Tribe of Mescalero v. U.S., 43 Fed.Cl. at 171-72. In Yankton I, the Appelllants constitutional claims were never actually litigated. A judgment based on a compromise is not res judicata as to an action for a later period[.] Id. (quoting Clark v. United States, 150 Ct.Cl. 470, 281 F.2d 443, 446 (1960). The requirement that claims be actually litigated before claim preclusion will apply is essential to the doctrine. Without a chance to actually litigate a specific claim, a party against which res judicata is asserted is denied a fundamental rationale underlying claim preclusion-fairness. See Restatement (Second) of Judgments 19 cmt. a (1982). There, the Appellants do not seek to reopen the clauses in the 2004 case, but rather are bringing new allegations of constitutional deprivations based upon the conclusions of the Sharpless Report, issued following Yankton I, which threaten imminent loss of life 21

Case: 07-3096 Page: 29 Date Filed: 12/17/2007 Entry ID: 3383112 without due process as required by the Fifth Amendment to the United States Constitution. II. THE DEPARTMENT OF HEALTH AND HUMAN SERVICES TRIBAL CONSULTATION POLICY CREATES A SUBSTANTIVE RIGHT FOR THE APPELLANTS, AND A NEW CAUSE OF ACTION THAT COULD NOT HAVE BEEN LITIGATED IN YANKTON I. The district court ruled that Appellants failed to state a cause of action for [Appellees ] failure to comply with the Tribal Consultation Policy upon which relief may be granted. Yankton Sioux Tribe, at 1058. However, the Appellees committed a new violation of law after the injunction in Yankton I was lifted in 2003 by not following their very own Tribal Consultation Policy which was implemented in 2005. As the district court said in the present case if the Appellants were able to show, however that the [Appellees] committed a new violation of law subsequent to the decision in Yankton I dissolving the injunction, such a claim is not barred by res judicata to the extent that it is not the same as any of the claims that were raised or could have been raised in Yankton I." Yankton Sioux Tribe v. US Department of Health and Human Services, 496 F. Supp. 2d 1044, 1053 (D.S.D. 2007). Res judicata does not apply to claims that did not exist when the first suit was filed. Id. (Citing Ripplin Shoals Land Co., th LLC v. United States Army Corp of Engineers, 440 F. 3d 1038, 1042-43 (8 Cir. 22

Case: 07-3096 Page: 30 Date Filed: 12/17/2007 Entry ID: 3383112 2006). The Eighth Circuit has adopted the Restatement (Second) of Judgments to determine whether two causes of action are the same. Generally, under this approach a claim is barred by res judicata if it arises out of the same nucleus of operative facts as the prior claim. Yankton Sioux Tribe, at 1055. (Lane v. th Peterson, 899 F.2d 737, 742 (8 Cir. 1990)). In the final analysis, the test would seem to be whether the wrong for which redress is sought is the same in both actions. Id. Appellants believe that the Tribal Consultation Policy created a new duty on the part of the Appellees to provide meaningful consultation prior to making their final decision, in September 2006, to close the Wagner IHS Emergency Room. Therefore, the Appellee action in this regard create a new controversy that could have never been litigated in Yankton I, as the policy was promulgated almost ten months after this Court dissolved the Permanent Injunction in Yankton I. In essence, Appellants argue here that the Tribal Consultation Policy applied prospectively, action creates a new controversy that must necessarily survive, as it could never have been litigated previously. As highlighted in the Appellants Brief in Support of Temporary Restraining Order, the 2005 Tribal Consultation Policy was promulgated to 23

Case: 07-3096 Page: 31 Date Filed: 12/17/2007 Entry ID: 3383112 promote the government to government relationship and to ensur[e] that access to critical health and human services is maximized. The Appellees Policy required them to engage in consultation before any action is taken that will significantly affect Indian Tribes. Verified Complaint at 36-37 (Bates No. 355). Contrary to the district court s holding the Tribal Consultation Policy does provide the Plaintiffs with a legitimate cause of action. An agency must comply with its own internal policies even if those are more rigorous than procedures required by the APA. Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 715 (8th Cir. 1979). The Tribal Consultation Policy has created a justified expectation that the tribe [would] receive a meaningful opportunity to express its views before the Wagner IHS Emergency Room was closed. Yankton Sioux Tribe v. Kempthorne, 442 F.2d 774, (D.S.D. 2006); Lower Brule Sioux Tribe v. Deer, 911 F.Supp. 395, 399 (D.S.D. 1995); Andrus, 603 F.2d at 721; Winnebago Tribe of Nebraska v. Babbitt, 915 F.Supp. 157, 163 (D.S.D. 1996) (emphasis added). III. THE DISTRICT COURT ERRED WHEN IT RULED THAT THE CONTINUING CLAIMS DOCTRINE DID NOT APPLY IN THE PRESENT CASE. Without referencing any authority whatsoever, the district court ruled that 24

Case: 07-3096 Page: 32 Date Filed: 12/17/2007 Entry ID: 3383112 the Continuing Claims doctrine has no application in the present case. Yankton Sioux Tribe, at 1052. The continuing claims doctrine applies when a defendant owes a continuing duty, [and] a new cause of action arises each time the government breaches that duty. Plaintiffs in Winstar-Related Cases v. United States, 37 Fed.Cl. 174, 189 (1997) (quoting Cherokee Nation of Oklahoma v. United States, 26 Cl.Ct. 798, 803 (1992)). Under the doctrine, so long as one of the breaches falls within the statute of limitations period, then the plaintiff can bring the suit for all of the breaches. Id. Even though the continuing claims doctrine normally applies in determining statutes of limitations, the doctrine has been utilized to bar a res judicata defense. Apache Tribe of Mescalero Reservation v. U.S., 43 Fed.Cl. 155, 171-72 (1999). The continuing claims doctrine is applicable here for a number of reasons. First, 25 U.S.C. 1631(b)(1), when read with the Senate Committee Report that accompanied it, and when reading it through the filter of the canons of construction as they relate to Indian tribes and tribal members, creates a continuing duty of the Agency to (1) provide a report on the impact of closure in each Presidential Budget Report, which occurs every two years, as long as there has been no closure of the facility that is the subject of the Impact Study, (2) 25

Case: 07-3096 Page: 33 Date Filed: 12/17/2007 Entry ID: 3383112 follow federal law, regulation and its own policies with regard to tribal consultation prior to the closure of the emergency room at the Wagner Indian Health Service facility, which is an ongoing duty, now heightened by the Appellees own 2005 Tribal Consultation Policy, and (3) prevent denial of due process to individual American Indians being served at the Wagner Facility emergency room who, based upon the conclusions of the Sharpless Report, are in imminent danger of being deprived of life without due process of law as prohibited by the United States Constitution, Fifth Amendment. This creates a continuing duty on the part of the Defendants and defeats their claim that res judicata applies. Every time the Appellees proposed closing the Wagner IHS Emergency Room, in violation of the United States Constitution, Fifth Amendment, 25 U.S.C. 1631(b)(1), the tribe consultation policy of Defendants and the U.S. Senate Committee Report which interpreted the statute to requiring the Appellees, before closing an IHS facility, to submit a report to Congress in each President s biennial budget documenting new information on the utilization of the facility by Native Americans, and the distance and location of the nearest hospital or health care facility to be utilized by Native Americans following closure. As documented previously, Appellees proposed closing the Wagner IHS Emergency Room on 26

Case: 07-3096 Page: 34 Date Filed: 12/17/2007 Entry ID: 3383112 numerous occasions prior to their final decision to do so beginning October 1, 2006. Each time they proposed closure, including the most recent, they failed to comply with the statute, the Appellees own 2005 tribal consultation policy, and the United States Constitution, amounting to a continuing breach of the public duties owed to the Appellants. Even if the Court determines that this doctrine does not apply to this case, Appellants should prevail on the res judicata issue as set forth below. IV. THE APPELLEES DECISION TO TAKE FUNDS FOR THE INDIAN SELF-DETERMINATION ACT SHARES OF THE SANTEE SIOUX TRIBE FROM THE WAGNER SERVICE UNIT, RATHER THAT FROM THE IHS ABERDEEN AREA OFFICE OR THE WINNEBAGO SERVICE UNIT IS JUDICIALLY REVIEWABLE AND CREATES A NEW CAUSE OF ACTION. The district court ruled that the Appellees decision to unlawfully take funds from the Wagner Service Unit and transfer them to the Winnebago Services Unit for the benefit of the Santee Sioux Tribe did not provide Appellants with a viable cause of action. Yankton Sioux Tribe, at 1058. The basis for this determination was the Court s incorrect factual conclusion that the Appellees decision to close the Wagner IHS Facility emergency room was made back in the 1990s and has been a continuing effort ever since. Id. Therefore, the Court concluded that the 2005 transfer of funds was not the cause of the proposed closure. Id. 27

Case: 07-3096 Page: 35 Date Filed: 12/17/2007 Entry ID: 3383112 Appellants argue that the final decision to proceed ahead with their goal of closing the emergency room was indeed directly caused by what the Indian Health Service did last year, when it took the money for the Indian Self-Determination Act shares from the Wagner Service Unit s budget, throwing it into budgetary crisis, as is more fully set forth in the Verified Complaint and exhibits. This does fall within the statute of limitations. The Appellees refused to produce any documents under the Freedom of Information Act supporting its contention that the Santee Sioux Tribe population had ever been lawfully placed under the Wagner Service Unit, rather than the Winnebago Service Unit. In fact, as set forth in the exhibits, no such documents exist to support the district court s ruling. Although the Appellees contend that the first FOIA requests were complied with, it completely ignored the fact that the Appellees just did not respond at all to the second FOIA requests for the Program Justification Documents for the Winnebago Service Unit s new hospital, which Appellants believe included the population of the Santee Sioux Tribe of Nebraska. This must certainly be construed negatively against the Appellees, and certainly at least raises a genuine issue of material fact or the probability of some relief, and warrants that this Court remand this cause back to the district court so that discovery can proceed in this case. It should be presumed that the Appellees are not producing or discussing the 28

Case: 07-3096 Page: 36 Date Filed: 12/17/2007 Entry ID: 3383112 evidence, both under the FOIA and in their arguments before the district court, for a reason. This also appears to be an illegal redesignation of monies appropriated for a purpose or with conditions by the Congress, and is thus judicially reviewable under Lincoln v. Vigil, 502 U.S. 182 (1993); and Yankton Sioux Tribe v. U.S. Dep t. of Health & Human Services, et al. (where Congress specifically appropriates funds for construction and places statutory conditions upon the expenditure of the construction funds by IHS, judicial review is warranted.). V. THE DISTRICT COURT ERRED WHEN IT RULED THAT APPELLEES DID NOT VIOLATE THEIR FEDERAL TRUST RESPONSIBILITY IN CLOSING THE WAGNER IHS FACILITY EMERGENCY ROOM AND THEREFORE CREATED A SEPARATE CAUSE OF ACTION. The district court found that the Appellees did not violate their inviolable trust responsibility owed to Appellants. Yankton Sioux Tribe v. U.S. Dept. of Health & Human Services, at 1058. But, as the District Court acknowledged, [t]here is a special trust relationship between [Appellees] and Indian people. Id. In its ruling the District Court gave short shrift to this special trust relationship, simply justifying, without any citation to authority, that the Appellants claims did not state a separate cause of action. Id. At 1059. The conclusory dismissal by the district court regarding the Appellees special trust responsibility owed to Appellants is unfortunate and wrong. As 29

Case: 07-3096 Page: 37 Date Filed: 12/17/2007 Entry ID: 3383112 viewing the facts in the most favorable light to Appellants, and this Court must, warrants a finding that the special trust relationship between the parties creates a separate cause of action which deserves to be litigated. CONCLUSION WHEREFORE, based upon the forgoing facts, and the discussion and authorities enunciated herein, the Appellants respectfully request that this Honorable Court reverse the District Court s dissolution of the Temporary Restraining Order and to issue an Order for a Preliminary Injunction until further necessary discovery can be had, and a trial on the merits can be held before the District Court. th Dated this 14 day of December, 2007. ABOUREZK & ZEPHIER, P.C. Robin L. Zephier for Charles Abourezk Attorney for Appellants P.O. Box 9460 2020 W. Omaha Rapid City, SD 57709 605-342-0097 (phone) 605-342-5170 (fax) abourc@rushmore.com 30