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The Rise of Tribes and the Fall of Federal Indian Law
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Bush administration takes limited view of Indian health
Monday, March 12, 2007
Filed Under: Health | Law | Politics

INDIANZ.COM LISTENING LOUNGE
Opening Statements - 9:15 - 2.1 MB

Panel 1 - 13:06 - 3MB | Q&A - 36:41 - 8.4MB

Panel 2 - 39:31 - 9MB | Q&A - 16:29 - 3.8MB

Excerpt: Dorgan and DOJ - 6:18 - 2.5MB
 
The Bush administration's push to eliminate the urban Indian health program comes with a much heavier price tag than reduced services and shuttered clinics.

As part of its long-standing objections to the Indian Health Care Improvement Act, the Department of Justice is questioning whether urban Indians, lineal descendants and certain Alaska Natives can receive federal services at all. The stance threatens health care for the majority of Native Americans who live away from reservations.

Although federal law, treaties and the trust responsibility have provided the legal basis for Indian health care, the Bush administration now argues such services must be tied to membership in a recognized tribe. Otherwise, the programs could be struck down by the courts as unconstitutional because they are based on race, according to DOJ.

"Under the Supreme Court's decisions, there is a substantial likelihood that legislation providing special benefits to individuals of Indian or Alaska Native descent based on something other than membership or equivalent affiliation with a federally recognized tribe would be regarded by the courts as a racial classification," Frederick Breckner III, a deputy assistant general, told the Senate Indian Affairs Committee last Thursday.

To tribal leaders, such a view ignores the federal government's obligation to provide health care to Native Americans. They also note that it is legally unsound.

"The definition of Indian in the reauthorization is the same definition that has been in law for 30 years and has never been challenged on constitutional grounds," Rachel A. Joseph, the co-chair of the national steering committee to reauthorize the IHCIA.

Joseph pointed out that a similar definition of Indian is found in the No Child Left Behind Act, which the Bush administration pushed through Congress six years ago. That law is also up for reauthorization.

Supporting the tribal viewpoint at the hearing was Edward P. Lazarus, a lawyer and constitutional scholar. Even if Congress were to expand health care to Native Americans and Alaska Natives who may not be enrolled in a recognized tribe, he said health statistics support the need to address high rates of suicide, alcoholism, diabetes, suicide and other ailments, he said.

"It seems to me that a very, very compelling case could be made -- given the conditions of Indian health, both in the cities and on the reservations -- that this is legislation that meets all those [constitutional] criteria," Lazarus testified.

Breckner said the Bush administration is willing to work with the committee to address its objections to health care for urban Indians, lineal descendants and Alaska Natives. But the effort to reauthorize the IHCIA has been tainted by the release of a "white paper" by DOJ last fall, on the eve of consideration in the Senate.

The paper cited constitutional questions about urban Indian and Alaska Native health care, prompting Senate Republicans to put a hold on the bill. Those same Republicans blocked a Native Hawaiian measure on the same grounds and, with the support of conservative groups, have been questioning a wide range of programs as "race based."

Government lawyers have been quietly backing up these objections since the start of the Bush administration. The department's former solicitor general, Ted Olson, represented a white rancher in a U.S. Supreme Court case that denied Native Hawaiians a similar trust status as American Indians and Alaska Natives.

With that victory on the books, the administration and its Republican supporters appear to have turned their sights on urban Indians, lineal descendants, terminated Indians and Alaska Natives. "Since 2001, one arm of the Bush administration -- the Health and Human Services Department -- has engaged tribal leaders and authorizing committees in various bill-drafting exercises. But another executive arm -- the Office of Legal Counsel, in the Justice Department -- has secretly crafted reasons to oppose the drafts," Suzan Harjo, a columnist for Indian Country Today, wrote last month.

The cut to the $33 million urban Indian program, however, was presented on non-legal grounds. The White House Office of Management and Budget argues that urban Indians can find care at community health centers.

Members of Congress of both parties reversed the cut in the 2007 budget and are poised to do the same for the 2008 budget. "The 2000 Census indicated that as much at 66 percent of the American Indian and Alaska Native population live in urban areas," the Senate Indian Affairs Committee wrote in a views and estimates letter on March 2.

"The 34 urban Indian organizations serve 430,000 eligible Indian users at 41 sites throughout the U.S., and provide health services such as dental, pharmaceutical, vision, alcohol or mental health treatment, suicide prevention and family wellness," the committee of eight Democrats and seven Republicans wrote.

Committee Notice/Testimony:
HEARING on the Indian Health Care Improvement Act (March 8, 2007)

Relevant Documents:
Letter to President Bush | Letter to Alberto Gonzales | DOJ White Paper

Relevant Links:
Indian Health Service - http://www.ihs.gov
National Indian Health Board - http://www.nihb.org

Related Stories:
Fireworks at Indian health care hearing (3/9)
Senate hearing on Indian Health reauthorization (3/8)
Urban Indians in New Mexico feel left out on health (3/8)
Some urban Indians denied care at request of IHS (3/8)
Indian Health Care Act introduced in House (3/7)
Hearings on Indian Health Care Improvement Act (3/5)
Democrats promise action at USET conference (2/14)
Harjo: GOP calls Indian health care 'race-based' (2/12)
Tribes forced to ration funds for health services (2/2)
Interview: Inadequate health care in Indian Country (01/16)
Joint hearing on Indian health care act postponed (11/14)
Final push for health care bill in 109th Congress (11/13)
White House hit over delays in health care and Cobell (10/05)
Still no Indian Health Care Improvement Act (09/22)
New Standard: U.S. failing to deliver health care (7/18)
Senate panel advances Indian health care measure (10/28)
Senate committee takes up slate of Indian bills (10/27)
Hearing on Indian Health Care Improvement Act (07/13)
Oklahoma senator loses Indian health care vote (06/29)

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