Over three years ago, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA), which established a comprehensive federal health insurance program to be rolled out over four years. Many Native American individuals (“Native Americans”) considered the ACA a success because it permanently reauthorized the Indian Health Care Improvement Act (IHCIA), which allows Congress to fund health care services for Native Americans. While the ACA relieved some of the concerns associated with health care costs for Native Americans, the ACA still poses significant cost issues that will impact tribal businesses.

Beginning in 2014, the ACA triggers employer tax penalties, often called the “Play or Pay” rule, for failing to offer adequate and affordable healthcare. The increasing tribal trend of hiring both Native and non-Native Americans blurs the ACA’s mandates for tribal employers and a tribal business’s ability to exercise its sovereign immunity.

This article discusses (1) whether the “Play or Pay” rule should apply to tribal businesses employing both Native and non-Native employees, and (2) if so, how enforcement penalties will take effect.