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A legislative lesson: The making of IHCIA 2010

The reauthorization of the Indian Health Care Improvement Act as part of the nation’s health care bill in March was not only a historic moment for that specific piece of legislation, but also a possible precedent for how future pieces of major Indian law may proceed in Congress.

Since the victory occurred – a victory that seemed in peril even as recently as two months ago – IHCIA advocates throughout Washington have been increasingly willing to

share their stories involving the difficulties in turning the legislation into reality.

One Indian health official worked through Christmas Eve, pushing through tears. Another couldn’t get legislative assistants to return his calls, despite having information they had requested. Others faced personal health scares due to unhealthy life- style choices, hampered by the stress associated with trying to advocate on behalf of the greater good.

It was a long haul, but by comparison to most Indian legislation in recent decades, the bill itself was not all that complicated.

It called for increased funds to IHS, mandated improved pro- grams for individual Indians, and made the law permanent – not unreasonable provisions by many estimates. And the price tag was rather cheap, costing just a sliver of the approximately $1 trillion overall health care bill.

At the same time, its major points tended to make sense across party lines. President Barack Obama, when still a senator, was a personal proponent, attaching his name as a co-sponsor. Meanwhile, several Republicans, including Sen. Lisa Murkowski of Alaska, supported it to such an extent that they were reportedly distressed at not being able to vote in favor of it due to distaste for the larger Democratic bill to which it was attached.

In short, it was never an overwhelmingly popular option in Congress to be against the legislation, especially given statistics that show widespread ailing Indian health.

The question asked by many Native American constituents is obvious: Why did it take so long to get done? The bill, after all, hadn’t been re-upped since 2001 when it last expired, although several Congress members had introduced it time and again.

“Process,” is one of the key answers, according to Tom Rodgers, a Blackfeet lobbyist who worked with various legislators along the way. Simply put, he said the bill got caught up in the ins and outs of how Washington works nowadays.

Procedural issues facing Indian bills aren’t going away anytime soon, according to legislative observers. It’s a frustrating fact of life, especially since Native-focused legislation tends to garner support from key members, but for one reason or another, momentum sometimes loses steam.

A small constituency is usually a major factor in that reality. Allison Binney, staff counsel to the Senate Committee on Indian Affairs, noted at a National Indian Health Board gathering April 28 on Capitol Hill that Senate leaders play a major role in choosing what bill they will bring to the floor to debate – and usually the bills they choose are ones of national importance that impact more than one group. “It’s really difficult to get floor time for Indian bills,” Binney said, adding that the strategy up until the 109th Congress, which took place until the end of 2006, was to try to get Indian bills passed by a process known as “unanimous consent,” which means that all senators agree not to object. It tends to be a difficult process to make happen, especially on health care issues.

Another problem with “unanimous consent” is that it usually means that major concessions have to be made to garner enough support, and sometimes those concessions, especially in the case of IHCIA, have been quite difficult, Binney said.

Sen. Byron Dorgan, D-N.D., current SCIA chairman, ultimately decided after the 109th that the process wasn’t working – instead, he felt Indian bills should make their way to the floor, and get an up or down vote. It was a challenging process to get the bills to the floor, especially during the earlier years of the Bush administration, Binney said.

“Sen. Dorgan basically went to the floor once a week, basically demanding floor time for the Indian health care bill.” She said of the Senate leadership that Dorgan “nagged them to death.”

Even after a success in the 110th Congress on the Senate side, gaining passage of the bill early in _008, the House was a different story due to concessions that had been made in the Senate. Republicans, notably Sen. David Ritter of Louisiana, inserted language into the Senate’s version that forbade the use of federal funds to pay for abortions under the reauthorization. House Speaker Nancy Pelosi, D-Calif., did not want to consider that prospect, so the bill sat still, ultimately doing nothing in the House.

A similar tact to the successful passage in the Senate in the 110th was initially planned for the 111th, which began in early 2009, with the hope that abortion wouldn’t be an issue with Democratic majorities in both chambers.

However, Rodgers and others said it quickly became clear that legislative staffers were going to be largely interested in focusing their energy on the Obama administration’s major objective – nationwide health care reform.

“All the energy in the room was focused on the larger bill,” Rodgers recalled. “It became clear that we had to be a part of that larger bill.”

Congressional staffers told Indian advocates that pursuing a standalone bill could be futile, since much political capital would be spent on the larger bill, and there wouldn’t be much energy left for another big battle on a health issue after that. The consciousness would move on, they were told.

Some Indian country leaders, including some top ones with the National Congress of American Indians, weren’t immediately convinced that having Indian country legislation attached to another bill was the right path.

But the failed past seemed to contribute to a willingness to try a new way. After all, when observers raised questions about the handling of legislation tactics by NCAI after IHCIA’s lack of movement in the House in 2008, the organization’s leaders had expressed frustration. Some within the organization said that only Congress members should be blamed, not Indian advocates.

Jackie Johnson, NCAI executive director, said after the defeat that her organization had worked tirelessly. She was also concerned with an Indian Country Today article that quoted a source who said the organization’s lobbyists failed to account for the political realities of that season, and to adjust accordingly.

Ultimately, as 2009 progressed, Indian country leaders began to support both a stand-alone bill and an attached bill. The rationale was that it was best to have a variety of options to secure passage.

Stacy Bohlen, NIHB director, later said that it was crucial that Indian organizations decided to “stand together” to provide a united front in obtaining congressional action.

Support from the Obama administration and various congressional leaders was also important throughout the process, many health officials said.

In early 2010, after Republican Sen. Scott Brown’s surprise election in Massachusetts, it seemed possible that the greater bill might not move due to political constraints, so some began wondering if IHCIA was dead again. But the Democrats rallied, and the IHCIA provisions stayed in both the Senate and House versions of the bill, largely uncompromised. Obama signed the legislation into law in late March, and indicated Indian health would be improved.

By the April 28 NIHB event, it was apparent that the frustration of days passed had largely subsided. Many Indian advocates could by then laugh, or at least smile, about the challenges they had ultimately overcome.

Johnson said at the gathering that the passage of IHCIA in the 111th was a sign of things to come on Indian bills in the future.

“I look at this as a recipe for success. We need to take this recipe, and we need to just tweak it as we need to, given the current situation.”