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Expert testifies that bill may not violate U.S. Constitution

WASHINGTON - Appearing before the Senate Committee on Indian Affairs on March 8 and the Natural Resources Committee in the House of Representatives on March 14, constitutional scholar Edward Lazarus testified that Congress can reauthorize the Indian Health Care Improvement Act without defying the U.S. Constitution.

Lazarus' appearances were linked to a Department of Justice white paper released last year, following the November elections. Though its byzantine progress from Justice to Senate Republicans has only now been unraveled, the red flags it raised about the bill's constitutionality ruined the bill's chances for passage then and threaten its acceptance even now. National Indian leaders and congressional members alike have expressed a growing outrage over resistance to the bill within the Bush administration and on Capitol Hill.

Specifically, the white paper expressed doubts that Congress has authority, under the Constitution, to provide health care for ''Indians'' and ''Urban Indians,'' and raised the question of whether support for traditional healing practices contributes to a government ''establishment of religion,'' forbidden by the so-called ''establishment clause of the Constitution.''

Lazarus, a Los Angeles-based partner in the firm of Akin Gump Strauss Hauer and Feld, largely dismissed the DOJ's concerns, ''given the wide latitude Congress has always enjoyed when legislating on behalf of Indian peoples.''

Congress, he added, ''need not hesitate to pass the proposed legislation because it is narrowly tailored to the compelling governmental interest - recognized by Congress since the early days of the Republic - to provide for the health of the indigenous peoples that this nation dispossessed as it expanded across the continent.'' As long as the legislation is ''rationally tied to the fulfillment of Congress' obligations'' to Indians, Lazarus testified, it is likely to survive the strict judicial scrutiny warned of in the DOJ white paper.

''From a constitutional perspective, then, the only issue is whether something about the act is so extraordinary that it exempts the legislation from the usual rules of judicial review.''

The white paper ''purports to have discovered'' that extraordinary circumstance in the reauthorization's extension of benefits to non-tribal members, but Lazarus poured cold water on it. ''Congress' plenary authority [over Indian tribes] under the Indian Commerce Clause is not limited to federally recognized tribes and their members. ... With respect to the act's extension of benefits to members of state recognized tribes, it must be observed that the Indian Commerce Clause - which simply speaks of 'Indian Tribes' - makes no such distinction. After all, the concept of 'federal recognition' is a modern creation. And I am aware of no case law disempowering Congress from acting on behalf of state

recognized tribes. ...

''There is no reasonable basis for concluding that, when Congress chooses to confer benefits on both federally recognized and state-recognized tribes and their members, it crosses a line between legislation creating a political classification and legislation creating a racial classification. State-recognized tribes are political entities no less than federally recognized tribes.''

In addition, Lazarus reported that individual urban Indians who may not be tribal members can receive health care under the reauthorization without triggering strict judicial scrutiny. ''There is no secret about how this group of unaffiliated urban Indians came into being. They are the product of Congress' previous political interactions with the tribes. ... Put simply, when Congress, in exercising its Indian Commerce Clause power, legislates to protect the health and welfare of Indian tribes by dispersing their members, Congress' subsequent programs designed to take responsibility for and ameliorate the failures of that political judgment remain political, and not racial, in nature.''

Lazarus found still less merit in the white paper's assertion of an ''Establishment Clause problem.'' The reauthorization's primary purpose, to provide health care for Indians, is secular; so the question before Lazarus is whether it ''impermissibly advances or endorses religion.'' He concludes that it does not, because traditional health care practices are not inherently religious. Even healing prayers and rituals that are inseparable from religious beliefs and practices ''are only a subset of the practices covered by the act.''

In separate testimony, officials from the DOJ and HHS told both committees there has never been a medical malpractice lawsuit brought against traditional Native healers. The exposure of the government to tort liability under the reauthorization was another concern of the DOJ white paper.