Senate Republican policy-makers say the Indian Health Care Improvement Act is ''race-based'' and they'll oppose its reauthorization. In so doing, they not only deny the health law's Republican parentage, but they pick a fight that is mean-spirited and cruel to Native people who are infirm and in distress.
The IHCIA was intended to elevate the Indian health status to the level of the general U.S. population. While gains have been made, that goal is far from being realized and the health status of Native people remains in a critical state.
The IHCIA was first approved by President Gerald Ford, whose 1976 signing statement reads, in part: ''Indian people still lag behind the American people as a whole in achieving and maintaining good health. ... Our first Americans should not be last in opportunity.''
Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush and Bill Clinton all signed acts reauthorizing the Indian health law.
The law expired in late 2000. Scandals, elections, disasters, war and political wrangling all overshadowed the health bill's renewal. Congress has funded the health programs under an earlier umbrella authorization for Indian health services, and President George W. Bush has signed the funding bills.
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.
Four authorizing panels reported their reauthorizations last year and it seemed as if a health bill would be enacted before the 2006 elections.
At the last minute before Congress adjourned for the midterms, an unmarked ''white paper'' prepared by the OLC was circulated among conservative Republican senators, who put holds on the bill and killed it.
The white paper was a witch's brew of objections to certain sections of a bill that was not on the table and that the OLC knew was not on the table. But it stopped progress on the legislation that was being considered.
Tribal leaders who had labored over the legislation took a presidential assistant to task in a public meeting, but he could only say the white paper was a surprise to the White House, too.
The National Indian Health Board made a last-ditch effort to save the health bill. NIHB worked with White House, Justice and other administration representatives to resolve any differences, so that the bill could be considered in the lame-duck session.
NIHB also called on the president and the U.S. Attorney General to withdraw the white paper and inform the Senate that the document does not represent Justice's formal views.
NIHB's Oct. 26 letter to Attorney General Alberto Gonzales stated: ''It is time for the Federal government to honor its responsibility and uphold the government-to-government relationship with Indian Tribes founded on the U.S. Constitution, Treaty rights, and other Federal law, to provide health care to Indian people.''
Whatever Justice or the White House communicated to the Hill - and they may have said nothing at all, but we may never know - the white paper continues to have a noxious effect in this new Congress.
The Republican Policy Committee is informing its senators' offices that authorization of the IHCIA will be opposed across the board because it is ''race-based.'' The committee is comprised of the Senate's Republican leaders and chairs of standing committees.
The OLC and the RPC teamed up in 2005 to oppose legislation that would have provided federal governmental recognition for Native Hawaiians along the lines of Indian tribal status. They defeated the legislation as ''race-based.''
The RPC was careful to distinguish between the situation of Native Hawaiians and American Indians in a June 22, 2005, policy advisory, ''Why Congress Must Reject Race-Based Government for Native Hawaiians.''
In a section titled ''No Political Entity,'' the RPC paper states: ''There is another reason why persons with Native Hawaiian blood alone cannot be considered a tribe: they fail the settled ''political test'' that determines whether a tribe should be recognized.
''It is important to understand why there is a 'political test' for granting tribal recognition. The Constitution does not speak to Native 'peoples,' but only to 'Indian tribes.' As the Supreme Court has stated, 'Indian tribes are 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government. [They are] separate sovereigns pre-existing the Constitution.'
''Thus, Indian tribes are respected as legal entities with quasi-sovereign powers because they existed prior to the creation of state governments. Their lands and sovereignty were respected either through treaties entered into with the United States, or due to special reservations in statehood enabling acts.
''Where Indian communities - communities, not mere racial groups - have been recognized by government post-statehood, it has been due to the recognition that a community continued to exist, and that the community had a semblance of ongoing political cohesion.''
One has to ask the RPC: what has changed in the law or in facts from 2005 to 2007? The answer is that nothing has changed.
The OLC's ad hoc white paper raised the specter of ''race-based'' legislation, even as it cited Supreme Court precedents regarding Indians as a politically, not racially, distinct group.
Here's another dirty deal. As the NIHB was working with the White House to come up with mutually agreeable language for the health bill, the administration's bean-counters were busy eliminating health programs from their proposed budget.
The president's fiscal year '08 proposal eliminates the entire Urban Indian Health Program. The FY '07 budget proposed to do away with the program, but congressional appropriators made it clear in committee reports that they wanted to fund it.
National Council of Urban Indian Health Director Geoffrey Roth called the proposal ''outrageous.'' While it ''comes as no shock,'' he also said that ''the administration's continued disregard of the urgent health care needs of the urban Indian population and tribes' rights to self-determination is nevertheless disconcerting.''
The urban Indian program is not ''race-based.'' Most Indian people are in urban areas because of federal programs and policies.
The health care law is treaty-based, not race-based or place-based. The treaties are between federal and tribal nations. That's a political relationship, not a racial relationship.
Indian people are tribal citizens. That's a political relationship, not a racial relationship.
The health programs are based on the unique relationship between Indian tribes and the United States. That is a political relationship, not a racial one.
The health law also serves Native people who have been disenfranchised by the federal government and whose recognition status is being reviewed by the same federal government.
These are people, too, who have been made sick by actions or inactions of the federal government.
The federal government should argue that it has a compelling state interest in making all Native people healthier. It has an obligation to do good because it has done bad things to Indians on a racial basis. It has an ongoing responsibility to help Native people it has harmed.
''Race-based''? I'll tell you what's race-based. Privileged white folks issuing decrees to create loopholes to allow privileged white folks to evade their legal and moral responsibilities.
Now that's ''race-based.''
Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.