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Justice undone: The ongoing fight to reauthorize the Indian Health Care Improvement Act

By Kara Briggs -- Today correspondent

All the right steps are being taken by America Indians and by those in Congress who still have hearts to get the reauthorization of the Indian Health Care Improvement Act passed this session.

The act is the underlying legislation for the IHS. It enumerates congressional responsibilities for appropriating money for Indian health, and without it the IHS could be in jeopardy under a presidential administration that appears determined at every turn to end America's trust responsibility to tribal America.

That tribal and Native health leaders have renewed energy to keep taking the right steps after a decade-long fight for reauthorization is an indication of the profound perseverance that allowed Native people to survive the last 500 years.

That we have to continue to fight for this human rights legislation, which 30 years ago two Republican presidents promoted as simple fairness, shows a frightening step backwards in federal attitudes toward tribal America.

Not least among these missteps was the latest iteration of the unsigned, undated Department of Justice memo that conjectures about liability risks in providing a modern standard of health care to American Indians. The announcement earlier this year by the Republican Steering Committee that it would oppose the reauthorization as ''race-based'' legislation was straight out of the 1950s termination playbook, while ignoring the U.S. Constitution's acknowledgement of ''Indian tribes'' as political entities.

But in early March, Sen. Byron Dorgan, D-N.D., of the Indian Affairs Committee, stood up to his congressional opponents by calling the Justice Department on the carpet over its white paper, which he said was released in the ''midnight hour'' to disrupt to give the Republicans fodder against the reauthorization.

Justice's Deputy Assistant General Frederick Breckner III denied his department's responsibility for the white paper and declined to testify, saying he hadn't had time - in the decade that this legislation has kicked around Congress - to read the reauthorization.

''You read what you prepared,'' Dorgan responded. ''You have carefully considered how you would respond to this uncomfortable question.''

Since early March, Justice has come under scrutiny for White House involvement in the department's firing of federal prosecutors, including some who had been criticized by Republican lawmakers. The reauthorization may not make headlines in the mainstream media, but the department's underhanded tactics toward the reauthorization should be a top concern to every American who believes this country should keep its promises of basic human rights to American Indians.

The memo asserted that the liability - which the government might face in providing Natives the modern standard of medical care that most other Americans enjoy - would be too great.

If people were dollars, it might not matter that hospice care is virtually unknown on reservations; that suicide prevention programs targeting Native youth might prevent suicides.

If Native teenagers were only litigious risk factors - not living, breathing humans who are twice as likely as other Americans to kill themselves - then the Justice assertion that ''the risk of litigation is particularly high because people who have suicidal ideation are those most likely to commit suicide,'' would sound less like doublespeak.

In the Indian Affairs Committee hearing on March 8, Richard Brannan, chairman of the Northern Arapaho Tribe, talked about Dylan Whiteplume, an Arapaho 5-year-old who died from cancer because the Wind River Service Unit lacked the money to pay for his chemotherapy. By the time charities raised the money, the child was in the late stages of the disease.

''He entered a children's cancer treatment facility where one of his friends was a little girl that was diagnosed with the same disease at the same time as Dylan,'' Brannan told the committee. ''She was able to access treatment earlier than Dylan and was healthy at the time of our reporting.''

It's not that the reauthorization would guarantee the survival of every child cancer patient, but this political game being played by the Bush administration and Republican leaders is costing lives in real time, and has the potential to cost even more.

A cadre of career staffers in key federal agencies is willing to sacrifice lives as a test scenario for terminating all federal trust responsibility, said Eric Eberhard, partner in Dorsey and Whitney law firm and a former staffer to Sen. John McCain. These staffers, most particularly in the departments of Justice and Interior, Eberhard said, have consistently, over many administrations, espoused the end of federal trust responsibility as the objective for U.S. Indian policy. These are the people who have been whispering in Congress members' ears for the decade in which the reauthorization has been kicked around.

Now more than ever, Native voices need to be louder.

Among the strongest Native voices in this fight has been Rachel Joseph, former chairman of the Lone Pine Paiute-Shoshone and co-chairman of the National Steering Committee for the Reauthorization of the Indian Health Care Improvement Act. At the March 8 Senate hearing, Joseph pointed the thinking back to 30 years ago when the Nixon and Ford administrations moved the Indian Health Care Improvement Act into law. Then the intention was to bring health care standards for American Indians up to those of other Americans.

In the words of President Gerald Ford from 1976: ''This bill is not without faults, but after personal review I have decided that the well-documented needs for improvement in Indian health manpower, services and facilities outweigh the defects in the bill. While spending for the Indian Health Service has grown from $128 million in FY 1970 to $425 million in FY 1977, Indian people still lag behind the American people as a whole in achieving and maintaining good health. I am signing this bill because of my own conviction that our first Americans should not be last in opportunity.''