Miller: United States ducks treaty responsibility on Indian health

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American Indians have access to federally paid health care based on hundreds of treaties the United States signed with Indian nations, under the accepted federal practice of more than 100 years and as a requirement of the trust responsibility the United States owes the Indian nations to care for their welfare. Indians have not, however, received their fair share of federal health care, especially in light of this heightened duty. In fact, a July 18, 2003, study by the U.S. Commission on Civil Rights titled ''A Quiet Crisis'' found that ... the federal government's rate of spending on health care for Native Americans is 50 percent less than for prisoners or Medicaid recipients, and 60 percent less than is spent annually on health care for the average American.

Clearly, the United States is not fulfilling its treaty and trustee responsibility to provide health care to American Indian people.

This issue has been brought to the forefront again by the Bush administration's attempts to block reauthorization of the Indian Health Care Improvement Act. The IHCIA was first enacted into law in 1976 and signed by President Gerald Ford, with the intention of bringing the level of Indian health up to that of the general U.S. population. Since then, presidents Carter, Reagan, George H.W. Bush and Clinton have all signed reauthorizations.

The IHCIA expired in 2000 and has been only temporarily funded by Congress and President George W. Bush in the interim. Since 2001, it appears that the White House and the Department of Justice have been opposing its reauthorization. In late 2006, a Justice Department ''white paper'' that opposed the bill was circulated to conservative Republican senators. (The department now denies that anyone was authorized to circulate it.) Some Republican senators put a hold on the IHCIA reauthorization bill and thus prevented the bill from being considered in the last days of the 109th Congress.

The National Indian Health Board has called on Bush and Attorney General Alberto Gonzales to withdraw this white paper and their objections to the IHCIA, but the Republican Policy Committee has informed senators' offices that it will continue to oppose reauthorization of the IHCIA, claiming that it is ''race-based'' legislation.

In a Senate hearing on March 9, Sen. Byron Dorgan, D-N.D., slammed the white paper, taking the White House and DOJ to task for the manner in which it was released and its contents. Republican Sens. Craig Thomas, Wyo., and Lisa Murkowski, Alaska, also voiced concerns about the department's stance on the IHCIA reauthorization and how the bill was killed in the 109th Congress.

In addition to questions about IHCIA reauthorization, the Bush administration has also targeted the elimination of health care for urban Indians. The administration tried to eliminate the entire Urban Indian Health Program from the 2007 budget, but Congress restored it. Now the administration has again removed the entire $33 million program from its proposed 2008 budget.

In addition to cost-saving concerns, the administration claims to be worried that serving urban Indians is largely a race-based action which federal courts would disapprove of, a White House spokesman told the Senate Committee on Indian Affairs on March 8. The alleged problem lies in the possibility that some people who are of Indian heritage but not enrolled in federally recognized tribes might receive care at Urban Indian Health Service facilities. But this argument is clearly specious. In fact, the definition of an Indian to be served under the IHCIA is the same as it has been for the past 30 years and is similar to the definition of Indian found in Bush's No Child Left Behind Act.

The U.S. Supreme Court long ago laid to rest the idea that government programs for the benefit - or even to the detriment - of Indians is a racially-based ''affirmative action'' issue. In 1974, the Supreme Court stated in Morton v. Mancari that the relationship of the United States to the Indian nations and their citizens is a political and treaty-based relationship and is part of the federal government's government-to-government relationship with Indian tribes. Thus, congressional acts regarding tribes and Indians are not racial or affirmative action laws but political and diplomatic acts of the Congress vis-a-vis the tribal governments and authorized by Article I, Section 8 of the Constitution.

On March 7, a bipartisan group of representatives introduced House Bill 1328 - to reauthorize and even strengthen the IHCIA; a House committee held hearings on the bill on March 14. The SCIA is also preparing its own bill to reauthorize the IHCIA. Hopefully, Congress and the president will reauthorize the IHCIA and restore the treaty and trust responsibility obligations of the United States to protect the health of its Indian citizens and to attempt to bring health care protections for Indians up to the same standards that all Americans enjoy.

Robert Miller is a law professor at Lewis & Clark Law School, Portland, Ore., and the chief justice of the Grand Ronde Tribe. He is the author of ''Native America: Discovered and Conquered.''