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Surprise move against trust relationship takes shape at July 26 health care hearing

WASHINGTON - The unexpected revelation of a move to undermine the federal trust obligation toward tribes for health care upstaged a Senate Committee on Indian Affairs hearing July 26.

The committee met to consider the renomination of Charles Grim as director of the IHS. With his wife and children present, Grim received compliments all around for his stewardship of the IHS, restated his strong commitment to a demanding job, fended off criticism that the service's budgets enforce ''health care rationing'' for Indians, and described the transition he is overseeing from direct health care for ill patients to preventive measures for healthy ones.

A half hour into the hearing, committee Chairman Sen. Byron Dorgan, D-N.D., directing questions at Grim, departed from the script to raise eyebrows around the room. ''In your past appearances before this committee, you have talked about, let me quote you, the IHS as the federal agency responsible for delivering health services to more than 1.9 million American Indians and Alaska Natives. Quote, two major statutes are at the core of the federal government responsibility for meeting the health needs of American Indians and Alaska Natives, the Snyder Act and the Indian Health Care Improvement Act. That implies to me that you have previously indicated to this committee that you believe there is a trust responsibility rooted in law for the health care for Native Americans, for American Indians. Is that - am I correct about that?''

Grim replied that the two laws cited are the ''cornerstone authority'' of the federal responsibility to Indian people for health care.

Dorgan: ''Is there a disagreement on that in the administration? The reason I ask the question is I understand the OMB [Office of Management and Budget] has taken that language out of the testimony you've given today ...''

Grim said he didn't believe there was a misunderstanding between himself and the administration.

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''Why would the Office of Management and Budget take that language out of your testimony?''

Grim said it happens sometimes that changes are made as testimony passes through numerous levels of approval. The rationale for the changes had not been communicated to him, he said, adding in response to a further question that he would certify the responsibility Dorgan described in his quotes.

Following a recent committee hearing in the House of Representatives, it turned out that language concerning urban Indian health care had been removed from the most recent Indian Health Care Improvement Act reauthorization bill.

Greg Smith of Johnston & Associates in Washington said the two excisions are not coincidental or unrelated when considered in light of the Justice Department's characterization, last year, of programs in the IHCIA reauthorization as race-based. From the earliest weeks of the current 110th Congress, Capitol Hill staff and Indian-issue lobbyists, willing to speak with candor only on condition of anonymity, have warned of an arch-conservative agenda in Congress to challenge any federal benefit for non-tribal Native groups as a way of chipping away at the trust relationship. As a lawyer and lobbyist on Indian health issues, Smith spelled out his concerns.

''There is a disturbing connection between the Office of Management and Budget striking references to the trust responsibility from Dr. Grim's testimony, the U.S. Department of Justice asserting that some of the programs authorized by the Indian Health Care Improvement Act are race-based and probably unconstitutional, and the omission of certain references to urban Indians in the House bill [H.R. 1328]. All of these actions appear to be tied to an ideological agenda that is seeking to diminish the trust responsibility and weaken Indian sovereignty. These ideologues are arguing for a sharp curtailment in Congress' authority, essentially stating that Congress has overstepped its constitutional bounds in providing these programs to Native peoples. They display a minimal understanding of both the history and the law that defines a political relationship between Native peoples and the United States. They argue that many Indian programs are race-based and, therefore, subject to a stricter standard of constitutional scrutiny than programs based on the political relationship between the United States and the Indian nations - a standard they say these programs would fail to meet. We know that at least one senior congressional staffer, who works for a senator that has opposed passage of the IHCIA reauthorization, has stated that the entire Indian Health Service system is a race-based program.''

Constitutional scholar Edward Lazarus of the firm Akin Gump Strauss Hauer & Feld testified in March that congressionally authorized Indian health programs are likely to pass the stiffest constitutional scrutiny.