"The idea is to require the purchase of health insurance, similar to laws enforcing automobile liability insurance. Congress would then subsidize the cost of that insurance, based on income-levels. This would be true for either the so-called “public option” or private insurance.

This is where it gets thorny for Indian Country. Would a treaty right to health care be considered “insurance” under the law? Or would individuals eligible for IHS services be required to purchase insurance under a mandate? And, if so, would the subsidy be automatic or based on income-levels? The result could be some sort of means test.

A working paper by the staff of Senate Indian Affairs Committee Chairman Byron Dorgan, D-North Dakota, calls for a blanket exemption of individual Indians from this mandate. The paper says: “Exempt Indian tribes from any employer mandate penalties and individual Indians from individual mandate penalties. In recognition of the U.S. federal government’s trust responsibility to provide health care to AI/AN individuals’, financial penalties should not be assessed against individual Indians failing to obtain health insurance coverage.”

On the House side, the pending bills do not spell out protections for the federal trust responsibility. House Natural Resource Committee Chairman Nick Rahall, D-West Virginia, has proposed a similar amendment to protect the Indian Health system from “inadvertent harm.”"

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