Native women carry a banner during the 16th Annual Memorial March to Honor Our Lost Children in Sioux City, Iowa, on November 21, 2018. Photo by Kevin Abourezk

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Indian health law killed by same judge behind Indian Child Welfare Act ruling

Monday, December 17, 2018

A federal judge who invalidated the Indian Child Welfare Act has issued another controversial ruling that could devastate tribal nations.

In a 55-page decision issued on Friday, Judge Reed O'Connor declared the entirety of the Affordable Care Act, commonly known as Obamacare, to be unconstitutional. The historic law, enacted in 2010, includes a permanent reauthorization of the Indian Health Care Improvement Act, so now the IHCIA has been thrown into an legal gray area.

And just like the ICWA ruling, O'Connor did not attempt to determine whether he could save the IHCIA, which updates key programs at the Indian Health Service, or other provisions of Obamacare that benefit Indian Country. Except for one sentence about tribal citizens who are exempt from the law's health care insurance mandate, the decision did not address the federal government's trust and treaty responsibilities.

"American Indians and Alaska Natives have specific health coverage benefits and protections in the Health Insurance Marketplace," the IHS noted in a post on Facebook, reminding tribal citizens of the ability to choose to enroll in a health care plan.

"Members of federally recognized tribes and ANCSA shareholders can enroll in a plan year-round, but this is still a good time to think about your health care needs," the post continued, linking to an explanation of Obamacare's Indian Country provisions.

Judge O’Connor also struck down recently the Indian Child Welfare Act, a 40 year old statute that has twice been reviewed by SCOTUS on four separate constitutional grounds. The Fifth Citcuit stayed the decision pending appeal. https://t.co/oyrEVFujHB
— Keith Michael Harper (@AmbHarper) December 15, 2018

Unlike the ICWA decision, though, O'Connor did not impose an injunction that might otherwise suspend the Affordable Care Act so the law -- including the IHCIA -- remains in force. California Attorney General Xavier Becerra is vowing to ensure it stays that way.

“Today’s ruling is an assault on 133 million Americans with preexisting conditions, on the 20 million Americans who rely on the ACA for healthcare, and on America’s faithful progress toward affordable healthcare for all Americans,” said Becerra, a Democrat who has also taken steps to defend ICWA in California.

“The ACA has already survived more than 70 unsuccessful repeal attempts and withstood scrutiny in the Supreme Court," Becerra said in statement on Friday. "Today’s misguided ruling will not deter us: our coalition will continue to fight in court for the health and wellbeing of all Americans.”

Judge O'Connor was nominated to the bench by Republican president George W. Bush, a former governor of Texas. He serves on the federal court in the Northern District of Texas, where no tribes are based.

According to The New York Times, O'Connor is the only judge on that court who can hear cases in the divisions to which he is assigned. All of the other judges in those divisions are either semi-retired or the seats are vacant.

That could explain why Texas Attorney General Ken Paxton, a Republican, filed both the Indian Child Welfare Act and the Obamacare lawsuits in the Fort Worth Division, where O'Connor is the only active judge.

“Today’s ruling halts an unconstitutional exertion of federal power over the American healthcare system,” Paxton said in a celebratory statement on Friday. “Our lawsuit seeks to effectively repeal Obamacare, which will give President Trump and Congress the opportunity to replace the failed social experiment with a plan that ensures Texans and all Americans will again have greater choice about what health coverage they need and who will be their doctor.”

The next stage in the Obamacare case would be to take it to the 5th Circuit Court of Appeals, a historically conservative venue. Tribes are already there with the ICWA case.

"As I predicted all along, Obamacare has been struck down as an UNCONSTITUTIONAL disaster! Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions," President Donald Turmp wrote in a post on Twitter on Friday evening.

BREAKING: NICWA, @NCAI1944, @NDNrights, & @IndianAffairs issue joint statement on the Fifth Circuit Court granting the motion to stay the District Court's Decision on the Indian Child Welfare Act. #ICWA https://t.co/54QGfjbFdX pic.twitter.com/mAE2G9s1XU
— NICWA (@NativeChildren) December 4, 2018

The Trump administration is also taking part in the appeal of the ICWA decision. In addition to striking down the law as one based on "race," Judge O'Connor invalidated Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

"We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty," Tara Sweeney, the Trump administration's new Assistant Secretary for Indian Affairs, said in response to the October 4 ruling.

The 5th Circuit has put a stay on O'Connor's decision while the appeal proceeds. The case is being expedited, with oral arguments tentatively scheduled for early March.

But before the court intervened, Attorney General Paxton instructed the Texas Department of Family and Protective Services to stop following ICWA and to stop adhering to the BIA regulations. The department has since pulled back on that directive.

"As long as the 5th Circuit. stay remains in effect, the provisions of Section 4, The Indian Child Welfare Act, will apply to pending DFPS litigation," the department's website reads.