federal judge who invalidated the Indian Child Welfare Act and the Affordable Care Act is seeing his rulings challenged before the 5th Circuit Court of Appeals, whose building is seen here in New Orleans, Louisiana.

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Tribes rush to court to defend health care after being abandoned by Trump

Tuesday, April 2, 2019

By Acee Agoyo

Warning of "devastating effects for Indian Country," tribes are their advocates are rebuking the Trump administration for failing to defend the health care promised to their citizens under the treaty and trust responsibility.

In a filing on Monday, 483 tribes -- representing more than 80 percent of all Indian nations -- urged a federal appeals court to preserve the Indian Health Care Improvement Act (IHCIA). The law, which was made permanent by the Affordable Care Act (ACA), is at risk of being eliminated as part of a legal case in which the Trump team has dramatically reversed course.

The shift from Washington also puts the Indian Country specific provisions of the ACA, popularly known as Obamacare, on the chopping block. As a result, tribes are calling on the 5th Circuit Court of Appeals to take into account the "health and welfare" of millions of American Indians and Alaska Native before making any rulings in the case.

"Striking down the IHCIA and other Indian health provisions on the ground that a wholly unrelated private insurance coverage mandate is constitutionally invalid would disregard those responsibilities and subvert federal Indian health care policy, without any indication that Congress had anticipated — let alone intended — such a result," the 483 tribes wrote in the brief.

Markwayne Mullin: Promise kept to protect Indian health care law https://t.co/ryVhW8yhjA pic.twitter.com/WOFC4r0rQk
— indianz.com (@indianz) March 13, 2017

A letter sent to the Department of Justice by a key advocate on Monday was even more strongly worded. In it, attorney Geoffrey Strommer, who successfully defended the IHCIA from a prior attack on the ACA, blasted the Trump administration for abandoning Indian Country without so much as a consideration of the impacts on the first Americans.

"Whether intentional or not, the department's recent action amount to a gross and irresponsible violation of the federal trust responsibility to tribal nations and to American Indian and Alaska Native people, and it requires immediate corrective action," Strommer told top officials at Justice.

The missive comes barely a week after those same officials told the 5th Circuit of their position in a case that has sparked a nationwide political and legal firestorm. In a one-page filing consisting of just two sentences, the department said it was not going to defend the ACA and would instead support the Republican attorneys general who went to cour to strike down the law.

But with no further explanation provided by the federal government's legal team -- an in-depth brief won't be filed until a later date -- Indian Country had to rush to court to defend its interests. The brief filed on Monday includes tribes and tribal organizations from every region of the nation, from Alaska to Maine to Florida to California, and it seeks to ensure that key programs at the Indian Health Service, as well as other initiatives at the federal level, won't be harmed by the attack on Obamacare.

"The IHCIA is one of many distinct and specialized federal laws designed by Congress to address the unique needs of tribal communities," the filing states. "These laws were enacted to carry out treaty obligations assumed by the United States in exchange for vast cessions of land and resources by tribal nations, and to implement the federal trust responsibility to American Indians and Alaska Natives that evolved from those and other historical dealings."

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

But the judge who struck down the entire ACA in a ruling last December did not conduct an analysis of the IHCIA and its history, nor of the federal government's obligations to tribes and their citizens, the brief argues. Likewise, there was no discussion of the other Indian Country specific provisions of the law either, such as ones that infuse the underfunded IHS with additional revenues from Medicare, Medicaid and other sources.

"At a minimum, the department should clarify in any further filings with the courts that the Indian Health Care Improvement Act and other Indian-specific ACA provisions are unrelated to the individual mandate, intended to implement the federal trust responsibility to American Indians and Alaska Natives, and must be preserved," Strommer wrote in his letter. "The department should also clearly state this position in arguments before the court."

Oral arguments have not yet been scheduled but the Trump administration's refusal to defend the ACA hasn't only sparked concern from Indian Country. Since the March 25 development, a slew of health care providers, insurance companies, women's groups and other advocates have sought to make their views known in the case, known as Texas v. United States. Members of Congress are also worried.

“This administration’s attacks on the ACA and people with pre-existing conditions could result in millions of people being kicked off of their coverage and going without the vital care they need,” said Rep. Sharice Davids (D-Kansas), a citizen of the Ho-Chunk Nation who is one of the first two Native women in Congress.

The case was spearheaded by Texas Attorney General Ken Paxton, a Republican. He filed the lawsuit in the same federal court as his controversial challenge to the Indian Child Welfare Act (ICWA), the law that protects Indian children from being removed from their families and their communities.

Thanks to the maneuvering, both lawsuits got assigned to the same judge because Reed O'Connor, who was appointed to the bench by Republican former president George W. Bush, is the only active judge in the Fort Worth Division of the Northern District of Texas.

No tribes are based in the district so O'Connor has had little experience in Indian law and policy disputes. That didn't stop him from striking down the entirety of ICWA as unconstitutional in a ruling two months before his decision in the ACA case.

"They kind of shopped around for a while to find a court that would side with them," Chairman Tehassi Hill of the Oneida Nation told Indianz.Com after the 5th Circuit heard arguments in the ICWA case, known as Brackeen v. Bernhardt and as Texas v. Bernhardt.

Unlike the ACA case, the Trump administration is defending its obligations in the ICWA case. Regardless of the outcome, tribes and their advocates expect an appeal to the U.S. Supreme Court. The same is anticipated in the ACA matter.