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‘Tribal nations prepaid for our health care’: Fate of Indian law in hands of highest court
Friday, October 16, 2020

The fate of the Indian health care system is in the hands of the U.S. Supreme Court in a case where not even the Trump administration is defending the trust and treaty responsibility to tribes and their citizens.

Arguments in California v. Texas take place on November 10, barely a week after the high-stakes presidential election. If the conservative majority of the nation’s highest court strikes down the Affordable Care Act, also known as the ACA, tribes and their allies fear disastrous results for health services and programs in Indian Country.

“Tribal nations prepaid for our health care,” Chairwoman Amber Torres of the Walker River Paiute Tribe asserted. “Our treaties require the federal government to fund our people’s care for the next seven generations and beyond.”

Speaking during a panel discussion at the National Tribal Health Conference on Thursday, Torres explained why Indian Country is so concerned about the case. The ACA, which became law in 2010, includes a permanent reauthorization of the Indian Health Care Improvement Act, to ensure the federal government meets its obligations to the first Americans.

“The Indian Health Care Improvement Act is foundation to the Indian health system and how it operates,” Torres said of a law that authorizes and modernizes numerous programs at the Indian Health Service.

A crowd gathers outside of the U.S. Supreme Court on September 19, 2020, one day after the passing of Justice Ruth Bader Ginsburg at the age of 87. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Other provisions of the ACA also benefit Indian Country. The chronically underfunded IHS, where certain programs often ran out of money early, has seen a boost in revenue thanks to an expansion of Medicaid across the nation and from an increase in the number of patients with insurance.

“The Affordable Care Act literally saves lives across Indian Country,” Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said during the panel on Thursday. “If the ACA is overturned by the Supreme Court, it would be devastating for Native communities, throwing the Indian Health Service into chaos and stripping health care access from millions of Native Americans.”

But if tribes and their advocates are looking to the nation’s capital for assurances, they aren’t finding many in the halls of the executive branch. The Trump administration has abandoned the ACA, telling the Supreme Court in a brief that everything in the law — including the provisions that benefit Indian Country — must “fall” because of the case.

“Once the individual mandate and the guaranteed-issue and community-rating provisions are invalidated, the remainder of the ACA should not be allowed to remain in effect,” the Department of Justice wrote in reference to the parts of the law being challenged in the case.

With the government disclaiming its trust and treaty responsibilities, tribes and tribal organizations have stepped up to defend the IHCIA. A friend of the court brief urges the justices to leave the law “intact” in order for the U.S. to meet its obligations.

“The IHCIA was crafted in response to the deplorable health status of Indian people and the shameful condition of health and sanitation facilities on and around Indian reservations,” reads the brief, which was signed by, or on behalf of, nearly every tribe in the U.S.

“It would be extraordinarily disruptive to the Indian health system, and thus to important congressional policy objectives, to upend those provisions simply because they were enacted alongside the ACA’s individual mandate,” the brief continues.

Concern about the fate of the Indian health care system is bipartisan. Should the Supreme Court strike down the ACA, Sen. Lisa Murkowski (R-Alaska), another member of the Senate Committee on Indian Affairs, said she would “absolutely” work to reinstate the IHCIA.

“If it really is thrown out, we cannot have the gap that would be presented if the Indian Health Care Reauthorization Act were not in play,” Murkowski said later on Thursday during the conference, which is being hosted by the National Indian Health Board.

“I am hopeful,” added Murkowski, who chairs the Senate subcommittee in charge of appropriations for the IHS and most other Indian Country programs, “that we do not get into this situation but if we should, you absolutely have my commitment that we would work overtime to make sure that it is addressed, and addressed quickly.”

Sen. Chuck Schumer (D-New York), the Senate Democratic leader, participates in a panel discussion at the National Tribal Health Conference, hosted virtually by the National Indian Health Board, on October 15, 2020.

Murkowski’s Democratic colleagues aren’t as optimistic. They believe the confirmation of Judge Amy Coney Barrett to the Supreme Court will result in a conservative majority that will overturn the ACA, taking down the IHCIA along with it.

“Make no mistake, any Senator who votes to confirm Judge Amy Coney Barrett to the Supreme Court is voting to repeal the Affordable Care Act and reduce vital health coverage for Native communities,” Sen. Chuck Schumer (D-New York), the Senate minority leader, said during the panel discussion on Thursday.

“Democrats will continue to honor the trust responsibility to provide healthcare to Natives for the treaties we have made,” said Schumer.

Republicans have been trying to do away with the ACA since 2010. But none of the repeal legislation has become law amid widespread opposition from Democrats in the U.S. Congress.

The GOP has had better luck in the courts. The ACA lawsuit originated in Texas after the Republican attorney general filed it before a federal judge who was nominated to the bench by Republican former president George W. Bush, whose administration held up passage of the IHCIA for years.

Judge Reed O’Connor serves on the Northern District of Texas, where no tribes are based. He struck down the entire ACA as unconstitutional in a December 2018 decision that failed to take into account the impacts on Indian health.

Incidentally, just two months prior, O’Connor struck down the Indian Child Welfare Act as unconstitutional as part of a lawsuit joined by Ken Paxton, the Republican attorney general of Texas. Tribal leaders believe Paxton intentionally filed the case, known as Brackeen v. Bernhardt, before O’Connor in hopes of having the judge do away with the law.

Both the ACA and the ICWA cases went to the 5th Circuit Court of Appeals, whose judges are considered to be among the most conservative in the nation. The ICWA case is still pending there, after being heard by a large panel of judges in January.

A month prior, the 5th Circuit sided with Texas and other Republican-led states in invalidating the portion of the ACA that mandates Americans to obtain health insurance. But only one of the judges on the panel raised concerns about the other provisions of the law, including the IHCIA.

“Given the breadth of the ACA and the importance of the problems that Congress set out to address, it is simply unfathomable to me that Congress hinged the future of the entire statute on the viability of a single, deliberately unenforceable provision,” Judge Carolyn King wrote in a dissent.

With President Donald Trump at her side, Judge Amy Coney Barrett delivers remarks at the White House on September 26, 2020. Photo by Andrea Hanks / White House

With the ACA and the IHCIA at risk, the nomination of Judge Barrett to the Supreme Court has taken on higher stakes. A significant portion of her confirmation hearing this week focused on her scholarly work, in which she criticized the ACA before she was nominated to the federal bench by President Donald Trump, who has supported repeal of the law.

But Barrett, who currently serves on the 7th Circuit Court of Appeals, insisted she has not pre-decided the pending ACA case. Speaking generally, she said federal courts should try to sever unconstitutional provisions from a law, instead of striking down the entire statute.

“Severability is designed to say, well would Congress still want the statute to stand even with the provision gone?” Barrett said when asked about preserving the ACA.

Since joining the 7th Circuit in December 2017, Barrett has not written any decisions affecting tribes and their rights. Her scholarly work hasn’t involved much of Indian law either.

“Such a limited record gives very little insight into how Judge Barrett thinks about Indian law issues, much less how a Justice Barrett might approach Indian law questions coming before the U.S. Supreme Court,” Joel Williams, a senior staff attorney with the Native American Rights Fund wrote in an October 6 memo to tribal leaders.

With the four-day confirmation hearing concluded, Republicans on the Senate Committee on the Judiciary are planning to vote on Barrett next Thursday, October 22. From there, she could easily be approved by the full U.S. Senate, where a simple majority vote will result in her being installed on the Supreme Court.

“If Judge Barrett is confirmed to the highest court in our land, it will absolutely have deep and lasting consequences for Indian Country for years. Potentially even for generations to come,” Udall said on Thursday.

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