HEALTH CARE AND TRUST RESPONSIBILITY

FOUNDED IN HISTORY

• From colonial times to present, Tribes have been recognized as sovereign governments, with a distinct form of government, a distinct land base, a distinct culture and distinct citizen base.

• Mohegan land claim suits in the 1700’s demonstrate this fact

• Tribes have ceded millions of acres of land and natural resources in a contractual agreement with the Federal Government

FOUNDED IN HISTORY

“The Indians though Living amongst the King’s Subjects in these Countries are a Separate and Distinct People from them, they are treated with as Such, they have a Polity of their own, they make Peace and War with any Nation of Indians when they see fit, without control from the English.”

Source: 1743 interim ruling on jurisdiction by Commissioner Daniel Horsmanden

FOUNDED IN HISTORY

• Colonial Period

• Removal and Reservation Period

• Allotment and Assimilation Period

• Termination Era

• Restoration Era

• Self Determination and Self-Governance

• 370 treaties ratified by the U.S. Senate with another 45 negotiated but never ratified

• Long history of failed Indian Policy

FOUNDED IN LAW

• United States Constitution Article 1 Section 8

• Marshall trilogy recognizing principle of inherent tribal sovereignty and the trust doctrine imposing certain types of fiduciary duties upon the United States. Canons of construction require the United States to interpret treaties in favor of Indians, interpret them liberally and interpret them as Indians would have understood them.

• Snyder Act 1921

• Johnson O’Malley Act

• Indian Reorganization Act of 1934

• Establishment of the Indian Health Service 1955

• Indian Self-Determination Act of 1975 as amended

• Indian Health Care Improvement Act reauthorized 2010 as part of the Affordable Care Act

POLITICS OF THE TIME

The IRA’s definition of “Indian” as originally drafted definition was to include “all persons of Indian descent who are members of any recognized Indian tribe.”

Senate Indian Affairs Chairman Burton Wheeler, however, was concerned that this provision was too broad. He stated:“Chairman. But the thing about it is this, Senator; I think you have to sooneror later eliminate those Indians who are at the present time – as I said theother day, you have a tribe of Indians here, for instance in northernCalifornia, several so-called “tribes” there. They are no more Indians thanyou or I, perhaps. I mean they are white people essentially. And yet they areunder the supervision of the Government of the United States, and there is noreason for it at all, in my judgment. Their lands ought to be turned over tothem in severalty and divided up and let them go ahead and operate their ownproperty in their own way.”

CHANGING FROM PATERNALISM TO SELF-DETERMINATION

• Shift in governmental philosophy beginning with President Reagan and strengthened by Presidents Clinton and Obama

• Impact of Self-Determination and trust responsibility

• Consultation/joint policy determination

• Tribes have a seat at the table: with that comes new opportunities AND new responsibilities

FULFILLMENT OF TRUST RESPONSIBILITIES

• Legislative intent

• Agency culture of just policies and meaningful consultation

• Identification of barriers and jointly developing plan to address

• Appreciation of tribal histories and culturally driven programs

• Budget priorities

• Inadequate funding = health disparities

• If Indian Health is a trust responsibility why is our funding “discretionary”

WALKING THE PATH