Tribes File to Protect Indian Health Law

WASHINGTON – Illustrating growing concern from tribal officials that the so-called permanent reauthorization of the Indian Health Care Improvement Act could be in danger both in Congress and especially in the courts, a large group of tribes has filed an amicus brief in federal court aimed at protecting its inclusion in the national health-care reform legislation of 2010.

The brief, filed April 7 in the United States Court of Appeals for the Eleventh Circuit on behalf of a wide range of tribes and tribal organizations, argues that when the federal district court in Florida struck down the entire Affordable Care Act earlier this year, it should have severed and preserved the IHCIA language that became a part of the overall legislation last year.

The brief argues that the Indian-specific provisions are “legally separable” from the greater act, and are “related solely to the federal responsibility to provide health care to Indian tribes and their members.”

The legal filing came in response to a January 31 ruling by Judge C. Roger Vinson, which held that the larger health law is unconstitutional because it exceeds Congress’ power to regulate interstate commerce and has “too many moving parts” to separate the constitutional from the unconstitutional. The Obama administration is currently appealing that decision, and an appeal of the law is widely expected to ultimately reach the Supreme Court.

The judge specifically ruled that the requirement in the law for all Americans to acquire some form of health insurance, known as the individual mandate, was unlawful, and that it was too difficult to determine what other provisions could stand on their own without the individual mandate. Therefore, he held that the whole law, including the IHCIA, must be struck down.

But there’s a major problem with the ruling, according to the tribes: “There is no evidence that the district court recognized or considered the terms and the separate genesis of the Indian-specific provisions,” they argue in the brief. Further, even if the appeals court were to agree that the greater legislation is unconstitutional, the brief argues that past cases provide precedent for separating the Indian-specific provision from the law and keeping them in place. In short, the judge’s holding was contrary to the normal rule that when a court strikes down a particular provision in a law as unconstitutional, that provision is severed and the rest of the law stands.

In total, 349 tribes signed on to the petition, either directly or through a tribal organization, and every plaintiff state in which tribes are located has at least one tribe as signatory. Member tribes of the National Indian Health Board and the National Congress of American Indians were included in the tally. “I don’t know of another brief filed by Indian country that has ever had this large number of tribes signing on,” said Geoffrey Strommer, a partner with Hobbs, Straus, Dean & Walker, the firm that is handling the petition for the tribes.

The breadth of tribal support is indicative of widespread alarm from Indian leaders that the IHCIA could either be reduced or removed altogether by the courts. Their concern makes sense, as the provisions support a wide swath of Indian health improvement programs, including several at the oft-underfunded Indian Health Service. Until last year’s inclusion in the Affordable Care Act, Indian advocates regularly had to battle to get the IHCIA reauthorized on Capitol Hill—and not because it was unpopular legislation. Throughout, many congressional leaders expressed support for the reauthorization, it just tended to get perennially lost in the mix of other non-Indian legislative priorities.

“If the entire statute is found unconstitutional, it would be a significant blow to Indian country,” Strommer said on the matter. “To have to restart the clock and go through the whole lobbying process again would be a significant blow.” Until last year’s approval, the IHCIA was last reauthorized in 1992 and officially expired in 2001. It was first passed in 1976.

Perhaps foreshadowing the current legal dilemma, some Indian leaders were hesitant to have the IHCIA approved as part of the greater health-care legislation because they felt the Indian components were of enough importance to stand on their own without needing to be attached to another bill to get passed through Congress. “Our bill should stand alone on its own merits,” former Republican Sen. Ben Nighthorse Campbell told Indian Country Today in November 2009, predicting that Indian legislation could get caught up in outside quagmires if the national health-care reform debate turned complex.

Still, the quickest way to get through Congress, advocates argued at the time, was to get the IHCIA attached to legislation that was strongly supported by the Obama administration and the Democratic leaders in Congress. The brief pointed to this fact, saying: “For over ten years, amici tribes and tribal organizations worked to enact much needed improvements to the IHCIA through a legislative process that was separate and independent from ACA. These amendments were added at the last minute to the bill that became ACA because it was likely to be enacted.”

With some Democratic leaders on the House side now out of control, and with Republicans vowing to continue the attack on the greater health legislation and some courts agreeing with them, Indian leaders can’t help but worry that their health legislation could end up being harmed.

While the GOP repeal effort is likely to be stalled due to the Democratic control of the White House and Senate, the Supreme Court — controlled by justices who haven’t ruled favorably on many Indian issues in recent years — could still end up ruling the entire bill unconstitutional, which would be a major setback for Indian health programs.

Meanwhile, another possible series of problems beckons: Even if the tribes are successful in their Florida appeal, 25 other state attorneys general have vowed to take legal action against the greater law, which could put the IHCIA through the ringer several times over.

Brian Patterson, president of the United South and Eastern Tribes organization, said in a statement that his group signed on to the brief because, “it is critical that Indian country unite to preserve the Indian Health Care Improvement Act amendments.” He noted that it took several years of dedication and leadership by all of Indian country to get the legislation passed. “It would be a major setback for the overall health and well-being of Indian country if they were struck down,” he said.

Patterson added that it’s “critical” for Indian country to unite, “to oppose efforts that undermine the trust responsibility or further erode our collective sovereignty. In this case, we must unite and stand strong in opposition to an adverse court decision, which is just as critical as our efforts before the Congress and the administration.”

The briefing phase in the appeals case is scheduled to end on May 25, and oral arguments have been set to begin June 8. The case is expected to be heard quickly due to its national implications, and the Obama administration has requested an expedited review.


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Tribes File to Protect Indian Health Law