Urban Indian Health Institute

Appearing before the Senate Committee on Indian Affairs on March 8 and the Natural Resources Committee in the House of Representatives on March 14, constitutional scholar Edward Lazarus testified that Congress can reauthorize the Indian Health Care Improvement Act without defying the U.S. Constitution. Lazarus’ appearances were linked to a Department of Justice white paper released last year, following the November elections. Though its byzantine progress from Justice to Senate Republicans has only now been unraveled, the red flags it raised about the bill’s constitutionality ruined the bill’s chances for passage then and threaten its acceptance even now. National Indian leaders and congressional members alike have expressed a growing outrage over resistance to the bill within the Bush administration and on Capitol Hill. Specifically, the white paper expressed doubts that Congress has authority, under the Constitution, to provide health care for ”Indians” and ”Urban Indians,” and raised the question of whether support for traditional healing practices contributes to a government ”establishment of religion,” forbidden by the so-called ”establishment clause of the Constitution.”

Lazarus, a Los Angeles-based partner in the firm of Akin Gump Strauss Hauer and Feld, largely dismissed the DOJ’s concerns, ”given the wide latitude Congress has always enjoyed when legislating on behalf of Indian peoples.” Congress, he added, ”need not hesitate to pass the proposed legislation because it is narrowly tailored to the compelling governmental interest - recognized by Congress since the early days of the Republic - to provide for the health of the indigenous peoples that this nation dispossessed as it expanded across the continent.” As long as the legislation is ”rationally tied to the fulfillment of Congress’ obligations” to Indians, Lazarus testified, it is likely to survive the strict judicial scrutiny warned of in the DOJ white paper.

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