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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Native American healthcare is in a shambles and desperately needs more funding, advocates and lawmakers said Thursday at a Senate Finance Committee hearing.”America is great in riches and power,” said committee Chairman Max Baucus, D-Mont., “but our healthcare promises to America’s original inhabitants remain unfulfilled.”

A condition of many treaties between the United States and Native American tribes was the provision of healthcare to all their descendants. Yet, in 2003, the most recent year for which data is available, the Indian Health Service spent only $2,130 per beneficiary, while the Department of Veterans Affairs spent $5,214 per capita for veterans.

Meanwhile, compared to the average American, tribal members are six times more likely to die from alcoholism, four times more likely to die of tuberculosis, three times more likely to die from diabetes complications, and nearly twice as likely to commit suicide.

Despite those statistics, Congress is only funding the Indian Health Service at 52 percent to 60 percent of need, Baucus said. That means that by June, most facilities will only be able to treat patients with life-threatening conditions, groups representing Native Americans warn.

However, federal health officials told United Press International that this limit to care for life-threatening conditions only applies to “contract healthcare,” whereby the care is rendered by private, contract hospitals outside the IHS.

“There are several reasons that IHS may need to purchase care from the private sector: when an eligible Indian does not live near an IHS facility; when the facility they live near cannot provide the care because of overflow; or if the facility does not offer the specialty medical services they require, Amanda Jonas, program analyst in the Office of Budget at the U.S. Department of Health and Human Services, told UPI. “In these cases, the patient is referred to a private hospital for treatment. The cost of care purchased from the private sector is very high, and therefore many facilities have prioritized using available funds for the care of patients who are ‘life or limb’ cases — that is, cases in which there is a condition threatening a patient’s life or limb.”

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By the end of a health care hearing March 8, the Senate Committee on Indian Affairs had forced clarity on at least two points: a bill to reauthorize the Indian Health Care Improvement Act will come to a vote in the current 110th Congress, and a Department of Justice white paper on the proposed reauthorization did in fact derail the bill last year near the close of the 109th Congress.

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