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Excerpted From: Geoffrey D. Strommer, Starla K. Roels and Caroline P. Mayhew, Tribal Sovereign Authority and Self-regulation of Health Care Services: the Legal Framework and the Swinomish Tribe's Dental Health Program, 21 Journal of Health Care Law and Policy 115 (2018) (229 Footnotes) (Full Document)

Across the United States, an important shift is taking place in the Indian health care arena. Over the past forty years, many American Indian Tribes have transitioned away from relying primarily on federal officials to provide a bare minimum in health care services to Indian people and have begun instead to develop and operate complex tribal health care delivery systems that offer the highest level of health care possible. Health care has historically been considered, and remains today, a core component of the federal trust responsibility to Indians. However, that trust responsibility is increasingly being carried out through the transfer of resources and authority from federal agencies to Tribes to assume control and responsibility to design, implement, and provide direct programs and services that are better tailored to local tribal needs. This federal policy of supporting tribal sovereignty and tribal self-determination generally has indeed fostered and encouraged the development of a new, robust tribal health care system.

To date, this new health care system has largely developed and evolved within the framework of existing federal health care and Indian law. More recently, some Tribes have begun to use their inherent tribal sovereign authority to innovate and expand the services they provide to Indian people beyond the services that might otherwise be available under state or federal law. This article will examine the historical backdrop against which the modern Indian health system has developed; describe the current legal framework that allows tribes to exercise tribal sovereign authority to provide and regulate health care services under tribal law; and discuss--as a concrete example--how these legal authorities have been used to make available much needed dental care to Indians who reside near the Swinomish Indian Tribal Community in Washington State.

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Existing federal programs and state laws regulating the health care field do not always meet local tribal needs. Where possible under the existing legal framework, tribal self-regulation of health care programs and services on tribal lands can offer solutions to fill the gaps, resulting in better health outcomes in local tribal communities while also developing and exercising tribal governing capacity. At the same time, tribal self-regulation can benefit non-Indian communities by driving innovation in health care policy at the state and federal level and, in some cases, increasing the availability of services even to non-Indians at the local level.

This process is already underway in some tribal communities, like Swinomish and other tribes in the Northwest implementing DHAT programs and services to address their dental health needs. Undoubtedly, tribes will increasingly opt to follow this path as they outgrow the existing self-determination model of tribal implementation of federal health care programs and services, relying to an even greater degree on inherent tribal authority as well as tribal expertise and creative problem-solving abilities to improve access to quality health care for Indian people. Support for these tribally driven efforts is consistent with the federal trust responsibility and government-to-government relationship underlying modern federal Indian law, and--most importantly--shows great promise for improving the health and wellbeing of tribal communities.

The authors are all members of Hobbs Straus Dean & Walker, LLP, a national law firm that has specialized for over 35 years in representing tribes and tribal organizations throughout the United States. Mr. Strommer is the managing partner of Hobbs Straus's Portland office. Ms. Roels is a partner at the firm's Portland, Oregon office. Ms. Mayhew is a partner at the firm's Washington, DC office.