Holly T. Kuschell-Haworth
excerpted From: Jumping Through Hoops: Traditional Healers And The Indian Health Care Improvement Act, 4 DePaul Journal of Health Care Law 843-860, 844-847 (Summer 1999)
The governmental duty to provide health services to Indian tribes derives from many sources. These sources include negotiated treaties to ceded Native American lands, settlements, agreements, and legislation. Significantly, there are specific treaties signed by the federal government and Indian tribes, exchanging Native American land and resources for federal promises of health care and other services. The generally accepted premise of government responsibility to Native Americans is based upon the destruction of Native American civilization and the poverty and disease which followed in its wake. While this obligation is widely accepted, it has not been upheld by courts as a basis for a Native American legal entitlement to benefits. Thus, responsibility for Native American health care as recognized by Congress has been subject to judicial and administrative disavowal at the expense of Native American people.
The Origins of Federal Native American Health Care Attention to Native American health care began in the nineteenth century when contagious diseases, such as smallpox, threatened the once substantial populations of Native American people. The Federal government's earliest goals were to prevent disease and to speed Native American assimilation into the general population by promoting Native American dependence on Western medicine and by decreasing the influence of traditional Indian healers. In 1849, responsibility for Native American health was transferred from the War Department to the Bureau of Indian Affairs (BIA). The BIA oversaw the use of congressional appropriations for the establishment of health programs for Native Americans. Responsibility for Native American health has since endured many organizational transfers, and now resides with the Indian Health Service (IHS), an operating division of the Department of Health and Humans Services (DHHS).
The principal legislation authorizing federal funds for health services to Native American tribes is the Snyder Act of 1921. In ratifying the Snyder Act, the federal government intended to provide appropriations "for the benefit, care and assistance . . . and for the relief of distress and the conservation of health . . . for Indians tribes throughout the United States." Following the Snyder Act, Congress created a process for transferring BIA and IHS health programs to tribal governments through the Indian Self-Determination and Education Assistance Act of 1975. In doing so, Congress noted the past inadequacies of Native American health care, and reaffirmed its intention to involve tribes in health care programs through tribal self-governance.
Federal Native American Health are Today In 1976, Congress enacted the IHCIA to provide "the highest possible health status to Indians and to provide existing Indian health services with all resources necessary to effect that policy." In passing the Act, Congress noted the government's "unique legal relationship with, and resulting responsibility to" Indians, necessitated the creation of a comprehensive health care system. The IHCIA set forth the following goals for the IHS:
(1) to assure Native Americans access to high-quality comprehensive health services in accordance with need;
(2) to assist tribes in developing the capacity to staff and manage their own health programs and to provide opportunities for tribes to assume operational authority for IHS programs in their communities; and
(3) to be the primary federal advocate for Native Americans with respect to health care matters and to assist them in accessing programs to which they are entitled. Subsequent amendments in 1992 extended the purpose of the IHCIA to raising the health status of Native Americans over a specified period of time to the level of the general United States population. Additionally, the IHCIA sought a high level of participation by Indian tribes in the planning and management of IHS programs, services, and demonstration projects under subsequent self-determination amendments.
The IHS provides health care services to approximately 1.43 million Native Americans on reservations, in rural communities and in urban areas. The IHS health care system consists of health centers, hospitals, and health stations which are managed by 144 service units and eleven Area Offices. IHS services are delivered in three ways: through direct (IHS) services; through tribal services; or by contract with non-IHS service providers.
The annual appropriation for IHS is approximately $2 billion. The amount, and invariably, the effectiveness of the appropriations varies with frequent changes in IHCIA legislation. Appropriations are made based on the assumption that IHS health care will be provided in combination with public programs such as Medicare and Medicaid, for which Native Americans qualify as United States and state citizens. However, access to public programs by Native Americans is often denied or delayed based on the erroneous belief that Indians are only entitled to IHS health care. Additionally, the erratic funding of the IHCIA has made it very difficult for the IHS to fulfill its goals of providing Native Americans with the best care necessary to achieve the "highest health status possible."
[a1]. Staff Writer, DePaul Journal of Health Care Law, B.A., Michigan State University, 1992; J.D., DePaul University College of Law, 1999.