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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. |
