Blog Essay

Medicaid Waivers and Political Preferences for Indians

As part of its push to impose work requirements on Medicaid recipients, the Trump administration has repeatedly rejected tribal requests to be exempt from these new requirements. This position by the Department of Health and Human Services (HHS) ignores the obligations of the federal government when it comes to Indian healthcare and does not give adequate respect to the unique nation-to-nation relationship that the federal government has with Indian nations.

HHS argued in a January 2018 letter to tribal leaders that granting the tribal exemption requests “could raise civil rights issues” as an unfair and illegal racial preference for Indians. This argument may be superficially attractive but is ultimately dangerously misleading. In 1974, the U.S. Supreme Court considered a similar equal protection-based argument by a group of non-Indians challenging an Indian employment preference by the Bureau of Indian Affairs (BIA). The Court held in Morton v. Mancari that the preference was permissible because of “Congress’ unique obligation toward the Indians.” The Court noted the preference was limited to members of federally recognized tribes and, as such, “the preference is political, rather than racial in nature.” Treating Indian preferences as racial preferences, according to the Court, would upset the federal government’s entire relationship with tribes:

Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.

Even though HHS’s argument that waiving Medicaid work requirements for tribes amounts to racial discrimination may appear to be a matter of minor significance, Indian advocates recognize the danger lurking in mischaracterizing Indian political preferences as racial preferences. As a recent op-ed in Teen Vogue of all places declared, using Medicaid reform in this way would “upend hundreds of years of federal Indian law court precedent by dismantling federal recognition of tribal sovereignty.” A number of republicans and democrats in Congress are likewise alarmed. Republican delegate Tom Cole of Oklahoma wrote to HHS, warning that “[i]n addition to threatening tribal sovereignty, this short-sighted decision will have the added effect of reducing funds available to Indian Health Service (IHS).” Just as the Court observed in 1974, characterizing the waivers as racial in nature and therefore impermissible threatens the entire edifice of federal Indian law.

In some ways, the Trump administration’s move is not particularly surprising. Trump leveled racist attacks against Indians when testifying before Congress about Indian gaming in 1993 and even jokingly referred to Elizabeth Warren as “Pocahontas” during a ceremony to honor Navajo code talkers. Politically, refusing to grant a tribal exception fits both the work emphasis of Trump’s recent executive order on poverty and the anti-affirmative action views of Trump’s base. Given Trump’s racism and the politics surrounding aid to the poor, the actions of HHS make sense and could herald a larger attack on Indian rights.

Treating Indian preferences as racial preferences flies in the face of a long history of bipartisan support for tribal sovereignty. Ever since Nixon formally launched the self-determination era, Presidents, Democrats and Republicans, have favored strengthening tribal sovereignty. Whether motivated by a commitment to devolve governance authority to local governments or by a commitment to multi-culturalism, President Bill Clinton, for example, signed Executive Order 13175, requiring consultation and coordination with Indian nations, and his successor, President George W. Bush, signed a follow-up executive memorandum meant to further the government-to-government relationship. And Presidents have not been alone in supporting tribal sovereignty. Members of Congress, regardless of where they sit on the floor, have seen the importance and value of recognizing the sovereignty of tribes. During the self-determination period, many tribes have seen improvements in both their ability to govern and the economic situation of those living on reservation.

The United States Supreme Court’s record when it comes to upholding tribal sovereignty is problematic, especially when non-Indians are impacted, but it continues to affirm the “inherent sovereign authority” of tribes. Though conservative groups would like to see Morton v. Mancari’s characterization of Indian preferences as political, not racial, preferences reversed, the Court seems to recognize that Indians are differently situated than other groups. The relationship between Indian nations and the United States is an area that calls for acknowledgement of complications, not rejection of nuance in the name of an imagined colorblind future. As numerous Indian law scholars have shown, Indians have both a racial and a political identity. But, to quote Professor Sarah Krakoff, “[t]he way to counter much of the prior racial discrimination against American Indians is to support laws that perpetuate the sovereign political status of tribes, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political.”

Even aside from concerns about righting past wrongs, there are moral and legal reasons to respect the political identity and political rights of tribal members. When the United States signed treaties with Indian nations, it was recognizing and affirming the political rights of tribes and tribal members. The federal government did not enter into treaty relationships with other racial groups or even with Indians as a single racial group; it signed treaties and related to tribes as political entities. United States acquired large portions of its territory through successive treaties that transferred land to non-Indians. In return, as explained on the Indian Health Service website, the United States accepted “responsibility for a variety of services and benefits to Indian people based on their status as Indians, including health care.”

Indian nations have long been treated as an anomaly. Students are typically taught that there are two types of sovereigns, states and the federal government, which ignores tribal sovereigns despite the fact that they pre-date the nation’s founding. Congress has passed important legislation protecting tribes, but rarely are Indian issues at the top of the legislative agenda. The federally supported aspects tribal sovereignty rest on the three-legged stool—executive, legislative, and judicial—of the federal government, but that foundation was already wobbly before Trump came into office as a result of the ways in which the Supreme Court has diminished tribal authority.

In contrast with many other areas of law, the relative standing of tribes is not something that always fits nicely into standard partisan boxes. Trump deserves credit for signing into law earlier this year a bill that gave long overdue federal recognition to six Indian tribes in Virginia. And Senator Elizabeth Warren’s unwillingness to admit that she was wrong to claim she is Indian based on little more than high cheekbones and family lore arguably is an example of her indifference to the significance of Indian status. Warren’s indifference is not isolated: compare the relative silence of progressives on Warren’s claims versus reactions to Rachel Dolezal’s assertion that she is black. Indian issues often barely register politically. Unless there is mass mobilization involving a matter that impacts non-Indian interests, such as occurred two years ago at Standing Rock, politicians on the left and the right often do not prioritize Indian issues. But with Trump signaling that he is willing to disrupt settled expectations and the established rights of tribes by forcing tribes into racially-defined space, the political rights of tribes must not be ignored.

In 1831, Chief Justice John Marshall famously described Indian nations as “domestic dependent nations.” Especially in the context of aid to the poor, it is tempting to focus on the adjective dependent, but the word that should be emphasized is nations. Treating tribal members as just another racial group not only harms tribal self-determination, one of the most successful policies when it comes to how the United States has dealt with tribes, but also fails to live up to the legal obligations owed to Indian nations. If Trump and the Supreme Court are not going to live up to the historical bargain that bought non-Indians the continent and that recognized tribes as political communities, Congress must step up.