I. INTRODUCTION
Native AmericansFootnote 1 have a long history of negative health outcomes: high rates of chronic liver disease, rates of cardiovascular disease twice the national average, and the highest rate of Type 2 diabetes in the world, among many others.Footnote 2 In light of the unique relationships tribes share with the federal government, federal departments and laws have been established over time to provide the care promised in treaties between federal and tribal governments and by the Constitution.Footnote 3 Federal responsibility for Native American health care was codified in the Snyder Act of 1921 and the Indian Health Care Improvement Act (“IHCIA”) of 1976, which together form the legislative authority for the federal agency known today as the Indian Health Service (“IHS”).Footnote 4
For years, the government has failed to satisfy the promise made by the Snyder Act and the IHCIA. Many tribes are dismayed with the quality of their health care and are looking to take control.Footnote 5 Although the Indian Self-Determination and Education Assistance Act (“ISDEAA”) provides a contractual method by which tribes can make efforts to gain control of their own health care, it still forces tribes through the IHS system, which is underfunded and inefficient.Footnote 6 This Note proposes that Congress provide mandatory funding for tribal health care as well as other supportive solutions like increased access to public and private insurance and increased emphasis on tribal self-determination to improve health outcomes for Native Americans.
This Note first describes the history of Native American health care and the current legal and statutory framework within which Native Americans receive health care. This Note then evaluates the shortcomings of the current system, including lack of funding, before suggesting use of Supreme Court’s decision in McGirt v. Oklahoma Footnote 7 to reform and provide the health care funding promised to many tribes in their treaties with the federal government. This Note also suggests other supporting solutions, including increased access to public and private insurance, as well as greater emphasis on Native people taking control of their own health care.
II. THE LEGAL STATUS OF TRIBES AND TRIBAL HEALTH CARE
One common thread is interwoven throughout all of Native American law: tribal sovereignty. Tribal sovereignty is the right of all American indigenous people, including Alaska Natives, to govern themselves.Footnote 8 In Article 8, Section 1 of the U.S. Constitution, tribes are recognized as distinct governments with the same powers as federal and state governments to regulate internal affairs.Footnote 9 Tribal sovereignty includes “the right to establish their own form of government, determine membership requirements, enact legislation and establish law enforcement and court systems.”Footnote 10 The concept of sovereignty includes the right to establish a health care system.Footnote 11
Tribal sovereignty represents the evolution of tribal powers, with three major historical periods.Footnote 12 First, tribes possessed full and complete inherent authority over themselves pre-contact, or before Europeans arrived in the Americas, including “all the inherent powers of any sovereign state.”Footnote 13 Second, this unconditional iteration of tribal sovereignty faded after years of genocide and land theft, beginning with European colonization.Footnote 14 Once tribes were designated as “domestic dependent nations,”Footnote 15 they could no longer exercise their right to make treaties with foreign nations, and their trust relationship with the U.S. government increasingly likened to one between a guardian and ward, rather than one between to two equal sovereign nations.Footnote 16 “This dependent status markedly figures in many recent U.S. Supreme Court decisions that further divest tribal powers.”Footnote 17 Third, both legislation and treaties imposed more limits on tribal powers, including on tribes’ hunting and fishing rights, as well as limiting their access to land ownership.Footnote 18
Courts have used these treaties and legislation to create an “intricate web of judicially made Indian law.”Footnote 19 Native American tribes, as independent political communities capable of exercising at least some powers of self-government, possess inherent rights over internal tribal affairs to make substantive laws governing their members and their territory.Footnote 20 “While the sphere of inherent tribal authority over external matters has been substantially modified, tribes retain limited civil jurisdiction over non-Indians on their reservations in two specific areas: ‘consensual relationships with the tribe or its members [and] commercial dealings, contracts, leases, or other arrangements;’ and conduct that ‘threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.’”Footnote 21
Over the past few decades, there has been a marked rise in Native Americans’ desire to govern themselves.Footnote 22 This change has led to a reclaiming of culture, as well as a reclaiming of societal institutions, like courts, legislative bodies, and hospitals.
A. A History of Native Health Care
The erosion of tribal sovereignty eventually resulted in the promise of federal health care. Tribal numbers and resources became so decimated by the U.S. government—as well as state and local governments—that the federal government decided tribes were no longer able to care for themselves. The government’s responsibilities for providing health care to Native Americans arise from treaties and settlements entered between the federal government and individual tribes, and also from Indian Commerce Clause in the Constitution, which provides that “The Congress shall have the power to … [r]egulate commerce with foreign nations, and among the several states, and with the Indian tribes.”Footnote 23 Treaties signed by the U.S. government (and often misrepresented by itFootnote 24) usually included provisions that would provide a basic level of health care to tribal communities, such as one or more physicians, housing for the physicians, and medical supplies.Footnote 25 The federal government also has a long-standing trust responsibility to aid and protect tribes.Footnote 26 The trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward tribes; this is the major legal foundation for the argument that the federal government must provide health care to Native American people.Footnote 27
In the early 1800s, the federal government began providing health care under the War Department, when the primary concern was containment for contagious diseases for tribes located near military outposts.Footnote 28 Infectious diseases such as smallpox were on the rise, and through the War Department, Congress had the means to authorize a large-scale smallpox vaccination in 1832.Footnote 29 In 1849, the Native American health program was transferred to the Department of the Interior, which currently houses the Bureau of Indian Affairs. Around the same time, the federal government began constructing hospitals and infirmaries for the use of Native American boarding school students.Footnote 30
In 1908, Congress established the position of Chief Medical Supervisor, and for the first time, the Native American health program was supervised by medical professionals.Footnote 31 While appropriations for Native American health care appeared in the budget in 1911, “creation of the Health Division in 1924 raised the status of the program and allowed direct access to the Commissioner of Indian Affairs.”Footnote 32 The Indian Health program became a primary responsibility of the Public Health Service in 1954.Footnote 33 This Act provides in part “that all functions, responsibilities, authorities, and duties … relating to the maintenance and operation of hospital and health facilities for Indians, and the conservation of Indian health… shall be administered by the Surgeon General of the United States Public Health Service.”Footnote 34 Today, the IHS, established in 1955 within the Department of Health and Human Services, is the primary agency responsible for Native American health care.Footnote 35
B. Public Health Implications of the History of Native Health Care
Despite this specific allocation of federal support, Native American health care is historically underfunded and has resulted in significant health disparities between indigenous populations and other Americans.Footnote 36 The life expectancy of Native Americans is five years shorter than that of the general U.S. population, and lower still for women who identify as indigenous.Footnote 37 Native Americans have low cancer survival rates, high rates of cardiovascular disease, and highest rate of Type 2 diabetes in the world.Footnote 38 This extreme disparity is due not only to a long history of negative health outcomes, but also to a lack of economic opportunities and a strict, narrow system that determines whether an individual is “Native enough” to qualify for a program under the IHS.Footnote 39 Native Americans also suffer from generational trauma due to the genocide of their people, which plays a huge role in health issues like alcoholism.Footnote 40
Data collected by the Centers for Disease Control (“CDC”) demonstrates that Native Americans also experience higher rates of COVID-19 as well as a greater risk for both hospitalization and death than other ethnic groups.Footnote 41 Other public health issues such as poor infrastructure, lack of nearby drinking water, and understaffed and under-resourced health care facilities exacerbate the health problems described above.Footnote 42 Altogether, underfunded health care and significant health disparities are part of a negative feedback loop from which many Native Americans cannot escape.
C. The Current Legal Framework for Native Health
The IHS, the largest federally-funded program for Native American health care, has served as the primary health care provider for Native Americans for decades.Footnote 43 The department has a large pool of beneficiaries given the small size of the Native American population; over two million Native Americans receive some sort of basic health care from the IHS.Footnote 44 The IHS provides many different services through a network of hospitals, clinics, and other health facilities located on or near reservations, from pharmacists to dentists.Footnote 45 The IHS also contracts with 41 nonprofit urban Native American organizations. Footnote 46 If the patient is on a reservation, health services are provided in IHS facilities for free to Native patients who qualify, though the IHS also has limited off-reservation services.Footnote 47 The IHS is funded through Congress’ annual operating budget and is supplemented by billing both private and public insurance for services provided to insured Native Americans.Footnote 48
The IHS provides strict eligibility requirements to access its services.Footnote 49 There are a number of criteria one must satisfy to qualify, including “the requirement that the individual be of Indian descent, regarded as a tribal member by his or her tribe, has some legal evidence of tribal enrollment or a Certificate of Indian Blood, resides on or near his or her federal reservation, and/or meets other local requirements.”Footnote 50 As discussed earlier, these strict requirements can seriously impede access to these services; many tribes are still going through the expensive process of becoming federally recognized, and members of those tribes are not able to exercise the fundamental treaty right to the health care they are owed.Footnote 51
There are also two important Acts of Congress to consider when discussing health care and how it is delivered to Indian Country,Footnote 52 both passed in the mid-1970s: the IHCIA and the ISDEAA.Footnote 53 The IHCIA, established in 1976, is the broader of the two acts.Footnote 54 Congress wished “to ensure the highest possible health status for Indians and urban Indians and to provide all resources necessary to effect that policy.”Footnote 55 The IHCIA focused on promoting both the federal trust relationship and tribal self-determination.Footnote 56 However, one federal district court refused to give the IHCIA power through imposing obligations on the federal government, instead holding in 2020 that provisions of the IHCIA articulating Congress’s goal to “provide health services which will permit the health status of Indians to be raised to the highest possible level” and to “provide all resources necessary to effect that policy” to fulfill “its special trust responsibilities and legal obligations to Indians” did not impose any affirmative trust duties on the United States for Native American health care.Footnote 57 However, the IHCIA does cover many health care issues, including:
programs designed to increase recruitment of healthcare professionals; scholarships for Native American students who choose to enter the health professions; health promotion and disease prevention, like diabetes treatment and prevention; reimbursements from third-party payors such as Medicare, Medicaid and private insurance; construction of healthcare facilities and sanitation facilities; licensure of health professionals providing care at tribally-operated healthcare facilities; health services to Indians living in urban areas; and behavioral health programs.Footnote 58
Though the IHCIA does not contain an enforcement mechanism, it does embody an attitude held by many today: tribes should be encouraged to govern their own affairs.
The ISDEAA, established in 1975, “authorizes federally recognized tribes, including Alaska Native villages and tribal organizations sanctioned by tribes, to contract with the IHS to take over the management and operation of federal health programs for the benefit of eligible Indian people.”Footnote 59 The purpose of the ISDEAA is to lower federal participation in the running of tribal programs while promoting both tribal self-determination and self-governance.Footnote 60 Tribes can either “administer programs and services the IHS would otherwise provide (referred to as Title I Self-Determination Contracting), or (2) assume control over health care programs and services that the IHS would otherwise provide (referred to as Title V Self-Governance Compacting or the TSGP).”Footnote 61 The ISDEAA thus allows tribes to take responsibility for providing health care—a responsibility previously held solely by the IHS—to their members.Footnote 62 Tribes do not all face the same barriers to health care access; the ISDEAA allows individual tribes to focus on those health issues that are most prevalent in their communities.Footnote 63 Tribes currently execute many different kinds of programs under the ISDEAA, “such as hospital and clinic services; licensed physician coverage; dental; pharmacy; substance abuse and mental health programs; maternal child health; traditional healing; vaccinations; preventative screening; and health/diabetes education.”Footnote 64
The ISDEAA promotes the drafting of a contractual agreement between the tribe wishing to take control of a program and the IHS, which is responsible for transferring its federal funding to the tribe so it can decide how best to satisfy its specific health care needs.Footnote 65 These contracts have a distinct statutory and regulatory structure; they are not considered federal procurement contracts nor are they subject to Federal Acquisition Regulations.Footnote 66 In 2015, the IHS received $4,642,381,000 from Congress; more than half of that funding was transferred to tribes under the ISDEAA.Footnote 67
The ISDEAA deemphasized the role of IHS, allowing more tribes to assume the management and delivery of direct health care. Tribes currently manage “13 hospitals, 158 outpatient health centers, 158 village clinics in Alaska, 76 health stations, and 5 school health programs.”Footnote 68 According to the National Indian Health Board, this redistribution of health care management led to “compacting,” where tribes not only take over their health care systems but also spend time reprioritizing and changing care.Footnote 69 As of July 2016, the IHS and tribes have negotiated ninety compacts with sixty percent of the 567 federally recognized tribes through the ISDEAA.Footnote 70 The compacting program comprises approximately $1.8 billion, or forty percent, of the IHS budget.Footnote 71 Overall, the ISDEAA’s response to problems exacerbated by the IHS has been admirable. However, this matters little in light of the prolific problems associated with Native American health care funding—or lack thereof.
D. The Funding Problem
Whether through public financing or personal insurance, a lack of funding prevents Native Americans from receiving adequate health care. Making matters worse, a large number of Native Americans go uninsured compared to the general population.Footnote 72 In 2019, only about fifty-two percent of Native Americans had private health insurance coverage, about forty-two percent relied on some sort of public health insurance coverage, and about fifteen percent had no health insurance at all.Footnote 73 Contrast these statistics with non-Hispanic whites’ insurance coverage numbers: non-Hispanic whites are about seventy-five percent covered by private insurance, about thirty-four percent by public insurance, and only about six percent uninsured.Footnote 74
One factor contributing to this disparity is that private insurance is often obtained through employment, and Native Americans have one of the highest rates of unemployment in the country.Footnote 75 Moreover, Native Americans have a long history of a lack of participation in public insurance programs. Non-participation stems from a lack of education about public insurance options and a lack of assistance with utilizing them.Footnote 76 Some Native Americans who rely on IHS “resist enrolling in Medicaid because they perceive IHS as an entitlement which should cover all of their needs, independent of their ability to access payment through other sources.”Footnote 77 There has, however, been a marked improvement in recent years: in 2004, twenty-nine percent of Native Americans were uninsured (an improvement from previous numbers) and as stated above, the percentage of uninsured individuals in 2019 was about fifteen percent.Footnote 78
Evidence also suggests that the IHS is failing to provide health care for those it does manage to cover. For instance, by mid-year, the IHS has usually exhausted its annual budget for its Catastrophic Health Emergency Fund.Footnote 79 The IHS budget is not considered mandatory by Congress.Footnote 80 In 2010, the Affordable Care Act included the reauthorized IHCIA.Footnote 81 “Before it could really go into effect, however, the government shutdown in 2013 further crippled an already-deficient tribal health system.”Footnote 82 After the shutdown, Congress cut the IHS budget by five percent.Footnote 83 “Three years later, that slash has had the cumulative effect of some 800,000 patient visits missed because of insufficient funds.”Footnote 84
Geography is another issue that contributes to the funding problem, given the diaspora of Native Americans beyond reservations. The IHS primarily operates in Indian Country, but life on reservations is not the norm for the majority of Native Americans.Footnote 85 Nearly eighty percent of Native Americans live in urban areas, but because the IHS operates primarily out of tribal reservations, the funding for urban patients makes up less than one percent of the IHS budget.Footnote 86 Many tribal members must travel long distances between population centers and tribal communities to access health care services.Footnote 87
State and federal politics also complicate the funding problem. Due to the difficult process of becoming a federally recognized tribe, tribes are officially recognized in only thirty-five of the fifty states.Footnote 88 Also, thirty percent of senators do not have Native American constituents and therefore have no incentive to allocate additional federal dollars to the IHS.Footnote 89 Furthermore, because ISDEAA funding is linked to IHS funding through the contracting and compacting process, even the ISDEAA method of allowing tribes to become partially in control of their own health care does not relieve the funding issue.Footnote 90
The consequences of insufficient funding are very significant, including the inability to offer competitive salaries and benefits to health professionals. Also, “unlike other large federal health programs, health care rationing is necessary because the federal Indian health appropriation is not based on need.”Footnote 91 The IHS also does not possess the legislative authority to negotiate good prices for pharmacy products or to battle with the private sector over medical services for Native patients.Footnote 92 This results in higher prices for Native Americans who seek health care. Overall, a lack of funding results in a web of public health issues beyond a quantitative lack of medical services. Nevertheless, there are both major reforms and supportive solutions that can ameliorate these problems.
III. MCGIRT V. OKLAHOMA: THE POTENTIAL TO REFORM NATIVE HEALTH CARE
While the IHS has been criticized as ineffective, decentralizing the IHS risks benefiting only those tribes with the resources to access federal funding, severely hurting those tribes who have smaller populations and little land in trust. One Native American physician noted “that unless there is continuing congressional and political support, the realization of self-determination by tribes may make it easy for the federal government to terminate its federal responsibility.”Footnote 93 One tribal leader, in deciding whether to contract with the IHS, concluded that “until she gets further assurances, she is still skeptical about the federal push to encourage tribes to take over management of the federal program.”Footnote 94 She is among the many that view self-determination as the beginning of the termination of the federal trust responsibility, which would destroy federal obligations to tribes and leave them to their own devices, the effects of which could be devastating if it were too abrupt.Footnote 95 Though the quality of health care is improving under local control, financial shortfalls could worsen without federal support, forcing tribes back to square one of rationing care.Footnote 96
One potential solution is to judicially mandate Congress to fund all health care promised to individual tribes in treaties because federal treaty obligations have not been met. For example, the treaty between the federal government and the Makah promised a physician for the tribe that would “reside at the said central agency … who shall furnish medicine and advice to the sick, and shall vaccinate them; the expenses of [a] school, shops, persons employed, and medical attendance to be defrayed by the United States and not deducted from the annuities.”Footnote 97 In a treaty with the Kiowa and Comanche, the federal government agreed to appropriate funds for a tribal physician.Footnote 98 In the Fort Laramie Treaty, which was signed by multiple bands of the Sioux tribe, the United States also promised a physician and appropriations to that effect.Footnote 99
In a recent 2020 case, McGirt v. Oklahoma,Footnote 100 the U.S. Supreme Court held that unless Congress has explicitly said otherwise, both the federal government and individual states must follow the terms of a treaty made with a Native American tribe.Footnote 101 The opinion highlights how state interests have often differed from tribal interests, drawing a picture of the long history of how the state of Oklahoma has undermined tribal sovereignty. The opinion then recognized that treaties are still enforceable. Under the terms of the 1833 treaty between the federal government and the Muscogee Creek Nation, a significant piece of Oklahoma land remains Native American territory, and therefore, state authorities cannot prosecute crimes committed by or against Native Americans there. Instead, jurisdiction of those cases falls to either federal or tribal law.Footnote 102 The Court also noted that treaty rights should be construed in favor of tribal rights.Footnote 103 If treaty language is ambiguous, courts may reference contemporaneous usages to determine Congress’ original intention, as well as the tribe’s understanding of that intention.Footnote 104
As of April 2022, Oklahoma continues to protest McGirt, arguing that the state has been robbed of its authority to prosecute crimes involving both non-Native Americans and Native Americans.Footnote 105 Pushing back against the state of Oklahoma, Justice Neil Gorsuch said the following: “We have the treaties … which have been in existence and promising this tribe since before the Trail of Tears that they would not be subject to state jurisdiction precisely because the states were known to be their enemies.”Footnote 106 He goes on to remind the Court of the federal government’s promises several times, highlighting the above reasons why McGirt was decided in the first place. While McGirt could be adjusted by this case, the Supreme Court has already refused to revisit its holding in McGirt, encouraging the idea that the decision will persist despite pushback.
Though McGirt’s facts are only about treaty terms regarding land and territory lines, the broader implication is a protection of all treaty terms. Given that many treaties discuss health care access, the Court could soon see cases where that promise is put to the test. Congress has the ability to state that it will not provide health care to Native Americans, but it has never done so. To the contrary, Congress has put legislation in place supporting its duty to provide health care.Footnote 107 Though most treaties only promise funds for one physician, one physician would have likely satisfied an entire community’s health care needs in the 1800s. Now, this term could be understood to mean all health care needs, which cannot be provided by only one physician. Instead, tribes require more facilities and providers. Where Congress has not expressly denied this treaty right to a tribe, the Supreme Court’s conclusion in McGirt could lead to the Court requiring the federal government to fund Native American health care wholly and directly.Footnote 108
IV. ALTERNATIVE SUPPORTIVE STRUCTURES
Though major reform is the most ideal method by which to improve Native American health care, there are several supportive measures which could be taken to improve health care within the current system.
A. Increased Use of Medicaid
One solution to facilitate a transition away from IHS is to encourage more Native American use of Medicaid because Medicaid provides access to affordable insurance coverage outside the IHS. Native Americans are among the least likely of all ethnic groups to access Medicaid; “nonelderly [Native Americans] remain significantly more likely to be uninsured [through Medicaid] than the rest of the nonelderly population (17 percent vs. 11 percent).”Footnote 109
Many Native Americans who were not historically eligible for Medicaid now are due to the Affordable Care Act.Footnote 110 Since 2013, Medicaid expansion has caused a reduction in the number of overall uninsured population.Footnote 111 Native Americans specifically are benefiting from Medicaid expansion; “in the states that adopted it, the Medicaid expansion has provided a ‘much-needed boost’ to the IHS by increasing Native American eligibility for Medicaid and providing direct compensation to IHS care.”Footnote 112 One study shows that the national uninsured rate for Native Americans dropped from about twenty-five percent in 2013 to about twenty-one percent in 2014, which was the year after the ACA was adopted.Footnote 113 The largest gains occurred in states that expanded Medicaid and must also be put into the context of IHS coverage.Footnote 114 IHS facilities can now reimburse their costs through Medicaid, as evidenced by the lack of change in IHS rates.Footnote 115 Therefore, the Medicaid expansion supplements IHS’s struggling budget.Footnote 116
A recent example of Medicaid expansion helping Native Americans might soon be found in Oklahoma.Footnote 117 Prior to the expansion, Oklahoma had the largest population of uninsured Native Americans in the country.Footnote 118 Though coverage did not become effective until July 1, 2021—and, therefore, little information about the effect of expansion presently exists—the experiences of prior states indicate that Oklahoma will likely see a drop in its uninsured Native population.Footnote 119 Aside from encouraging Medicaid expansion, tribal hospitals and clinics could begin a public health insurance literacy program. Physicians could also emphasize discussions of public insurance in their daily practice, as well as include descriptions of their patients’ options both orally and in writing.
B. Increased Self-Determination in Native Health Care
As compacting through the ISDEAA has become more popular among Native Americans, individual tribes are now able to focus more attention on the specific issues facing their communities. Increased self-determination is an end in and of itself. It gives dignity and decisionmaking capabilities back to a group that has long been without them. Although self-determination in tribal health care does not directly relieve the funding problem, it can help tribes better direct resources to the issues in most need of their attention.Footnote 120 If Native Americans can direct resources provided by the federal government in their own optimized ways, funds will not be misused or spent needlessly in ways that are not helping the community. In enacting the ISDEAA, Congress found that “true self-determination in any society of people is dependent upon an educational process which will ensure the development of qualified people to fulfill meaningful leadership roles … [and] parental and community control of the educational process is of crucial importance to the Indian people.”Footnote 121
The following two entities illustrate health care decisionmaking and policies that centralize Native American leadership and caregivers. Both are examples of successful partnerships between the federal government and tribes and represent effective secession of control to tribes.
1. The Alaska Native Tribal Health Consortium
The Alaska Native Tribal Health Consortium (“ANTHC”), which began contracting its own health care through the ISDEAA in 1998, is designed to meet all health care needs of Alaska Natives.Footnote 122 The ANTHC provides many diverse health services, which include “comprehensive medical services at the Alaska Native Medical Center, wellness programs, disease research and prevention, rural provider training and rural water and sanitation systems construction.”Footnote 123 The ANTHC is also considered a Magnet Center, or a facility that has been singled out for nursing excellence.Footnote 124 One IHS provider noted:
My sense is that on balance, contracting and compacting has improved healthcare services. In Alaska, where healthcare has been compacted for the last 4-5 years, there are improvements in clinical care. If you walk into the Alaska Native Medical Center today, you get treated today, whereas under the old system, sometimes it was a couple of weeks before you could get an appointment.Footnote 125
To grasp the scope of the ANTHC’s success, one needs to look no further than its dental program. Alaska Natives have had a long history of dental caries, and the historical lack of health care exacerbated this issue. For example, “American Indian and Alaska Native children between the ages of 2 and 4 have the highest rate of decay in the United States—five times the national average.”Footnote 126 This adverse health outcome also has wide-reaching social implications. “One-third of school-age children in rural Alaska miss school because of dental pain, and one-fourth report avoiding laughing or smiling because of the appearance of their teeth.”Footnote 127 By the time they reach adulthood, many have already experienced devastating consequences due to lack of dental care.Footnote 128 Additionally, if these children are unable to eat healthy foods because they often require vigorous chewing, it leads to other health issues, such as malnutrition and obesity in both childhood and adulthood.Footnote 129
When the ANTHC took over health care services from the IHS, it addressed this specific need. The Alaska Dental Health Aide Program, which was introduced by the ANTHC, was intended to increase access to oral health care by “training new types of dental providers to provide culturally appropriate education and routine dental services under the supervision of a dentist to high-risk residents of rural villages.”Footnote 130 Since 2004, the program has facilitated the training of twenty-eight dental therapists, who were trained through the program and can now provide care in communities which “typically had no dedicated oral health care provider or programs to encourage engagement in oral health care, prevention, and literacy.”Footnote 131 Key components include recruitment and training for dental aides in remote communities and a federal agreement allowing dental therapists to bill the Medicaid program directly for the services they provide to receive reimbursement.Footnote 132 These therapists commit to providing care in regions where accessing care is difficult, an effective strategy because these therapists already have the cultural and language skills to work with these communities, offering treatments that were previously unavailable in remote areas of Alaska.Footnote 133 “Post-implementation usage data suggests that the program has enhanced access to quality oral health services for individuals living in rural Alaska villages who previously had limited or no access to such services.”Footnote 134 Care is improving and patients themselves report positive social and emotional outcomes; one patient even referred to the care as a return to dignity.Footnote 135
The ANTHC still works with the IHS. In 2013, Congress passed the Alaska Native Tribal Health Consortium Land Transfer Act, which allowed the ANTHC to build a patient housing facility on the parcel of federal land; therefore, those living in remote towns and traveling long distances to receive medical care in Anchorage were able to house themselves.Footnote 136 This was set forth by the ANTHC because they knew what was needed in their particular community, and the program cut costs related to transportation and housing.Footnote 137 The ANTHC is fulfilling the federal trust responsibility of the IHS and is doing so more effectively and economically.
Though the Alaska Native Tribal Health Consortium Land Transfer Act is an example of the IHS fulfilling a contractual duty under ISDEAA, Alaska officials must continue to aggressively seek grants, bill Medicaid and Medicare, and use revenue from their investments to fund their projects.Footnote 138 The ANTHC works for Alaska Natives in part because Alaska Native tribes operate differently than most; they are set up as corporations with gross revenue in the billions, and are often self-funded due to lucrative oil deals, energy support services, and tourism.Footnote 139 However, this model of socially and culturally conscious treatment provided by Native Americans to Native Americans is still one that other tribes should emulate regardless of their operative structures, especially given that the increase in good public health outcomes would likely become cost-saving in the long run.
2. COVID-19 Vaccination Rollout for Native American Communities
Interestingly, Native American communities have a higher COVID-19 vaccination rate than other groups despite widespread vaccine hesitancy among minority groups.Footnote 140 As of January 13, 2022, sixty-seven percent of Native Americans have received at least one dose of COVID-19 vaccine, compared to about fifty-two percent for non-Hispanic whites.Footnote 141 Multiple factors likely contribute to this high vaccination rate, including but not limited to “distinct features of vaccine-distribution networks in [Native American] communities, innovative approaches to encouraging vaccination, and culturally attuned messaging strategies for confronting vaccine hesitancy.”Footnote 142 High rates of COVID-19-related hospitalizations and deaths among Native American populations may have also created a more urgent demand for vaccines.Footnote 143
Regardless, community leaders maintain that the vaccination effort has been successful for two reasons: “first, the US government’s decision to allow Native American communities to control vaccine distribution; and second, traditional ethnic values including respect for elders, ‘community first’ philosophies, and a willingness to trust science—so long as it’s presented by community members themselves.”Footnote 144
One example of this methodology was one tribe’s decision to initially allow vaccination for those fifty and older instead of the more common guideline of sixty and older.Footnote 145 The tribe’s reasoning was twofold: first, chronic health disparities resulting in higher mortality rates means that elders in Native American communities are younger than in other ethnic groups. Second, younger individuals were more likely to get vaccinated when elders recommended it due to the cultural traditions of respect and trust in elders.Footnote 146 Because Native leaders were involved in the vaccine rollout decisionmaking, they could formulate tactics focused on cultural and community needs. Due to the historical distrust between Native Americans and the federal government, similar efforts made by the federal government would likely have been unsuccessful.
Other tribal efforts to vaccinate their populations included the use social media to hold otherwise in-person talking circles and storytelling, the requirement proof of vaccination to attend sacred ceremonies, and the use of community venues such as urban Native centers to have drive-through vaccination events.Footnote 147 These practices show that allowing Native Americans to create their own public health guidelines and increasing collaboration among the IHS, the federal government, and individual tribal leaders results in creative solutions that can improve overall health for Native Americans.
3. A Framework for Self-Determination
The above examples demonstrate the increase in the efficacy of health care when it is socially and culturally conscious and directed at needs identified by the local community. Though the federal government has made an effort to increase Native Americans’ opportunities to determine their own health care through the above examples and the ISDEAA process, there remains a distinct need to develop a framework to encourage Native Americans’ continued self-determination going forward.
Intentional induction of guidelines might be one way to meet this need. The federal government funds Native American health care, and even if those funds increase, guidelines on how and by when to use the funds will still attach. The Departments of the Treasury and the Interior often hold tribal consultations to determine the amount of funding when funding is flowing to tribes, but this is not self-determination.Footnote 148 The specific programs to be funded must be entirely determined by tribal leaders, and these programs should not be uniform across all tribes. There should also be more representation for urban Natives, whose concerns are frequently under-addressed.
Native Americans should be allowed to amend the guidelines given to them by the federal government, or to suggest new guidelines depending on each individual tribe. Redefining who was elderly in the context of vaccinations was a successful demonstration of how to improve upon set guidelines. This redefinition was not an attack on the federal government’s guidelines; instead, it identified a community-specific need.
In the future, the federal government should create a mechanism by which tribes can provide input on guidelines and make changes where necessary. Setting up a system through which tribes can decide how care is provided—and how information about that care is provided—would go a long way to encouraging self-determination.
V. CONCLUSION
Native Americans have a long history of negative health outcomes, but they are also working steadfastly to protect the health of their own communities. For example, in light of the IHS’s refusal to provide preventative care, Joy Rivera, who is a Haudenosaunee Native and a former math teacher, drives to reservations to give eight-hour workshops on the anatomy of the digestive system and colorectal cancer risk factors.Footnote 149 However, Native Americans do not have all the resources to take care of themselves. Native Americans are owed constitutionally guaranteed funding and rights, which are also guaranteed by the treaties shared by federal and Native governments. Ultimately, this funding should come directly from the treaties, but supportive structures like encouraging Medicaid expansion and increased self-determination in tribal health care facilities are also effective. Other solutions must be workshopped for urban Natives and federally unrecognized tribes. Native self-determination does not and should not mean termination from the U.S. government. Instead, the government needs to work directly with tribes to uncover local needs and find innovative ways to fund caregivers and those receiving care.
