By skyforbes 
The U.S. Government has a trust responsibility
Several states are requiring people to work in exchange for receiving Medicaid. This certainly raises a number of questions and issues. For example, what’s wrong with requiring people to work in exchange for government benefits? Hmmm, what if the recipient has a disability that precludes work? I will assume that these and other questions are being addressed by the states levying the work requirement as well as by Health and Human Services (HHS). After working with a number of Native American tribes over the past eight years, the part of the story that has intrigued me is the effect on Native Americans; especially with respect to the tribes’ request for a waiver of the new work requirement in exchange for Medicaid benefits.
American Indian tribes are a race not a separate government?!
Politico reported that, “…the Trump administration contends the tribes are a race rather than separate government.” The administration argues that an exemption for Native Americans from the requirement to work for Medicaid benefits would be, “…illegal preferential treatment.” Furthermore, “HHS believes that such an exemption would raise constitutional and federal civil rights and law concerns.” Let’s take a look at the argument that tribes are a race and not a separate government.
Clearly, Native Americans once “owned” all of North America. The U.S. Government was eventually established and made treaties to acquire Native American lands. In exchange for ceding some of their lands, tribes had some portion reserved (as in reservation) as independent governments. Native American tribes, by treaties, are dependent sovereign nations. While there are limits to tribal sovereignty, a series of court cases, called the Marshall Trilogy, have affirmed the sovereignty of tribal governments and that states (except in defined matters) do not have jurisdiction over tribal nations. Why are tribes separate governments? Because treaties and the U.S. Supreme Court said so.
Why does Indian Health Services Exist?
According to the Bureau of Indian Affairs, “The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the United States to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages.”
The Friends Committee on National Legislation further breaks “trust responsibility” down in a simply in three parts:
1. The protection of Indian trust lands and Indian rights to use those lands;
2. The protection of tribal sovereignty and rights of self-governance;
3. The provision of basic social, medical and educational services for tribal members.
While there is a lot here, with respect to this article, trust responsibility involves providing medical services to Native Americans. Quite simple, it is the deal that tribal nations made when reservations were established. Politico points out that the underspending by the federal government on Indian Health Services has left tribal members with the need for Medicaid to fill gaps in health coverage.
Still, why can’t Native Americans work like everyone else?
Whew, this is a loaded question that is far beyond the scope of this article. But, one short answer is that unemployment on reservations far exceeds the national (and local) averages. Historically, Native Americans were certainly not given prime real estate when their reservations were established. Native American reservations were generally not established where the people would prosper. The tribes largely lost their ability to independently subsist. And later, when riches such as oil and gold were discovered, the nation certainly did not help the Native Americans to benefit from those riches. Rather, time and again, Native Americans were pushed off of those rich lands and lost their earning potential. I know many tribal members who have physically left their reservation to make a living elsewhere. While they maintain their tribal membership, they are removed from the land, and the people, they love. What is one of my “lottery winning/independently wealthy” dreams? I hope someday to establish a nonprofit that would be a nationwide clearinghouse to connect tribal members with funding sources for their goods and services — both traditional and modern. Beyond that, it would connect companies with tribal members who could be trained and connected virtually to provide real economic opportunities and growth to members on the reservations. Of course, we have to first actually get the internet to all tribal members. Alright, enough about my dream.
I look forward to seeing how this will play out. My understanding is that it is well established in legislation and U.S. Supreme Court rulings that Native American tribes are, in fact, a special case. They are not simply a different race. In my work with Native Americans, I have found them to be some of the sweetest, most generous, and respectful people I have met in my life. I am cheering for their health and welfare.
Randy Brawley is the owner of Wise Oak Consulting, L.L.C. He previously led FEMA Region IX tribal programs for eight years.