In this op-ed, Ruth H. Hopkins (Cankudutawin-Red Road Woman), a Dakota/Lakota Sioux writer, biologist, attorney, and former tribal judge, explains how the Trump administration is trying to remove the classification that designates Native tribes as unique nations.
Under the guise of Medicaid reform, it was reported by Politico on April 22 that the Trump administration is considering steps that would undermine the United States Constitution and upend hundreds of years of federal Indian law court precedent by dismantling federal recognition of tribal sovereignty, which acknowledges tribes’ right to govern themselves.
They have denied requests by tribal leaders to grant natives exemption from new Medicaid work requirements by disregarding tribes’ distinct political status as native nations and changing their designation to a racial group only, thereby making such an exemption a potential illegal racial preference. This action breaches the Supremacy Clause of the Constitution, that says that treaties with tribes are the supreme law of the land, and shirks the government’s legal responsibility to provide health care for tribal citizens.
Native nations have existed for millennia on the North American continent as distinct Indigenous groups. The federal government currently acknowledges the existence of at least 567 tribes located in the U.S., although there are more that are recognized by states. The federal government officially recognizes these tribes’ through treaty, and most recently, through a regulatory process established by the Bureau of Indian Affairs in 1978. Trump’s apparent decision comes from the President’s Department of Health and Human Services (HHS), and would suddenly eliminate treaty and trust obligations owed these tribes by removing their distinct classification as sovereign political entities and instead recategorize natives as a race only.
The problem with calling tribal exemptions — and essentially, treaty and trust obligations — illegal racial preference is that it points to a flawed understanding of what native identity is. It is possible, historically accurate, and indeed increasingly common for a native individual to be multi-racial. There are millions of people with native heritage and some of those are tribal members who are not full blood. Traditionally, native nations did not ascribe to the idea of blood quantum, which defines one’s nativeness as what fraction of blood they possess from a government documented full blood tribal member ancestor.
We are not dogs or horses. It is the federal government who instituted the idea of blood quantum with the effect of mathematically terminating tribes.
Every federally recognized native tribe in the United States has a land base, and you can travel there to see their elected leadership with your own eyes. You can read their history and visit programs that have been implemented to serve their population, including Indian Health Service clinics, which are administered through 12 area offices and 170 IHS and tribally managed service units. Now, the Trump administration is discounting the existence of these tribal governments, and endorsing Medicaid work requirements which require beneficiaries to verify participation for a certain number of hours per week in approved activities like employment or job training in order to receive medical coverage. According to the April 22 report from Politico, It has already been instituted by Arkansas, Kentucky and Indiana, and at least 10 other states are applying to do the same.
Politico also noted that there are more 620,000 natives that live in those 13 states, based on 2014 data from the U.S. Census Bureau, and tribal leaders have asked for an exemption to Medicaid work requirements because they know the standard would be impossible to meet on impoverished reservations with high unemployment. Also, without Medicaid, Indian Health Programs will not survive. Part of the reason tribes have become more dependent on Medicaid funding is because of the federal government’s own failure to fully fund the Indian Health Service, so while far from perfect, without it, many natives will have no medical care. People will die.
The Trump administration has rejected tribal leaders’ Medicaid Work Exemption requests several times, stating that such exemptions would be illegal preferential treatment based on race, but the National Indian Health Board told Politico that they have yet to provide documentation outlining the legal basis for these denials. And the HHS did not respond to Politico’s questions on the availability of those documents.
Health statistics for natives are disturbing. American Indians and Alaska Natives born today have a life expectancy that is 4.4 years less than the rest of the U.S. population, according to the Indian Health Service. The HHS’s Office of Minority Health reports that leading causes of death are heart disease, cancer, accidents, diabetes, and stroke. American Indians and Alaska Natives also are twice as likely as Caucasians to have diabetes. American Indians and Alaskan Natives also have a high prevalence of suicide, substance abuse, liver disease, teen pregnancy, and sudden infant death syndrome (SIDS). In fact, American Indians and Alaskan Native infants are twice as likely as Caucasian infants to die from SIDS.
The reason for such grave health conditions among natives is directly related to historical trauma, forced relocation, and poverty. Now they represent our last land holdings and strongholds for tribal cultures, ceremonies, and languages, but reservations were initially created to remove natives from lands and resources that settlers wanted, and to contain us. For example, according to a 2016 Al Jazeera report, the Pine Ridge Indian Reservation in South Dakota was said to be established as a camp for indigenous prisoners of war in 1889. We were forced to stop hunting, fishing and gathering, and given unhealthy, nutrient-poor rations as a substitute. Even today, many reservations are in food deserts.
Our mental health has been targeted as well. Native children were taken away from their families and placed in boarding schools where tribal cultures and languages were forbidden, and the conditions were often harsh and abusive. The practice of native religion was illegal until 40 years ago.
Reservations were and still are rural places with high unemployment. Some tribes have unemployment rates over 80%. There can be no work to fulfill the Medicaid requirement if jobs are nonexistent, and with a problem that has been hundreds of years in the making, there is no overnight solution.
The Trump administration cannot ignore the law, nor the reality of tribes’ existence as sovereign nations that predate the United States. Treaties cannot be sponged away. The government’s legal duty to provide medical care to tribes, determined by treaties, Congress, Executive Orders, and the Supreme Court of the United States, cannot be summarily dismissed. These actions maynot only be illegal, but threaten the survival of natives today, whose ancestors were extinguished by the millions in the genocide of Indigenous that began with the landing of Christopher Columbus in 1492. We deserve to live.
Related: Treaties Between the United States and Indigenous Nations, Explained
