Trump administration wants tribal people to work for Medicaid benefits
Centers for Medicare & Medicaid Services Administrator Seema Verma looks at President Donald Trump in this ASSOCIATED PRESS photo. Trump’s administration contends that by classifying Natives as a race rather than organized tribal governments, they would not be exempt from Medicaid work rules. EVAN VUCCI/ASSOCIATED PRESS
WASHINGTON – U.S. Health and Human Services officials want states to settle the question of whether citizens of Native American tribes should get jobs to keep their health care after the Donald Trump administration said in April that tribes are a race rather than separate governments.
The administration contends that by classifying Natives as a race rather than organized tribal governments, they would not be exempt from Medicaid work rules. This new challenge to tribal sovereignty has sparked by an unusual split between the HHS’ politically appointed administrators and legal counsel, according to an article by Politico.com.
This issue has also raised concerns in Congress and alarmed tribes that say it reverses centuries of protections enshrined in the Constitution and upheld by the Supreme Court.
“This decision by the U.S. Department of Health and Human Services is troubling and undermines longstanding policy and law that recognize tribes as sovereign governments, not racial classifications,” Cherokee Nation Secretary of State Chuck Hoskin Jr. said. “This understanding is the very basis of the laws that apply uniquely to tribes and that have been upheld by the courts time and time again. HHS is demonstrating a breathtaking lack of understanding of this fundamental and bedrock concept in Indian law. I intend to object directly to agency officials at the next HHS tribal advisory committee meeting in May.
HHS Secretary Alex Azar, the agency’s former general counsel, has told tribal leaders that state Medicaid administrators will be able to work with tribal governments on designing any employment requirements. Tribes had requested to be exempted from new Medicaid work rules being introduced in several states, citing sovereign status. But the Trump administration rejected the request, saying in January it amounted to an illegal racial preference.
Eastern Band of Cherokee Indians Principal Chief Richard Sneed said his tribe’s citizenship differentiates tribal people and tribal governments from other racial minorities.
“As principal chief of the Eastern Band of Cherokee Indians, I am a leader and a citizen of a sovereign tribal nation,” he said. “The Eastern Band – like other Indian tribes – sets its own laws that define the standards for being an Eastern Band Cherokee. This citizenship – we also say membership or enrollment in a tribal sovereign – separates tribal people and tribal governments from others who may be racial minorities.”
Sneed added that the U. S. Supreme Court affirmed this status in 1974 in Morton v. Mancari, a case about the constitutionality under the Fifth Amendment of hiring preferences given to Indians within the Bureau of Indian Affairs. The Supreme Court held that the hiring preferences established by the U.S. Congress “were not violative” of the Due Process Clause of the Fifth Amendment.
“Indians” under federal law are citizens of Indian tribes, not persons of a racial minority as recognized in the U.S. Constitution,” Sneed said.
CN citizen Mary Smith, who was acting head of the Indian Health Service during the Obama administration, said the United States has a legal responsibility to provide health care to Native Americans.
“It’s the largest prepaid health system in the world,” she said. “They’ve paid through land and massacres, and now you’re going to take away health care and add a work requirement?”
Native Americans’ unemployment rate of 12 percent in 2016 was nearly three times the U.S. average, partly because jobs are scarce on reservations. Low federal spending on the IHS has also left tribes dependent on Medicaid to fill coverage gaps.
“Work requirements will be devastating,” Smith said. “I don’t know how you would implement it. There are not jobs to be had on the reservation.”
Republican Congressman Tom Cole, who is a Chickasaw Nation citizen and the chairman of the House Appropriations Subcommittee that holds the purse strings for HHS and the Centers for Medicare & Medicaid Services, has warned the HHS to reverse course.
“I am concerned that both HHS and CMS are unwittingly about to kick off what may be decades of expensive and needless litigation with tribes and other parties,” Cole wrote as part of a legal memo prepared by the Chickasaw Nation.
“There’s no way I’m ever going to support something that describes tribes as racial groups and not sovereign governments," Cole said to Politico. “If Republicans (with tribal expertise) don’t push back hard…I think HHS will stumble into a big fight that they don’t need.”