Authorizing Safety Net Public Health Programs

Subcommittee on Health
August 1, 2001
10:00 AM
2322 Rayburn House Office Building 

Mr. Bob Hall
President, National Council of Urban Indian Health
501 Capitol Court, Suite 100
Washington, DC, 20002

"As the history of the trust doctrine shows, the doctrine is not static and sharply delineated, but rather is a flexible doctrine which has changed and adapted to meet the changing needs of the Indian community.  This is to be expected in the development of any guardian-ward relationship.  The increasing urbanization of American Indians has created new problems for Indian tribes and tribal members.  One of the most acute is the need for adequate urban housing.  Both Congress and Minnesota Legislature have recognized this.  The Board's program, as adopted by the Agency, is an Indian created and supported approach to Indian housing problems.  This court must conclude that the [urban Indian housing] program falls within the scope of the trust doctrine . . . ." 

Id. At 1414-1415 (emphasis added).

     This Federal government's responsibility to urban Indians is rooted in basic principles of Federal Indian law. The United States has entered into hundreds of treaties with tribes from 1787 to 1871.  In almost all of these treaties, the Indians gave up land in exchange for promises. These promises included a guarantee that the United States would create a permanent reservation for Indian tribes and would protect the safety and well-being of tribal members.  The Supreme Court has held that such promises created a trust relationship between the United States and Indians resembling that of a ward to a guardian.  See Cherokee Nation v. Georgia, 30 U.S. 1 (1831).  As a result, the Federal government owes a duty of loyalty to Indians.  In interpreting treaties and statutes, the U.S. Supreme Court has established "canons of construction"  that provide that:  (1) ambiguities must be resolved in favor of the Indians; (2) Indian treaties and statutes must be interpreted as the Indians would have understood them; and (3) Indian treaties and statutes must be construed liberally in favor of the Indians.  See Felix S. Cohen's Handbook of Federal Indian Law, (1982 ed.) p. 221-225. Congress, in applying its plenary (full and complete) power over Indian affairs, consistent with the trust responsibility and as interpreted pursuant to the canons of construction, has enacted legislation addressing the needs of off-reservation Indians.

     The Federal courts have also found, that the United States can have an obligation to state-recognized tribes under Federal law.  See  Joint Tribal Council of Passamaquoddy v. Morton, 528 F.2d 370 (1^st Cir. 1975).  Congress has provided, not only in the IHCIA,^[16] but also in NAHASDA, that certain state-recognized tribes or  tribal members are  eligible for certain Federal programs. 25 U.S.C. Section 4103(12)(A).

V.  BARRIERS TO MAINSTREAM HEALTH CARE EXPERIENCED BY             URBAN INDIANS^[17]

"The lack of employment opportunities leads to a downward spiral that reduces the urban Indian's life to a struggle for subsistence.  For example, the private practice system of health care is certainly beyond the financial reach of most newly arrived urban Indian families.  They must depend on public services.  Yet here, the service gap reveals itself again." 

Final Report of the American Indian Policy Review Commission, p. 437 (emphasis added).

     The status of Urban Indian health is as poor as that for reservation Indians.^[18]  This section describes the many barriers that are still faced by Urban Indians in their efforts to access adequate health care in the urban environment:

Physical/geographic barriers can include (1) telephone availability; less access to transportation; and (3) high mobility.  Many Native Americans do not have phones, increasing the difficulty in making appointments.  For example, in Arizona, thirty percent of urban Indians have no household access to phone services.  Indian people have much less access to private vehicles than the general population.  Not having a vehicle creates barriers for people who must make arrangements with others to bring them to appointments.  Public transportation (if available) makes for a longer travel time and can be costly.  The high mobility of Indian people is another barrier to care.  People who move often are not able to follow with the same provider, and this disrupts continuity of care and can lead to a decrease in the quality of care.  When a person moves to another area, they must go through the system again to qualify for benefits, locate a provider, and receive care.  In addition, movement back and forth between the reservation is common, which can significantly affect the ability of health professionals to provide prompt, quality follow-up care.

Financial/Economic barriers also contribute to the poor quality of urban Indian health care.  People who do not have the resources, either through insurance or out-of-pocket, to pay for prevention and early intervention care may delay seeking treatment until a disease or condition has advanced to the stage where treatment is more costly and the probability of survival or correction is lower. 

Medicaid is available for urban Indians, but difficult to access.  Applying for Medicaid or other medical assistance is a long and detailed process, presenting many barriers to people who don't understand the system or lack the necessary skills to complete the paperwork involved.  Furthermore, the required documentation is difficult for many urban Indians to obtain.  For example, if one does not have a car, one may not have a drivers license.  With high mobility among urban Indians, there is likely to be no documentation with the current address; or if they have just moved to the city from the reservation, there may be no birth certificate or identification.  Once an individual is accepted, access to care is not guaranteed.  Because of Medicaid reimbursement rates and restrictions, many providers are reluctant to accept Medicaid patients. 

Health insurance coverage does not automatically remove financial barriers to care.  Many persons, particularly those employed at or near minimum wage, have coverage through plans that do not cover preventive or major medical care.  While professional positions generally provide health insurance, service and laborer positions generally do not.  Urban Indians hold more of those occupations that do not provide health insurance benefits.  Deductibles and co-payments are high enough that many persons who do have health insurance cannot afford to pay them and consequently do not seek care.

No insurance or assistance is another common barrier.  Those who have no means to pay for care are often turned away.  There is a high rate of urban Indians who are uninsured.  For example, in Boston, 87% of the Boston Indian Center's clients have no health insurance, and two out of every three urban Indians in Arizona are uninsured.

Emergency room use is high among the poor, minorities and the uninsured.  Unfortunately, emergency room use as a primary medical resource is costly and compromises quality care.  Follow-up and preventive services are not possible with emergency room personnel serving as primary care providers.  In Arizona, urban Indians use the emergency room 250% more often than the general public.

Cultural/structural barriers also exist for urban Indians receiving health care.  The Indian Health Service conducted a survey which concluded that the majority of state, county and city health departments do not have the resources to meet the health care needs of urban Indians.  Major stumbling blocks are inadequate funds and lack of staff trained to work with American Indians in a culturally sensitive way.  Indians may be reluctant or unable to describe their health needs to strangers outside their own culture.  Frequently, mainstream providers misunderstand or misinterpret the reticence and stoicism of some Indians.  Other factors include a lack of trained Indian health professionals that get placed in urban Indian health programs and inadequate Indian outreach.

VI.  CONCLUSION

     Notwithstanding all the difficulties, urban Indian health organizations, working with limited funds, have made a great difference in addressing the health care service gap for urban Indians.  There is much more work to be done.  NCUIH thanks the Committee for this opportunity to provide testimony on urban Indian health programs. 

"Between the intentions of the lawmakers and the reality of regulatory actions lies the service gap that confronts the urban Indian.  The result is untold desperation and waste of human resources."

Final Report of the American Indian Policy Review Commission, Vol. 1, p. 436 (emphasis added).

I. INTRODUCTION

     Honorable Chairman and Committee Members, my name is Robert Hall.  I am the president of the National Council of Urban Indian Health (NCUIH) and a member of the three affiliated tribes of North Dakota:  Arikara, Mandan and Hidatsa.  I am also the Executive Director of the South Dakota Urban Indian Health Clinic.  On behalf of NCUIH, I would like to express our appreciation for this opportunity to address the Committee on community health centers and urban Indian programs. 

     NCUIH is the only membership organization representing urban Indian health programs.  Our programs provide a wide range of health care and referral services in 34 cities to a population of approximately 332,000 urban Indians.  Our programs are often the main source of health care and health information for urban Indian communities.  According to the 1990 census, 58% of American Indians live in urban areas, up from 45% in 1970 and 52% in 1980.^[1]  We expect that the 2000 census will show that over 60% of American Indians now live in urban areas.  Like their reservation counterparts, urban Indians historically suffer from poor health and substandard health care services.  NCUIH is the successor organization to the American Indian Health Care Association which provided advocacy and educational services on behalf of urban Indian health organizations for nearly 15 years prior to the establishment of NCUIH.

II.  SECTION 330, COMMUNITY ACCESS PROGRAMS AND URBAN              INDIAN HEALTH PROGRAMS

     NCUIH strongly supports the Community Access Program, the National Health Service Corps, and those programs authorized under Section 330 of the Public Health Service Act.  NCUIH would like to emphasize, however, the unique characteristics of providing health care to the American Indian population, and the necessity of continuing to support urban Indian health programs that focus nearly exclusively on the urban Indian community.

     Many Indians live in urban areas; some permanently, some periodically.^[2]  It is generally not practical for any one tribal government to set up health service for only its own tribal members in an urban area.  In fact, "in some urban centers, there are as many as 40 tribal governments nearby, and representation of tribes on urban Indian programs might include over 80 different tribes."^[3]   Urban Indian health programs have arisen specifically to address this situation.  By providing a culturally-sensitive, highly supportive environment, urban Indian health programs have been extraordinarily successful, despite limited resources, at reaching the urban Indian population.  Many Indians are not trustful of "mainstream" institutions.  By providing a familiar environment, urban Indian programs bridge this cultural disconnect and, in so doing, more effectively address health care issues of the Indian community than can generally be achieved by non-Indian health care providers. 

III.      FEDERAL POLICIES AND THE URBAN INDIAN

"Most Indians who migrate to the cities say they would have preferred not to do so at all."

Final Report of the American Indian Policy Review Commission, Vol. 1., p. 436.^[4]

     The urban Indian is an Indian who has become physically separated from his or her traditional lands and people, generally due to Federal policies.  Some of these federal policies were designed to force assimilation and to break-down tribal governments; others may have been intended, at some misguided level, to benefit Indians, but failed miserably.  The result of this "course of dealing," however, is the same: a Federal obligation to urban Indians.^[5]

     A.  The Federal Relocation of Indians. The BIA's Relocation program originated in the early 1950s as a response to adverse weather and economic conditions on the Navajo reservation.  A limited program was initiated to relieve the distress by finding jobs for Navajos who wanted to work off the reservation.  Little or no job opportunities existed on the reservation, so an employment campaign was developed for off-reservation employment.  Shortly afterward, the BIA converted its Navajo program into a full-fledged Bureau of Indian Affairs program applicable to many  Indian tribes. 

     The BIA employees who developed the program made many mistakes and miscalculations. Even before the 1950's had ended there was concern that many relocatees were experiencing great difficulty adjusting to life in a large city, or to their jobs.  Some felt they were being stranded far away from home. Solving reservation economic problems by relocating Indians off of their tribal lands is roughly the equivalent of the Federal government, during the Depression, sending Americans oversee to find work - something the Federal government would never have done.  Many understood the relocation program as just another form of "termination." A Jesuit priest on the Fort Belknap Reservation noted that relocation programs drained the reservation of much of its potential leadership, further weakening tribal governments.

     All told, between 1953-1961, over 160,000 Indians were relocated to cities.^[6]  Where they quickly joined the ranks of the urban poor.^[7]  Today, the children, grandchildren and great-grandchildren of the 160,000 Indians relocated by the BIA are still in the cities.  They maintain their Indian identity even if, in some cases, these "descendants have been unable to re-establish ties (including membership) with their tribes."^[8]  

     B. Failure of Federal Efforts to Economically Develop the Reservations.  The second major reason Indians have moved to the city is the near total failure of Federal programs to promote economic development on Indian lands, coupled with the ongoing success of the Federal efforts in the 1800's to undermine the economic way of life of Indian peoples, locking nearly all Indians into hopeless poverty which still plagues most reservations today.  The long history of treaty-breaking by the Federal government is an important part of this tale.  As a result, out of desperation, a number of Indians have left their homelands to go to the cities in search of work, even without the dubious benefit of the BIA's relocation program.  Generally, these Indians were no better equipped to handle life in the city than the BIA relocatees and quickly joined the ranks of the urban poor.  Congress has noted the correlation between the failure of Federal economic policies and the swelling of the ranks of urban Indians: "It is, in part, because of the failure of former Federal Indian policies and programs on the reservations that thousands of Indians have sought a better way of life in the cities.  His difficulty in attaining a sound physical and mental health in the urban environment is a grim reminder of this failure."^[9]

     C.  Termination of Tribes.  In 1953, Congress adopted a policy of terminating the Federal relationship with Indian tribes.  Essentially, this was an abrogation of the Federal government's numerous commitments, in treaties, laws, executive orders, and through the "course of dealing" with Tribes, to protect their interests.   Many tribes were coerced to accept termination in order to receive money from settlements for claims against the United States for misappropriation of tribal land, water or mineral rights in violation of treaties.^[10]  The results of termination were devastating: having lost Federal support, and without tribal sovereign authority over an established land basis, and with tribal members no longer eligible for Federal programs and IHS services, the Tribes collapsed.  Some members remained in the area of their old reservations; many went to the cities, where they, too, joined the ranks of the urban poor.

     D.  Indian Patriotism -- World War I and World War II.  Many Indians served the United States in time of war^[11] and, subsequently, were stationed in or near urban centers.  At the end of their service to the United States, seeing the poor economic conditions on their reservations (resulting from the Federal war on Indians), many chose not to go back.  The fact that they chose to stay in an urban area did not make them any less Indian, nor did it reduce the Federal government's obligation to them.

     E.  The General Allotment Act.  The General Allotment Act ("Dawes Act") had two principal goals:  (1) by allocating communal tribal land to individual Indians it would breakdown the authority of the tribal governments while encouraging the assimilation of Indians as farmers into mainstream American culture; and (2) it provided for unalloted land (two-thirds of the Indian land base) to be transferred to non-Indians. CITE.  The General Allotment Act succeeded at transferring the majority of Indian land to non-Indians and further disrupting tribal culture.  For the purposes of this testimony, we only need to note that some Indians who received allotments became U.S. Citizens and, after losing their lands, moved into nearby cities and towns.

     F.  Non-Indian Adoption of Indian Children.  The common practice of adopting Indian children into non-Indian families has created another group of Indians in urban areas who, because of the racial bias of the courts, have lost their core cultural connection with their tribal people and homelands.  Many of the adopted Indians have successfully sought to restore those connections, but because of their upbringing are likely to remain in urban areas.^[12]

     G. Boarding Schools.  The Federal program of taking Indian children and educating them away from their reservations in boarding schools where they were prohibited from speaking their native language and otherwise subject to harsh treatment, created a group of Indians who struggled to fit back into the reservation environment.  Eventually, some moved to the cities.  The boarding school philosophy of "Kill the Indian, Save the Man" epitomizes the thinking behind this approach and the racist Federal effort to assimilate American Indians which, as a result, led to a number of Indians moving to urban areas. 

H.  The Fracturing of the Indian Nations.  The result of these, and other Federal Indian policies, has been the fracturing of Indian tribes and the creation, in the urban setting, of highly diverse Indian communities with members who fall into one or more of the following categories:  Federal relocatees; economic hardship refugees; members of Federally recognized tribes, terminated tribes, state recognized tribes, and unrecognized Tribes (that is, unrecognized by the Federal government);^[13] and adoptees.

IV. THE FEDERAL GOVERNMENT AND THE PROVISION OF HEALTH CARE   TO URBAN INDIANS

     The Congress has long recognized that its obligation to provide health care for Indians, includes providing health care off the reservation.

"The responsibility for the provision of health care, arising from treaties and laws that recognize this responsibility as an exchange for the cession of millions of acres of Indian land does not end at the borders of an Indian reservation.  Rather, government relocation policies which designated certain urban areas as relocation centers for Indians, have in many instances forced Indian people who did not [want] to leave their reservations to relocate in urban areas, and the responsibility for the provision of health care services follows them there."

Senate Report 100-508, Indian Health Care Amendments of 1987, Sept. 14, 1988, p. 25 (emphasis added).^[14]  Congress has "a responsibility to assist" urban Indians in achieving "a life of decency and self-sufficiency" and has acknowledged that "[i]t is, in part, because of the failure of former Federal Indian policies and programs on the reservations that thousands of Indians have sought a better way of life in the cities.  Unfortunately, the same policies and programs which failed to provide the Indian with an improved lifestyle on the reservation have also failed to provide him with the vital skills necessary to succeed in the cities." House Report No. 94-1026 on Pub. Law 94-437, p. 116 (April 9, 1976).

     The Supreme Court has also acknowledged the duty of the Federal government to Indians, no matter where located:  "The overriding duty of our Federal Government to deal fairly with Indians wherever located has been recognized by this Court on many occasions."  Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (emphasis added), citing Seminole Nation v. United States, 316 U.S. 286, 296 (1942); and Board of County Comm'rs v. Seber, 318 U.S. 705 (1943).  In other areas, such as housing, the Federal courts have found that the trust responsibility operates in urban Indian programs.  "Plaintiffs urge that the trust doctrine requires HUD to affirmatively encourage urban Indian housing rather than dismantle it where it exists.  The Court generally agrees." Little Earth of United Tribes, Inc. v. U.S. Department of Justice, 675 F. Supp. 497, 535 (D. Minn. 1987).^[15]

     Congress enshrined its commitment to urban Indians in the Indian Health Care Improvement Act where it provided:

"that it is the policy of this Nation, in fulfillment of its special responsibility and legal obligation to the American Indian people, to meet the national goal of providing the highest possible health status to Indians and urban Indians and to provide all resources necessary to effect that policy"

25 U.S.C. Section 1602(a)(emphasis added). In so doing, Congress has articulated a policy encompassing a broad spectrum of "American Indian people."   Similarly, in the Snyder Act, which for many years was the principal legislation authorizing health care services for American Indians, Congress broadly stated its commitment by providing that funds shall be expended " for the benefit, care and assistance of the Indians throughout the United States for the following purposes: . . . For relief of distress and conservation of health."  25 U.S.C. Section 13 (emphasis added).

     The courts have also stated that there is a trust responsibility for individual Indians.  "The trust relationship extends not only to Indian tribes as governmental units, but to tribal members living collectively or individually, on or off the reservation."  Little Earth of United Tribes, Inc. v. U.S. Department of Justice, 675 F. Supp. 497, 535 (D. Minn. 1987)(emphasis added).  "In light of the broad scope of the trust doctrine, it is not surprising that it can extend to Indians individually, as well as collectively, and off the reservation, as well as on it."  St. Paul Intertribal Housing Board v. Reynolds, 564 F. Supp. 1408, 1413 (D. Minn. 1983) (emphasis added).

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