Navajo Nation President Russell Begaye, center, meets with the National Indian Health Board this week in Oklahoma City.
Published September 23, 2018
OKLAHOMA CITY — Navajo Nation President Russell Begaye joined other tribal leaders this week to voice unified opposition to the Centers of Medicare and Medicaid Services’ (CMS) policy imposing work requirements on individuals as a condition of eligibility.
During its 35th annual National Tribal Health Conference in Oklahoma City this week, the National Indian Health Board (NIHB) vigorously opposed the work requirements, which fail to recognize tribal sovereignty or respect federal Indian law. President Begaye, who represents the Navajo area on the NIHB, has spoken against the work requirements in several venues, including letters to CMS and oral testimony before Health and Human Services (HHS) Secretary Alex Azar.
“Medicaid is critical for Indian Country,” President Begaye said Tuesday in Oklahoma City. “Medicaid ensures that our most vulnerable citizens have the healthcare they need. That CMS, which administers federal dollars through states, is imposing work requirements on tribes at all shows a gross misunderstanding of tribal sovereignty, the unique status of tribes, and the government-to-government relationship tribes have with the United States.”
On January 11, the CMS sent letters to state Medicaid directors unveiling its new policy, which requires work or community engagement from “non-elderly, non-pregnant adult Medicaid beneficiaries who are eligible for Medicaid on a basis other than disability.” In response to the letter, tribes requested consultations with the CMS and began seeking policy waivers, which would grant exemptions to Native Americans—many of whom live in remote areas with limited access to employment, or whose occupations include chopping wood, hauling water or caring for elderly relatives.
In a January 18 letter to tribal leaders, the CMS notified tribes that granting such waivers would violate federal civil rights laws that bar discrimination based on race or national origin. Despite challenges from tribes in several states, the CMS continues to claim it has no statutory authority to grant exemptions and that allowing waivers for tribal members would amount to racial discrimination.
During its opening plenary session this week, the NIHB shot down that reasoning, calling it short-sighted, unconstitutional and dangerous. The work requirements represent a subtle erosion of tribal sovereignty that should not be ignored, said Greg Smith, a partner at Hobbs, Strauss, Dean & Walker, an Oklahoma City-based law firm specializing in issues that impact Indian Country.
Smith pointed to the Commerce Clause of the U.S. Constitution to illustrate the relationship between the federal government and Indian tribes. The clause states that Congress only shall have the power to “regulate commerce with foreign nations, and among the several states, and with Indian tribes.”
Allowing states authority to enforce Medicaid work requirements on tribes is a clear violation of the constitution, Smith said. He pointed to recent statements by U.S. President Donald Trump and Supreme Court justices as evidence that the unique relationship between tribes and the federal government is under attack.
Supreme Court nominee Brett Kavanaugh, in an op-ed published in the Wall Street Journal in 1996, argued against extending to Native Hawaiians the same federal protections as Native American tribes. He questioned the United States’ commitment to its indigenous people, claiming that “any racial group with creative reasoning can qualify as an Indian tribe.”
In the 2004 case U.S. v. Lara, the Supreme Court found that the United States and Native American tribes were separate sovereign nations. Chief Justice Clarence Thomas dissented, opining that he did not agree that tribes have any “residual inherent sovereignty” and that “the time has come to reexamine the premises and logic of our tribal sovereignty cases.”
In his May 2017 statement approving the federal budget, President Trump voiced his intent to deny allocations benefiting specified racial groups. His administration would treat provisions allocating benefits on the basis of race, ethnicity or gender (such as funding for historically black colleges and Native American Housing Block Grants) “in a manner consistent with the requirement to afford equal protection of the laws.”
Finally, in the May 2018 case Upper Skagit v. Lundgren, the Supreme Court ruled against tribal sovereignty in a case involving property ownership. During oral arguments, Chief Justice Ruth Bader Ginsberg interrupted to ask, “Is it not the case that no other political entity would be immune from such a quiet-title suit, not the United States, not a state of the United States, not a foreign government? So you’re claiming a kind of super-sovereign immunity for the tribe that no one else gets.”
Addressing tribal leaders at the NIHB conference, Smith called for a unified effort to oppose the CMS work requirements. Should the CMS be allowed to ignore the unique status of tribes in this case, tribal sovereignty is at stake.
“If tribes don’t have sovereignty, there is no government-to-government agreement,” he said. “Without sovereignty, the rest of the things we’re fighting for don’t matter. What CMS is trying to do is termination thinking, revisited.”
President Begaye called on Health and Human Services to uphold the federal trust responsibility and the Navajo Treaty of 1868, which promises care for the “sick and feeble.” He denounced any policy that denies services to Native Americans based on race.
“We are political entities with sovereign governments, not racial groups,” President Begaye said. “When laws and precedent are ignored or blatantly disregarded, our citizens pay the price. This policy decision in misguided and will have disastrous repercussions in Indian Country. I urge HHS and Congress to step in and be a voice of reason.”