SCOTUS (5-4) Rules in Favor of Indian Nations in Health Care Funding Dispute

Feb 28, 2023Feb 28, 2023 

The Supreme Court today decided a statutory interpretation case in which millions of dollars were at stake. Without getting too far into the weeds, the issue was whether the federal government is obligated to pay the costs incurred by Indian tribes to administer health programs funded by Medicare, Medicaid, and private insurers. The majority ruled that the statute in question -- the  Indian Self-Determination and Education Assistance Act ("ISEA"), 25 U. S. C. §5301 et seq. -- requires (unambiguously, apparently) the U.S. to reimburse the tribes for those administrative costs.

The Court's analysis (written by Chief Justice Roberts) invoked the text of the statute, the policy Congress sought to further when it passed the ISEA, and the history of the statutory provisions in question. The analysis is pretty mainstream for the Court, although originalists often abjure policy and legislative history as too squishy to be relied upon.

As the Court's opinion points out, there is an interpretive tool called "the Indian canon," which calls for statutory language that is ambiguous to be construed in favor of Indian tribes. One of the courts of appeals relied on the Indian canon to rule against the federal government. The other lower court produced three opinions in which one of the judges in the majority found the statute to be ambiguous and subject to the Indian canon, while the other judge in the majority thought the provision unambiguously supported the tribe. 

The SCOTUS majority, after mentioning the Indian canon in its description of the rulings below, never went back to it. Maybe the Court found the statute's meaning to be unambiguous. And maybe the Chief decided to skip the canon in order to keep Justice Kavanaugh as the all-important fifth vote. 

Canons of statutory interpretation are getting increased scrutiny at the Court, as evidenced by a recent concurring opinion by Justice Kavanaugh (Rudisill v. Secretary, Dep't of Veterans Affairs, April 16, 2024; see also Daniel Harawa, Justices lean toward narrow reading of aggravated identity theft, SCOTUSBlog, Feb 28, 2023 ("In many ways, Monday’s oral argument in Dubin v. United States felt like a legislation class in law school, with various canons of statutory construction being bandied about"; the defendant prevailed in this identity-fraud case in a 9-0 opinion by Justice Sotomayor that Professor Harawa described as "a tutorial in statutory interpretation"). 

Is a free-for-all over competing interpretive canons evidence that canons are alive and well? Or that interpretive canons are seen as makeweights with little more than rhetorical value?

Health Disparities: More Data from The Commonwealth Fund

Here is The Commonwealth Fund's introduction to the new report (released today):

Part of the Fund’s ongoing series examining state health system performance, Advancing Racial Equity in U.S. Health Care: The Commonwealth Fund 2024 State Health Disparities Report evaluates states on 25 measures of health care access, quality, service use, and health outcomes for Black, white, Hispanic, American Indian and Alaska Native (AIAN), and Asian American, Native Hawaiian, and Pacific Islander (AANHPI) populations. 

Among the key findings:

The health care divide is especially stark when it comes to premature deaths: American Indian and Black people die from preventable and treatable causes at substantially higher rates than other groups.

Disparities exist even in states that are otherwise considered high performing on health care.

Health care experiences for people of color vary widely across states. For example, health systems in South Dakota, North Dakota, and Alaska perform worst for American Indian people, while North Carolina’s health system performs best.

Find out where your state ranks, and how we can achieve more equitable health care systems in each state. 

American Indian/Alaska Native Health Equity; Private Sector Opportunities

Health Affairs' fourth installment (July 21) of the past week in its Forefront series, "Private Sector Solutions For Health Equity," is written by two principals in Indigenous Pact, a public-benefit corporation whose mission is "[to] provide health care benefits and reimbursement to American Indians and Alaska Native and promote the autonomy and sovereignty of American Indian tribal government over the health of their people.”

The article is a comprehensive review of the hurdles currently faced by indigenous peoples in obtaining health care goods and services, which they introduce with this observation:

The story of American Indian/Alaska Native (AI/AN) health is fractured by genocide and systematic, forced migration away from lands that nourished good health. What existed unsullied for thousands of years was essentially wiped away when colonial settlers stepped foot onto the land that is now called the United States. And what exists now are pieces of brokenness and transgenerational trauma that pervade nearly every aspect of indigenous health.

There’s a well-known, albeit sardonic, pronouncement in Indian Country that admonishes, “You’d better get sick by June or there won’t be any money left—and if you do need medical intervention, it’d better be life or limb because those are the only things that will get authorized.” Unfortunately, it’s funny because it’s true.

The solutions are broad, ambitious, and unflinching. It's way past time to address the needs of this country's original occupants.