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Excerpted From: Aila Hoss, Toward Tribal Health Sovereignty, 2022 Wisconsin Law Review 413 (2022) (229 Footnotes) (Full Document)


ailahossThe COVID-19 pandemic has highlighted existing gaps in public health systems across the country, including federal Indian health systems. Despite treaty and trust obligations to provide health care to American Indians and Alaska Natives, the federal government has consistently underfunded Indian health facilities. Federal Indian health programming remains piecemeal, often falling victim to congressional politics for continued funding, requiring inter-Tribal competition for grant and cooperative agreement funding or Tribal cost sharing.

Tragically, yet unsurprisingly, due to failures in federal Indian health policy, many American Indian and Alaska Native communities have experienced health inequities throughout the pandemic. In several states, American Indians experienced higher rates of COVID-19 infections, as well as worse health outcomes--including higher mortality--than their non-Indian counterparts.

By exercising their inherent sovereignty as Tribal nations, many Tribes have mitigated some of the failings in federal Indian health policy in their COVID-19 responses. Unfortunately, lack of engagement with Tribes remains the norm for many government agencies. This infringes on Tribal sovereignty and undermines the efficacy of Tribal public health programming.

Although federal law defines Tribal sovereignty as the “right ... [of Tribes] to make their own laws and be ruled by them,” Tribes have been exercising their sovereign powers since long before the establishment of the United States. For the purposes of this Essay, I discuss Tribal health sovereignty in the context of a Tribe's ability to make, implement, and enforce its own health programs and policies based on its culture and values. Tribal health sovereignty must also include adequate oversight and accountability over federal Indian health obligations. This, of course, is just a snapshot of the ways in which a Tribe may exercise its health sovereignty. I argue that reforms in federal Indian health policy are essential to securing Tribal health sovereignty.

This Essay begins by briefly describing Tribal governments and their relationships with the federal government under federal law. It then describes the inherent authority of Tribes to engage in public health activities. Next, this Essay describes Indian health systems under existing law, arguing for more Tribal-driven health programming and highlighting the legal barriers to achieving this. This Essay concludes by making specific, concrete recommendations for reforms under federal law and describes how these reforms can promote Tribal health sovereignty. Tribal sovereignty must center on Tribal law and also will require reforms in state law. These two important issues are outside the scope of this Essay.

When referring to the Indigenous people of what is commonly referred to as the United States, this Essay uses various terms, including American Indian and Alaska Native, Native, Indian, and Indigenous. Depending on the context, each of these can be appropriate and is used in practice. This Essay capitalizes these terms, as well as “Tribe” and “Tribal.”

[. . .]

In their writing on cultural sovereignty, Tsosie and Coffey stated that “only Native people can decide what the ultimate contours of Nativesovereignty will be.” While I cannot speak to the full contours of Tribal health sovereignty, federal Indian health reform is essential to ensuring health sovereignty for all Tribes. The chronic, persistent, and egregious failures of federal Indian health policy cannot be overstated. Tangible reforms can be made to federal law to facilitate Tribally led health programming. This Essay proposes some of these reforms in the hope that the pandemic will highlight the urgency of addressing persistent health inequities in Indian country.

Aila Hoss, JD, is an Assistant Professor with the Native American Law Center at the University of Tulsa College of Law. She teaches and researches at the intersection of federal Indian law and health law.

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