Factors Limiting Asian Immigrant’s Access to Health Care System

By: Ruby Liu

The Asian population in the United States increased tremendously in the last few decades.  For example, the Asian population grew from 10.2 million to 14.7 million between 2000 and 2010.  Moreover, about two-thirds of the Asian populations are foreign born, which consists primarily Chinese, Indian, Vietnamese, Philippines, and Korean immigrants.  In general, these Asian immigrants are far less likely to have health insurance or use health care services than the U.S. born Asian-Americans.  For the limited number of Asian immigrants who have access to health care services, the quality of health care service received is usually poorer.

One study has identified four different barriers that prevented Asian immigrants from fully accessing the U.S. health care system:

(1) Linguistic discordance between providers and patients. The immigrant’s limited English proficiency plays a major role in the quality of health care services received by the immigrants.  Communication between the patient and physician is key to satisfactory medical diagnosis and treatment.  Miscommunication can substantially increase the rate of incorrect diagnosis and inappropriate treatment.  Many Asian immigrants are discouraged to visit doctors due to their language barrier.  Some medical facilities may provide professional interpreting services; however, such facilities are rare and most patients are not able to afford the interpreting services.  Furthermore, the quality of interpretation is also vital.  Many immigrants rely on their family members, who usually lack the ability to understand the highly technical medical terminologies.

(2) Health-related beliefs and cultural incompetency of health systems.  Some Asian immigrants hold certain health-related cultural beliefs that are perceived as being questionable by Western doctors.  For example, many Asian immigrants believe in traditional oriental techniques such as acupuncture, cupping, coin rubbing, etc., which focus on restoring the balance and natural energy in the body as opposed to simply treating and relieving the temporary symptoms.  These techniques often leave rashes, bruises or other marks on the patient’s skin, which can easily be diagnosed as skin infections or physical abuse by a Western-trained doctor.  Also, many Asian immigrants prefer herbal treatment.  However, some widely accepted herbs can sometimes have interactions with medicine prescribed by a Western doctor.  It’s very challenging for an U.S. doctor to prescribe medications without knowing the full effects of the herbs used by their patients.

(3) Issues related to accessing health services. Asian immigrants’ legal status significantly limits their willingness and eligibility to participate health care services.  For example, immigrants are not eligible for Medicaid unless they have been “lawful permanent residents” for at least five years. In other words, those immigrants who have a valid work visa but have not yet obtained a green card are ineligible for Medicaid. Also, undocumented immigrants are generally very hesitant about accessing the health care system due to their fear of being reported to the immigration authorities and being deported back to their home country.  Some states are now considering of passing a law which mandates the health care providers to report any undocumented immigrants to government authorities.

(4) Discrimination in the health care system.  Unfortunately, Asian-Americans continue to suffer discrimination in different areas including housing, employment, as well as health care.  Asian immigrants are particularly disadvantaged due to their language ability and perceived legal status.  Multiple studies have found that poorer English proficiency were positively associated with the experience of health care discrimination among a diverse group of Asians, and that Asian immigrants are more likely to perceive discrimination in health care settings than non-Hispanic Whites. Other studies have found that racial minorities are less likely to receive beneficial treatment and more likely to receive drastic or debilitating treatment.  Consequently, this may lead to the Asian immigrants’ mistrust of the U.S. medical system.

Future advocates for health care should take into consideration all of these factors and increase the Asian immigrants’ access to the U.S health care system.

Source:

Juliana Clough, Sunmin Lee & David H. Chae, Barriers to Health Care Among Asian Immigrants in the United States: A Traditional Review, 24(1) J. Health Care for Poor and Underserved 384 (2013)

Should or Shouldn’t Legal Immigrants Vote? That is the Question

By: Rachelle Cecala

Voting rights in the United States of America have always been a topic of interest throughout history.  When someone is granted the right to vote for future leaders of America, it is worn as a badge of honor.  From African Americans to women, throughout history, many people have fought to have the right to vote in America.  Today, in the modern world we live in, various groups of people are still fighting to obtain voting rights.  However, there has been a shift in the outdated ideals and conservative views of who should have voting rights.  Today, about sixty (60) percent of the immigrants eligible to naturalize are Latino and about twenty (20) percent are Asian.  These people are being targeted and encouraged to become American citizens so that they can have the right to vote in the presidential election.

In September 2015, White House officials stated that they were going to start a nationwide campaign aimed at encouraging legal immigrants to become American citizens.  The result would be that this conversion would add millions of voters to the electorate just in time for the presidential election.  In an effort to encourage the 8.8 million legal residents in the country who are eligible to become citizens to do so, the United States Citizenship and Immigration Services (USCIS) will offer practice tests and will hold preparatory workshops in rural areas for the civics exam.  These steps are aimed at making it easier to complete the final steps to citizenship.  Additional initiatives that are being taken to encourage legal immigrants to convert to American citizens are that revisions are being made to regulations imposed by the Justice Departments.  Revisions to regulations are necessary because it would allow for people who want to help immigrants naturalize, to obtain credentials to provide basic volunteer legal assistance.

Having a right to vote in a country gives people a voice.  The days where American citizens had to protest, rally, and fight to have the right to vote seem to be a distant memory in the modern world of today, where legal permanent residents, who are not citizens, are able to vote in state elections.  This modern push towards encouraging and helping immigrants naturalize is so that their concerns and voices too may be heard, and is one which should be followed through by White House officials.

Source: Julia Preston, White House Campaign Urges Legal Immigration to Become (Voting) Citizens, N.Y. Times, Sept. 18, 2015, at A21.

Public Education For All – Regardless of Citizenship

By: Jessica Miraglia

In 1982, the United States Supreme Court issued a 5-4 vote decision in Plyler v. Doe holding that it is unconstitutional for a state to deny any child a free public education because of their immigration status.  The Supreme Court based this holding on the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.  The Court explained that a state may not offer a free public education to children with United States citizenship while rejecting undocumented children.  A state may not do this because the harm that will occur to the rejected undocumented children and society as a whole is much greater than the resources that the schools claim they will save by denying a free education to the undocumented children.  It is very important to allow these children access to a free public education in order to reassure them that they will be able to contribute to society and be given the tools needed to escape poverty.  Additionally, it is not fair to the children to punish them, by not allowing them access to a free public education, because of decisions their parent’s made.  These children did not choose to come to the United States illegally; therefore they should not be punished now that they are here.

Since 1982, there have been several reported incidences of public school districts implementing enrollment procedures that are either unconstitutional on their face or have an unconstitutional effect.  In 2011 and 2014, in order to try and stop the discrimination based on immigration status, the Department of Education and the Department of Justice sent out letters to public school districts across the United States reminding them that they could not deny a free public education to a child based on their immigration status.  These enrollment procedures were unlawfully asking about the immigration status of the child and their parents, which would either expressly prevent them from enrolling at the school or cause them to not enroll in fear of being reported to the authorities for being undocumented.  This letter advised the school districts what types of enrollment procedures are acceptable; including, but not limited to, what types of documents can be accepted to prove residency or age and what types of documents the school may not require for enrollment like social security numbers or domestic birth certificates.  Even today, in 2015, the National Immigration Law Center is still fighting for non-discriminatory free public education access to all undocumented children and trying to get the DREAM Act passed.  This Act would provide undocumented people who came to the United States at a young age with the tools needed to gain citizenship and obtain higher education.

Sources:

Plyler v. Doe, 457 U.S. 202 (1982).

DREAM Act (and DREAM-like), National Immigration Law Center, https://www.nilc.org/education.html (last visited Oct. 18, 2015).

Letters from U.S. Department of Education and U.S. Department of Justice to public school districts throughout the United States (May 6, 2011 and May 8, 2014) (on file with the ACLU).

In-State Tuition and Illegal Immigrants, What is the Cost?

By: Nicole Danner

According to the U.S. Department of Education, approximately six percent (4.7 million students) of the total student population (pre-k through postsecondary education) are foreign born individuals, and an additional twenty million students are children of foreign born parents.  In 2012 the Deferred Action for Childhood Arrivals (DACA) program was announced. This program allows students who came to the U.S. as children, and who meet certain guidelines, to request consideration of deferred immigration enforcement action for a period of two years (subject to renewal).  Under this deferred action the student is not considered unlawfully present for the two-year period. The deferred action does not, however, provide the student with lawful status.

According to the U.S. Department of Education, three-quarters of the fastest growing occupations require education beyond a high school diploma.  Based on current headlines, how illegal immigrants pay for such education has become quite controversial.

In Washington, D.C., new legislation was introduced to the council at the University of the District of Columbia which would allow illegal immigrants who meet certain requirements to receive in-state tuition and local financial aid.  However, legislation was also introduced in Congress in September.  This legislation (H.R. 3566) is to prevent states from providing illegal immigrants in-state tuition benefits, much like the benefits the University of the District of Columbia is trying to provide currently.  According to the Congressional Research Service, there is an Act in place (the Illegal Immigration Reform and Immigrant Responsibility Act) that prevents states from providing postsecondary education benefits to illegal immigrants based on residence unless all U.S. citizens are eligible for such benefits, regardless of their state of residence.  The Congressmen in support of H.R. 3566 argue that states have created “loopholes” to circumvent this federal law.

In the middle of this tug-of-war are universities and, of course, immigrant students.  In Georgia thirty-nine illegal immigrant students filed lawsuits against colleges and universities seeking access to in-state tuition.  These students were granted temporary permission to stay in the U.S. under DACA.  The Georgia university system Board of Regents, however, has said that such students do not meet the requirement of “lawful presence” necessary to receive in-state tuition.  This case is working its way through the Georgia courts and is pending a decision.  In Missouri, immigrant students are suing three public colleges for changing their cost in tuition prompted by a new state law requiring colleges that receive state funding to charge students without a lawful immigration status nothing less than the international rate of tuition.  In response, one college stated it “is not making policy . . .  [but is] following the rules and regulations put forth by our lawmakers.”  That same college has also stated it is setting aside approximately $250,000 to help offset the cost of increased tuition for the affected students.  This case is also pending in the state court system.

There is disagreement as to what rights illegal immigrants have when it comes to eligibility for in-state tuition.  Until either the courts make a decision or Congress “fills the gap” pointed out by the Congressmen, the universities and immigrant students are left in the middle trying to figure out what to do.

Sources:

Educational Resources for Immigrants, Refugees, Asylees and Other New Americans, U.S. Department of Education, http://www2.ed.gov/about/overview/focus/immigration-resources.html (last visited Oct. 17, 2015).

Immigrants Sue Missouri Colleges Over Higher Tuition Rate, News-Leader Missouri News (Oct. 14, 2015), http://www.news-leader.com/story/news/education/2015/10/14/immigrants-sue-missouri-colleges-over-higher-tuition-rate/73914800/.

Josh Fatzick, DC Wants to Give Illegal Immigrants In-State Tuition, The Daily Caller, (Oct. 8, 2015), http://dailycaller.com/2015/10/08/dc-wants-to-give-illegal-immigrants-in-state-tuition/.

Kate Brumback, Immigrants Seeking In-State Tuition Want Court to Hear Case, Diverse Issues in Higher Education (Oct. 11, 2015), http://diverseeducation.com/article/78301/.

Steven D. Smith, Gosar Introduces Legislation Against Allowing Illegal Immigrants to Receive In-State Tuition, Current News (Sept. 20, 2015), http://iphone.prescottenews.com/news/current-news/item/26187-gosar-introduces-legislation-against-allowing-illegal-immigrants-to-receive-in-state-tuition.

Walter C. Jones, Illegal Immigrants ask Georgia Supreme Court for Right to sue Over Denial of In-State Tuition, Jacksonville News (Oct. 16, 2015), http://m.jacksonville.com/news/georgia/2015-10-16/story/illegal-immigrants-ask-georgia-supreme-court-right-sue-over-denial#article=6805CEDB0737E8F3E4C744BAA8B414EF214A.

Immigration and Health Care Reform

By: Lee Molitoris

The United States must reform its current immigration laws, for they have a disparate impact on race and low-income immigrants.  Current immigration law discriminates against low-income individuals by screening out those that are likely to be a public charge, by capping the number of immigrants from each country, and by giving out employment visas to skilled workers rather than unskilled workers. Immigration laws have a disparate impact on race for much of the same reasons.  The U.S. receives more immigrants from Mexico, Philippines, India, and China than any other country.  Despite the higher demand, a person must wait longer to immigrate into the U.S. from Mexico, Philippines, India or China than from any other predominantly white country.  Employment visas also discriminate because unskilled workers are screened and denied entry into the U.S.

An example of discrimination against racial and indigent immigrants can be seen on the U.S./Mexico border, compared to the U.S./Canadian border.  Many people concern themselves with immigration enforcement and border patrol near the Mexico border; however, only a few discuss enforcement of the U.S./Canadian border.  Many discriminate against immigrants because of race, ethnicity, low levels of English comprehension, and many immigrants do not assimilate into the population.  Instead, many immigrants tend to live together and have no interest in learning the country’s language or customs.

U.S. health care still has many gaps that discriminate against race and indigent immigrants.  Although, government health care does provide access to indigent people, many states do not define the minimum level of care required.  Many immigrants are ineligible for Medicare due to low-paying jobs that lack health benefits.   Further, Medicare beneficiaries must pay significant co-pays and out of pocket expenses, which many indigent immigrants cannot afford.

Racial and ethnic minorities still receive substandard health care services compared to white, English-speaking Americans.  Substandard health care services can especially be seen in medical treatments and therapies, and in diagnostic testing.  Racial and ethnic discrimination in the quality of health care is due to stereotyping and biases.  Health care laws discriminate against immigrants trying to obtain health care.  Many immigrants remain uninsured because of historic racial and ethnic discrimination.  The discrimination caused African-Americans and ethnic people to remain in low-paying jobs with no health benefits.  Further, anti-immigration laws created a disparate effect and left many immigrants, who are non-U.S. citizens, without government health insurance.  Language is another factor that limits immigrants from obtaining health care.  Many government and Medicaid offices fail to provide interpreters or translated documents to immigrants who cannot speak English.  Other factors that contribute to the limited use of government health care include distrust of Western medicine, deportation, unfamiliarity with medical care, and language.  Moreover, undocumented immigrants do not have the option of obtaining health insurance from the affordable care act because of fear that even more undocumented immigrants would flee to the U.S. in an effort to benefit from free healthcare.

Congress has not enacted any reform to address these issues in immigration and health care.  One possibility could include visas for unskilled workers that incorporate an educational component.  This type of reform would also help deter future discrimination as citizens would be able to socialize and learn with immigrants of different racial, ethnic, and economic backgrounds.  This type of reform would also help to assimilate immigrants by teaching them English and U.S. customs, thus providing a better chance of obtaining health care.

Sources:

Kevin R. Johnson, The Intersection of Race and Class in U.S. Immigration Law and Enforcement, 72 Law & Contemp. Probs. 1, 12 (2009).

Kevin R. Johnson, Fear of an “Alien Nation”: Race, Immigration, and Immigrants, 7 Stan. L. & Pol’y Rev. 111, 115 (1996).

Brietta R. Clark, Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DePaul J. Health Care L. 1023, 1046 (2005).

Rose Cuison Villazor, Community Lawyering: An Approach to Addressing Inequalities in Access to Health Care for Poor, of Color and Immigrant Communities, 8 N.Y.U. J. Legis. & Pub. Pol’y 35, 41 (2005).

Walter L. Stiehm, Poverty Law: Access to Healthcare and Barriers to the Poor, 4 Quinnipiac Health L.J. 279, 301 (2001).

Julianne Zuber, Healthcare for the Undocumented: Solving a Public Health Crisis in the U.S., 28 J. Contemp. Health L. & Pol’y 350, 352 (2012).

Immigration and Voting Rights

By: Jessica Pleskach

Immigration and voting rights has been a longstanding political issue in the United States.  Under current law, non-citizens are not legally allowed to vote in federal elections even though no United States Court has actually found the practice unconstitutional.  Some states have, however, upheld local laws granting non-residents the right to vote in local elections.

This indeed is a step in the right direction.  Attainment of political rights by immigrants is a crucial pre-requisite to their success in battles for economic, social and civil rights.

Non-citizen immigrants should be allowed to vote in state and local elections. Basic democratic principles hold that a community can only bind members by its laws and require their support through taxes if it allows them to participate in politics.  State and local governments treat non-citizens like other community members by requiring residents to pay income taxes regardless of their immigration status.  Immigrants here both legally and illegally work in every sector of the economy.  They contribute to the economic system through their aggregate demand for goods and services by owning properties, renting properties, buying groceries, buying clothing, etc.  Furthermore, their spending ripples through the economy, creating jobs and generating revenue for businesses and governments.

Non-citizens have the same stake and interest in a community’s political decisions as that of any citizen.  If immigrants lack voting rights, then politicians can ignore their interests.  Non-citizens have legitimate interests in a community’s political process and need the protections that come with it.  Most immigrants want to become citizens, but the average time it takes for the naturalization process takes at least eight years, sometimes longer.  This is a long time to go without a vote.  Voting is an important means of becoming incorporated and engaged in a community, not merely the outcome of becoming integrated.

The right to vote helps keep our democracy inclusive and fair.  If the United States is truly an inclusive democracy we must ensure that immigrants have every opportunity to participate in the policy-making process by providing them the resources to vote and actually allowing them to vote.

Source:

Ron Hayduk, Noncitizens voting? It’s only fair, Providence Journal (2015).

The Future of Coverage

By: Theron Minium

Amid the shifting political landscape for immigration reform, a major topic of discussion for this upcoming presidential election involves federal healthcare coverage for non-US Citizens.  More specifically, the opposing stances taken by presidential candidate frontrunners offer insight into the likelihood of future universal healthcare coverage for undocumented immigrants within the United States.  Along with immigration reform, healthcare under President Obama’s Affordable Care Act (ACA) has been the subject of heated debate from all sides: some supporting it, some supporting changes to it, and still many others in outright opposition of the Act.

The two major political platforms intersect at a crucial point which affects a significant portion of the population: healthcare coverage for immigrants-those under a documented status, and those that reside in the U.S. as undocumented immigrants.  Rapidly rising healthcare costs for U.S. citizens have caused the public to look for something to explain this issue, and many politicians and media outlets have focused squarely on health care coverage for non-U.S. Citizens as the culprit.  What is the economic impact that undocumented immigrant coverage currently has, and what could it be if undocumented immigrants become covered in the future?

Documented immigrants, for purposes of the ACA, are considered to be either “qualified non-citizens” or not. Qualified non-citizens (which include statuses of permanent immigrants such as Lawful Permanent Resident, Asylee, and Refugee) are eligible to be covered under the ACA, and purchase of health care on the ACA’s online Marketplace, as well as access to Medicaid and CHIP.  ACA also offers access to the Marketplace to purchase health insurance to those in valid non-immigration statuses who are not “qualified non-citizens” – such as holders of temporary work visas. Regardless, nearly all immigrant and nonimmigrant statuses have the ability to obtain healthcare coverage if they hold valid immigration documentation from the Department of Homeland Security (green cards, valid I-94s, visas, etc.). For documented non-US Citizens, advancement in their healthcare coverage, particularly those of low-income families, appears successful under the Affordable Care Act, though significant costs of both time and money remain a challenge on the path to U.S. Citizenship.

However, most support the healthcare coverage for documented immigrants, and as it currently stands these documented immigrants have access to at least minimum healthcare coverage. The argument regarding healthcare coverage for undocumented immigrants, however contains much more passion and vitriol, and their future coverage remains unclear.  Currently, undocumented immigrants must be treated by law when they arrive in emergency rooms as well as free local clinics. In 2013, the Center for Immigration Studies estimated that this cost of treatment across the nation was $4.3 billion in one year.  Some argue that this cost shows health care for undocumented immigrants would be foolhardy, but with adequate minimum health care coverage, many of these undocumented individuals would not need to visit the much more expensive emergency rooms on such a regular basis.

In the autumn of President Obama’s tenure, likely the next president will hold the answer to whether or not undocumented immigrants will receive universal healthcare coverage. Most are familiar with the stance of one particular Republican presidential candidate, Donald Trump.  In strong opposition of any healthcare coverage for undocumented immigrants, Mr. Trump would instead strengthen the borders to the south, and punish those that are in the United States illegally or without proper documentation. The frontrunner for the Democratic party, Hillary Clinton, has recently stated that she believes undocumented immigrants should have the ability to purchase healthcare through the ACA.  As of now, only the state of California has taken any significant steps attempting to provide healthcare to undocumented immigrants.  The solution on a national level would undoubtedly be part of a complete overhaul of the ACA if it were to include undocumented immigrants.

Where does undocumented immigrant’s healthcare coverage go from here?  With two individuals as the United States’ possible next president, the future remains as unclear as it ever has.   Healthcare coverage for undocumented immigrants likely rests solely on who is sworn in as our 45th president in January of 2017.

Sources:

Neal Asbury, The Cost of Permanent Patients, Newsmax Finance, May 9, 2013.

Sarah Ferris, Clinton Shifts Stance on Healthcare for Undocumented Immigrants, The Hill, Oct. 13, 2015.

Are Tribal Employers Subject to the Employer Mandate of the Affordable Care Act? We May Soon Have an Answer.

By: Matthew Jandrisavitz

Through The Patient Protection and Affordable Care Act, also known as Obamacare, Congress mandates that individuals must have health care unless they meet one of the few exemptions.  One of the exemptions is for members of Native American tribes receiving health care through Indian Health Services. This is just one of the numerous provisions within the Affordable Care Act that treat Native Americans differently as a result of the controversial history between the United States and Native Americans.

Another provision of the Affordable Care Act mandates that “large” employers, those that have 50 or more employees, must provide “minimum essential coverage” to their employees. If employers do not meet these requirements, they are assessed a fine known as an “Employer Shared Responsibility Payment.” It is common for a tribe to serve as the primary employer of the Indian community. Forcing Native American employers to comply with the mandate could cost a tribe such a substantial amount of money that it would damage their well-being. While the Affordable Care Act specifically addresses Native Americans in its provision for the individual mandate, it does not address how the employer provision relates to Native Americans.

In her comment about this issue, Rachel Sibila, analyzed the possibility of different outcomes based on which statutory interpretation the courts would use when deciding whether tribal employers must comply with the mandate. The canons of construction would resolve the statute in favor of the Native American employers because the statute does not address whether the employer mandate applies to them. The Coeur d’Alene rule from the Ninth Circuit, which has been receiving nationwide support for how to deal with a federal statute that is absent language in respect to Native Americans, may resolve the issue differently. The Coeur D’Alene rule states, “legislation absent express language manifesting a clear intent otherwise, will not apply to Native American tribes if (1) the law touches ‘exclusive rights of self-governance in purely intramural matters, (2) the application of the law to the tribe would abrogate rights guaranteed by Indian treaties or (3) there is proof by legislative history or some other means that Congress intended the law not to apply to Indians on their reservations.”

As to the first exception, Sibila discusses that whether the Native American employer employs non-Native Americans, or if he is engaged in commerce with non-Native Americans can decide whether the employer must comply. If it is considered a tribal matter, then the employer would be exempt from the employer mandate.  When addressing the second exception she notes numerous treaties have been enacted in recent history that create an obligation to guarantee Native Americans health services. Requiring Native American employers who are dealing in purely intramural matters to be bound by the employer mandate would abrogate these treaties. Therefore, businesses that fall within purely intramural tribal matters, should not be forced to comply with the employer mandate. In regards to the third exception, Congress does not address Native Americans with regards to the employer mandate and therefore their intent cannot be deciphered

In her comment, Sibila argues that different outcomes could be had for an employer based on whether the courts apply the canons of construction or the Coeur D’Alene rule to resolve the lack of express language in the statute.  She urges Congress to create explicit language, as to whether the exemption applies to Native Americans, as Congress has done with the individual mandate.

Shortly after the article was released, the courts and Congress were forced to address the issue. In the United States District Court for the District of Wyoming, a decision was recently handed down, on July 2, 2015, that ruled Native American employers are not exempt from the employer mandate. The court found that Congress expressly intended, in the relevant statute, that the employer mandate applied to all large employers, including Indian tribes. The court held that the statute is clear and that if Congress intended to exclude Native Americans from the employer mandate, they would have done so, just as they have done with the individual mandate.

On July 15th, 2015, just seven days after the Wyoming District Court’s decision, a bill was introduced to exempt Native American tribes and tribal employers from Obamacare’s employer mandate. The Act is known as the “Tribal Employment and Jobs Protection Act.”  The proposed legislation would exempt, as defined by statute, (1) any Indian tribal government, (2) a subdivision of an Indian tribal government, (3) an agency or instrumentality of an Indian tribal government, or (4) any tribal organization. It will be interesting to see the support that the bill gets within Congress after the recent district court decision. Most importantly, it seems as if Congress will finally speak out on the subject and put into express language whether the mandate applies to Native American employers.

Sources:

Rachel Sibila, Play or Pay: Interpreting the Employer Mandate of the Patient Protection and Affordable Care Act, 39 Am. Indian L. Rev. 235 (2014).

Timothy M. Todd, Court Holds That Tribe is Subject to ACA Large Employer Mandate, Forbes, (Jul. 9, 2015), http://www.forbes.com/sites/timtodd/2015/07/09/court-holds-tribe-subject-to-aca-large-employer-mandate/.

Tribal Employment and Jobs Protection Act, S. 1771, 114th Cong. (2015).

Native Americans and the Affordable Care Act

By:  Ryan Borger

Due to treaties between Indian tribes and the United States, tribal Indians are guaranteed free health care at any Indian Health Service (“IHS”) or tribal-run facility.  Despite this, in the United States in 2011, nearly 1.2 million (approximately 25%) American Indians and Alaska Natives did not have health insurance.  That’s roughly 10% higher than the total number of Americans countrywide that were uninsured at that time.  This was attributable, at least in part, to some glaring deficiencies in the IHS system.  First, “urban Indians,” which are those who do not live on tribal lands, typically do not have access to IHS facilities.  According to the 2010 census, nearly 78% of all Native Americans were urban Indians.  Second, insufficient funding results in Native Americans who do have access to IHS facilities facing difficulties in getting the care they need.  Their answer may be the Affordable Care Act.

If Tribal Indians buy insurance through the ACA’s marketplace exchange, their access to health care is much more obtainable.  It would make no difference whether they live on tribal lands or whether they are urban Indians; each would have equal access to care.  Moreover, if they sign up, Native Americans falling below a certain income level would have their health care costs covered for them, regardless of the facility they choose to attend.  Those above the income level would have their costs covered for them if they attend an IHS or tribal-run facility.  This generates more money for these facilities and allows them to provide care to those who remain uninsured.

The ACA could possibly be the answer to the Native American health care problem the IHS was once thought to be.  In the years since the ACA’s inception, the IHS has been providing training and education to IHS and tribal-run facilities on the ACA.  As this continues in the years to come, the IHS expects the number of uninsured Native Americans to drop significantly from where it was just four years ago.  As the goal of the IHS is “to raise [Native Americans and Alaska Natives’] health status to the highest possible level,” perhaps the ACA is just the way to accomplish it.

Source:  Taylor Kubota, How the Affordable Care Act Applies to Native Americans, HealthbizDecoded.com (November 5, 2013), http:// http://www.healthbizdecoded.com/2013/11/how-the-affordable-care-act-applies-to-native-americans/

Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes: A Counter Argument

By: Nicholas Fiaschetti

In a recent article published in the American Indian Law Review, author Alex Tallchief Skibine makes an argument for why Native American Tribes should be treated as a “third sphere of sovereignty” within the United States Constitution. Through historical analysis and interpretations of Supreme Court decisions, it is argued that Native American Tribes have historically been treated as separate sovereigns. Given the language of the Commerce Clause in the Constitution, the argument further posits that the Supreme Court has misinterpreted constitutional authority in its ability to regulate Native American affairs. As a result, the article suggests that Native Americans may be more prone to abuse at the whims of the courts and Congress. The suggested solution then, is to treat Native American Tribes a quasi-autonomous separate sovereign, yet with a surety of constitutional protections. I respectfully disagree.

The idea of holding Native American Tribes as true sovereigns, while at the same time holding that they be backed by a constitutional method of analysis to ensure proper congressional control over their affairs, seems contradictory at best. It is suggested that because Native American Tribal issues are not held to a constitutional level of scrutiny, Native Americans are at greater risk of abuse from both the courts and Congress. Essentially, there is too much power with no check. However, focusing on the contradictory nature of this idea, what if the Supreme Court did decide to treat Native American tribes in the suggested manner? Although the author did concede many severe consequences, I can think of more.

There are currently around 566 recognized Native American Tribes residing within the United States. If each were to be treated as an independent sovereign subject to a constitutional surety, the tribes themselves may actually be worse off. If Native American Tribes were to be given the aforementioned level of sovereignty and scrutiny in their affairs, Congress would have to pass some fairly sweeping legislation to allow the general U.S. public (Non-Native American or Tribe affiliated individuals) to even conduct business with the tribes. By the strictest adherence to the constitution, only Congress may regulate trade with the “Indian Tribes.” Although there are great arguments to be made about the meaning of the word “regulate,” as it appears in the clause, ultimately I am hard pressed to believe that Congress would simply give up its power over the tribes to the general public. This may have dire impacts on trade given that essentially no private entity could enter into economic business with the tribes’ without a Congressional mandate.

The bigger danger may also come in the form of basic legal enforcement issues. Where would disputes be settled? In which court system? Given present adherence to “consent to govern” philosophies, I find it hard to believe as a public policy matter that the Supreme Court or Congress would allow a U.S. citizens to be legally bound by a tribal court within a U.S. state that is still technically subject to the Bill of Rights. Furthermore, if we are going to treat reservations as truly separate independent states, would this constitute international commerce? If it did, this would carry with it enormous tax consequences that would need dealt with by Congressional action. Not to mention the inevitable “border control issues” that would arise.

Back to my original point of contention though, it simply seems fundamentally illogical to call Native American Tribes sovereign entities, but have them be subject to our Constitution. While there are serious administrative and institutional competency issues at play here, simply stated, trying to grant Native American Tribes quasi-autonomous sovereignty with a legal surety backed by the U.S. Constitution will open the door to more problems than it will solve, and may ultimately stand to economically injure Native American Tribes more than helping. While the fear of abuse is understandable, opening up Native American Tribes to fall under the Constitution would only further weaken their claims of sovereignty, and may have dire economic consequences on the tribes that recent gaming laws may not be enough to fix. Although I freely concede that this is a serious and pervasive issue that deserves genuine attention and real congressional recognition and action, I cannot support a theory that would hold Native Americans as separate sovereigns backed by the U.S. Constitution. It is fundamentally opposed to the truest ideas of legitimate state sovereignty, and would only serve to further segregate this class of people from our country when we should be moving towards greater inclusion of all races and peoples to our society and economy at large.

Sources:

Alex Tallchief Skibine, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes, 39 Am. Indian L. Rev. 77 (2015).

Tribal Directory, US Dept. of the Interior Indian Affairs, http://www.bia.gov/WhoWeAre/BIA/OIS/TribalGovernmentServices/TribalDirectory/ (last updated Oct. 14, 2015, 3:48 PM).

U.S. Const. art. I, § 8, cl. 3.