This Note examines federal-state and federal-tribe relationships through a comparison of Medicaid and the Indian Health Service (IHS). Analysis of tribal contracting and compacting documents and Medicaid state plans reflects the history of each program: Medicaid is a product of trusting federal-state collaboration, while the IHS reflects a history of distrust between tribes and executive-branch agencies in particular. This finding suggests that IHS compacting and contracting practices have significant lessons for Medicaid as the latter program negotiates with a hostile federal government.
This policy brief asks a hypothetical question in a political environment in which the U.S. federal government and many states disfavor the delivery of gender-affirming medical care (GAMC) to 2S/IQ/TGD persons, even to the point of criminalizing such care. It further assumes that a tribal nation is willing and capable of delivering GAMC. The answer to the hypothetical question depends on many factors, including (1) whether the state law is authorized by an Act of Congress such as Public Law 280, (2) whether the state law is a criminal law or a civil-regulatory law, and (3) whether the patient or health care professional is a tribal citizen, a nonmember Indian person, or a non-Indian person. The answer here also assumes that the relevant state law does affirmatively criminalize the provision of GAMC and, further, that federal law prohibits the use of federal money by tribal nations to provide GAMC.
Public health datasets will often tell us nothing about Indigenous people. This type of data suppression has been described as data genocide and data terrorism, because it demonstrates the effort to erase Indigenous people. Even when data is available, Tribes and their partners are regularly denied access to public health data from other jurisdictions. The seemingly simple call for more accurate, comprehensive public health data regarding Indigenous communities butts up against complicated issues. Who is considered Native and thus captured in Indigenous data? Why is Indigenous data regularly excluded from datasets? Who gets access to Indigenous data? These questions implicate federal Indian law, colonization, and Tribal sovereignty. So, while better quality data and improved data access are important goals, there is no way to bifurcate the need for public health data with the systematic racism embedded into the laws that impact the analyzing, collecting, and disseminating of this data. This Article aims to outline how Indigeneity interfaces with public health surveillance systems, in the context of both the collection of accurate data and the access to such data. It summarizes existing law and policy that define “Indian” under various frameworks and explores the challenges and limitations of defining Indian, particularly for the purposes of public health surveillance. This Article ends with a series of considerations regarding public health surveillance reform to better support Indian country.
Turtle Talk 
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