For two centuries, America’s Native American tribes have had a legal right to rely upon the federal government for broad support, though they have often had to accept with that the insult of being thought of as savages. The great Chief Justice John Marshall, who first gave the tribes significant legal protection in the 1820s and 1830s, did so because he found their members to be “less intelligent and less skillful” than anyone with whom they had a legal dispute.
That paternalistic view has taken legal form in two doctrines that will loom in the background on Monday as the Supreme Court takes up new cases involving tribes’ right to federal financial aid – in these cases, funds to provide medical services to their members.
The first of these doctrines is the Court-created idea that the federal government has a binding legal duty to act as the guardian of Native Americans, who are perceived to be dependents or wards. This originated in 1832, but here is how the Court expressed it 110 years later in an important 1942 decision: “This Court has recognized the distinctive obligation of trust incumbent upon the government in its dealings with these dependent and sometimes exploited people….Under a humane and self-imposed policy which has found frequent expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust.”
The second legal concept, also originating in the judicial imagination long ago, is the so-called “Indian canon,” a method that courts are to use to favor Native Americans in interpreting any law or treaty applying to them, if such a document’s meaning is ambiguous. Another Justice who served on the early Court, John McLean, summed it up in 1832 in an often-quoted passage: “The language used in treaties with the Indians should never be construed to their prejudice….How the words were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.”
Over time, this approach has been applied by the Court to guide interpretation of laws passed by Congress, and not just disputes involving treaties. The Court began doing that in 1921, and has continued to do so since.
The Constitution does not mention explicitly either the guardian-trust relationship or the “Indian canon” of legal interpretation, but both appear to be derived from the framework of the Constitution, particularly the structural separation of powers of the branches of national government. The trust relationship can be traced to the view that Congress has superior power over tribes through laws regulating commerce with them. The “Indian canon” is also grounded in the separation of powers, because federal courts have always been understood to operate under limits on their authority: they do not write the laws, they only interpret them.
In recent years, however, some members of the Court – mainly, Justice Clarence Thomas, but he is not alone – have been questioning both of those concepts by urging their colleagues to reconsider and perhaps cast them aside altogether.
Just last year, for example, Thomas wrote in an Indian water rights case that neither of those concepts has any historical basis, and no mention in the Constitution itself. Justice Samuel A. Alito, Jr., has sharply questioned, during hearings, the “Indian canon” doctrine. And Justice Amy Coney Barrett, in an essay she published in 2010 (before becoming a member of the Court) has challenged that approach as inconsistent with the view – popular with conservative judges – that courts are to base interpretation of federal laws almost entirely on the words they contain, not any other factor – such as intentionally tipping the scales in tribes’ favor.
Tomorrow’s hearing in the new tribal rights cases could provide tests of those views. Lower-court judges in both of these cases relied on the “Indian canon” doctrine in ruling for the tribes.
One hearing, for two cases combined: Becerra, U.S. Health Services Secretary, v. San Carlos Apache Tribe, and Becerra v. Northern Arapaho Tribe. The hearing will begin at 10 a.m. and is scheduled for one hour.
The facts of these cases: Congress in the 20th Century slowly abandoned the policy approach that sought to assimilate Native Americans into mainstream culture, replacing that with a new emphasis on supporting the tribes’ opportunity to govern themselves, with federal help.
At issue in this case is one such law, passed in 1975: the Indian Self-Determination and Education Assistance Act. In these cases, the Act was the basis for contracts between a federal agency, the Indian Health Service, and the tribes, allowing tribal governments to run their own healthcare programs, taking them over from IHS. The tribes received federal funds in amounts that IHS would have spent had it continued to provide the services itself.
The tribes, however, found that it was quite expensive to provide the staff and facilities for those services, so Congress amended the Act in 1987 to provide federal funds to cover the “support costs” of the tribal programs. These cases involve a dispute about what that means.
The tribes found that they were losing some revenues because IHS had continued to do the billing of medical insurance provided by private companies or by federal Medicare and Medicare to pay for care to tribal members, and had not turned over those funds promptly to the tribes. Congress, among a series of later amendments, allowed tribes to do that billing themselves.
Congress told the tribes they could retain the revenue they obtained from insurers, provided they used the money for added healthcare. The tribes then found that doing the billing and managing the insurance payments were expensive, so they asked IHS to cover those costs, too.
IHS refused, arguing that these costs were not part of the government’s duty under the Act to reimburse the tribes for the costs of operating health services, since that duty extended only to services for which tribes had no other revenue source. Since the tribes are collecting from the insurers, according to IHS, their added health services are funded.
Two tribes are involved in these cases. The San Carlos Apache Tribe, occupying a reservation in southwestern Arizona, and the Northern Arapaho Tribe, whose reservation is in central Wyoming, sued IHS in separate lawsuits in federal courts. Agreeing with the IHS’s interpretation of the 1975 Act and later amendments, federal trial judges dismissed each case.
Two different federal appeals courts disagreed, restoring the tribal claims. One of those courts based its ruling directly on the “Indian canon” in the tribe’s favor, because it found that the wording of the federal law was ambiguous. The other court relied in part on the canon.
The Biden Administration’s Justice Department, defending the IHS decision, took both cases to the Supreme Court. The Department argued that the law is not ambiguous on the key point in dispute, so there is no need to bring in the canon of interpretation to resolve these cases. The Court agreed to hear both cases, setting them for hearing together.
The questions before the Court: Does federal law on tribal health insurance require the federal government to cover the costs of tribal healthcare if the tribes have funds for that from another source? Is the law in this case written clearly, so there is no need to rely upon an interpretation method that favors tribes?
Significance: The relationship of the United States government and Native Americans began developing decades before there was a Constitution. The pre-Constitution’s Articles of Confederation gave Congress “the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians.”
When the Constitution was written in 1787, the Founders narrowed that approach, making it less sweeping in scope. Even so, the Court from the early days of the Constitution has ruled that the basic document confers upon Congress “plenary power” over Indians. (“Plenary” usually means “absolute,” but Congress has observed some limits on that authority.)
It is usually true that, almost every time the Court takes up a case on the federal-tribal relationship, it tends to deal with it on two levels: first, deciding each case on its specific details, and, second, looking at the larger meaning for the guardian-dependent relationship.
That is true with these cases. First, what is the significance of the particular dispute over what the federal law means for funding of tribal healthcare? The technical details of the law at issue revolve around this one program. That will only require the Court to parse the specific words that Congress adopted in committing government to pay for “support costs” for that program.
Factually, the two tribes are pursuing a potentially sizeable increase in payments of federal funds, even though the initial gain for the two, together, would be only about $4.5 million. The government, however, estimates that the nationwide impact of a ruling for tribes generally would cost the government between $800 million and $2 billion a year. It also contends that a tribal victory would mean that IHS would have to cut its financial support of healthcare programs affecting “some of the most under-served tribal communities in the country.”
It is possible, of course, that the Court will decide the case narrowly. The most likely way to do that would be simply to interpret the textual language in the way the Justice Department does – that is, the meaning is clear, and not ambiguous – so there would be no need to explore any larger implications.
Second, what is the potential for a wider significance of these cases, as they might affect the current state of law governing federal-tribal dealings? Because the current Court’s dominant majority of six conservative Justices has not hesitated to act boldly in the use of its interpretive power, and because some of those Justices have shown deep doubts about some of the fundamentals of Indian law, constitutionally, this case has potential importance of historic proportions.
Justice Thomas has questioned not only the guardian-dependent doctrine in Indian law and the “Indian canon” rule of interpretation, but also the core meaning of what the Constitution’s limited references to tribal governance mean today. He has written that, in his view, the Constitution only governs “commercial” dealings between the national government and tribes, and he has expressed deep doubts about whether tribes retain any “sovereign” character, as if they were independent nations.
At the broadest level, his approach poses serious risks to the entire notion of tribal self-governance, and he appears to have a companion in posing that risk in Justice Alito. Thomas has yet to regularly draw other Justices to his side in this field, but he is energetic in pressing his views and seems to have patience to await the time when he could expand his influence.
The Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of these cases, on C-Span TV at this link: cspan.org/supremecourt
