The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government.
Perhaps the strongest section of the article is Part II, which focuses on Indian Health Care and Health Disparities. Having laid out the legislative history behind Indian health care in Part I, Professor Racehorse spends the middle part of her article highlighting the health disparities facing Indians and analyzing the possibilities of attacking these disparities through litigation. Not surprisingly for those who have been following the ways the U.S. Supreme Court has narrowed the enforceability of the federal government’s trust responsibilities towards tribes, Professor Racehorse’s careful analysis shows the limits of litigation. But by tying her analysis to a particular challenge—health care disparities—Professor Racehorse was able to move beyond the standard theoretical complaints that are bound to be fully explored in the Indian law literature over the next decade.
The U.S. Supreme Court has so successfully chipped away at idea of a general trust responsibility that it is reasonable to ask if such a trust relationship even exists anymore. In place of general trust obligations, the Court is insisting that tribes cannot enforcement the government’s trust responsibilities unless the U.S. government has opened itself up to judicial accountability through particular legislation. See United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011); Arizona v. Navajo Nation, 599 U.S. __ (2023). Doctrinal critiques of this sort of narrowing risk obscuring the point—the Supreme Court is making it increasingly difficult for Indian nations to insist that the U.S. live up to what had been long-standing and well-established policy objectives. What is great about Professor Racehorse’s coverage of such litigation is that by linking the shifting doctrinal ground to the troubling level of disparities in health outcomes and health funding, readers can see how these arcane doctrinal changes negatively impact tribal members struggling with poverty, inadequate services, and health challenges on Indian reservations.
Finally, Professor Racehorse’s article stands out because of the way it helps open the field for other scholars interested in Indian Health Services.1 Such work crosses a number of scholarly lines—poverty law, health law, and Indian law—but likely will be of greatest significance in Indian country. There is a tendency to treat Native lived experience as a case study for a larger phenomenon or to focus in jurisdictional issues while neglecting those systems that most impact tribal members in their daily lives. Professor Racehorse’s Tribal Health Self-Determination should interest all readers, from those who will find the health disparity statistics shocking to those looking for ways to improve tribal health services and outcomes.
- For another notable example of a work in this emerging area, see Alia Hoss, Toward Tribal Health Sovereignty, 2022 Wisc. L. Rev. 413.
