[Senate Hearing 110-53]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 110-53
 
                     INDIAN HEALTH CARE IMPROVEMENT

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

                   INDIAN HEALTH CARE IMPROVEMENT ACT

                               __________

                             MARCH 8, 2007
                             WASHINGTON, DC




                      U.S. GOVERNMENT PRINTING OFFICE
33-962 PDF                    WASHINGTON  :  2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government
Printing Office Internet:  bookstore.gpo.gov Phone:  toll free (866)
512-1800; DC area (202) 512-1800 Fax: (202)512-2250 Mail: Stop SSOP,
Washington, DC 20402-0001 





                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman

                  CRAIG THOMAS, Wyoming Vice Chairman

DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            PETE V. DOMENICI, New Mexico
DANIEL K. AKAKA, Hawaii              GORDON SMITH, Oregon
TIM JOHNSON, South Dakota            LISA MURKOWSKI, Alaska
MARIA CANTWELL, Washington           RICHARD BURR, North Carolina
CLAIRE McCASKILL, Missouri           TOM COBURN, M.D., Oklahoma
JON TESTER, Montana

                Sara G. Garland, Majority Staff Director

              David A. Mullon Jr. Minority Staff Director

                                  (ii)







  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Agwunobi, John, assistant secretary for health, Department of 
      Health and Human Services..................................     4
    Beckner, III, C. Frederick, deputy assistant attorney 
      general, Department of Justice.............................     6
    Brannan, Richard, chairman, Northern Arapaho Business Council    21
    Coburn, Hon. Tom, U.S. Senator from Oklahoma.................     2
    Dorgan, Hon. Byron L., U.S. Sentor from North Dakota, 
      chairman, Committee on Indian Affairs......................     1
    Gage, Steve, director, Community Health Aide Program, 
      Southeast Alaska Regional Health Consortium................    29
    Grim, Charles W., director, IHS, Department of Health and 
      Human Services.............................................     4
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii.............     8
    Joseph, Rachel A., cochair, National Steering Committee on 
      the Reauthorization of the Indian Health Care Improvement 
      Act........................................................    24
    Lazarus, Edward P., partner, Akin, Gump, Strauss, Hauer, and 
      Feld, LLP..................................................    27
    Murkowski, Hon. Lisa, U.S. Senator from Alaska...............    18
    Tester, Hon. Jon, U.S. Senator from Montana..................     9
    Thomas, Hon. Craig, U.S. Senator from Wyoming, vice chairman, 
      Committee on Indian Affairs................................     4

                                Appendix

Prepared statements:
    Agwunobi, John...............................................    37
    Beckner, III, C. Frederick...................................    40
    Brannan, Richard.............................................    47
    Bursell, Sven-Erik, Joslin Diabetes Center...................    51
    Gage, Steve (with attachment)................................    54
    Gerald, Forrest J., enrolled member, Blackfeet Tribe.........    63
    Hunter, Terry L., executive officer, Oklahoma City Indian 
      Clinic.....................................................    43
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii.............    45
    Joseph, Rachel A.............................................    68
    Lazarus, Edward P............................................    81
    McCloud, Duke................................................   101
    Tester, Hon. Jon, U.S. Senator from Montana..................    45
Additional material submitted for the record:
    Greendeer, Samantha, legislative counsel, Ho-Chunk Nation 
      recommendation.............................................   108


                  INDIAN HEALTH CARE IMPROVEMENTS ACT

                              ----------                              


                        THURSDAY, MARCH 8, 2007


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:32 a.m. in room 
485, Russell Senate Office Building, Hon. Byron L. Dorgan 
(chairman of the committee) presiding.
    Present: Senators Dorgan, Coburn, Inouye, Murkowski, 
Tester, and Thomas.

  STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH 
         DAKOTA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman.  We will call the hearing to order.
    This is a hearing of the Senate Committee on Indian Affairs 
dealing with the Indian Health Care Improvement Act. I would 
like to make just a couple of brief opening comments.
    First, the U.S. Senate has now approved, after 2 long 
years, a new assistant secretary for Indian Affairs in the 
Department of the Interior. I have said previously that it is 
shameful that position was open for 2 full years. This is the 
position that has responsibility for the management of the 
Indian programs. It has been a position that has been around 
since I believe 1806, and for 2 full years it was unfilled. It 
is unbelievable to me.
    We finally now have approved the President's nominee, 
someone I supported last year, someone I supported this year. I 
pushed very hard to force a vote in the U.S. Senate. What we 
have discovered from the vote is that one U.S. Senator had held 
that up, one. Senators have certain rights, but it seems to me 
to have been exercised at the expense of American Indians and 
Indian programs. I regret that, but nonetheless, that is done.
    Second, this issue of Indian health care is a very 
important issue. We had people at that table just recently 
describe to us the health care issues, the difficulties, a 
doctor describing a patient coming to him that had been to the 
Indian Health Service with a knee that had a very serious torn 
ligament, and was told to wrap it in cabbage leaves for 4 days 
and come back. The stories are unbelievable.
    Look, we have a serious problem in Indian health care. We 
have tried very hard to reauthorize the Indian Health Care 
Improvement Act, and I can't tell you how frustrated I am and 
how frustrated Senator McCain was in the last Congress when 
every single time we would try to move this, we would have an 
objection from somewhere, sometimes in HHS, sometimes in 
Justice. No matter what we did, there was always another 
objection, and this never moved.
    This time it is going to move. People can object if they 
want. They can vote against it if they want, but we are not 
going to spend 24 months trying to figure out where HHS is, 
where the Justice Department is, where their next urge or hits 
might come from. I want consultation. I want to hear your 
thoughts. I am very pleased you are here today, I say to 
Justice and HHS, but I want to work with members of this 
committee and my vice chairman and pass a reauthorization of 
the Indian Health Care Improvement Act at long, long last, an 
Improvement Act that we can improve even further in this 
session of the Congress.
    I just want to start by saying I sound a little crabby 
about this. I am crabby about this. I am upset after 2 full 
years. Every single time we would make a proposal, there was 
another objection. And it never moved. This time it is going to 
move, one way or the other. We are going to be voting on the 
proposal on the floor of the Senate.
    I say to the Justice Department, Health and Human Services, 
the Administration, all of my colleagues, let's all cooperate, 
provide input. We want to hear from everybody, to provide the 
best product we can, develop the best product we can, and then 
I am going to push it because I think it is long, long overdue. 
We have a bona fide crisis in Indian health care. I won't 
recite the statistics or I won't recite the anecdotes today, 
but I can if necessary.
    I really appreciate my colleague, Vice Chairman Thomas, 
here; my colleague Dr. Coburn. My understanding is Dr. Coburn 
has a couple of other committee markups and assignments that 
are meeting this morning, so I will call on the vice chairman, 
unless he wishes to relinquish.
    Let me then call on Dr. Coburn for an opening statement so 
that he can then depart.

 STATEMENT OF HON. TOM COBURN, M.D., U.S. SENATOR FROM OKLAHOMA

    Senator Coburn. Thank you.
    I would like unanimous consent that a full opening 
statement by me be added to the record.
    I just want to make some comments. I was one of the ones 
holding the Indian Health Care bill. To modify in a very small 
way, without significant improvements, Indian health care is a 
violation of our duty. What we have today is not tolerable, but 
to not fix it right is absolutely intolerable. When we tell 
people more of the status quo, where people will not get the 
care they need, and not to have a major, and I am talking major 
reorganization of the way we deliver health care to the tribal 
citizens in this Country, that gives flexibility, opportunity 
and choice, that puts them on a par with everybody else in this 
Country, rather than to give them second and third tier care, I 
will continue to hope.
    So I look forward to working with the Chairman, but the 
tribal citizens of this country deserve at least as equal a 
health care as everybody else in this Country. I intend to 
offer amendments to give them the option, if they don't have 
available care, to use their rights as tribal citizens to get 
care at any Medicare-approved facility in this Country. If in 
fact we have an obligation, then we have an obligation to make 
sure they have the exact same level of care as they can get 
anywhere else.
    I would put forward, we have the Chickasaw Nation in 
Oklahoma. They are trying to develop health care. They have 
been stymied in every way as they develop this new hospital and 
health care center, to tell them what they can't do, when they 
are trying to do and give and offer better care for their 
tribal citizens, because they have some resources. And then we 
take away resources that the Government offers saying you can't 
do it that way.
    We have to build in flexibility in any reauthorization, and 
we have to make sure that our goal is at least equal health 
care for what everybody else in this Country is getting. 
Anything less than that is a violation of our good faith trust 
to the tribal citizens of this Country. I pledge to you, Mr. 
Chairman and Mr. Vice Chairman, that I will do everything in my 
power to do that.
    I am introducing a Global Health Care bill next week to 
reform health care all the way across this Country, that gives 
access to everyone in this Country, everyone, so that no one is 
denied care, but that care has to be quality care, and we can't 
call it ``care'' if it is not quality care. We do great 
injustice not only to this institution, but under our duties of 
the treaties that we are faced with, if we give less than great 
quality care to tribal members.
    I thank you for the time.
    [Prepared statement of Senator Coburn appears in appendix.]
    The Chairman. Let me be clear, you have not been the one 
holding up the assistant secretary for Indian Affairs. You were 
not. One Senator did that, regrettably. In my judgment, you 
didn't hold up anything in the last session on Indian health 
care because what happened in the last session on the Indian 
Health Care Improvement Act, month after month after month, we 
would get new objections and new objections from HHS and from 
Justice. You just couldn't solve the issues.
    So I will commit this to you. We are going to write this 
bill, introduce it. You are going to have a significant role in 
providing input. You are a doctor. You have a great deal of 
experience in these areas. We can provide a bill that doesn't 
advance the status quo. I have very little interest in 
advancing the status quo of a system that is not working as 
well as it should.
    These folks represent the Administration. They have asked 
for a certain amount of money. You might say the issue isn't 
money. It is not completely money, but you have to have the 
funds to provide for health care. When a woman is brought in on 
a gurney with a piece of paper taped to her leg, and she is 
having a heart attack, and the piece of paper says:

    By the way, hospital, if you admit this person, understand 
that Contract Health Care is gone. This is not life and limb 
and you may not be paid for this.

    I am just saying, I think that sort of thing is shameful. 
We need to provide whatever funding is necessary.
    I am anxious to have your input because you know a lot 
about this. We are going to work on a bill, get a good bill, 
one that we can be proud of, and then we are going to push like 
the dickens to get it done finally at long, long last.
    Senator Coburn. You have my commitment to work with you.
    The Chairman. Senator Thomas.

STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM WYOMING, VICE 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Thomas. Thank you very much, Mr. Chairman, and 
thank you for being here.
    I am delighted that we are having this hearing. I think we 
do need to take a look and make sure we advance this 
legislation, incorporating the best practices that we can. I 
think we have to work with other committees. There is divided 
jurisdiction over this thing.
    I do need to say, however, at least from our experience, 
Indian health care has not been all that bad. In our 
communities, we are looking at a community health center, for 
example, between the local community and the tribes. The tribal 
people have gone to the other community to sek ways for 
improvements.
    So we need to make sure we do the best that we can, but I 
hope we are not overly critical of what we have had. At least 
in our community, it has been pretty good health care. We need 
to make sure it continues to stay that way. So I get a little 
taken away with being terribly negative about it.
    At any rate, I look forward to the witnesses and their 
testimony. We ought to get this bill out of here and get it in 
good shape.
    Thank you.
    The Chairman. Senator Thomas, thank you very much.
    The first panel is Dr. John Agwunobi, who is the assistant 
secretary for Health at the Department of Health and Human 
Services. He is accompanied by Dr. Charles Grim, the director 
of the Indian Health Service at HHS. We also have Frederick 
Beckner, III, deputy assistant attorney general, Department of 
Justice.
    Let's start with you, Dr. Agwunobi. Thank you for helping 
me pronounce your name before this hearing started.

STATEMENT OF JOHN O. AGWUNOBI, ASSISTANT SECRETARY FOR HEALTH, 
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ACCOMPANIED BY CHARLES 
            W. GRIM, DIRECTOR, INDIAN HEALTH SERVICE

    Mr. Agwunobi. Thank you, sir. I think I was 12 years old 
before I could pronounce it as well as you just did. 
[Laughter.]
    Thank you.
    Good morning, Chairman Dorgan and distinguished members. My 
name is John Agwunobi and I am the assistant secretary for 
Health for the Department of Health and Human Services. As the 
assistant secretary, I serve as the Secretary's primary adviser 
on matters involving the Nation's public health. I oversee the 
Public Health Service, of which Indian Health is one of those 
agencies.
    I am joined by Dr. Chuck Grim. He is a personal friend and 
a great leader. He is also the director of the Indian Health 
Service.
    I am honored to testify before you today on the important 
issue of the reauthorization of the Indian Health Care 
Improvement Act. The Department's mission is to uphold the 
Federal Government's responsibility to promote healthy American 
Indian and Alaska Native people, communities and cultures, and 
to honor and protect the inherent sovereign rights of the 
tribes that we work with.
    We are committed to working in partnership with tribes to 
improve the health of Indian people and to eliminate health 
disparities through health promotion, disease prevention, 
behavioral health, and chronic disease management.
    The Indian Health Service is the principal Federal health 
care provider to the American Indian and Alaska Native peoples. 
As part of the Federal Government's special relationship with 
tribal governments, IHS provides health care to 1.8 million 
members of the more than 560 federally recognized tribes. The 
Indian Health Care Improvement Act forms the backbone of the 
system through which Federal health programs serve and 
encourage participation of eligible American Indians and Alaska 
Natives.
    Since the enactment of the law in 1976, statutory authority 
has substantially expanded programs and activities to keep pace 
with changes in health care services and administration. 
Federal funding has contributed billions of dollars to these 
efforts over the years.
    We are happy to see that this has led to significant 
achievements in improving Indian health. From 1973-2002, infant 
mortality among American Indian and Alaska Natives decreased 60 
percent. Tuberculosis deaths over the same period of time 
dropped 80 percent. And many other categories of mortality such 
as pneumonia, influenza, cervical cancer, and cardiovascular 
illness have all decreased.
    However, I don't want to imply that we don't still face 
significant challenges, because we do. In this position, the 
position of assistant secretary for health, I have had the 
honor of traveling with Chuck and others on his team to tribal 
country, and quite frankly, it was a humbling experience for 
me. I met with tribal leaders and others in those communities. 
I now have first-hand understanding of the problems they face, 
we face.
    Major disparities in health status and health outcomes 
continue. Death from diabetes, alcoholism, and injuries occur 
in far greater numbers than in other populations. We have an 
obligation to address these very serious health challenges. 
That is why the President's budget demonstrates a commitment to 
address the priorities identified by tribes through our annual 
budget consultation process with increases in funding. That is 
why the Department strongly supports reauthorization of the 
Indian Health Care Improvement Act at the soonest possible 
opportunity.
    We have worked closely with this committee in the past, and 
we have made progress in moving toward legislation that the 
Department can support. We appreciate that Congress has 
responded to many of the Department's concerns, especially 
those related to secretarial management authority.
    Last year's bill continued to contain certain provisions 
which may have negatively impacted our ability to provide 
needed access to services. Such provisions established program 
mandates and burdensome requirements that might have diverted 
resources from important services.
    However, we are confident that we can work with this 
Congress to continue to address these concerns, and agree on 
legislation that will live up to our mission to raise the 
health of American Indians and Alaska Natives to the highest 
level.
    Once again, sir, I appreciate this opportunity to appear 
before you to discuss reauthorization of the Indian Health Care 
Improvement Act, which we support. I will answer any question 
that you may have at this time.
    I thank you, sir.
    [Prepared statement of Dr. Agwunobi appears in appendix.]
    The Chairman. Dr. Agwunobi, thank you very much.
    Dr. Grim, do you have testimony?
    Mr. Grim. No, sir.
    The Chairman. Okay, you will be available to answer 
questions as well.
    Mr. Beckner, thank you very much for being here. I think it 
is the first time we have had someone from the Department of 
Justice testifying on this matter. We have asked you to be here 
specifically because we have had rather repeated and routine 
objections. Maybe I shouldn't characterize them as routine. We 
have had repeated objections as we have moved along trying to 
write this legislation from the Justice Department, and we 
wanted to have testimony from the Justice Department this 
morning. We appreciate very much your being here. You are the 
deputy assistant attorney general.

   STATEMENT OF C. FREDERICK BECKNER, III, DEPUTY ASSISTANT 
            ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

    Mr. Beckner. Thank you, Mr. Chairman, and good morning.
    As you mentioned, I am the assistant deputy assistant 
attorney general for the civil division of the Department of 
Justice. Thank you very much for the opportunity to share the 
views of the Department of Justice on the reauthorization of 
the Indian Health Care Improvement Act.
    As of today, the Department of Justice has not had the 
opportunity to fully review the current version of the proposed 
legislation. We are not therefore in a position to provide 
specific comments on this legislation.
    That said, the Department strongly supports the laudable 
objectives of improving Indian health care for American Indians 
and Alaska Natives. The Department looks forward to continuing 
to work with the committee to achieve these goals. The 
Department worked extensively with the committee and met with 
representatives of the American Indian community on a prior 
version of this legislation. We expect that this cooperative 
relationship will continue as the Department reviews the 
current legislation.
    In commenting on the prior legislation, the Department 
identified targeted concerns that could be, and for the most 
part were in fact, addressed with relatively modest changes to 
the legislation, but did not detract from the overall goal of 
improving health care for American Indians and Alaska Natives.
    For example, in an earlier version of the proposed 
legislation, the Department of Health and Human Services and 
Indian tribes could enter into self-determination contracts 
that covered tribal traditional health care practices. Such 
practices are unique to American Indian tribes and cannot be 
evaluated by established standards of medical care recognized 
by State law.
    The Department was concerned that if a party sued the 
United States under the Federal Tort Claims Act for an injury 
allegedly caused by a traditional health care practice, the 
Department might not be able to meaningfully defend the case, 
and particularly the Department was concerned that the courts 
might incorrectly, in the Department's view, conclude a viable 
cause of action exists under the FTCA because traditional 
tribal practitioners are providing medical services and that 
these services do not comply with standards of the relevant 
State's medical community.
    Consequently, we met with representatives of the American 
Indian community and worked extensively with the committee late 
last year to add language that would have clarified that the 
United States and ultimately the taxpayers would not be liable 
for malpractice claims under the FTCA arising out of the 
provision of traditional health care practices. This language 
would not have impacted other tort suits that could be brought 
against the United States for other services provided under 
self-determination contracts.
    The Department also expressed its concern regarding a 
provision that would have extended FTCA coverage to persons who 
are providing home-based or community-based services. These 
services are sometimes provided by relatives and in many 
instances there are no established standards for such lay 
person care or for the environment in which they are provided. 
To address these concerns, the Department worked with committee 
staff on language that would have clarified that home-based or 
community-based services that can be provided under self-
determination contracts are those for which the Secretary of 
the Department of Health and Human Services had developed 
meaningful standards of care.
    Similarly, the Department expressed concerns in previous 
versions of the bill regarding the possibility of unlicensed 
individuals providing mental health treatment to American 
Indians and Alaska Natives. In a previous version of the bill, 
the Department worked with the committee to add language that 
would have ensured a licensing requirement for providing mental 
health services, and we believe the change was in the interests 
of both the United States and the Indian community.
    Finally, the Department noted its concern that previously 
proposed legislation may raise a constitutional issue. We had 
previously attempted to work with the committee to address this 
concern, but unfortunately resolution was not attained. Most of 
the programs authorized by the current law or that would have 
been authorized by the previously proposed legislation tie the 
provision of benefits to membership in a federally recognized 
Indian tribe, and courts therefore likely would uphold them as 
constitutional. The Supreme Court has held that classifications 
based on membership in a federally recognized tribe are 
political, rather than racial, and therefore would be upheld as 
long as there is a rational basis for them.
    Congress may also have limited authority to provide 
benefits that extend beyond members of federally recognized 
tribes, to individuals such as spouses and dependent children 
of tribal members, who are recognized by the tribal entity as 
having a clear and close relationship with the tribal entity.
    To the extent, however, that programs benefiting urban 
Indians under current law or in the prior version of the bill 
could be viewed as authorizing the award of grants for other 
governmental benefits on the basis of racial or ethnic 
criteria, rather than tribal affiliation, these programs would 
be subject to strict scrutiny under the Supreme Court's equal 
protection jurisprudence.
    For example, the statute in the previous reauthorization 
bill broadly defined ``urban Indian'' to include individuals 
who are not necessarily affiliated with a federally recognized 
Indian tribe, including descendants in the first or second 
degree of a tribal member, members of a State recognized tribe, 
and any individual who is an Eskimo, Aleut, or other Alaska 
Native. There is a likelihood that legislation providing 
special benefits to such individuals might be regarded by the 
courts as a racial classification subject to strict scrutiny, 
rather than a political classification subject to rational 
basis review.
    This distinction is important because if the legislation 
awards Government benefits on grounds that trigger strict 
scrutiny, courts may uphold the legislation as constitutional 
only upon a showing that its use of race-based criteria to 
award the subject benefits is narrowly tailored to serve a 
compelling governmental interest.
    In closing, the Department believes that any proposed 
legislation regarding Indian health care is important and 
significant. We are grateful for the opportunity to share our 
views with the Committee. As we have in the past, we look 
forward to working with the Committee on this important piece 
of legislation.
    [Prepared statement of Mr. Beckner appears in appendix.]
    The Chairman. Mr. Beckner, thank you very much.
    We have been joined by Senator Inouye, who has for many 
years previously been chairman and ranking member of this 
committee. Senator Inouye, welcome.

  STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII

    Senator Inouye. Thank you very much. I am sorry I am late. 
The usual thing happened, a motorcycle collided with a bus.
    The programs and services covered by the measure before us 
are based upon a government-to-government relationship that 
Presidents Nixon, Bush, Carter, Reagan, Clinton, and the 
present Bush have all consistently reaffirmed as a Federal 
Indian policy of our Country.
    Furthermore, the U.S. Constitution recognizes tribal 
governments as sovereign governments. In article I, section 8, 
clause 3, the Congress is vested with the authority to conduct 
relations with the several States, foreign nations, and Indian 
tribes.
    Therefore, this bill should not be viewed as race-based, 
but rather legislation by which Congress is exercising its 
authority to address deficient health care conditions in Indian 
country. Therefore, I commend my colleagues, and particularly 
the chairman, Chairman Dorgan, for holding this hearing on this 
bill that provides crucial health care programs and services to 
Indian country.
    Mr. Chairman, may I ask that my full statement be made part 
of the record.
    The Chairman. Without objection, Senator Inouye.
    [Prepared statement of Senator Inouye appears in appendix.]
    The Chairman. Thanks for your comments and your long 
experience on this committee.
    Senator Tester, welcome.

    STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA

    Senator Tester. Yes; thank you, Mr. Chairman. I also want 
to thank you for having this hearing. I would just ask 
unanimous consent that my remarks be added to the record. I 
have them here, but we might as well proceed.
    Sorry for being late, but I have to leave early, too, to 
sorry about it on both counts. Thank you.
    The Chairman. Thank you very much.
    [Prepared statement of Senator Tester appears in appendix.]
    The Chairman. Let me ask a couple of questions of Mr. 
Agwunobi and Dr. Grim. It relates in some measure to what my 
colleague, Senator Thomas, was observing.
    Look, there are areas, I think, of unbelievable care, for 
which I am deeply indebted. I have great admiration when I go 
to clinics in various places and see folks in the Indian Health 
Service and the Public Health Service working, often for less 
money than they could make elsewhere, very dedicated to their 
service.
    Yet, my observation is that we are woefully short of that 
which is necessary. Let me give you an example, and see if you 
agree, Dr. Agwunobi. I will give you an example of one tribe. 
It applies to every tribe I visited. A young girl hangs 
herself, aged 14. She lies in bed in a fetal position for 90 
days before she hangs herself and commits suicide. She misses 
school, the whole thing. Her sister had committed suicide 2 
years before. Her father had taken his life 6 years before. Her 
mother was drug-dependent. So this young girl just falls out of 
the view of people and lies in bed for 90 days, misses school, 
and finally takes her own life.
    I went to the reservation. Her name was Avis Little Wind. I 
say her name with the consent of the remaining family. I went 
to the reservation and talked to the tribal leaders, talked to 
the school officials, talked to her extended family. What I 
found is exactly what I found elsewhere. There wasn't a ghost 
of a chance of this young girl getting the psychological help 
she needed. There wasn't even a car to drive her to a clinic 
had there been a clinic that provided the professional 
resources. They would have to beg and borrow a car to get Avis 
to a clinic. It wouldn't matter to get her to a clinic, they 
didn't have the capability.
    And that is true. You know, you talk about improvements, 
Indian kids have 10 times the rate of suicide of the national 
average in the northern Great Plains; a 600 percent higher 
tuberculosis rate; 500 percent higher alcoholism rate; and so 
on.
    So my point is, maybe we have made improvement in some 
areas. Some of the discussion about diabetes, I am heartened by 
some of the research and some of the treatment. But I just 
think we have a huge hill to climb here to address these 
unbelievable problems. And the victims, kids like Avis Little 
Wind, who felt hopeless and helpless and took her life, their 
memories cry out for us to do something. Senator Coburn said 
it, let's just not do something and say it is good enough. 
Let's do something that works.
    You talked about improvements, and I don't want to 
denigrate improvements at all, and don't want to denigrate the 
people that work for the IHS and public health, but boy, I tell 
you, I get so depressed sometimes when I see the lack of 
services. Tell me your impression of that.
    Mr. Agwunobi. Sir, I have been on the job now for about 
1\1/2\ years. Very early on in that tenure, Admiral Grim 
reached out to me and he said, John, let me show you something. 
You are a public health worker. You have worked at the State 
level for years, but I want to show you something you have not 
seen.
    He sent me out to I believe it was the Crow Nation, just 
south of Billings, MT. The tragedy of the story that you 
describe, sir, and it is a tragedy as an individual case, but 
the real tragedy is that it is not uncommon. The stories that I 
heard when I visited the tribal nation there and the stories 
that I have heard from tribal leaders since then would say it 
is actually fairly common.
    So I concur completely. The Administration concurs 
completely. I have been sent today not only to support Chuck, 
but to be a symbol of our commitment, our recognition of the 
fact that we have to do this now. My job, as the public health 
service coordinator, is to make sure that within our 
Department, across the different agencies, that we get it done 
and we get it done quickly.
    I am going to be working between the scenes, working in the 
background to support Admiral Grim, to support you, sir, and 
this Committee in trying to get this bill reauthorized.
    The Chairman. Could I ask, my understanding is that for 
every 100,000 American Indians, there are about 90 doctors. For 
every 100,000 Americans, there are about 239 doctors. It is 
about 2 to 1. Is that a close approximation, Dr. Grim?
    Mr. Agwunobi. Admiral Grim whispered to me that it is 
correct, but I will let him say it louder so everyone can hear.
    Mr. Grim. Yes, sir; those statistics are correct.
    The Chairman. Does that statistic have any relevance at all 
with respect to a potential level of care, the potential to 
receive the kind of treatment one needs?
    Mr. Grim. One would assume that it does. One of the things 
that we are trying to do new, though, that I would like to 
mention to you, is that we are working with an internationally 
renowned institute called the Institute for Health Care 
Improvement to try to develop a new model of care around the 
management of chronic diseases. That includes behavioral health 
sorts of diseases, integrating behavioral health, the kind of 
care that Avis could have used, into our primary care delivery 
system. We have 14 pilot sites under test right now. We are 
manipulating an evidence-based tested model so that it will 
work in our system. So we are trying to work smarter and more 
efficiently, too, within the limited resources that we do have.
    The Chairman. And we have been working, as you know, on the 
telemental health side as well to address it.
    Let me ask you one other quick question, and then I am 
going to ask Mr. Beckner a question, then turn it over to the 
vice chairman.
    You know I am interested in the issue of a new medical 
model of convenient care on Indian reservations. I know of one 
reservation, they have a fine clinic. It is old and it 
obviously is not up to date, but the people there are great. 
They are trying as hard as they can. But I think it is 9 
o'clock to 5 o'clock. It closes at 5 o'clock on Friday. This is 
a remote reservation. If at 6 o'clock on Friday night you have 
a problem, you are in trouble. You are going to have to go 
about 90 miles.
    My hope is that we can develop a new model of convenient 
care, using physician assistants and nurse practitioners, you 
know, convenient hours, long hours, 7 days a week in some of 
these walk-in clinics on reservations, because they are so 
remote.
    Are you interested in working with me and the committee to 
see if we can find a way to do that?
    Mr. Grim. Very much. I think a lot of the ideas you have 
are important and very valid. Some of our locations where the 
staffing allows, we do have extended hours and the patients 
have proven to like that very much. So the Administration wants 
to work closely with you on it. We have a lot of new models of 
health care we are testing. We are excited about your additions 
of telehealth for psychiatry and things like that. You are 
going to hear a little bit about in the next panel about the 
use of telemedicine with our Community Health Aid Program up in 
Alaska.
    We are very interested in showing you innovative models 
that we are already using internally, plus talk about models 
that we aren't right now that the committee would like to 
discuss.
    The Chairman. Thank you, Dr. Grim.
    Mr. Agwunobi, what you have said today gives me some heart 
because you say you want to work through the crevices and the 
cracks, and try to form some joints here between all of the 
agencies to find a way for us to improve things and get things 
done. So you can be sure that we, the minority and the majority 
on this committee, want to work with you and work with you very 
closely, along with Dr. Grim, and see if we can make some 
significant progress.
    Mr. Beckner, very quickly, as you know, there are legal 
discussions about this issue of the constitutional issues that 
you raised today. I don't dismiss them and don't suggest they 
are not without some interest to us and concern to us, but we 
need to find a way to address them. I have been frustrated in 
the way the Justice Department has connected to the committee.
    I hope that we can work with you the same way that Dr. 
Agwunobi has committed to work with us. Let's find a way to 
address these and solve them, and perhaps we will even in the 
end disagree, but at least we will have had a good exchange and 
then we can put a bill together and proceed, even knowing what 
the disagreement might be.
    Would you be willing to work with us on that basis? I don't 
want to wait until October or November or December of this 
year. I want to put this together and begin moving the 
legislation.
    Mr. Beckner. I can answer that question in one word: Yes, 
we would be happy and delighted to work with the committee. In 
fact, we worked extensively with the committee last year and 
addressed all our liability concerns, and did not oppose 
passage of S. 4122. Our liability concerns were addressed in S. 
4122 and we did not oppose passage of that legislation. We look 
forward to working just as cooperatively with this committee on 
the next version of the bill.
    The Chairman. All right. I am going to send you some 
written questions, with your permission, and would ask both to 
be available.
    Senator Thomas.
    Senator Thomas. Thank you, Mr. Chairman.
    Doctor, you in your comments talked a little bit about 
rulemaking as time consuming. However, isn't it true that 
negotiated rulemaking can result in probably better results 
than having to go to court and so on?
    mr. Agwunobi. Sir, there are obvious advantages to 
negotiated rulemaking in many settings. Our concern relates to 
any language that would constrain the Secretary from his 
ability to reach out to tribes in direct conversation and 
direct consultation, and to meet needs as they arise over time.
    Senator Thomas. All right. You talk about the flexibility 
for the Secretary to do that. The tribes also should be 
afforded flexibility, don't you agree with that?
    Mr. Agwunobi. Yes; I would concur.
    Senator Thomas. What is the involvement with tribal members 
or Indians on Medicare and Medicaid?
    Mr. Grim. The Department has established in the last couple 
of years a group called the Tribal Technical Advisory Group. 
CMS established that in consultation with tribal leadership. 
There are representatives from each region, each Indian Health 
Service region of the Country, and then also from several of 
the major tribal groups that comprise tribal leaders. CMS holds 
regular meetings with them to discuss policy issues.
    Senator Thomas. I am talking about what percentage of the 
tribal members actually are signed up to involve themselves in 
part D of Medicare?
    Mr. Grim. I don't have those numbers off the top of my 
head, Senator, but we do have numbers of how many tribal 
members we have signed up under the new Medicare part D 
legislation, and we can provide that to you for the record.
    Senator Thomas. Do you encourage that? Why wouldn't you?
    Mr. Grim. Yes, sir.
    Senator Thomas. I understand, where you have tribes that 
are a long ways away, but the tribes I represent, for instance, 
are right outside the town, and they can participate fully, 
can't they, in these other programs?
    Mr. Grim. Yes, sir; we are encouraging that. All of our 
patients' benefits coordinators have been trained on how to 
educate and get people enrolled in Medicare part D. We played a 
large part in the Department in both supporting that and trying 
to get our members enrolled in that. We are very supportive of 
it.
    Senator Thomas. I am obviously very much for an Indian 
Health Program because it has unique aspects, but on the other 
hand I think we ought to recognize that these folks are 
eligible to participate in the same program that you and I are.
    Mr. Grim. Yes, sir; we sign them up for Medicare and 
Medicaid, if they have private insurance. And that is one of 
the things that we pointed out to Senator Dorgan and some of 
his questioning in the past is that we try to use all those 
alternate resources before we use our contract health services 
budget to pay for things.
    Senator Thomas. I guess that is particularly true about the 
detailed kinds of unique treatments.
    Mr. Grim. Yes, sir; especially for a lot of specialty care 
that we can't provide in our setting.
    Senator Thomas. Specialty care and so on you are not going 
to provide. I think we need to recognize that and get this 
combination of things going as well.
    Mr. Beckner, I guess I am a little surprised you say you 
have not had a chance to look at the bill. You have people to 
do that, don't you?
    Mr. Beckner. Yes; we do have people to look at the bill, 
but I don't believe they have been provided the current version 
fo the bill.
    Senator Thomas. But it is generally not too much different 
than it has been and so on.
    Mr. Beckner. Then we look forward to working with you. If 
it is not too much different, we would expect our concerns to 
be pretty narrow or possibly already resolved.
    Senator Thomas. That is really how it kept from happening 
last time, wasn't it, the concerns that the Department had and 
so on?
    Mr. Beckner. Kept what from happening, Senator?
    Senator Thomas. Kept us from passing the bill.
    Mr. Beckner. I don't believe so, Senator. Our concerns were 
resolved with S. 4122, and we did not oppose passage of S. 
4122. We did not object to it. Our liability concerns were 
resolved and we did not object to its passage.
    Senator Thomas. Okay, good.
    If State law doesn't impose medical malpractice liability, 
how would the United States be liable?
    Mr. Beckner. Are you referring to traditional tribal 
healing practices?
    Senator Thomas. Yes.
    Mr. Beckner. If there is no cause of action for malpractice 
for tribal healing practices, then the United States could not 
be held liable for those practices.
    Senator Thomas. Okay.
    Mr. Beckner. We believe that is the better reading of the 
law today, and we were seeking just clarification in the passed 
Act that that was the case.
    Senator Thomas. You referred in your written testimony to 
medical community standards. What is that?
    Mr. Beckner. Well, ordinarily in an ordinary medical 
malpractice case, the way that they are resolved is by looking 
at how medicine is practiced in the prevailing medical 
community. Under State law, that is ordinary State medical 
practitioners. So if you had an open heart surgery and 
something went wrong, they would look to how the ordinary 
standard of care that was provided by the medical licensed open 
heart practitioners, and judge whether the care you received 
was deficient relative to that standard.
    Senator Thomas. I see. Well, the Department dropped their 
objections at the very last minute, so we are going to have a 
little different arrangement this time, do you think?
    Mr. Beckner. Dropped our objection to what?
    Senator Thomas. To the bill last year. That is the reason 
why it didn't pass.
    Mr. Beckner. We are prepared to work very cooperatively and 
I would hope that we would be able to resolve any issues we 
have with the current version of the bill readily and as 
quickly as possible.
    Senator Thomas. Good. Have there been any medical 
malpractice lawsuits arising from traditional health care 
practices?
    Mr. Beckner. Have there been any?
    Senator Thomas. Yes.
    Mr. Beckner. Not that I am aware of, sir.
    Senator Thomas. Okay.
    Thank you, Mr. Chairman.
    The Chairman. Senator Tester.
    Senator Tester. Thank you, Mr. Chairman.
    As I have been fairly active getting around the State of 
Montana the last couple of years, there are all sorts of 
stories out there dealing with health care from the non-Indian 
population. And then you walk onto Indian Country and those 
horrors are compounded tenfold. I appreciate the fact that you 
visited the Crow Reservation. I think it is fair to say most of 
the tribes in the northern Great Plains are in that same 
situation.
    It is the biggest concern I hear about when I go in Indian 
country. I was on the Salish Kootenai Tribe last weekend. A 
good portion of that meeting was eaten up by health care 
concerns. It is a very, very critical issue, both from access 
and availability. I don't have to tell you that if you happen 
to get sick at the wrong time of the year when the budget runs 
out, you can't get services.
    It is not an easy problem to solve. It is a problem that 
quite frankly is a bit overwhelming to me, but it is a problem 
that has to be solved.
    My question to you is, do you have any ideas on how we can 
deliver health care better in Indian country, and quite 
frankly, in the urban centers, too, off the reservations? Are 
there any ideas? Does it solely revolve around money resources? 
Or are there other things we can do? I know it is a pretty 
broad question, but you can answer any way you would like.
    Mr. Agwunobi. Thank you, sir. I think one of the most 
important things that we can do in the near term is to 
reauthorize the Indian Health Care Improvement Act. I am very 
clear in my mind on that. My colleague, Admiral Grim, and I 
have had long conversations about the fact that getting it 
done, not only does it relate to what is in the bill, but it is 
a symbol of our commitment as a Nation.
    Senator Tester. Let's just assume that it is passed and it 
is done. What is the next step?
    Mr. Agwunobi. I think there is an ongoing need for us to 
address access issues. One of the things that we are working 
with with the Indian Health Service is trying to make sure that 
they are fully staffed, their need for nurses and for doctors, 
that we find ways either through the U.S. Public Health Service 
Commission Corps or other ways to make sure they have access to 
the staff, the kinds of staff that they need, such as mental 
health providers, nurses, physicians, dentists.
    I do think we also have to keep our mind and our focus on 
the fact that there are emerging threats that threaten to 
compound this circumstance even more, methamphetamine abuse for 
example, and the epidemic of use that is tearing into many of 
these communities.
    I think when all is said and done, it is going to require 
that we consult with the tribes themselves, that they help give 
us the ideas of how we might be able to help. These are 
sovereign nations, proud people, and they need to be a part of 
the solution in terms of its design.
    I will turn to my colleague to see if there is anything 
else you want to add.
    Mr. Grim. I would just say I agree 100 percent with what 
Admiral Agwunobi says. There are a lot of innovative things 
going on within Indian Health Service. The thing that we 
haven't done is that we haven't spread some of those innovative 
things all over the country. We are looking at methods to do 
that now. I think that is an advantage of our system, that we 
can rapidly spread best practices or new things that we are 
learning in one place rapidly across our system, whether they 
are the Federal system or the tribal system.
    We are working on really that methodology right now. We 
have done it in diabetes. We have become world renowned, I 
think, in that in the way we have dealt with diabetes. We are 
starting to do that in chronic care now and in behavioral 
health.
    So that is part of working smarter within the system that 
we have or bringing in new innovations that this committee 
might want to discuss. That is some of the things we are 
looking at for the future.
    Senator Tester. I appreciate your respect for the 
sovereignty issue. I also appreciate your comment about working 
together to find solutions, and listening, because I think that 
is critical.
    I also appreciate the fact that you are using best 
practices in other areas and trying to spread them around the 
Country.
    I also appreciate your haircut, by the way. [Laughter.]
    Mr. Grim. I like yours, too. [Laughter.]
    Senator Tester. The next question I had was, is has there 
been, are you actively seeking communication from individual 
sovereign nations? I would like to ask in Montana, 
specifically, but it is important all over the Country. Has 
that dialogue started? Is it continuing? Is it regular? Because 
quite frankly, sometimes I wish I was still on the farm so I 
didn't have to deal with these kinds of issues, because I am 
telling you, it is serious, serious business. If we don't 
address these problems, they are only going to get far, far 
worse. So has that dialog been going on and is it going to 
continue, and with what kind of regularity?
    Mr. Agwunobi. I will start, and then turn it over to my 
colleague. It has absolutely started. The notion of 
consultation is something we believe is an obligation on our 
end, to uphold and facilitate. My trip to Billings and then on 
down into Crow country was a beginning of a larger commitment. 
I have spoken with tribal leaders and committed to coming to 
them, not just having them seek us out, but coming to them. And 
I came to that community to listen to what are the needs, how 
can we help.
    The answer, sir, is yes, yes, yes, and yes. We have started 
talking. We are going to continue talking. And we are going to 
increase our communication. ``Talking'' is perhaps the wrong 
word. We are going to increase our listening, not just hearing, 
but listening.
    Senator Tester. I appreciate that.
    Thank you.
    The Chairman. Thank you very much, Senator Tester.
    Before I turn to Senator Murkowski, Mr. Beckner, Vice 
Chairman Thomas was asking you some questions. I felt like you 
were shifting in some ways from a direct answer, and I want to 
describe the concern. We worked for two years on the Indian 
Health Care Improvement Act, worked very hard on it, Senator 
McCain, myself and others on the committee, to try to put 
something together. We worked for 2 years.
    On September 26 last year, at the end of the 2-year period, 
this showed up. It is a Department of Justice white paper. It 
is not signed. It was given to the steering committee of one 
political caucus in the Senate, not both, just one political 
caucus. It wasn't offered to the Committee on Indian Affairs, 
neither to the majority nor the minority; raises all kinds of 
questions in six single spaced pages. It takes the position 
similar to the position you have taken today on things. The 
classification of Alaska Native is based on race, and therefore 
will be a problem.
    So this is what I don't understand. One of the reasons I 
asked you to be here is that Senator Thomas was asking you 
about cooperation. How does it work that at the end of a 2-year 
period, we have a white paper show up at the steering committee 
of one political caucus in the Senate, not shared with this 
committee? It did result, by the way, in several holds being 
put on the bill. The result is 2 years of work on a bill that 
we had watered down substantially because of objections from 
HHS, objections from Justice. It resulted in us not being able 
to pass a bill.
    So how does this white paper show up, and especially how 
does it show up not to us, but to a steering committee of a 
political caucus in the Senate?
    Mr. Beckner. Thank you, Mr. Chairman, and thank you for 
giving me the opportunity to clear up the confusion about the 
white paper.
    It is my understanding that the Department's staff met with 
committee staff for, as you said, 2 to 3 years on this bill. 
The views that were set forth in that white paper reflected the 
issues that had been previously raised in those meetings. In 
those prior meetings, the staff was somewhat frustrated that 
all the discussions were verbal, and they asked the Department 
to put into writing some suggestions for language.
    The white paper was intended to serve as a constructive 
roadmap for resolving those concerns. It was the Department's 
intention to provide the white paper to the Committee staff 
after the Senate had gone into recess in the fall, in order to 
further our discussions and use the white paper in continued 
meetings with the staff.
    Unfortunately, a version of the white paper was released 
prior to that time and not to the committee staff.
    The Chairman. Who released it?
    Mr. Beckner. I don't know, your honor.
    The Chairman. Who prepared it?
    Mr. Beckner. It was prepared by lawyers in the Department 
of Justice, lawyers at the Torts Division, Office of Legal 
Counsel and others.
    The Chairman. Have you asked the question of who released 
it?
    Mr. Beckner. I have asked whether the Department of Justice 
released it and I was told that no one in the Department of 
Justice released it. And I understand that after we found out 
it was released prematurely, that it was provided to committee 
staff and that we then also met with representatives of the 
American Indian community to discuss it as well.
    I do apologize for the timing. It was not our intent to 
have it come out while the Senate was still in session. It was 
our intent to use it to address staff concerns for written 
specific targeted dialog that could result in actual language. 
I would say that that actually happened, that based on the 
white paper, we had very fruitful discussions with committee 
staff. We ended up resolving our liability concerns with three 
or four targeted suggestions, and our liability concerns were 
resolved by S. 4122. We did not object to that bill.
    The Chairman. It was not clear in September that we were 
going to be back for a lame duck session, but it appears to me 
this was designed at the end of the process to kill the bill. I 
can simply say to you neither Senator McCain's staff nor my 
staff, he was chairman and I was vice chairman, were privy to 
this, and I don't believe either of those staffs asked you to 
prepare this. I don't believe for 1 moment that no one released 
it. It shows up in one caucus here in the Senate accidentally? 
I don't think so.
    That is why I started out this hearing with some concern 
and some frustration. It is the case that there have been 
efforts at every step along the way to undermine the efforts to 
pass this bill. We have a piece of legislation that we need to 
reauthorize. It deals with people's lives, health care. You are 
suggesting to us we can't deal with Alaska Natives because it 
is racial, for God's sake? The Department of the Interior 
recognizes Alaska Natives.
    So anyway, I have gotten rid of my frustrations with you 
today only to say that this can't happen again. If you are 
going to cooperate with us down at Justice, you have to do that 
with all of us. We want to work with you in a forthright way to 
get something done here. That is the reason Senator Thomas was 
asking the questions. I am just telling you the evidence at the 
end of last year is that Justice put out a white paper to kill 
this legislation. And they did.
    God bless you, but the fact is this legislation needs to be 
passed and soon, and we will work with you, but at some point 
you can put all of the white papers you want. If you don't 
agree with us, don't come by in the midnight hour trying to 
kill the product with white papers going to one political 
caucus in the Senate. That is not going to work.
    Mr. Beckner. I hear your concerns and I understand your 
frustration. I can just reiterate that it was not our intent to 
have it released.
    The Chairman. Yes; but let me tell you something. You read 
your response. When I asked you the question, you read what you 
had prepared, and I think you have carefully considered how you 
would respond to this uncomfortable question. I would much 
prefer that you would not have had to read that, and instead 
you would not have killed that bill last year. So let's start 
over and work and see if we can get it done this year.
    Senator Thomas, I don't know whether you have a comment on 
that.
    Senator Thomas. No.
    The Chairman. Senator Murkowski.

   STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I am glad that 
you jumped in front of me because I was certainly prepared to 
ask many of the same questions. I think we all find it 
troubling that you spend the amount of time and, Mr. Chairman, 
I know that you and Senator McCain spent an inordinate amount 
of time working this through in the past couple of years, along 
with the rest of us on the committee.
    We recognize the importance of this legislation. To have 
it, someone suggested, stalled out, but I think you have 
appropriately said it, it was killed, and I think in a most 
unfortunate way.
    Mr. Beckner, you have just indicated in response to Senator 
Thomas that you are going to look to resolve any issues that 
you have with this bill and indicate that you are going to 
cooperate with this, but I think it is fair to say that it 
needs to be done openly, honestly, throughout the process. This 
is too important an issue to the people in my State and the 
people in States that are represented around this table, to 
have legislation like this that relates to the basic health 
care needs of our American Indians, Alaska Natives, and Native 
Hawaiians, to not have it be reauthorized.
    I appreciate you, Mr. Chairman, bringing this forward 
today, the opportunity to ask some of the tough questions. I 
apologize that I was not able to hear the testimony this 
morning. I will have to go back and read the transcript and 
make sure that I am fully up on what you all have said.
    Mr. Chairman, I want to thank you. You had encouraged me to 
work with you on how we might be able to move forward some 
models for perhaps community health aide programs. In the next 
panel, we will have Steven Gate from Sitka here today to talk 
about the Alaskan model. With that in mind, Dr. Grim, I would 
like to ask you your assessment of the success of the Community 
Health Aide Program in Alaska. You have been around for a long 
time watching what we are doing up there. Can you just speak to 
this program and how it might be a model for the rest of the 
country?
    Mr. Grim. I think it has been an outstanding success, 
Senator. In fact, it has been used as a model in other parts of 
the world. We have been asked to have dignitaries from other 
parts of the world come visit Alaska to see how they use it. 
They have innovatively trained community members. I have 
visited with some of those people. I don't know how they do it, 
living in some of the remote communities that they do. They are 
basically on call 24/7 because the community knows where they 
live. It is a stressful job for them, but they do an 
outstanding job.
    You have also linked telemedicine very recently in 
innovative ways so that those community health aide 
practitioners have links to our major medical centers there in 
Alaska. So when they have problems or need to send pictures or 
get consults, they now have consults with some of the best 
specialists and sub-specialists in the State.
    It is an outstanding model and they do a great job. I would 
like to publicly applaud them.
    Senator Murkowski. Thank you. I know that they appreciate 
your support.
    As you know, we have many in the community who are not 
State licensed to deliver the care. Over the 40 year history of 
the program, to your knowledge, do we have any problems in 
terms of liability?
    Mr. Grim. To the best of my knowledge, I could ask our 
people that deal with that and give you a more perfect response 
for the record, but no, we have not had, and we have had a 
Federal oversight board, as you know, that certifies those 
individuals.
    Senator Murkowski. That is my understanding. We are doing 
very well and have not had problems with the liability issue. 
It is something that I know that Justice had expressed some 
concerns about. I am not quite sure why, so it is nice to have 
it on the record. If you have anything that would supplement 
that, I would certainly appreciate that, but I think we can use 
this as one of those models applicable throughout the rest of 
the country as we attempt to deliver health care in rural and 
isolated places.
    Mr. Chairman, I just want to note for the record that among 
the Alaska Natives, my constituents up north, there is no one 
more important piece of legislation that this Congress could 
pass than the reauthorization of this. So we look forward to 
working with you on this and hopefully have the genuine 
commitment from all involved.
    I also have an opening statement that I would like to have 
included as part of the record.
    The Chairman. Without objection, Senator Murkowski.
    [Prepared statement of Senator Murkowski appears in 
appendix.]
    The Chairman. We talked a little about a new medical model 
of convenient care centers and so on that we have been talking 
about and working on.
    Senator Tester had another question.
    Senator Tester. Yes, Mr. Chairman; thank you very much. I 
want to take a step back because I may have made an assumption 
I should not have made, that the passage of this bill is 
automatic, because it is obviously not. What is the date on 
that white paper?
    The Chairman. The date is September 26, I believe.
    Senator Tester. Of last year?
    The Chairman. Yes.
    Senator Tester. Was the bill amended after that date?
    The Chairman. We worked on the bill leading up to and 
through the lame duck session. We made some modifications 
following that date as well.
    Senator Tester. Okay. The question I had was for Mr. 
Beckner. You had said, when Vice Chairman Thomas was asking you 
questions, that you had not had a chance to take a look at the 
bill, but if it was similar or identical to the bill in the 
109th Congress, that you were not going to have any problems 
with it.
    Mr. Beckner. If it was identical to S. 4122, we had no 
objections to S. 4122.
    Senator Tester. And so those few changes that were made 
after September 26, 2006 took care of all your concerns in that 
6-page single spaced white paper?
    Mr. Beckner. I am sorry I interrupted you, Senator.
    Senator Tester. That is all right.
    Mr. Beckner. They resolved all our liability concerns, and 
we agreed to disagree on the constitutional issues. We did not 
object to the legislation.
    Senator Tester. Okay. Thank you very much.
    Senator Thomas. The Senate might be interested to know that 
the bill was introduced 2 hours before the end of the session 
last year, so it had gone through a lot of things.
    The Chairman. Let me also make the point, to finalize the 
point, the bill that was introduced at the end of the last 
session was not something that I had signed up to or agreed to. 
What happened was your September white paper actually forced a 
circumstance where objections were raised on the floor so that 
the floor couldn't be brought forward. It forced more 
discussions to happen in the last hours of the session. Changes 
were made to the bill that I did not agree with and did not 
support.
    The bill didn't pass, in any event. My point, Mr. Beckner, 
is I think it is pretty clear to me, and I have been around 
here a long while, the way it works, this tubed the bill. I 
have invited you to testify today, and I appreciate your being 
here. You have said you want to cooperate with us. I want to 
cooperate with Justice and I want to turn the page. But I don't 
like what happened last year. I don't want it to happen again. 
If we disagree, that is fine.
    You are in the executive branch, and you can disagree with 
us. We are in the legislative branch. We are going to 
legislate. We will work with you to solicit your input, solicit 
the input of HHS, do the best we can to put together the best 
legislation we can do, and try to move legislation. I don't 
want to wait until the end of next year to find out that we 
would fail again. I want to succeed and I want to do it sooner, 
rather than later.
    So I appreciate your pledge of cooperation. We will look 
forward to working closely with you.
    Mr. Agwunobi, we are going to work closely with you and Dr. 
Grim as well, because we want to work on some changes in the 
medical models and convenience care and other things that will 
write a new bill, one that I think is more exciting, more 
interesting, and as Dr. Coburn said earlier, that really does 
change the delivery system of better health care to people who 
desperately need it.
    I want to thank the three of you for appearing today and 
for being with us at the hearing. Thank you very much.
    Mr. Agwunobi. Thank you.
    Mr. Beckner. Thank you, Mr. Chairman.
    The Chairman. I would like to now call the final four 
witnesses. Richard Brannan is chairman of the Northern Arapaho 
Business Council at Fort Washakie, WY.
    Might I ask the Indian Health Service to stay, and Justice? 
If you have the time, I would love to have you stay just for a 
bit to hear some of the testimony.
    Okay, thank you.
    Rachel Joseph is cochair of the National Steering Committee 
on the Reauthorization of the Indian Health Care Improvement 
Act. Edward Lazarus is a partner at Akin Gump. Steve Gage is 
director, Community Health Aide Program, Southeast Alaska 
Regional Health Consortium in Sitka, AK
    We thank you for being here. We appreciate your patience. 
We will have Richard Brannan begin.
    Would you wish to say a word?
    Senator Thomas. Yes; I would. I want to welcome the 
chairman, Richard Brannan, from the Northern Arapaho Tribe at 
Fort Washakie, WY, to testify. Chairman Brannan participates in 
the National Indian Health Budget Formulation Team, the 
National Tribal Leaders Diabetes Committee for the special 
diabetes program for Indians. I appreciate his leadership and 
am delighted to have you here, sir.
    I am sorry you had problems getting here. I understand you 
came to Denver to Los Angeles to Washington.
    Mr. Brannan. Yes, I did. [Laughter.]
    Senator Thomas. That is the long way around.
    The Chairman. Mr. Brannan, you may proceed. Your entire 
statement, in fact the statements of the panel will be made 
part of the record.
    Mr. Brannan. Thank you.

   STATEMENT OF RICHARD BRANNAN, CHAIRMAN, NORTHERN ARAPAHO 
                        BUSINESS COUNCIL

    Mr. Brannan. Good morning, Chairman Dorgan, Vice Chairman 
Thomas, members of the committee. My name is Richard Brannan. I 
am the chairman of the Northern Arapaho Tribe of the Wind River 
Reservation in Ethete, WY. I am serving my fourth term as 
chairman of my tribe. I am a member of the National Steering 
Committee for the Reauthorization of the Indian Health Care 
Improvement Act, the Tribal Leaders Diabetes Committee, and the 
Indian Health Service Budget Formulation Team, representing the 
Montana and Wyoming tribes.
    I worked several years for the Wind River Service Unit, the 
IHS facility on my reservation, as the Administrative Officer. 
Health care has been a personal priority not only during my 
interim in the IHS, but as a tribal leader. I appreciate this 
opportunity to address the health issues of tribes, and would 
like to thank the committee for the opportunity to testify in 
support of the Senate bill to reauthorize the Indian Health 
Care Improvement Act.
    Today, I would like to divert from the usual delivery of 
testimony. I have faith in my colleagues and their knowledge 
and experience that they will impart to the committee today the 
priority issues relating to and the importance of reauthorizing 
the Indian Health Care Improvement Act.
    Instead, today I would like to put a face to these priority 
issues so that as we deliberate on reauthorization that we keep 
the faces of American Indian and Alaska Native people in our 
minds and hearts. As I begin this address, there are 
fundamental principles that need to be reaffirmed regarding 
tribes and our sovereign status.
    The overarching principle of tribal sovereignty is tribes 
are and have always been sovereign nations. Tribes pre-existed 
the Federal union and draw our rights from our original status 
as sovereigns before Europeans arrived. The fundamental 
principles of tribal sovereignty are as a sovereign nation. 
Tribes, as evidenced through the treaty-making Indian commerce 
clause of the Constitution, engage in a government-to-
government relationship with the United States.
    The sovereign power of tribes include the power to 
determine our form of government, determine tribal membership, 
regulate domestic relations among our members, prescribe rules 
of inheritance, levy taxes on members and persons doing 
business with members on tribal lands, control entry onto 
tribal lands, regulate the use and distribution of tribal 
property, and administer justice among members of our tribe.
    Today, I would like to take you back approximately 143 
years to one of the most horrendous acts perpetrated on the 
Arapaho people, the Sand Creek Massacre. To this day, we do not 
really know the level of historical trauma sustained by our 
tribe because of this event, but we do know that it is there 
and we continue to suffer because of it.
    Colonel John Chivington, a Methodist minister, and his 800 
troops marched in order to attack the campsite of Black Kettle. 
On the morning of November 29, 1864, the Army attacked the 
village and massacred most of its inhabitants. Chivington 
proclaimed before the attack, ``Kill and scalp all big and 
little. Nits make lice.'' Only 9 or 10 soldiers were killed, 
and 3 dozen of them were wounded. Between 150 and 184 Arapahos 
and Cheyennes were reported dead or killed, murdered. And some 
were reportedly mutilated, and most were women, children, and 
elderly men.
    Chivington and his men later displayed scalps and other 
body parts, including unborn babies that were cut from their 
mother's wombs and the private parts of women.
    The Joint Committee on the Conduct of the War declared as 
to Colonel Chivington, your committee can hardly find fitting 
terms to describe his conduct. Wearing the uniform of the 
United States, what should be the emblem of justice and 
humanity, holding the important position of commander of a 
military district.
    Therefore having the honor of the Government to that extent 
in his keeping, he deliberately planned and executed a foul and 
dastardly massacre, which would have disgraced the vilest 
savage among those who were the victims of his cruelty. Having 
full knowledge of their friendly character, having himself been 
instrumental to some extent in placing them in their position 
of fancied security, he took advantage of their inapprehension 
and defenseless condition to gratify the worst passions that 
ever cursed the heart of a man.
    I am an Arapaho, and when I speak about the Sand Creek 
Massacre, I am amazed that we as Arapaho people have 
persevered. During the Sand Creek Massacre, Arapaho women and 
children were brutally murdered. The soldiers especially 
targeted children that day, with the idea to exterminate them 
and destroy the entire tribe.
    The Sand Creek Massacre occurred in 1864 and today it is 
2007. We as tribal people continue to fend off the attack on 
our children. This time, the attacker is not as visible as 
Colonel Chivington's troops, but more deadly. In 2007, we are 
defending our children from succumbing to the effects of the 
decreasing Indian Health Care budget, devastating health 
disparities, and dangerous emerging diseases, the impacts of 
methamphetamine abuse.
    Nationwide, the disparity in health status and access to 
health care for American Indians and Alaska Natives is 
staggering. Tribal leadership and the Indian Health Service 
continues to educate Congress and the Administration and all of 
America on the devastating disparity suffered by American 
Indians, Alaska Natives in health status, mortality rates, and 
access to health care. Diseases that continue to challenge the 
health of American Indians and Alaska Natives are diabetes, 
alcohol substance abuse, heart disease, and cancer.
    Today, what I did is, I brought pictures of three little 
Arapaho angels. I call them angels because they are in heaven 
now. They couldn't be here in person. I apologize. What I did 
is I had to show them. This is what I face every day, is the 
death of children, and the suffering.
    This beautiful little baby whose name is Dylan Whitcomb. 
Dylan is Arapaho. He was diagnosed in late 2004 and died in 
early 2005 of neuroblastoma. He had just turned 5 years old. He 
was a brave little boy and often amazed his grandmother in his 
unwavering certainty that he would get better. In fact, he 
often comforted his family. Dylan needed treatment that was 
more than could be provided by the Wind River Service Unit.
    By the time resources were made available through private 
sector partnerships and charitable givings, Dylan had advanced 
stages of the disease. He entered a children's cancer treatment 
center where one of his friends was a little girl that was 
diagnosed with the same disease about the same time as Dylan. 
She was able to access care earlier than Dylan and was healthy 
at the time of the reporting. Cancer is devastating.
    What I did is I brought a picture. Her name is Marcella 
Hope, a little 22 month old baby that was killed. She died 
hanging in a closet on a hanger, years of abuse because her 
parents were methamphetamine addicts. I have to live with this 
as the chairman. I have to live with my conscience. I have to 
see what can I do. I come here. I am not trying to grandstand. 
I am trying to get a point across here. People are dying. 
Children are dying. We need to do something. People are 
suffering. I live this every day.
    This little boy here is also a 22-month old little Arapaho 
angel. We only buried him in November. At 22 months, he was 
beaten to death. I went to his funeral. It is not natural to 
see a little 22 month old baby in a casket. They had to have a 
hat on him because his head had swelled so large. I went the 
night before to his grandfather's residence. I went in there 
and I asked him, I said, can you please forgive me for failing 
you and your little grandson. And what he responded back to me, 
he said, he was special. People feel guilty. They may feel 
guilty, but he was special, and God called him early.
    His other grandfather is being buried today. He died from 
sorrow of losing his grandbaby.
    I did have written testimony, but I need to get that across 
to everybody in this room, that we are dealing with little 
children. We are dealing with human beings that have feelings. 
I always try to do that. I am not much in terms of statistics, 
because that doesn't really show the true story.
    In closing, my grandmother, she lived to be 99 years old. 
Her name was Cleland Thunder. And what she told me is her 
elders taught her to pray for the President, the Vice 
President, Congress, all of the people that work here in 
Washington, that they would be blessed; that they would have a 
good life; and hopes that life would be so good for them that 
they would look back on the Arapaho people with some pity.
    We continue to practice that today. That is a continuous 
practice. What I come here today for is asking for the Federal 
Government just for some pity, some compassion. I thank you for 
giving me this opportunity to testify. The Sand Creek Massacre 
is my legacy. That is my life. I live that every day. I live 
that trauma. So that is why I am talking about it, and I am 
trying to make the connection of the Sand Creek Massacre of 
what is happening to our children today.
    Thank you, Mr. Chairman. Thank you, Committee members for 
allowing me to testify. You have given me the honor to be here.
    [Prepared statement of Mr. Brannan appear in appendix.]
    The Chairman. Chairman Brannan, thank you very much for 
being here. Thank you for your passion. We understand that it 
was difficult for you to even get here, just with the 
arrangements and so on. And thank you for invoking the memory 
of some wonderful young members of your tribe and telling us 
about their lives. We appreciate that very much.
    Ms. Rachel Joseph is the cochair of the National Steering 
Committee on the Reauthorization of the Indian Health Care 
Improvement Act. Ms. Joseph, thank you for your abiding work on 
this issue over a long period of time. We appreciate very much 
your being here.

   STATEMENT OF RACHEL A. JOSEPH, COCHAIR, NATIONAL STEERING 
  COMMITTEE ON THE REAUTHORIZATION OF THE INDIAN HEALTH CARE 
                        IMPROVEMENT ACT

    Ms. Joseph. Thank you. Good morning, Chairman Dorgan, Vice 
Chairman Thomas, and members of the committee.
    I am Rachel Joseph, Co-Chair of the National Steering 
Committee for the Reauthorization of the Indian Health Care 
Improvement Act.
    In 1999, the director of the Indian Health Service 
comprised the National Steering Committee of Tribal 
Representatives, a national organization. After extensive 
consultation with the tribes, we forwarded a consensus bill 
which reflected the best thinking of tribal leaders across the 
Country. We continue to provide advice and feedback to the 
Administration and Congress regarding reauthorization.
    In 1976, when the Indian Health Care Improvement Act was 
enacted and signed by President Ford, with the mission to bring 
the health status of the first Americans to the level of the 
general U.S. population. The Indian Health Care Improvement Act 
was reauthorized in 1988, and again in 1992, but has not been 
updated in over 14 years. Modernization is necessary for 
improvements to the health care systems.
    The health disparities as already articulated by the 
assistant secretary of Health and the chairman of the committee 
demonstrates the need to provide enhancements so that we can 
update our health care delivery systems, improve the quality of 
life, and save the lives of Indian people.
    Since 1999, we have accommodated Administration and 
congressional concerns by working out many compromises and by 
reaching consensus on key policy issues. At the same time, the 
steering committee has held to the guiding principles of no 
regression from current law and protection of tribal interests.
    After working to secure reauthorization, you can imagine 
how disappointed Indian country was when the Indian Health Care 
Improvement Act failed to pass the Senate in the 109th 
Congress. The bill, we believe, was largely derailed by the DOJ 
memorandum already discussed today.
    The memo addressed issues that would erode sovereignty and 
contained several inaccurate claims. DOJ raised constitutional 
issues regarding the definition of Indian. The definition of 
Indian in the reauthorization is the same definition that has 
been in the law for over 30 years, and has never been 
challenged on constitutional grounds. This definition is 
consistent with definitions of Indian found in other Federal 
laws, such as the No Child Left Behind Act.
    To ensure no regression from current law, the steering 
committee strongly recommends that the definition of Indian, 
definition of urban Indian and definition of California Indian 
be retained.
    DOJ also objected to FTCA coverage for home and community-
based services and traditional health care practices because of 
standard of care issues. Currently, the IHS and tribes provide 
home health care services following State Medicaid standards of 
care. Traditional health care practice can be complementary to 
Western medical medicine. In most cases, traditional health 
care practitioners are not employees of the IHS or tribes so 
FTCA coverage would not apply. Also, it is our understanding, 
as already testified to by the Department of Justice, that no 
FTCA claim has ever been made for this kind of health care.
    Over the past few months, the steering committee has worked 
with congressional staff in recommending legislative changes to 
any reauthorization. My written testimony highlights these 
issues in great detail.
    As asserted by Mr. Chairman and Senator Coburn, the status 
quo is not acceptable. Thus, we support strongly the elevation 
of the IHS director to the assistant secretary of Health and 
Human Services. We believe that elevation is consistent with 
the government-to-government relation and the trust 
responsibility to tribal governments.
    We support strongly the establishment of a bipartisan 
commission to study the optimal way to provide health care to 
Indian people. We believe that the last version of the 
legislation did modify language relate-d to the study and we 
would recommend that we stay with the language that was in S. 
1057.
    We believe strongly that tribes should provide the kind of 
long-term care and human community-based services that are made 
available to other populations in our Country, enabling elders 
to receive long-term care and related services in their homes 
or tribal facilities closer to family and friends.
    We strongly support comprehensive behavioral programs for 
at-risk Indians, and the authorization would allow behavioral 
health programs to reflect tribal values and emphasizes 
collaboration among alcohol substance abuse and social service 
programs, and mental health for all age groups, with specific 
programs for Indian youth.
    Chairman Dorgan, in your Senate floor statement of January 
22, you discussed the need for improving emergency access to 
reservation health care through expanding clinic hours and 
other innovations. You asserted the need for an Indian health 
care delivery model to replace existing emergency rooms at 
hospitals with low cost and after walk-in clinics, a model 
currently available in the private sector. We appreciate your 
leadership in proposing delivery systems in Indian country that 
are more accessible.
    In spite of our consistent underfunding, our tribal 
programs continue to establish innovations that make care more 
accessible. For instance, some tribes have established after-
hour programs for health promotion and disease prevention. My 
local health board is proposing a preventive dental health 
program on Saturday mornings for families who are not able to 
access these services during the week.
    Some programs provide after-hours services by establishing 
toll-free numbers for patients to call in. I have a copy of our 
magnets that list all the toll free numbers of our health 
project, to ensure access for our service population, 
particularly since 10 percent of the people that we serve are 
over 65 years of age, and 32 percent of our children under five 
are at poverty level or below.
    It lists the toll-free number for medical, dental, pharmacy 
and on. I have called this number after hours, and with the 
answering service asked to speak to a doctor who was able to 
get back to me, and we worked through my need for care at that 
particular time.
    While the NSC supports legislative language clarifying 
existing authorities or expanding existing authorities to 
demonstration projects, additional funding is needed to 
facilitate any new programs that are authorized.
    In closing, I would like to emphasize that we believe that 
the passage of this legislation would be facilitated if tribal 
leaders are at the table with congressional staff and the 
Administration, which is consistent with meaningful government-
to-government relations and collaboration.
    Thank you to the committee for the leadership you provide 
in support for the reauthorization, and the other critical 
issues that affect Indian country. I appreciate the opportunity 
to testify today, and with my steering committee colleague, 
Chairman Brannan.
    If I may make just a brief notation, and comment on the 
testimony the Administration made about objections to 
behavioral health programs in section 712 addressing fetal 
alcohol disorder services, tribal leaders spoke strongly that 
we should be able to educate expectant mothers about the harm 
that is done if they should continue to use alcohol, meth or 
other substances. So we feel strongly about ensuring that we 
have a comprehensive approach and the ability to do our jobs.
    Thank you.
    [Prepared statement of Ms. Joseph appears in appendix.]
    The Chairman. Ms. Joseph, thank you very much. As I said, 
thanks for your continuing work on these issues.
    Next, we will hear from Edward Lazarus, who is a partner at 
Akin, Gump, Strauss, Hauer, and Feld in Los Angeles, CA. Mr. 
Lazarus, thank you for joining us.

 STATEMENT OF EDWARD P. LAZARUS, PARTNER, AKIN, GUMP, STRAUSS, 
                      HAUER, AND FELD, LLP

    Mr. Lazarus. Thank you, Chairman Dorgan and Vice Chairman 
Thomas, distinguished members of the committee.
    It is a particular pleasure for me to come and appear this 
morning. I vividly remember as a boy coming to watch my father 
testify before this committee, and it was a significant reason 
that I ended up going to law school, and now I am here 
appearing as a constitutional authority. So there is a special 
poignancy in that for me.
    Listening to Chairman Brannan this morning has actually 
caused me to revise the summary that I was going to give 
because in light of that, there seemed something terribly 
theoretical and abstract about arguing about which standard of 
review ought to apply, whether it is the Morton v. Mancari 
standard of rational relations, or the stricter test that 
applies to racial classifications.
    I think one thing that is important to bear in mind is that 
the Department of Justice has never suggested that the Act, 
regardless of the standard of review, is unconstitutional. I 
think it is very much worth bearing in mind that even if the 
stricter test were to apply, that this committee and the 
Congress can do a great deal to try and ensure that it would 
pass even the stricter test that would be applied to a racial 
preference.
    In my statement, I was presumptuous enough to suggest that 
the act might be amended to add some additional findings to 
meet the test of strict scrutiny, which talks about the need 
for the benefit, the failure of race-neutral alternatives, and 
the impact on rights of third parties, and the fit of the 
classification.
    I think just listening to Chairman Brannan today and the 
comments that had already been made by the other witnesses, and 
by the distinguished members of the committee, it seems to me 
that a very, very compelling case can be made that given the 
conditions of Indian health, both in the cities and on the 
reservations, that this is legislation that meets all of those 
criteria.
    That said, the question does remain, which standard of 
review should apply. The main question really boils down to 
this one of whether the definitions of Indians and urban 
Indians in the act is so broad by including members of State-
recognized tribes and non-members who are one or two degrees 
descended from members is so broad that it tips this over from 
the political classification recognized in Morton v. Mancari 
into being a race-based classification. While the question is 
not completely without doubt, I think the better answer is that 
this remains a bill that creates a political classification.
    The starting point for the analysis has to be the 
extraordinary power and responsibility that the Congress has in 
the area of Indian affairs. The extraordinary power comes from 
the Indian Commerce Clause, a specific grant of power in the 
Constitution, and the 175 years of court decisions interpreting 
that clause to give Congress broad plenary authority in the 
area of Indian affairs.
    The responsibility comes from the more than 200 year 
history of relations between the United States and the tribes, 
much of which is very tragic and was touched upon, of course, 
by Chairman Brannan, which has created a remarkable and strong 
duty of protection on the part of the Congress. Congress has 
legislated many, many times pursuant to that duty of protection 
to create special benefits for tribes. Health care has been a 
very, very important component of that going back, again way 
back into the early part of the 19th century.
    The basic rule has been that when Congress legislates for 
the benefit of tribes, that treatment need only be rationally 
tied, and this is the language of the court, to Congress's 
unique obligation toward Indians. That is the language of 
Morton v. Mancari.
    So the question is whether somehow by broadening out the 
coverage of this act to members of State-recognized tribes and 
not merely federally recognized tribes, and by bringing within 
the ambit of its benefits those Indians who are defined as 
urban Indians, who are non-members descended in the first or 
second degree from members, or Eskimo, Aleuts, and Native 
Alaskans, that this somehow has become a racial classification.
    I think the answer with respect to State-recognized tribes 
is pretty straightforward. State-recognized tribes are, of 
course, political entities as well. There is a long history of 
recognizing Congress's very substantial power to define tribal 
relations and to recognize tribes for all purposes or just for 
some purposes. When you put those powers together, it does seem 
that there is no reason to consider providing benefits to 
State-recognized tribes as a racial classification, as opposed 
to a political one.
    With respect to the urban Indian definition, the truth is 
the case law just doesn't provide a definitive answer. In 
Morton v. Mancari, the court spoke very generally about the 
unique obligation to Indians, not federally recognized tribal 
members only. But at the same time, that case did arise in the 
context of a preference that was limited to federally 
recognized tribal members.
    Several cases after Morton v. Mancari, the most prominent 
Delaware Tribal Business Commission v. Weeks, made no 
distinction between Indians and tribal members only. The Rice 
v. Cayetano case, which the case on which the Department of 
Justice relies, does note that Morton v. Mancari is limited to 
a preference in favor of members of recognized tribes, but the 
decision does not turn on that fact. The court was making no 
effort to delineate exactly where the line is between political 
and racial classifications.
    So in the absence of any defining case law, to me I think 
this question boils down to a matter of history and logic. When 
you look at the history, and we know----
    Chairman Dorgan. Mr. Lazarus.
    Mr. Lazarus. I am sorry.
    Chairman Dorgan. Perhaps even as your father experienced 
many years ago, we require discussions of the Constitution to 
be limited to 5 minutes. [Laughter.]
    Mr. Lazarus. And so they should be. I will simply close by 
saying that Congress has the power, it seems to me, to view 
these urban Indians as defined in the act as derivative of the 
political relationship with the tribes, and therefore bring it 
within the ambit of their power.
    Thank you, Mr. Chairman.
    [Prepared statement of Mr. Lazarus appears in appendix.]
    The Chairman. Thank you for coming all this way and 
testifying. I regret that we do have limits on testimony by 
witnesses. I allowed Chairman Brannan to proceed longer because 
of the nature of his testimony. Your testimony is very helpful 
to us and we hope to engage with you as we construct this 
legislation.
    Senator Murkowski, would you like to introduce the next 
witness?
    Senator Murkowski. Thank you, Mr. Chairman.
    I would like to welcome to the committee this morning 
Steven Gage. Steve is the director for Southeast Alaska 
Regional Health Consortium, SEARHC, and he is also the chair of 
the Alaska Association of the Community Health Aide Program, a 
program that has been described earlier as being around about 
40 years now. He has done a very fine job in this, and I think 
we will have an opportunity to again hear a little bit more 
about how this particular program in Alaska can be a model for 
throughout the Country.
    Welcome, Mr. Gage.
    The Chairman. You may proceed. Your entire statement is 
made a part of the record.

   STATEMENT OF STEVE GAGE, DIRECTOR, COMMUNITY HEALTH AIDE 
      PROGRAM, SOUTHEAST ALASKA REGIONAL HEALTH CONSORTIUM

    Mr. Gage. Thank you. Good morning, Chairman Dorgan and Vice 
Chairman Thomas and committee members. As you heard, my name is 
Steve Gage and I am a physician assistant. I work for the 
Southeast Alaska Regional Health Consortium. I am based in 
Sitka, Alaska. I am the director of the Community Health Aide 
Program that SEARHC operates.
    SEARHC is as consortium of 18 tribes and predominantly 
serves the Tlingit, Haida, and Tsimshian Indian peoples of 
Southeast Alaska. I have been associated with the Community 
Health Aide Program for about 17 years. If you can picture 
yourself in a small town of a few hundred people, not unlike 
many rural areas throughout the United States in the early 
1900's, access to medical care in that setting is hours and 
days away, and travel may involve land, water and air, and is 
entirely based on weather.
    In this setting, if you become ill or injured, who are you 
going to call? In the scenario that I just described, if you 
were in Alaska, you would most likely be calling a community 
health aide. Presently, there are about 500 community health 
aides working in 180 communities throughout Alaska. They are 
employed by 27 638 tribal organizations. There were about 
300,000 patient encounters in 2006.
    As you heard, the Community Health Aide Program is about 
40-years old and it was developed in Alaska to deal with the 
tuberculosis epidemic in Alaskan villages. It has evolved into 
the backbone of health care delivery in nearly all rural areas 
of Alaska.
    Community health aides are generally recruited from the 
communities they serve, and approximately 80 percent of them 
are Alaska Natives. Being a resident of the community enables 
health aides to understand the language, the customs, and the 
traditions of the community, and they are less likely to leave 
after 1 or 2 years.
    Training consists of emergency skills to at least the 
emergency trauma technician level, and that is combined with 
four 1 month sessions covering most aspects of basic primary 
medical care. Training is based on a statewide curriculum and 
is done at one of four training centers: Sitka, Nome, Bethel, 
and Anchorage.
    The first two sessions of training are usually complete 
within 6 months of hire, and the entire process is usually 
complete within 2 years. The University of Alaska College of 
Rural Health recognizes this training and extends credit toward 
an AA degree for health aides.
    Following the four sessions, health aides have a clinical 
preceptorship and testing process which, when passed, qualifies 
them as a community health practitioner. Continuing medical 
education must be maintained and a 1 week-long clinical 
evaluation is repeated every 6 years. In some cases, health 
aides have received additional training in health care such as 
early prevention screening and testing for childhood diseases.
    Health aides work using a revised manual that directs their 
history, physical exam, and guides them to an assessment. 
Regardless of their years of experience and training, the 
manual must be used in all patient encounters. I have brought a 
copy of our new manual, and there are copies that are available 
if you wish to have one. Each community where health aides 
serve has medical oversight by tribal or IHS referral 
physicians. The manual guides the health aide to a general 
diagnosis. Treatment options are then discussed with the 
referral physician.
    This physician may delegate some supervision of health 
aides to mid-level practitioners like physician assistants or 
family nurse practitioners. The physician may also approve a 
limited number of medical standing orders which enable the 
health aide to treat those conditions based on previous 
consultations.
    Apart from standing orders, all patient encounters require 
consultation with a higher level medical provider. In Alaska, 
the Federal Telehealth Program provides the mechanism for this 
and has supplemented telephone counsels. Health aides usually 
work regular hours on a weekday schedule, and provide after-
hours emergency care on a call rotation. Health aides work in 
all areas of medicine. Preventive health care services is an 
area that is getting increased attention by health aides, and 
one we hope will reduce the need for acute and chronic medical 
care.
    As an example, in part due to health aide services, 
Alaska's maternal and infant health have improved recently. In 
1998, a Community Health Aide Program certification board was 
established to oversee the program statewide. The program is 
cost-effective and well received in Alaska. The State of Alaska 
contributes funds for program operations, and while tribal 
groups operating health aide programs are struggling with 
funding, they are committed to maintain the program as one of 
the most important that they offer their people.
    I understand you are considering using the program as a 
model to provide health care. I will tell you that it works 
well in Alaska. Part of Alaska Native culture is to share what 
you have with others, and we would be very happy to share our 
program and our expertise with you.
    Thank you.
    [Prepared statement of Mr. Gage appears in appendix.]
    The Chairman. Mr. Gage, thank you very much. You have come 
a long way to provide us information, which is very, very 
helpful. Alaska is, of course, unique and its challenges in 
delivering health care are very unique. I am very interested. 
You said you were a physician's assistant?
    Mr. Gage. I am.
    The Chairman. The opportunity to use physician assistants 
and nurse practitioners to be involved in more convenient care 
for routine diagnosis in remote locations is something I am 
very interested in. I have talked with Senator Murkowski about 
that, as a national model. We talked to Dr. Grim as well. So I 
appreciate very much your testimony as well.
    I will ask a couple of questions, but I will ask them at 
the end. I will call on Vice Chairman Thomas first for any 
questions.
    Senator Thomas. Is that your statement in the green package 
there, Mr. Gage? [Laughter.]
    Mr. Gage. It is not quite that long. [Laughter.]
    Senator Thomas. Okay.
    Mr. Gage. But it is quick reading, actually. Once you get 
started, you can't put it down. [Laughter.]
    Senator Thomas. Mr. Brannan, you have talked a lot about 
one of the reasons for all the medical care and prevention 
programs are important at reducing alcoholism. What kind of 
training and communication programs do you think would benefit 
your tribe?
    Mr. Brannan. Senator Thomas, I look at alcohol as being a 
gateway drug, for lack of a better term, for methamphetamine 
addiction. In terms of the Indian Health Service, the budget is 
so strained there really isn't any funding available to do any 
preventive health education, any training whatsoever.
    As we talked on our reservation, it is about 2.2 million or 
2.3 million acres. In some instances, we have six police 
officers, sometimes maybe one police officer patrolling the 
whole reservation. They have approached the council a number of 
times very frustrated because all they do is arrest people. 
They said if they had enough resources, they could go into the 
schools, talk with the young children, similar to what the DARE 
Program was before. That was very beneficial.
    But the critical thing here is in terms of our children, at 
least 50 percent of the Arapaho Tribe is 21 years or younger. 
What we are attempting to do is build self esteem, trying to 
let them learn their identity as Arapaho children.
    Senator Thomas. Some of the health care programs would be 
supported by doing things outside of the health care expense.
    Mr. Brannan. Yes.
    Senator Thomas. Okay.
    Ms. Joseph, there have been concerns expressed about 
expanding the joint venture programs, how successful have these 
programs been, and how do they work under the existing program.
    Ms. Joseph. Senator, what I understand from the tribes that 
have been involved in joint venture programs that they have 
been very successful. Unfortunately joint venture in the small 
ambulatory care program have not received appropriations 
consistently over the years. But the couple of years in the 
last few years, there has been money. It allows tribes to move 
forward and construct a facility. The Indian Health Service 
provides the staffing for that facility.
    Senator Thomas. DOJ has been concerned that the standards 
don't apply, that the tribal facilities are not subject to the 
standards. Is that a concern of yours?
    Ms. Joseph. Not that I am aware of. When we construct 
facilities, and we are going to receive Indian Health Service 
funding for staffing, we have to meet State standards, or they 
have to meet some standard.
    Senator Thomas. Do you use lay persons or relatives to 
provide public health care?
    Ms. Joseph. Not in our project.
    Senator Thomas. Okay. [Laughter.]
    All right, very good.
    Mr. Lazarus, you cited the Morton case, the unique 
obligation toward Indians. Can you explain what that means, 
unique obligation toward Indians, very briefly?
    Mr. Lazarus. Yes, Senator; I think the unique obligation 
toward Indians is something that has developed through the 
Cogma case called the course of dealings. You have the Indian 
Commerce Clause, which gives Congress the authority to deal 
with the Indian tribes and the course of dealings have created 
this duty of protection.
    Senator Thomas. What is the problem?
    Mr. Lazarus. Well, in many circumstances, the Indian 
nations have become dependent upon the United States for their 
health and welfare, and Congress has the authority to do 
something about that.
    Senator Thomas. I don't think that answers the question.
    Mr. Lazarus. I am sorry if I misunderstood you, Senator.
    The Chairman. Is there a trust responsibility here?
    Mr. Lazarus. Of course. The duty of protection is----
    Senator Thomas. Without regard to tribal membership, 
though. Isn't that the issue?
    Mr. Lazarus. The question is whether it is limited to 
tribal members, and I think in my view, the best reading of 
Morton v. Mancari is that while that case involved a preference 
for tribal members, the general rule stated in Mancari is not 
limited to that. If you look at the Delaware Business Committee 
case that I referenced, that is a case in which Congress 
distributed claims money to both members and non-members, and 
so it is not limited just to members.
    Senator Thomas. Got you.
    Mr. Gage, you mentioned your August, 2006 attrition survey, 
and 20 percent of your medical attrition rate among medical 
providers. What could be done, in your opinion, to encourage 
reducing that attrition rate?
    Mr. Gage. Could you say the question again?
    Senator Thomas. You indicated a current attrition rate of 
20 percent in your medical and nursing professionals in Alaska.
    Mr. Gage. About 80 percent of our community health aides 
are Native Alaskans. We have some turnover in that, and I think 
one of the factors that might impact the attrition rate would 
be if we could pay better salaries, if we could staff the 
clinics with an additional person. In some cases, it is the 
constant drain of being on call, and the workload that burns 
people out.
    So funding would be a key component in that.
    Senator Thomas. Okay. Thank you.
    The Chairman. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    Let me just followup with that, Mr. Gage, because I did 
want to ask about the funding aspect of it. We recognize that 
in these small communities in the villages, as remote as they 
are, yes, you may be working a regular work week, but if you 
are on call and you know everybody in town, even if you are not 
on call you are going to be working. It is very intense in that 
way.
    Senator Stevens and I have been working to increase the IHS 
funding to help with the CHAP's program. What is the funding 
gap that we have right now, would you say?
    Mr. Gage. The program overall costs about $55 million, as 
best as I can understand it. Presently, the tribes are 
contributing a gap between what we get in IHS funding and 
Medicaid. There are State contributions to this program of 
about $17 million that they basically take from other sources 
and supplement this program just because they feel it is so 
important. That is money that is taken away from other 
services, but it is probably money that is well spent.
    We are asking for an additional recurring funding to do 
things like maintain this manual. This re-edit in 2006 was 
largely done with volunteers and just kind of pieced together. 
We were very fortunate that a lot of people took such an 
interest in this that they made it part of their job, and the 
corporations released people from other activities to work on 
this.
    We are not going to be able to do that again and expect 
that kind of support. So we need funding for that.
    Senator Murkowski. Let me ask you, you said you have been 
with SEARHC for 17 years. If we didn't have the Community 
Health Aide Program in the State, where would we be in terms of 
our ability to provide for the health care need for Alaska 
Natives, in your opinion?
    Mr. Gage. Boy, Senator, I wouldn't even want to picture 
that. We just wouldn't have health care in a lot of 
communities. There might be somebody with some EMT training, or 
able to provide some basic first aid, but it would require 
everyone traveling, if they could afford it and if the weather 
permitted, or simply enduring consequences of disease. We have 
diabetes. We have chronic diseases. We have children. All of 
those things would be impacted. Our health care would go way 
down. I couldn't imagine it without the community health aides.
    Senator Murkowski. We don't want to go backward.
    I asked the question of Dr. Grim about any liability issues 
that he was aware of as a consequence of the fact that you 
don't have some that are State licensed. Are you aware of any 
liability issues, at least within your experience down in 
SEARHC?
    Mr. Gage. No; I am not. I have worked in this capacity for 
about 17 years, and I am not aware of any that have come from 
our preparation.
    Senator Murkowski. Mr. Chairman, I just might want to add 
for the record, we had an opportunity last week up in the State 
to hold a field hearing for the HELP Committee on the shortage 
of medical providers in the State of Alaska, just overall, not 
necessarily within IHS. But our reality is we have the lowest 
population to physician ratio in the Nation. It is getting 
worse. We don't have providers, period. So if we didn't have 
this Community Health Aide Program in our villages, as Mr. Gage 
has mentioned, we just wouldn't have the ability to provide for 
health care.
    So again, I thank you for the opportunity to have Mr. Gage 
here today, and I look forward to working with you on some 
innovative ideas that we can use across the Country.
    Thank you.
    The Chairman. Senator Murkowski, thank you very much.
    I have been doing some listening sessions around the 
Country with Indian tribes and members of tribes, just to 
listen and talk. My impression is that methamphetamine, 
substance abuse, mental health services, so many areas are in 
desperate need of resources and restructuring in order to 
properly deliver health care services to those for whom we have 
a trust responsibility.
    We have had people come who say, tribal chairs who say we 
understand in our tribe, do not get sick after June 1, because 
there is no contract health care money available. That is what 
happened to the woman that was hauled into a hospital having a 
heart attack, with a piece of paper taped to her thigh that 
says, ``If you admit her, you are on your own because there is 
no contract health services available.''
    Because they didn't consider it life or limb, whoever it 
was that put her in the ambulance.
    It is pretty unbelievable. I had a tribal Chairman testify 
that in their tribe they ran out of contract health care money 
in January. Think of that, in January, 3 months after the year 
begins. And that means that the only way you get help is if 
your life is at stake or you at stake of losing a limb. 
Otherwise, I am sorry.
    We had people sit at this table who I talked earlier about 
a woman with a very serious torn ligament in her knee, is told, 
wrap it in cabbage leaves for four days. A rancher, an Indian 
rancher has a torn ligament in his shoulder, something that 
most Americans would go to a doctor for and get fixed, and 4 
years, 4 years before he was finally referred to get help, 
because of the lack of contract health care funds. The only way 
he got help was a doctor finally said, ``What can a one-armed 
rancher do?'' And they finally put him on a priority list to 
get help for something most Americans would expect to get 
resolved in a few months. So we just have real challenges here.
    Chairman Brannan, you know, your discussion today with the 
photographs is heartbreaking. It reminded me of one of the 
things that got me really passionately involved in this issue. 
It was a little girl I have spoken of previously named Tamara. 
She was put in a foster home by a social worker who was 
handling 150 cases. Well, it turns out the foster home for this 
3-year old girl was not safe. A drunken party on a Saturday 
night, and little Tamara had her hair pulled out by its roots, 
her arm broken, her nose broken. She will live with those scars 
forever.
    I met with her and her grandfather some months later. It 
was just heartbreaking to know what happened to this young 
girl, because one social worker had to handle 150 cases. She 
didn't go check out where she was going to put the 3-year old 
kid.
    We have so many unbelievable problems that really need 
resources. It is not all about money. It is about 
restructuring, commitment to do the right thing. This is not 
about somebody asking us. This is about our trust 
responsibilities. We have trust responsibilities, and our 
requirement is to meet them.
    I am determined in this committee, working with my 
colleagues, to pass a reauthorization of the Indian Health Care 
Improvement Act that updates, revitalizes this piece of 
legislation, and gives us a chance to do something different. 
We will build on the successes, Mr. Gage. I understand the 
testimony about what works, but I also understand the testimony 
about what is left and what is not being done.
    So I think I will defer questions and just say, Chairman 
Brannan, I understand your passion. I really appreciate your 
getting here. I didn't realize that you left Denver and had to 
fly to Los Angeles to get to Washington, DC, but that happens 
with airlines, as you know.
    Ms. Joseph, you have worked a long while on this. We 
appreciate it.
    Mr. Lazarus, the committee would like to call on you and 
work with you. I don't understand why the Department of Justice 
seems to go out of its way to interpret problems here, but they 
seem to. I want to cooperate with the Department of Justice, 
and I want them to cooperate with us.
    I do want to make a comment. At the end of the day in the 
last Congress, I said it was fine to go ahead and put the 
skeleton of the bill that was left, and I said that was fine. I 
put a statement in the record that explained the problems with 
it and why I felt it fell far short. But I don't like what 
happened at the end of the last session because it didn't meet 
our needs and what we were trying to do.
    Mr. Gage, you have traveled perhaps more miles than anyone 
to be here and to tell us the stories. Senator Murkowski 
continues to tell us that story. Unless you live in Alaska, you 
probably can't understand what problems distance causes for 
virtually the delivery of all services, but we appreciate your 
being here as well.
    So thank you very much for testifying.
    This committee is adjourned.
    [Whereupon, at 11:29 a.m. the committee was adjourned, to 
reconvene at the call of the Chair.]
=======================================================================


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

=======================================================================


 Prepared Statement of John Agwunobi, Assistant Secretary for Health, 
                Department of Health and Human Services

    Mr. Chairmen and members of the committee: My name is John Agwunobi 
and I am the assistant secretary for Health for the Department of 
Health and Human Services [HHS]. As the assistant secretary, I serve as 
the Secretary's primary adviser on matters involving the Nation's 
public health. I also oversee the U.S. Public Health Service and its 
Commissioned Corps for the Secretary.
    This landmark legislation forms the backbone of the system through 
which Federal health programs serve American Indians/Alaska Natives and 
encourages participation of eligible American Indians/Alaska Natives in 
these and other programs.
    The IHS has the responsibility for the delivery of health services 
to more than 1.8 million federally recognized American Indians/Alaska 
Natives through a system of IHS, tribal, and urban [FT/U] health 
programs governed by judicial decisions and statutes. The mission of 
the agency is to raise the physical, mental, social, and spiritual 
health of American Indian/Alaska Natives to the highest level, in 
partnership with the population we serve. The agency goal is to assure 
that comprehensive, culturally acceptable personal and public health 
services are available and accessible to the service population. Our 
duty is to uphold the Federal Government's responsibility to promote 
healthy American Indian and Alaska Native people, communities, and 
cultures and to honor and protect the inherent sovereign rights of 
tribes.
    Two major statutes are at the core of the Federal Government's 
responsibility for meeting the health needs of American Indians/Alaska 
Natives: The Snyder Act of 1921, Public Law 67-85, and the Indian 
Health Care Improvement Act [IHCIA], Public Law 94-437, as amended. The 
Snyder Act authorized regular appropriations for ``the relief of 
distress and conservation of health'' of American Indians/Alaska 
Natives. The IHCIA was enacted ``to implement the Federal 
responsibility for the care and education of the Indian people by 
improving the services and facilities of Federal Indian health programs 
and encouraging maximum participation of Indians in such programs.'' 
Like the Snyder Act, the IHCIA provides the authority for the Federal 
Government programs that deliver health services to Indian people, but 
it also provides additional guidance in several areas. The IHC1A 
contains specific language addressing the recruitment and retention of 
health professionals serving Indian communities; the provision of 
health services; the construction, replacement, and repair of health 
care facilities; access to health services; and, the provision of 
health services for urban Indian people.
    Since enactment of the IHCIA in 1976, Congress has substantially 
expanded the statutory authority for programs and activities in order 
to keep pace with changes in health care services and administration. 
Federal funding for the IHCIA has contributed billions of dollars to 
improve the health status of American Indians/Alaska Natives. And, much 
progress has been made particularly in the areas of infant and maternal 
mortality.
    The Department under this Administration's leadership reactivated 
the Intra-departmental Council on Native American Affairs [ICNAA] to 
provide for a consistent HHS policy when working with the more than 560 
federally recognized tribes. This Council's vice chairperson is the IHS 
Director, giving him a highly visible role within the Department on 
Indian policy.
    In January 2005 the Department completed work ushering through a 
revised HHS tribal consultation policy and involving tribal leaders in 
the process. This policy further emphasizes the unique government-to-
government relationship between Indian tribes and the Federal 
Government and assists in improving services to the Indian community 
through better communications. Consultation may take place at many 
different levels. To ensure the active participation of tribes in the 
development of the Department's budget request, an HHS-wide budget 
consultation session is held annually. This meeting provides tribes 
with an opportunity to meet directly with leadership from all 
Department agencies and identify their priorities for upcoming program 
requests. For fiscal year 2008, tribes identified population growth and 
increases in the cost of providing health care as their top budget 
priorities and IHS's fiscal year 2008 budget request included an 
increase of $88 million for these items.
    Through the Centers for Medicare & Medicaid Services [CMS], a 
Technical Tribal Advisory Group was established which provides tribes 
with a vehicle for communicating concerns and comments to CMS on 
Medicare, Medicaid and SCHIP policies impacting their members. And, the 
IHS has been vigilant about improving outcomes for Indian children and 
families with diabetes by increasing education and physical activity 
programs aimed at preventing and addressing the needs of those 
susceptible to, or struggling with, this potentially disabling disease. 
In addition, a tribal leaders diabetes committee continues to meet 
several times a year at the direction of the IHS Director to review 
information on the progress of the Special Diabetes Program for Indians 
activities and to provide general recommendations to IHS.
    It is clear the Department has not been a passive observer of the 
health needs of eligible American Indians/Alaska Natives. Yet, we 
recognize that health disparities among this population do exist and 
are among some of the highest in the Nation for certain diseases [for 
example; alcoholism, cardiovascular disease, diabetes, and injuries], 
and that improvements in access to IHS and other Federal and private 
sector programs will result in improved health status for Indian 
people.
    The IHCIA was enacted to provide primary and preventive services in 
recognition of the Federal Government's unique relationship with 
members of federally recognized tribes. Members of federally recognized 
tribes and their descendants are also eligible for other Federal health 
programs [such as Medicare, Medicaid, and SCHIP] on the same basis as 
other Americans, and many also receive health care through employer-
sponsored or other health care coverage.
    It is within the context of current law and programs that we turn 
our attention to reauthorization of the ``Indian Health Care 
Improvement Act.''
    We are here today to discuss reauthorization of the IHCIA, and its 
impact on programs and services provided for in current law. In 
December 2006, the Department submitted to this committee comments on 
proposed legislation that the 109th Congress was considering. These 
comments are the basis for our testimony today, and any changes 
introduced by the bill under review in the 110th Congress will be 
considered once we have had an opportunity to review newly introduced 
legislation. Improving access to health care for all eligible American 
Indians and Alaska Natives is a priority for all those involved in the 
administration of the IHS program. We have worked closely with this 
committee in the past and we have made progress in moving toward a 
program supportive of existing authority while maintaining the 
Secretary's flexibility to effectively manage the HIS program. However, 
in the last bill, S. 1057, there continued to be provisions which could 
negatively impact our ability to provide needed access to services. 
Such provisions established program mandates and burdensome 
requirements that could, or would, divert resources from important 
services. To the extent that those provisions are included in the new 
legislation, we hope to work with you to continue to address these 
concerns.
    The Department is supportive of reauthorization of the IHCIA and 
supports provisions that maintain or increase the Secretary's 
flexibility to work with tribes, and to increase the availability of 
health care. Committee leadership previously responded to some concerns 
raised about certain provisions and some of the changes went a long way 
toward improving the Secretary's ability to effectively manage the 
program within current budgetary resources.
    I would like to note for you today our particular interest in 
provisions previously reported out of this committee.
    We have a number of general objections to previous language, 
including, expanded requirements for negotiated rulemaking and 
consultation; new requirements using ``shall'' instead of ``may''; use 
of the term ``funding'' in place of ``grant''; expansion of authorities 
for Urban Indian Organizations; new permissive authorities; provisions 
governing traditional health care practices; new reporting 
requirements; establishment of the Bipartisan Commission on Indian 
Health Care; and new provisions that contemplate the Secretary 
exercising authority through the service, tribes and tribal 
organizations which is not tied to agreements entered into under the 
Indian Self-Determination and Education Assistance Act [ISDEAA]. In 
addition, we noted concerns in previous language about modifying 
current law with respect to Medicaid and the State Children's Health 
Insurance Program [SCHIP] and, in some cases, we believe maintaining 
the current structure of Medicaid and the State Children's Health 
Insurance Program [SCHIP] preserves access, delivery, efficiency, and 
quality of services to American Indians.
    We also have some more specific comments on proposals we have 
previously reviewed for comment.
    In the area of behavioral health, proposed title VII provisions 
provided for the needs of Indian women and youth and expands behavioral 
health services to include a much needed child sexual abuse and 
prevention treatment program. The Department supports this effort, but 
opposes language in sections 704, 706, 711 (b) and 712 that requires 
the establishment or expansion of specific additional services. The 
Department should be given the flexibility to provide for all 
Behavioral Health Programs in a manner that supports the local control 
and priorities of tribes, and to address their specific needs within 
IHS overall budgetary levels.
    The last version of S. 1057 that we reviewed contained various new 
requirements for reporting to Congress, including requirements for 
specific information to be included within the President's Budget and a 
new annual report to Congress by the Centers for Medicare & Medicaid 
Services and the IHS on Indians served by Social Security Act health 
benefit programs. The IHS, CMS, and HHS will work with Congress to 
provide the most complete and relevant information on IHS programs, 
activities, and performance and other Indian health matters. However, 
we recommend striking language that requires additional specificity 
about what should be included in the President's budget request and new 
requirements for annual reports.
    Sanitation facilities construction is conducted in 38 States with 
federally recognized tribes who take ownership of the facilities to 
operate and maintain them once completed. IHS and tribes operate 49 
hospitals, 247 health centers, 5 school health centers, over 2000 units 
of staff housing, and 309 health stations, satellite clinics, and 
Alaska village clinics supporting the delivery of health care to Indian 
people.
    One provision in last year's bill, section 301(d) (1), required 
Government Accountability Office [GAO] to complete a report, after 
consultation with tribes, on the needs for health care facilities 
construction, including renovation and expansion needs. However, 
efforts are currently underway to develop a complete description of 
need similar to what would have been required by the bill. The IHS plan 
is to base our future facilities construction priority system 
methodology application on a more complete listing of tribal and 
Federal facilities needs for delivery of health care services funded 
through the IHS. We will continue to explore with the tribes less 
resource intensive means for acquiring and updating the information 
that would be required in these reports.
    We recommend the deletion of the reference to the Government 
Accountability Office undertaking the report because it would be 
redundant of and a setback for IHS's current efforts to develop an 
improved facilities construction methodology.
    Retroactive funding of Joint Venture Construction Projects In last 
year's bill, section 311 (a)(1) would permit a tribe that has ``begun 
or substantially completed'' the process of acquisition of a facility 
to participate in the Joint Venture Program, regardless of government 
involvement or lack thereof in the facility acquisition. A Joint 
Venture Program agreement implies that all parties have participated in 
the development of a plan and have arrived at some kind of consensus 
regarding the actions to be taken. By permitting a tribe that has 
``begun or substantially completed'' the process of acquisition or 
construction, the proposed provisions could force IHS to commit the 
government to support already completed actions that have not included 
the government in the review and approval process. We are concerned 
that this language could put the government in the position of 
accepting space that is inefficient or ineffective to operate. We, 
therefore, would oppose such a provision.
    Another section 302(h) (4) would provide ambiguous definitions of 
the sanitation deficiencies used to identify and prioritize water and 
sewer projects in Indian country. As previously proposed ``deficiency 
level III'' could be interpreted to mean all methods of service 
delivery [including methods where water and sewer service is provided 
by hauling rather than through piping systems directly into the home] 
are adequate to meet the level III requirements and only the operating 
condition, such as frequent service interruptions, makes that facility 
deficient. This description assumes that water haul delivery systems 
and piped systems provide a similar level of service. We believe it is 
important to distinguish between the two.
    In addition, the definition for deficiency level V and deficiency 
level IV, though phrased differently, have essentially the same 
meaning. Level IV should refer to an individual home or community 
lacking either water or wastewater facilities, whereas, level V should 
refer to an individual home or community lacking both water and 
wastewater facilities.
    We recommend retaining current law to distinguish the various 
levels of deficiencies which determine the allocation of existing 
resources.
    Yet another section 305(b) (1) would amend current law to set two 
minimum thresholds for the Small Ambulatory Program--one for number of 
patient visits and another for the number of eligible Indians. In order 
to be eligible for the Small Ambulatory Program under the previously 
proposed criteria, a facility must provide at least 150 patient visits 
annually in a service area with no fewer than 1,500 eligible Indians. 
Aside from the fact that these are both minimum thresholds and so 
somewhat contradictory, the proposed provisions would make 
implementation difficult. First, the IHS cannot validate patient visits 
unless the applicant participates in the Resource Patient Management 
System [RPMS]. Since some tribes do not participate in the RPMS, it is 
difficult to ensure a fair evaluation of all applicants. Second, the 
term ``eligible Indians'' refers to the census population figures, 
which cannot be verified, since they are based on the individual's 
statement regarding ethnicity.
    In addition, we are concerned about the requirements for negotiated 
rulemaking and increased requirements for consultation in the bill 
because of the high cost and staff time associated with this approach. 
We are committed to our on-going consultation with tribes under current 
executive orders, as well as using the authority of chapter V of title 
5, U.S.C. [commonly known as the Administrative Procedures Act] to 
promulgate regulations where necessary to carryout IHCIA.
    The comments expressed today in this testimony do not represent a 
comprehensive list of our current concerns. And, we will be reviewing 
legislation introduced in this Congress for any provisions that might 
be addressed in the future.
    I reiterate our commitment to working with you to reauthorize the 
Indian Health Care Improvement Act, and the strengthening of Indian 
health care programs. And we will continue to work with the committee, 
other committees of Congress, and representatives of Indian country to 
develop a bill that all stakeholders in these important programs can 
support. Again, I appreciate the opportunity to appear before you today 
to discuss reauthorization of the ``Indian Health Care Improvement 
Act'' and I will answer any questions that you may have at this time. 
Thank you.
                                 ______
                                 

   Prepared Statement of C. Frederick Beckner III, Deputy Assistant 
         Attorney General, Civil Division Department of Justice

    Mr. Chairman, members of the committee, my name is C. Frederick 
Beckner III. I am a deputy assistant attorney general for the Civil 
Division of the Department of Justice. Thank you very much for the 
opportunity to share the views of the Department of Justice on the 
reauthorization of the Indian Health Care Improvement Act. As of today, 
the Department of Justice has not had the opportunity to fully review 
the most current version of the proposed legislation, and we are not, 
therefore, in a position to provide specific comments on this 
legislation.
    That said, the Department of Justice strongly supports the laudable 
objectives of improving health care for American Indians and Alaska 
Natives, and the Department looks forward to working with the committee 
to achieve these goals. The Department worked extensively with this 
committee and met with representatives of the American Indian community 
on a prior version of this legislation. We expect that this cooperative 
relationship will continue as the Department reviews the current 
legislation.
    In commenting on the prior legislation, the Department identified 
targeted concerns that could be--and for the most part were--addressed 
with relatively modest changes to the legislation that did not detract 
from the overall goal of improving health care for American Indians and 
Alaska Natives. Indeed, in the Department's view, the changes benefited 
both the American Indian community specifically and taxpayers 
generally.
    For example, in an earlier version of proposed legislation, the 
Department of Health and Human Services and Indian tribes could enter 
into self-determination contracts that cover tribal ``traditional 
health care practices.'' Such practices are unique to American Indian 
tribes and cannot be evaluated by established standards of medical care 
recognized by the state. However, to the extent that these traditional 
health care practices were being provided by an Indian tribe under a 
self-determination contract, a party injured by such a practice could 
potentially sue the United States under the Federal Tort Claims Act 
[known as the ``FTCA''] and expose taxpayers to unwarranted liability. 
It is a basic tenet of the FTCA that the United States is liable in 
tort only ``under circumstances where the United States, if a private 
person, would be liable to claimant in accordance with the law of the 
place where the act or omission occurred.'' Case law has defined ``the 
law of the place'' to mean State law, not Federal law, not tribal law.
    The Department was thus concerned that the bill would require the 
Department to litigate tort claims with no meaningful way to defend the 
cases. In particular, the Department was concerned that it would not be 
able to defend such suits because the courts might conclude that tribal 
health practitioners were providing ``medical'' services that, by 
definition, do not comply with the standards of the relevant State's 
medical community. Consequently, we met with the American Indian 
community and worked extensively with the committee late last year to 
add language that would have clarified that the United States, and 
ultimately the taxpayers, would not be liable for malpractice claims 
under the FTCA arising out of the provision of traditional health care 
practices. This language would not have impacted tort suits against the 
United States for any other service provided under self-determination 
contracts.
    The Department also expressed its concern regarding a provision 
that would have extended FTCA coverage to persons who are providing 
home-based or community-based services. Again, the Department stresses 
that it has no objection to the act's goal of increasing the 
availability of these services. However, these services are sometimes 
provided by relatives and, in many instances, there are no established 
standards for such layperson care or for the environment in which they 
are provided. Thus, the United States should not have to defend 
against, nor should the taxpayers be required to pay for, negligent or 
wrongful conduct by such individuals performing home-based or 
community-based services that are not subject to any standards of care. 
To address these concerns, the Department worked with committee staff 
on language that would have clarified that the home-based or community-
based services that can be provided under self-determination contracts 
are those for which the Secretary of the Department of Health and Human 
Services had developed meaningful standards of care.
    The Department expressed concerns in previous versions of the bill 
regarding the possibility of unlicensed individuals providing mental 
health treatment to Indians and Alaska Natives. In the previous version 
of the bill, the Department worked with the committee to add language 
that would have ensured the licensing requirement for providing mental 
health services, and we believe the change was in the interest of both 
the United States and the Indian community.
    Finally, the Department noted its concern that the previously 
proposed legislation may raise a significant constitutional issue. We 
had previously attempted to work with the committee to address this 
concern, but unfortunately, resolution was not attained. Most of the 
programs authorized by current law or that would have been authorized 
by the previously proposed legislation tied the provision of benefits 
to membership in a federally recognized Indian tribe, and courts would 
therefore likely uphold them as constitutional. The Supreme Court has 
held that classifications based on membership in a federally recognized 
tribe are ``political rather than racial,'' and therefore will be 
upheld as long as there is a rational basis for them. Morton v. 
Mancari, 417 U.S. 535, 555 [1974]. Congress may have limited authority 
in Indian affairs to provide benefits that extend beyond members of 
federally recognized tribes to individuals such as spouses and 
dependent children of tribal members [particularly in circumstances 
where such children are not yet eligible for tribal membership], who 
are recognized by the tribal entity as having a clear and close 
relationship with the tribal entity. To regulate beyond such confines, 
however, presents a risk that the statute may be subject to strict 
scrutiny. To the extent that programs benefiting ``Urban Indians'' 
under current law or in the prior version of the bill could be viewed 
as authorizing the award of grants and other government benefits on the 
basis of racial or ethnic criteria, rather than tribal affiliation, 
these programs would be subject to strict scrutiny under the 
requirement of equal protection of the laws, as set out in Adarand 
Constructors, Inc. v. Pena, 515 U.S. 200, 235 [1995] and other cases. 
For example, the statute and the previous reauthorization bill broadly 
define ``Urban Indian'' to include individuals who are not necessarily 
affiliated with a federally recognized Indian tribe, such as 
descendants in the first or second degree of a tribal member, members 
of state recognized tribes, and any individual who is ``an Eskimo, 
Aleut, or other Alaskan Native.'' Under the Supreme Court's decisions, 
there is a substantial likelihood that legislation providing special 
benefits to individuals of Indian or Alaska Native descent based on 
something other than membership or equivalent affiliation with a 
federally recognized tribe would be regarded by the courts as a racial 
classification subject to strict constitutional scrutiny, rather than 
as a political classification subject to rational basis review. This 
distinction is important, because if the legislation awards government 
benefits on grounds that trigger strict scrutiny, courts may uphold the 
legislation as constitutional only upon a showing that its use of race-
based criteria to award the subject benefits is ``narrowly tailored'' 
to serve a ``compelling'' governmental interest.
    In closing, the Department believes that any proposed legislation 
regarding Indian health care is important and significant, and we are 
grateful for the opportunity to share our views with the Committee. As 
we have in the past, we look forward to working with the Committee on 
this important piece of legislation.
                                 ______
                                 

Prepared Statement Hon. Tom A. Coburn, M.D., U.S. Senator from Oklahoma

    Chairman Dorgan, Vice Chairman Thomas, I thank you for conducting 
this hearing today.
    There is no more important issue before this committee than that of 
health care for tribal citizens. Reauthorization of the Indian Health 
Care Improvement Act is long overdue, and it is incumbent upon this 
Congress to finish this critical work.
    As many of you know, I opposed the most recent version of this 
legislation introduced in the 109th Congress. I did so reluctantly, but 
with a firm conviction that business as usual is no longer acceptable. 
As Members of Congress, as tribal leaders, and citizens of this 
country--everyone in this room today--we can longer tell tribal 
citizens that the current system of health care delivery in Indian 
country is tolerable. A system that turns away those most in need, and 
that rewards bureaucracies and punishes innovation, cannot be allowed 
to persist. I will oppose any plan that advances more of the same.
    To those who say that a failure to reauthorize the Indian Health 
Care Improvement Act is a violation of our trust obligations, I agree. 
I would argue, however, that simply reauthorizing the same old system 
with minor modification is an ever greater violation of that 
commitment.
    I have met with dozens of tribal leaders over the past 2 years, and 
not one has expressed enthusiasm for the current structure. Instead, I 
hear a constant and consistent theme of frustration, anger, and resolve 
that we must do better, that we must unlock the potential of tribes to 
design their own health care systems that recognize the unique needs of 
the community. I desire a system that maintains the flexibility of 
tribes to seek outside investment, and that rewards innovative health 
practices, instead of punishing those whose try to make the lives of 
their citizens better.
    The myriad of problems facing health care in Indian country, are 
many of the same issues confronting health care delivery throughout 
rural America. They are compounded, however, by a system that refuses 
to recognize its own role in holding back health care delivery for 
tribal citizens.
    In designing health care reform, we know that markets work when we 
allow them to: They lower the price of all goods and services and they 
attract much needed outside investment. Many tribes in my state are at 
the forefront of new and innovative health care delivery systems, and 
they are poised to become a model for delivery throughout the system. 
We must ensure, however, that their efforts aren't discouraged or 
stopped altogether by the current system. Furthermore, there is no good 
reason that forward thinking tribal governments should be prevented 
from developing market driven health care centers of excellence that 
will attract researchers, physicians and patients for cutting edge, 
life-saving treatments.
    I also believe that individual patients tend to receive better, 
more effective care when they are empowered to make their own health 
care decisions. In future legislation, we must explore ways to 
accomplish this objective, and give tribal citizens a reason to invest 
in their own health. Long lines, bureaucratic headaches and rationed, 
substandard care completely disallow this sort of investment.
    I am also hopeful the committee will consider a demonstration 
project that will allow tribal citizens to receive health care at any 
Medicare approved facility. While this will not provide the panacea we 
are all hoping for, in more developed regions, it will inject 
competition into a sector that desperately needs it.
    While we may encounter differences on the specific steps, there can 
no be no doubt that we all agree on the urgent need to deliver higher 
quality health care in Indian country. To that end, I look forward to 
working with my colleagues in bringing about a system that upholds our 
commitments and best serves all tribal citizens.
    Chairman Dorgan, Vice Chairman Thomas, thank you again for holding 
this important hearing.
                                 ______
                                 

Prepared Statement of Terry L. Hunter, Chief Executive Officer Oklahoma 
                           City Indian Clinic

    The Reauthorization of the Indian Health Care Improvement Act March 
22, 2007 The reauthorization of the Indian Health Care Improvement Act 
[IHCIA] is vital to the health care of all American Indians. The law 
first enacted in 1976 and reauthorized in 1988, and 1992 must be 
reauthorized to meet today's health care standards enjoyed by most 
Americans. The original bill established 34 urban Indian clinics and 
with the passage of the Indian Self-Determination Education and 
Assistance Act tribes began to operate their own health care delivery 
systems. Due to the emergence of these two critical health care 
delivery systems the Indian Health Care Improvement Act must be 
reauthorized to address today's health care delivery issues. As one of 
the original 34 urban Indian clinics funded by the Indian Health care 
Improvement Act, the Oklahoma City Indian Clinic offers its testimony 
as an example of how the Clinic is not duplicating service, and how the 
Oklahoma City Indian Clinic patients could not be absorbed by the 
county, city or community clinics system.
    Prior to the 1950's, most American Indians resided on reservations, 
in nearby rural towns, or in tribal jurisdictional areas. In the era of 
the 1950's and 1960's, the Federal Government passed legislation to 
terminate its legal obligations to Indian tribes, resulting in policies 
and programs to assimilate Indian people into the mainstream of 
American society. This philosophy produced the Bureau of Indian Affairs 
[BIA] Relocation/Employment Assistance Programs which enticed Indian 
families living on impoverished Indian Reservations to ``relocate'' to 
various urbanized areas across the country. BIA relocation offered job 
training and placement, and was presented as a way to escape rampant 
poverty on the reservation.
    In 1976, the American Indian Policy Review Commission, established 
by the Congress estimated that as many as 160,000 American Indians and 
Alaska Natives were relocated to urban centers. While many Indian 
families did well in the cities, thousands found themselves without 
basic services, especially health care. As identified by the 2000 
census, 66 percent of all American Indians identified reside off-
reservation.
    We believe that for a true understanding of the health care status 
of American Indians living in urban areas, it is essential to realize 
that the Synder Act of 1921, which mandated federally funded Indian 
health care programs, did not require tribal members to live on 
reservation lands in order to access health care services. Nor did it 
stipulate a responsibility to provide health care off-reservation. 
Thus, any American Indian that did not live on tribal land were 
compelled to return to their rural communities to access health care 
guaranteed to them by their status as members of federally recognized 
tribes. A return that often was made difficult due to economic 
deprivation-based barriers to transportation options.
    In order to address the expanding problem of lack of access to 
basic health care, a number of urban communities established volunteer 
Indian centers and free health clinics. hi the late 1960's, urban 
Indian community leaders advocated at the local, State and Federal 
levels for culturally appropriate health programs that addressed the 
unique social, cultural and health needs of American Indians residing 
in urban settings. These community-based grassroots efforts resulted in 
programs that targeted health and outreach services to the Indian 
community. Programs that were developed at that time were in many cases 
staffed by volunteers, offering limited primary care and maintaining 
programs in storefront settings with comparatively minuscule budgets. 
These remained small local efforts, and until 1976 urban Indians 
continued to be largely neglected by the Federal health system.
    In response to the efforts of the urban Indian community leaders in 
the 1960's, Congress appropriated funds in 1966, through IHS for a 
pilot urban Indian clinic in Rapid City. In 1973, Congress appropriated 
funds to study unmet urban Indian health needs in Minneapolis. The 
findings of this study documented cultural, economic, and access 
barriers to health care and led to congressional appropriations under 
the Snyder Act to support emerging Urban Indian clinics in several BIA 
relocation cities.
    The 1976 Indian Health Care Improvement Act [IHCIA] provided 
authority for urban health programs through provisions under title V. 
This authorized IHS to provide funding to health programs serving urban 
Indian populations. The enactment of title V was a pivotal turning 
point for urban Indian health programs across the Nation. Title V 
targeted specific funding for the development of programs for American 
Indians who lived in urban areas. Since passage of this landmark 
legislation, amendments to title V have strengthened urban programs to 
expand medical services, HIV services, health promotion and disease 
prevention services, as well as mental health services, and alcohol and 
substance abuse services.
    It is from this richly complex environment that the Oklahoma City 
Indian Clinic [OKCIC] was established in 1974 as an Indian-controlled, 
nonprofit corporation with the sole purpose of serving the health care 
needs of American Indians in central Oklahoma. In the beginning, like 
other programs mentioned above, the clinic's volunteer staff operated 
in cramped, antiquated facilities, and was dependent upon donated 
medical supplies and equipment. But after the 1976 Indian Health Care 
Improvement Act was enacted, the Clinic enjoyed recognition and support 
of the Federal Government and the resources that followed.
    The Native American population of Oklahoma is second only to that 
of the most populated State, California. The 2000 Census indicated that 
391,949 Oklahomans identified their race as Indian when given the 
opportunity to indicate either full or partial heritage. It is 
estimated that over 50,000 American Indians live in central Oklahoma. 
There are 39 federally recognized tribal governments in Oklahoma alone, 
with all tribal governments being located on tribal lands in rural 
areas, where they generally have access to health care services through 
IHS and tribally operated health care systems.
    In 1995 the Oklahoma City Indian Clinic began serving patients from 
its new 27,000 square foot Corinne Y. Halfmoon Medical Facility, 
delivering a wide range of services, including medical, prenatal, 
dental, pharmacy, optometry, as well as family, behavioral health and 
substance abuse counseling and treatment. OKCIC provides x-ray, 
ultrasound, lab and mammography services. Clinic patients make use of 
diabetes and cardiovascular treatment and services, in addition to 
health and nutrition education and preventative care services. OKCIC 
serves over 16,000 patients from more than 225 federally recognized 
tribes, employs diverse staff of approximately 90 people, and adheres 
to IHS's Indian preference hiring policy.
    The service population and overall utilization of services has 
increased dramatically over the past 15 years. Total outpatient visits 
for the Oklahoma City Indian Clinic has increased from less than 20,000 
in 1992, to more than 60,000 visits in 2006. During this timeframe the 
Oklahoma City Indian Clinic achieved national accreditation with the 
Accreditation Association for Ambulatory Health Care [AAAHC].
    The current Oklahoma City metropolitan health care system does not 
have the capacity to absorb the Oklahoma City Indian Clinic patient 
load without overwhelming the hospital emergency rooms. It is 
imperative that the urban Indian health programs authorized under title 
V be allowed to continue as a vital part of the Indian Health Service 
health care delivery system.
    The mission of the Oklahoma City Indian Clinic is driven by our 
patient's needs and our ability to meet those needs. The Oklahoma City 
Indian Clinic plays a vital role in IHS health care delivery system. 
H.R. 4818, the Consolidated Appropriations Act, 2005, stipulates under 
the ``Administrative Provisions, Indian Health Services'' section 
that''

        Notwithstanding any other provision of law, the Tulsa and 
        Oklahoma City Clinic demonstration projects shall be permanent 
        programs under the direct care program of the Indian Health 
        Service; shall be treated as service units and operating units 
        in the allocation of resources and coordination of care; shall 
        continue to meet the requirements applicable to an urban Indian 
        organization under this title; and shall not be subject to the 
        Indian Self-Determination and Education Assistance Act [25 
        U.S.C. 450 et seq.].

    With the adoption of this language and after 30 years of providing 
health care to Indians residing in Oklahoma City, OKCIC will continue 
to provide quality health care to its eligible population. The 
Reauthorization is critical in meeting the health needs of all Indians. 
With 66 percent of the American Indians now residing in urban areas an 
increase in the Urban Title V of the IHCIA would assist in meeting the 
great disparity in urban health funding.
    As the committee deliberates the reauthorization of the IHCIA, we 
ask Congress to maintain the existing language concerning the Oklahoma 
City Indian Clinic so that our patients will continue to receive high 
quality health care. The Oklahoma City Indian Clinic's provision of 
concern is with the deletion of section 124 (b), which exempts National 
Health Service Corps [NHSC] scholars qualifying for the U.S. Public 
Health Service Commissioned Corps to be exempt from the NHSC and IHS 
full time equivalent [FTE] limitations when serving at a Tribal or 
urban Indian program. The placement of Commissioned Corps officers at 
these sites without FTE limitations is a vital health professional 
recruitment tool, and thus the NSC recommends that Section 124(b) be 
reinserted.
    In addition, the Oklahoma City Indian Clinic supports the testimony 
of Rachel Joseph, cochairperson of the National Steering Committee for 
the Reauthorization of the Indian Health Care Improvement Act. Before a 
hearing of the Senate Committee on Indian Affairs presented March 8, 
2007.
                                 ______
                                 

 Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii

    Thank you, Mr. Chairman. I commend the committee for holding this 
hearing today.
    Indian tribes purchased the first pre-paid health plan in this 
Nation when they ceded 550 million acres of tribal lands to the United 
States in exchange for the United States'commitment to provide health 
care in perpetuity.
    This contract was largely accomplished through treaties between the 
United States and Sovereign Tribal Governments. However, it is 
important to note there are other sources of authority for the 
Government's responsibility to provide health care services to Indian 
Nations and their citizens.
    In 1976 the Indian Health Care Improvement Act was enacted into law 
for the specific purpose of raising the health status of America's 
Native peoples. While the condition of Indian health care has improved, 
we can do better.
    American Indians and Alaska Natives born today have a life 
expectancy that is 2.4 years less than others in the United States. 
They die from tuberculosis, alcoholism, motor vehicle accidents, 
diabetes, homicide, and suicide at higher rates than other Americans.
    In each Congress we have introduced legislation to address these 
conditions by improving programs and services with the goal of assuring 
that all Native peoples have full and timely access to quality health 
care.
    However, I am concerned about assertions that some of the programs 
and services under the Indian Health Care Improvement Act are based on 
race--assertions that are not accurate.
    These programs and services are based upon the government to 
government relationship that Presidents Nixon, Bush, Carter, Reagan, 
Clinton and Bush have all consistently reaffirmed as the United States' 
Fundamental Federal-Indian Policy.
    Furthermore, the U.S. Constitution recognizes tribal governments as 
sovereign governments. In Article 1, Section 8, Clause 3. The Congress 
is vested with the authority to conduct relations with the several 
States, Foreign Nations and Indian Tribes.
    Therefore, this bill should not be viewed as race-based, but rather 
as legislation by which Congress is exercising its authority to address 
deficient health care conditions in Indian country.
    I commend my colleagues, in particular Senator Dorgan, for holding 
this hearing on a bill that provides crucial health care programs and 
services to Indian country. I look forward to furthering this important 
initiative.
                                 ______
                                 

    Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana

    Thank you Mr. Chairman, first, let me thank you for introducing 
this legislation and holding this hearing. I continually hear from my 
friends in Montana that Indians are struggling to access health care. I 
am saddened with every new story.
    All of us on the committee have heard from our constituents that 
tell us about the perils of getting sick or injured if you're Indian in 
this country. For example, most Indians know, ``Don't get sick after 
July'' because the local clinic is out of money by then.
    Or, how about the situation where budgets only allow service for 
life or limb-threatening injuries?
    Mr. Chairman, this just doesn't make sense!
    As parents, we preach to our children the importance of 
preventative medicine. We tell our children how important it is to pay 
attention to their bodies and address health issues as soon as they are 
aware of potential problems.
    In other areas, we urge our citizens not to wait until they notice 
health problems. We encourage them to test their bodies for cancer and 
other threatening illnesses, even before they notice problems.
    Why should it be so drastically different for my friends living on 
the Rocky Boy Reservation? Why are we telling Indians that their health 
is not as important as the health of everybody else in this country?
    Mr. Chairman, our grandfathers and great grandfathers signed 
treaties with Indian people promising to provide, among other things, 
health care in perpetuity. We have an obligation to Indian people and 
we have an obligation to American taxpayers.
    As you well know, an investment in health care is an investment in 
our future. By investing money in health care, and encouraging good 
health, we save money in the long-run. Waiting until a relatively 
routine injury becomes life or limb-threatening--is absurd!
    If doctors can solve a minor problem before it becomes a major 
problem, we should provide them with resources to accomplish that goal. 
If my friend in Browning gets sick in August, he should see a doctor!
    For those reasons, I will support passage of this bill. I look 
forward to working with you to make that happen. Thank you, Mr. 
Chairman.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                 
