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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 13-094

General Memorandum 13-094
Affordable Care Act Bill on Definition of Indian Introduced

On October 16, 2013, Senators Begich (D-AK), Baucus (D-MT), Udall (D-NM), and Schatz (D-HI) introduced S 1575, legislation to ensure that the Affordable Care Act (ACA) uses the same definition of "Indian" to define eligibility of Indians for federal services. The proposed change will not affect eligibility for Indian Health Service (IHS) coverage, rather it is designed to ensure that everyone who is eligible for IHS services will be eligible for the Indian-specific benefits and protections in the ACA. We attach the bill which was referred to the Finance Committee.

The ACA contains a number of special benefits and protections for American Indians and Alaska Natives (AI/AN). For example, AI/AN are eligible for cost-sharing protections when they enroll in health insurance coverage through the new Health Insurance Exchanges, and also qualify for open enrollment on those Exchanges. In addition, the ACA exempts members of Indian tribes from the tax penalties associated with not having minimum essential health insurance coverage. The issue is that the ACA definitions of Indian only include members of federally recognized tribes or Alaska Native Claims Settlement Act corporations, and do not include AI/AN who are eligible for IHS services but who are not members of tribes (such as certain children and descendants). The IHS serves more than just tribal members, and includes "Eskimo or Aleut or other Alaska Natives"; an individual "considered by the Secretary of Interior to be an Indian for any purpose"; an individual determined to be Indian under Department of Health and Human Services (HHS) regulations; individuals who are members of organized groups of Indians, including state-recognized tribes or tribes terminated since 1940, or their first or second degree descendants; California Indians as defined by 25 U.S.C. § 1679; and urban Indians meeting these criteria.

Without the Indian definition amendment proposed by S 1575, many Native people who are eligible for IHS services may not be eligible for the ACA benefits provided to others. Currently, the HHS has only been able to use regulatory means to exempt the wider group of Native people from the tax penalty, though even that is a short-term fix. This legislative proposal is intended to be a permanent solution to the problem of disparate definitions.

Please let us know if we may provide additional information regarding S 1575.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com or 503-242-1745) or
Elliott Milhollin (emilhollin@hobbsstraus.com or 202-822-8282)

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