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Fall 2021

Doctrine of Discovery and its Impact on American Indian and Alaska Native Health Care

In 1492, Christopher Columbus set out, on behalf of the Spanish government, to find a nautical eastern passage to Asia. Much to the surprise of Spain and all of the European powers, Columbus instead found a land mass that had been inhabited since time immemorial. This was one of the first recorded contacts between the European and Tribal nations. Under the diplomatic norms of the 15th century, Columbus and Spain could have sought to establish diplomatic ties between the nations, which might have led to trade opportunities between the Tribes and Europe. However, the European powers had other ideas. Avoiding any pretense of diplomacy, the Catholic Church sought to legally justify settlement of the land mass, which they would later call “America.”

On May 4, 1493, Pope Alexander VI issued a Papal Bull called “Inter Caetera,” which provided justification for Christian nations to encroach upon the sovereignty of non-Christian nations by declaring, “that barbarous nations be overthrown and brought to the faith itself.” This document provided a “legal” justification for the colonization of the Americas by declaring that the sovereignty of Christian nations supersedes that of non-Christian nations. It also presented a theme that would permeate the relationship between Tribal nations and the European powers, as well as their successor sovereign, the United States of America. The document provided justification for the belief that being non-Christian (or “non-civilized”) made you less than human.

This philosophy persisted during the founding of the United States of America. In 1776, Thomas Jefferson wrote in the Declaration of Independence of the “merciless Indian savages.” Furthermore, despite the United States Constitution specifically recognizing the sovereignty of Tribal nations, the United States Supreme Court incorporated the Doctrine of Discovery into U.S. law in 1824’s Johnson v. Mc’Intosh when they stated that “discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession … [t]he history of America from its discovery to the present day proves, we think, the universal recognition of these principles. 1

The declaration that “barbarous nations be … brought to the faith itself” was also foundational in understanding the approach to education that the European countries and the U.S. would take with native people. Even before the official establishment of federal Indian boarding schools in the late 19th century, there were schools designed to “Christianize” native people. A notable example was Moor’s Charity School in Lebanon, Connecticut, which was established by Rev. Eleazar Wheelock. Wheelock would use the “success” of Moor’s Charity School to raise money for the establishment of Dartmouth College in 1769. Dartmouth’s charter included that it was founded, in part, “for the education and instruction of youth of the Indian Tribes in this land in reading, writing, and all parts of learning which shall appear necessary and expedient for civilizing and Christianizing children of pagans[.]” Many of these early schools were founded by Christian groups, often missionaries, and often with the full support of European powers, and later the U.S. government. In 1819, Congress passed the Civilization Fund Act, which provided funding to these groups to establish and operate boarding schools.

In 1871, the U.S. ceased treaty making with Tribes and began moving towards a policy of complete eradication of Tribal nations. One of the primary means for achieving this policy goal involved the creation of boarding schools that would “civilize” native children and indoctrinate them into mainstream American society. It was to be the final phase of the call “that barbarous nations be overthrown and brought to the faith itself” that had been made almost 400 years prior and the end goal of the Doctrine of Discovery. Upon the founding of the Carlisle Indian School in Pennsylvania, General Richard Henry Pratt declared his mission was to “kill the Indian and save the man.”

The establishment of Carlisle Indian school marked a turning point. No longer was the U.S. government (and the states) content to issue charters and funding to private individuals like Wheelock, it was itself moving into the business of “civilizing” native people. The formal establishment of the boarding schools represented a more aggressive approach to fulfilling the call of “Inter Caetera.” The Carlisle Indian School was one of many boarding schools founded for this purpose, and was operated from 1879 to 1918. After Carlisle’s closure, boarding schools continued to operate throughout the 20th century. In those years, countless native children were involuntarily removed from their homes and forced into a strange land, hundreds of miles from homelands. Many of them never returned. The decision to send children so far from home was intentional. The boarding schools were to remove the child far from their home, customs, and family ties to force them to become “civilized.”

The boarding school experiment was a failure in countless ways. Tribal nations are still here, and we persist despite repeated attempts at termination. It also never met General Pratt’s goal of “saving the man.” In fact, the boarding schools caused incalculable harm to native people. Generations of children were taken from their homes with many of them dying and being buried in mass graves. Those that survived the experience were left with trauma from the harsh conditions of the boarding schools. Entire generations of many Tribes were lost, to both death and despondency from the trauma caused by the experience.

Native people have had to reckon with the historical trauma caused by the boarding schools and their predecessors. The Doctrine of Discovery is directly to blame for the boarding school experience. The call “that barbarous nations be overthrown and brought to the faith itself” fed an insidious ideology that prioritized “civilizing” native children over providing for their well-being. It provided justification for the disruption of native communities, in pursuit of the nebulous goal of “civilization.” It provided justification for the subjugation of Tribal sovereignty that would even make such an undertaking possible. Understanding the boarding school experience requires understanding the ideology that led to its existence. The Doctrine of Discovery has caused untold amounts of damage to native communities and our people continue to reckon with its fallout.

  1. Johnson & Graham's Lessee v. McIntosh, 21 U.S. 543, 573-574 (1823)

COVID-19 Vaccination Successes in Indian Country

American Indian and Alaska Native (AI/AN) populations have been disproportionally impacted by COVID-19, with reports demonstrating impact at rates higher than any other population. In December 2020, the world received welcoming news on the best hope to address the pandemic: vaccinations. The vaccines reached Indian Country quickly, an outcome for which the National Indian Health Board (NIHB) strongly advocated. Tribes were able to move swiftly to distribute the vaccine to their communities, resulting in AI/ANs receiving the vaccine at a rate that succeeded other racial and ethnic groups in the U.S.

While data on COVID-19 impacts and vaccinations remain incomplete (e.g. race is only known for about 80 percent of COVID deaths and 65-70 percent of those vaccinated), the numbers are sufficient to show the success of vaccine distribution in Indian Country. The vaccination rate for AI/ANs is higher than for any other racial or ethnic group, this national data includes the majority of AI/ANs who do not live on or near Tribal homelands. Reports from a number of Tribes suggest they have achieved vaccination rates even higher than those nation-wide. One can see evidence of this in counties with large AI/AN populations. Glacier County in Montana, for example, reports a vaccination rate of 83 percent. McKinley County, New Mexico boasts a vaccination rate near 100 percent. 

These successes are even more remarkable considering the comparably low vaccination rates in counties and states surrounding these Tribes. The counties around McKinley, New Mexico have vaccination rates as low as 30 percent. The Navajo and some Tribes in Montana report vaccination rates over 70 percent,compared to the 56 percent and 50 percent overall vaccination rates in Arizona and Montana, respectively. Alaska Native Health Organizations also reports vaccination rates over 70 percent, compared to only 52 percent for Alaska statewide. These higher rates show that vaccination strategies used by Tribes, like incentives and workplace and enterprise policies, have had significant success.

Due to the effectiveness of Tribal vaccination efforts, the disproportionate impact of COVID-19 on AI/ANs has receded since the early days of the pandemic. COVID-19 deaths for AI/ANs drastically declined in the weeks after the vaccine became available. The allocation and early distribution of vaccines by Tribes were efficient and saved lives, enhancing the success of additional public health measures like social distancing, closures, and mask requirements. 

With the ever-changing nature of the COVID-19 pandemic, expert estimates have varied on predictions for the vaccination rate necessary to achieve herd immunity. With new variants emerging, full herd immunity may not even be possible. The Delta variant has been deadly and the weekly increase in deaths for AI/ANs reached 107 in the first week of September 2021, according to the Centers for Disease Control and Prevention (CDC). However, continuing to increase vaccination rates – and administering booster shots as recommended – remains our best chance of curtailing the deadly impact of COVID-19 in our communities.

We can celebrate and learn from our successes while continuing the important work of ensuring every member of our AI/AN communities are fully vaccinated.

  1. https://www.cdc.gov/mmwr/volumes/69/wr/mm6934e1.htm

The Growing Importance of Insurance Outreach and Education Exacerbated by the COVID-19 Pandemic

It comes as no surprise over the past two years, COVID-19 has greatly impacted access to health care in Tribal communities. The pandemic highlights a severe need of enrollment into health insurance for many Tribal communities and American Indian and Alaska Native (AI/AN) populations. It showcases the need for additional resources in Indian Country to provide effective and accurate outreach and education on health care insurance.

At the beginning of the pandemic, it was difficult for Tribal enrollment assistants and Certified Application Counselors (CACs) to connect to noninsured individuals within their Tribal communities due to social distancing requirements and technology barriers. However, as the public health emergency continued to progress, health care enrollment professionals learned best practices for conducting outreach and education to connect to the uninsured population. For example, we saw an increased use of social media. In Washington State, from August 2020 to August 2021 Medicaid enrollment of AI/ANs rose by 11 percent. This increase would not have been possible without the use of outreach and education on health insurance within Tribal communities. Through this increase in health care access for AI/ANs, many Tribal hospitals and clinics will receive additional third-party reimbursement which will directly impact Tribal communities.

The Biden Administration also understood the need for outreach and education on enrollment into health insurance by rolling out initiatives for greater access and information on enrollment. One example of this is the extension of the open enrollment period that goes until January 15, 2022. This new initiative aims to expand health coverage access nationwide. Specifically, services provided by Federally Facilitated Marketplace (FFM) navigators will be expanded and there will be a relaunch of the Champions for Coverage program. The Centers for Medicare and Medicaid Services (CMS) also established a new monthly special enrollment period in the marketplace to target low-income individuals through HealthCare.gov. The Biden Administration's CMS Navigator Grant Program has supplied the largest amount of funding for navigators across the country, who work with the uninsured population on available affordable health care options.

Throughout the COVID-19 pandemic, outreach and education on health insurance has contributed to better health care for AI/ANs and allowed for more third-party revenue to reach the Indian health care system. The increased third-party revenue is especially welcomed, given the impacts to third-party revenue caused by the COVID-19 pandemic. This outcome is attributed to the sharing, learning, and continuation of best practices related to outreach and education as well as the Biden Administration's understanding of the increased benefits.

A Brief History of Medicaid Managed Care in Indian Country

Managed Care is a growing element of health care delivery through the Medicaid program. According to the Kaiser Family Foundation, most Medicaid recipients receive all or part of their care through a Managed Care Organization (MCO). As states increasingly move towards Managed Care, this represents a challenge for Indian Health Care Providers (IHCPs), who find themselves squeezed into programs that are ill-equipped for their needs.

What is Medicaid Managed Care? Fundamentally, it is when a state contracts with a private organization to administer all or part of their Medicaid program. These private organizations manage the individual beneficiary’s care and handle the reimbursement to providers. Like in the private sector, MCOs have a provider network limiting where patients can seek care. The MCOs are also compensated by the states on a per member, per month basis so the MCOs assume some degree of risk in providing coverage. States can also mandate enrollment in an MCO through a Section 1115 waiver, Section 1915(b) waiver, or through a State Plan Amendment. 

In 1982, Arizona was the first state to move towards a statewide Managed Care model, which it achieved through the Section 1115 waiver. In the 1990s, more states began to adopt the model attracting the attention of lawmakers, who sought a way to both streamline implementation of the program and protect certain populations from being mandated into it. The issue came under the purview of the Senate Subcommittee on Medicaid and Health Care for Low-Income Families, chaired by Senator John Chafee of Rhode Island. In March 1995, the subcommittee held a hearing on Section 1115 waivers, of which managed care was a substantial portion. During the hearing, Senator Chafee expressed concern about mandating “certain Medicaid populations” (including the homeless, migrant farm workers, and foster children) into managed care. His concern was couched largely in the fact that many private sector health providers are inexperienced at dealing with these populations. At least regarding American Indian and Alaska Native (AI/AN) populations, that concern would prove to be prescient. 

In May 1995, Senator Chafee introduced the “Medicaid Managed Care Act of 1995,” which created the authority for states to mandate enrollment into Managed Care through State Plans. It excluded “Special Needs Populations,” which did not initially include AI/ANs. His 1997 iteration of the same bill did include AI/ANs under the same provision. While this bill did not pass on its own, it was incorporated into the Balanced Budget Act of 1997. 

The Balanced Budget Act of 1997 provided states with the direct authority to mandate enrollment in Managed Care through a State Plan or State Plan Amendment. Prior to this act, states could only mandate enrollment by seeking a waiver from the Centers for Medicare and Medicaid Services (CMS). This act amended Section 1932 of the Social Security Act. However, section 1932(h) of the act prohibits states from mandatory enrollment of an individual who is an Indian unless the Managed Care Entity (MCE) contracted with the state is an Indian Managed Care Entity (IMCE). An IMCE is a managed care entity that is managed by a Tribe or Tribal organization. 

Despite Senator Chafee’s attempts to streamline the process and allow states to implement mandatory Managed Care without going through the process of securing a waiver, states have continued to use waivers. CMS has interpreted the prohibitions on mandatory enrollment of AI/ANs to only apply to Managed Care as enacted through State Plans and State Plan Amendments. States have been allowed to mandate AI/ANs, as long as they seek to do so through a Section 1115 and Section 1915(b) waiver. 

In 2009, Congress once again visited the issue of AI/ANs in Managed Care and passed protections through the American Rescue and Recovery Act (ARRA). These protections were designed to ensure that AI/ANs can receive care through an IHCP, even if they are not enrolled in an MCO’s network, that MCOs have an adequate provider network of Indian Health Care Providers (IHCPs), and that IHCPs are compensated adequately for the services that are provided. Despite these protections, IHCPs continue to struggle to be reimbursed both fairly and in a timely manner. On May 19, 2021, the National Indian Health Board (NIHB) partnered with CMS to hold a Managed Care Roundtable where Tribal and state stakeholders sat down to discuss these issues and steps to solve them. The Tribal stakeholders discussed difficulties in ensuring that MCOs and states are aware of these protections and that they adhere to them. 

As Senator Chafee feared in 1995, private companies with little experience with certain populations are often ill equipped to work with them. States also seem to struggle with ensuring that these protections are being followed. This is a multi-prong problem and as Managed Care becomes a bigger piece of the Medicaid delivery puzzle, it becomes one that must be addressed. We encourage you to get involved with NIHB’s Medicare and Medicaid Policy Committee (MMPC) to help NIHB address this issue. You may do so by contacting Christopher Chavis, Policy Center Director, at [email protected]

  1.  See https://www.kff.org/medicaid/issue-brief/10-things-to-know-about-medicaid-managed-care/
  2.  A lot of these provisions came from the Medicaid Managed Care Act of 1997, which was introduced in June. In introducing the bill, Sen. John Chafee (Chair of the Finance Subcommittee on Medicaid and Health Care for Low-Income Families) stated, "Under our legislation, States could require Medicaid patients to enroll in managed care plans without going through the lengthy and cumbersome process of applying to the Secretary of Health and Human Services for a waiver of current Medicaid regulations. While AI/ANs were exempt in Chafee's 1997 bill, they were not in his 1995 iteration. Consistent with Sen. Chafee's earlier concern, foster children are in fact exempt from mandatory Managed Care."

Indian Country Continues to Protect its Citizens as Vaccination Efforts Go On

The COVID-19 pandemic has highlighted many disparities that exist in Indian Country. As sovereign nations, Tribes have the authority and responsibility to maintain the safety and well-being of their citizens. Throughout the pandemic, Tribal governments have enacted public health measures to limit exposure to SARS-CoV-2, demonstrating the resilience and innovation that exists within Tribal communities. For the past 18 months Tribal leaders, Tribal frontline workers, and Tribal citizens have worked tirelessly to protect elders, children, and the most vulnerable Tribal citizens. During a time of uncertainty, Tribal communities acted fast to mitigate the impacts of COVID-19. Responses included closing Tribal homelands and implementing curfews. Innovative strategies, such as the "colored paper project" were employed to deliver services while maintaining distancing. The colored paper project was implemented by Wabanaki Public Health and Wellness, which serves four federally recognized Tribes in Maine. Last year they started using colored paper as a coding system for Tribal members to communicate their needs and receive supplies while maintaining physical distance. 1 Each colored piece of paper represented a different need. For example, blue meant the elder needed someone to talk to whereas yellow meant supplies were needed. Tribal elders would leave the colored paper on the door and staff would drive by and be able to know who needs what. This is one example of the work Tribes have done to help reduce the spread of SARS-CoV-2, the virus that causes COVID-19.

During the pandemic Indian Country has been proactive in the fight against COVID-19, not only in utilizing infection prevention strategies but in vaccine administration as well. As the more contagious Delta variant spreads, Tribal nations have done a remarkable job getting Tribal citizens vaccinated. Based on available race/ethnicity data, just over one million American Indian Alaska Natives (AI/ANs) are fully vaccinated. For example, the Sac and Fox Tribe of the Mississippi had 70 percent of its vaccine eligible citizens fully vaccinated as early as May 2021. 2 Some Tribes who incorporated guidelines into their emergency preparedness or vaccination plans extended their efforts and provided vaccines to non-native staff, non-native family members of native households, and surrounding border towns, which further protected their citizens.

Many vaccination milestones have occurred since the vaccine rollout. For instance, in August the Food and Drug Administration (FDA) granted full approval of the Pfizer-BioNTech COVID-19 vaccine for people ages 16 and older. This was the first vaccine to receive approval and provided additional confidence in the safety and efficacy of the Pfizer (Comirnaty) vaccine. There is hope that full approval will help vaccine-hesitant AI/ANs arrive at the decision to get vaccinated. Furthermore, full approval can provide additional support for vaccine mandates. The Department of Interior announced that all staff and faculty at Bureau of Indian Education schools must be vaccinated, which may in part be due to Pfizer receiving full approval. Vaccinating faculty, staff and students, in addition to infection prevention methods aids in protecting those who are not eligible for vaccination or cannot receive the vaccine due to a medical condition. Protecting the youngest and the oldest is vital in keeping Tribal communities healthy for generations to come.

As the pandemic continues, vaccination against COVID-19 is the strongest tool we have. Vaccines play a vital role in protecting AI/AN elders, children, and Tribal communities. All three vaccines, Pfizer (Comirnaty), Moderna, and Johnson & Johnson (J&J) are safe, effective, and available for use in Indian Health Service (IHS) facilities and Tribal health systems. Additionally, the National Indian Health Board (NIHB) created the Act of Love campaign to encourage AI/ANs to show their love for their communities by adhering to simple Tribal public health precautions, such as wearing a mask, physical distancing, and getting the COVID-19 vaccine. United in our love for Tribal communities and culture, the Act of Love campaign seeks to reduce the spread and impact of COVID-19 in our Tribal communities. To learn more about what NIHB is doing to support and encourage COVID-19 vaccination, visit our and COVID-19 Tribal Resource Center websites. For additional resources on the COVID-19 vaccines visit the Centers for Disease Control and Prevention and Food and Drug Administration websites.

  1. Andrews, C. (2020, July 28). Why colored paper in a doorway is a key part of Maine tribes' coronavirus response. Bangor Daily News. Retrieved from https://bangordailynews.com/2020/06/02/news/why-colored-paper-in-a-doorway-is-a-key-part-of-maine-tribes-coronavirus-response/
  2. Hatzipanagos, R. (2021, May). How Native Americans launched successful coronavirus vaccination drives: 'A story of resilience'. The Washington Post. Retrieved from https://www.washingtonpost.com/nation/2021/05/26/how-native-americans-launched-successful-coronavirus-vaccination-drives-story-resilience/

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