Tribal membership: Navajo Nation. My clans are Bilagáana (Anglo), born for Táchii’nii (Red-Running-Into-The-Water) and her maternal grandfathers are Bilagáana and her paternal grandfathers are Honágháahnii (One-walks-around clan).
Public Health Law News (PHLN):How did you become interested in public health law?
Todacheene:Improving health care in Indian Country has always been a passion of mine so I naturally gravitated toward it throughout my career. Originally, I began my undergraduate degree as a chemistry major in preparation to become a dentist, since oral health care and preventive care services are scarce on reservations. However, my professional focus changed to Indian law and policy after studying at the University of Hawaii and seeing that Native people across the country could benefit from advocacy at the national level.
PHLN:Will you please describe your career path?
Todacheene:After enrolling at the University of New Mexico School of Law, I had the opportunity to clerk at the US Department of Justice, Office of Tribal Justice, as a Udall congressional intern. There, I worked on federal legislation, including the Tribal Law and Order Act, Violence Against Women Act, and sovereign immunity claims. From this experience, I knew that I would eventually return to DC to advocate on behalf of Tribes.
After law school, I worked at the New Mexico Indian Affairs Department in Santa Fe. There, I performed legal analysis on proposed legislation during the 2016 New Mexico legislative session. This included work on New Mexico’s implementation of provisions in the Indian Gaming Rights Act and Indian Child Welfare Act in New Mexico. From there, I worked at a civil litigation firm in Albuquerque before returning to Washington, DC, to work for the Navajo Nation.
PHLN:Will you describe your role and day-to-day responsibilities as government and legislative affairs associate for the Navajo Nation and assistant judge for the Southwest Intertribal Court of Appeals?
Todacheene:Navajo Nation is the only Tribe that currently has a working office in Washington, DC, dedicated to advocating for federal legislation and policy initiatives that directly impact our citizens. I work with elected Navajo Nation leaders to advise on initiatives that relate to health, education, and public safety. My daily work greatly varies between working with federal agencies, congressional leaders, Tribes, and national tribal organizations. Most of my work is centered on outlining political and policy ramifications to provide strategic recommendations on how the Navajo Nation addresses specific issues to benefit our citizens.
As a judge at the Southwest Intertribal Court of Appeals, I decide individual cases as part of a three-judge panel to help provide appellate resources to Tribes that lack financial means or governmental infrastructure to provide appellate services to their communities. I review both criminal and civil cases after the Tribe/Pueblo’s lower court has furnished a decision on the case’s merits, and one party in a case has appealed the decision for higher court review. I am extremely passionate about my work to develop tribal court infrastructure and it provides me with another avenue to stay connected to my community in the Southwest while I am gaining professional experience in DC.
PHLN:Do you consider yourself a public health law practitioner?
Todacheene:100%. I have worked on, and continue to work on, public health law through my professional experience as a lawyer and policy advocate. The health law issues that I work on directly impact not only Navajo Nation, but Indian Country as a whole. I find these issues are frequently exceedingly complex, but well worth the hard work to improve access to health care in rural communities across the United States. Adequate health care in any economically developed country should be a fundamental right that all people have equal access to—it is the cornerstone of a civilized society.
PHLN:Why is working with tribal governments different from working with other US federal, state, or local governments?
Todacheene:Tribal governments are unique by way of their legal implementation and political affiliation to the United States government. Unlike any other group, Tribes have a government-to-government relationship with the federal government that is established through US Constitutional provisions, numerous treaties with individual tribal governments, federal statutes, U.S. Supreme Court case law, Presidential executive orders, and Title 25 of the US Code. Tribes and federally recognized tribal members have a unique relationship with the United States that is not based on race, but a political and legal relationship. Thus, Tribes are separate sovereigns with individual governments within the United States hence the “government-to-government” relationship.Specifically, Tribes are unique to work with in general since they cannot levy income or property taxes so you have to be creative in finding solutions for funding public roads and public safety.
PHLN:How is public health and healthcare delivery unique in Indian Country?
Todacheene:Health care in Indian Country came at a heavy cost to American Indians and Alaska Natives (AI/ANs), which isn’t fully addressed during most health policy discussions. Many people outside of Indian Country do not understand that heath care for AI/ANs developed during treaty negotiations between Tribes and the United States. These negotiations took place during the end of the nineteenth and first quarter of the twentieth century in the “civilization and assimilation” era.
In exchange for millions of acres of land and the genocide that Native Americans endured during the Long Walk and the Trail of Tears, the United States promised AI/ANs health care through the federal Indian trust responsibility. In the latter part of the nineteenth century, the federal government expanded healthcare services to Native Americans to address the spread of disease in overcrowded boarding schools.
As Indian health care continued to lag behind the rest of the country, Native American health services were transferred to the US Public Health Service (USPHS) in 1954. The following year the USPHS branched into the Indian Health Service (IHS) in an effort to fulfil the trust responsibility and provide services specifically in Indian Country as it exists today. The federal organization of these services vastly differs from any other healthcare services provided by the federal government due to the history and treaty negotiations between governments.
PHLN:How does the trust doctrine relate to Medicaid eligibility?
Todacheene:As federal policy, and because Congress acknowledges a special trust responsibility and legal obligations under the Indian Health Care Improvement Act, IHS provides healthcare services to 2.2 million AI/ANs throughout 36 states in America. However, AI/ANs continue to rank among one of the most vulnerable populations. Today, IHS is funded at approximately 40 percent of the health care funding need in Indian Country, and the average per capita spending for an IHS patient in FY 2017 was only $3,851 compared to the national average expenditure of $10,348 per person in CY 2016. [See Author’s note 1.] Congress amended the Social Security Act in 1976 and authorized IHS and tribal facilities to bill Medicaid for services provided to Medicaid-eligible AI/ANs. At the same time, Congress ensured that states would not have to bear any associated costs by reimbursing them 100 percent of the Federal Medical Assistance Percentage for services received through IHS and tribal facilities. Because the United States already had an obligation to pay for health services for AI/AN as IHS beneficiaries, it was appropriate for the federal government to pay the full costs of their health care as Medicaid beneficiaries. [See Author’s note 2.] Congress intended that Medicaid funding was to supplement IHS and not replace it, so Congress cannot factor in collections from Medicaid, Medicare, and the Children’s Health Insurance Program in determining IHS budget appropriations. [See Editor’s note 2.] Overall, IHS and tribal health facilities heavily rely on third-party reimbursement, which represents 35 to 50 percent of their respective operating budgets. Thus, any cuts to Medicaid would have a negative and colossal impact on the healthcare delivery systems in Indian Country.
PHLN:What are Medicaid work requirements, and how might they conflict with traditional American Indian and Alaska Native practices and cultures?
Todacheene:Unlike other Medicaid enrollees, AI/ANs can fall back on services at IHS facilities. As a result, the Medicaid incentives are drastically different for AI/ANs than any other population, and conditions of eligibility, such as work requirements, do not work in Indian Country. Instead, they lead to Medicaid disenrollment, which subsequently negatively impacts IHS services and disrupts the federal trust responsibility. [See Editor’s note 3.] Work requirements assume easy access to jobs and treatment centers that are unavailable on reservations due to infrastructure shortcomings. Work requirements in Indian Country are nonsensical because they do not account for traditional jobs like artisan work which doesn’t produce a weekly paycheck for 8-5 work and is subject to seasonal and other shift changes. For example, the Navajo Nation suffers from a 42 percent unemployment rate, which drastically exceeds that of metropolitan areas located outside Indian Country. This creates an obvious, unresolvable issue for AI/ANs who must satisfy work requirements to obtain basic health care through Medicaid. Basic infrastructure and economic development initiatives must be developed to provide AI/ANs with the opportunities that others have to find employment easily off-reservation.
The Centers for Medicare and Medicaid Services has acknowledged an additional barrier for AI/ANs trying to satisfy Medicaid’s mandatory work requirements and community engagement activities. Many AI/ANs are employed as artisans, jewelers, or woodchoppers, or are in other areas of traditional work that are subject to seasonal and other shift changes. But Medicaid’s work-model provisions do not account for these types of employment; the work requirements are designed to account for jobs that track hourly employment and month-to-month income. The Navajo Nation has critical infrastructure needs, and work requirements unfairly penalize individual Tribal members for not having access to these services. Further, negotiations could be made with individual states to work with Tribes to monitor traditional employment opportunities, but states frequently lack these resources or may choose not to engage with tribal governments, which unfortunately is not uncommon practice in some locations.
In general, work requirements contradict the purpose of Medicaid and what Congress intended for AI/ANs, as seen through past congressional action and decades of analysis.
PHLN:How can individuals learn more about American Indian and Alaska Native public health?
Todacheene:To have a full understanding of health care in Indian Country and its current development and potential policy changes, it is essential to have a full understanding of the history and legal framework of Tribal governments, federal relations, and the origins of the federal healthcare system. Federal Indian policy, and subsequently Indian health care, has developed through several policy eras, creating the programs that we see today. Picking up an Indian law book and understanding this history is one aspect of comprehending the issue, but calling and visiting an IHS facility on a reservation and observing the lack of infrastructure and basic necessities is another. You need both the historical background and personal experience to fully comprehend the ramifications of health policy—or of any policy changes made in Indian Country.
PHLN:How have your experiences as a tribal member informed your legal practice and judicial activities?
Todacheene:Of course. As an enrolled member of the Navajo Nation, I understand the difficulties and shortcomings that people back home face on a daily basis. Understanding the lack of resources and historical trauma that is carried through generations of our families shapes the decisions that I make every day. I have been very fortunate to be placed in a position where I can help make a difference for Indian Country, so others don’t have to endure what generations before us have had to overcome. I find strength in our history and work to exemplify those qualities in my professional and personal life.
PHLN:How can individuals help support better public health in Indian Country?
Todacheene:Our facilities experience constant lack of funding and diminished clinician retention. Some of this is due to general misconceptions and the lack of understanding about our healthcare system. Any help to find solutions to these issues would be a great support to any Tribe. Even stopping into an IHS facility to learn about the services offered and meet staff would be the first step to finding a solution, plus it would help individuals understand the programs that are currently available to further develop. More needs to be done federally to incentivize physicians to practice on reservations and develop the sparse amenities.
PHLN:Do you have any hobbies?
Todacheene:I enjoy traveling and living in DC. I frequently go back to the Southwest to visit my family and stay involved in the community. I also work on art in my free time and have several pieces to complete.
Author’s notes:
- See Indian Health Service, Indian Health Care System Fact Sheet (July 2018).
- See the House Committee Report, H.R. Rep. No. 94-1026, pt. III, at 21 (1976).
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