Excerpted From: Matthew Calabrese, Congressional Trust Responsibility and Tribal Health Care, 2024 University of Illinois Law Review Online 12 (Spring, 2024) (58 Footnotes) (Full Document)


MatthewCalabreseFederal Indian trust responsibility is the legal idea that the federal government owes a special duty to federally recognized tribes to act in the best interest of their land, people, and economic well-being. While Indian trust responsibility plays a significant role in the executive and judicial branches, its reach in Congress has been less specific. As the nation's legislative body, Congress has no obligation to pass legislation. Thus, the application of legislative trust responsibility is challenging to measure. Still, over the years, Congress has referenced and even set guidelines on how the legislative process should encompass the trust doctrine. But despite setting lofty goals, Congress routinely fails to provide adequate resources for tribal communities--especially during the appropriations process. This issue is particularly pronounced in Congress's failure to sufficiently fund health care coverage for federally recognized tribes. And unlike states and domestic localities, federally recognized tribes--overall--are uniquely reliant on federal resources for the daily functions of their communities. This Essay argues that federal Indian trust responsibility strongly signals a moral obligation for Congress to provide health care coverage for federally recognized tribes under an entitlement program.

This Essay is organized into two sections. First, this Essay provides a background on the federal Indian trust doctrine and Congress's application and understanding of legislative trust responsibility. Second, this Essay argues that health care entitlement funding for federally recognized tribes meets Congress's legislative trust responsibility better than discretionary funding. This Essay concludes that Congress does have some affirmative trust responsibilities that should be exercised to improve health outcomes for tribal Americans.

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Legislative trust responsibility is, at best, a fuzzy subset of the federal Indian trust responsibility. However, as a moral obligation, trust responsibility should not be limited to enforceable rights. Instead, a more substantial trust responsibility should apply in areas where Congress has an exclusive domain--like appropriations. In the case of Native American health care, this Essay argues that legislative trust responsibility should encourage Congress to create an entitlement health care program for members of federally recognized tribes. Only then will Congress be acting in a manner reasonably calculated to equalize health outcomes between tribal and non-tribal Americans.

Assistant District Counsel, U.S. Army Corps of Engineers; Georgetown University Law Center, cum lade, J.D. 2023; University of Arizona, B.A. 2015.