November 2011 - CDC Public Health Law News
Tribal Law Special Edition
Thursday, November 17, 2011
From the Public Health Law Program,
Office for State, Tribal, Local and Territorial Support,
Centers for Disease Control and Prevention
Welcome to the Public Health Law News' "Tribal Law" Special Edition. In honor of National American Indian and Alaska Native Heritage Month, we have included two interviews with tribal law experts. As you will read below, Jim "Hawk" Hawkins and Geoffrey Strommer provide background and insights concerning the relationship between federal, state, and tribal law and explore how these dynamics affect tribal public health law. Many thanks to Mr. Hawkins and Mr. Strommer for their time and efforts. Enjoy!
Matthew S. Penn, Director
Public Health Law Program
In this Edition
- Florida: Drunk gummies
- North Carolina: Sterilization program
- National: PPACA's constitutionality
- National: FDA drug approval program
- National: Pharmaceutical settlement
- National: Chickenpox lollipops
- National: Raw milk
- National: Student-athlete concussions
- National: Graphic cigarette warnings
- Australia: Cigarette promotion law
This Month's Feature: Native American Heritage Month
- Interview with Jim "Hawk" Hawkins, Corporate Counsel, Great Lakes Intertribal Council
- Interview with Geoffrey Strommer, Partner, Hobbs Straus Dean & Walker
- The Supreme Court of the United States granted certiorari and will hear constitutional challenges to the Patient Protection and Affordable Care Act (ACA). Certiorari was granted to a case from the Eleventh Circuit Court of Appeals, Florida v. HHS, which held the law exceeds Congress' powers. The case is the result of a challenge brought by 26 state officials and the National Federation of Independent Businesses. View the Supreme Court docket.
- The National Association of County and City Health Officials (NACCHO) will hold the 2012 Public Health Preparedness Summit February 21-24, 2012, in Anaheim, California. The theme of the meeting is Regroup, Refocus, Refresh: Sustaining Preparedness in an Economic Crisis. Register here.
- Archives of Pediatrics & Adolescent Medicine published the article "Banning all Sugar-Sweetened Beverages in Middle Schools" by Daniel R. Taber, et al., on November 7, 2011. The article details a study which examined whether state policies regarding sugar-sweetened beverages in schools are associated with reduced in-school access and consumption among adolescents.
More information about the study on sugar-sweetended beverages.
- NIH announced results from the first large scale study on treatment of prescription opioid addiction on November 8, 2011, in the report Painkiller abuse treated by sustained buprenorphine/naloxone. The study, which showed that "the addition of intensive opioid dependence counseling provided no added benefit," was the first randomized large scale clinical trial of its kind.
More information about the study on treatment of prescription opiod addiction.
- The Tobacco Control Legal Consortium has released The Consortium Bulletin, a monthly electronic news feature. The November 2011 edition features a fact sheet explaining the differences between legislative and administrative terms, and information about Boston's plan to prohibit smoking in public housing by September 2012. View the newsletter.
- Florida: Teens soak gummy candies in vodka, school systems on alert
"Central Florida school districts warn teachers to look for 'drunk gummies'"
- North Carolina: Sterilization program victims still carry the scars
"Victims speak out about North Carolina sterilization program, which targeted women, girls and blacks"
Washington Informer (11/7/2011) Michelle Kessel and Jessica Hopper
- National: Appellate court divide widens over PPACA's constitutionality
"Health care law held constitutional in latest appeals court ruling"
CNN (11/08/2011) Bill Mears
(Editor's note: Read the opinion)
- National: FDA defends drug approval program, points to high approval numbers
"F.D.A. officials, hoping to stave off critics, point to increased drug approvals"
New York Times (11/03/2011) Gardiner Harris
- National: Pharmaceutical settlement may be largest yet
"Glaxo settles cases with U.S. for $3 Billion"
New York Times (11/03/2011) Duff Wilson
- National: Chickenpox lollipops may contain other diseases, hepatits
"Prosecutor to Parents: mailing chickenpox illegal"
Fox News (11/06/2011)
- National: Relations sour as mothers protest FDA for raw milk
"Moms protest FDA for right to drink raw milk"
SilverSpringPatch (11/2/2011) Brandon Cooper
- National: Thirty-two states now have laws addressing student-athlete concussions
"New laws on student concussions protect student athletes"
Fox News (11/04/2011)
- National: Temporary injunction granted for graphic cigarette warnings
"U.S. judge blocks graphic cigarette warnings"
Reuters (11/07/2011) Alina Selyukh and Jeremy Pelofsky
(Editor's note: Read the memorandum opinion
- Australia: Government passes world's toughest cigarette promotion legislation
"Australia poised to fight big tobacco in courts"
Associated Press (11/10/2011) Rod McGuirk
This Month's Feature: Interview with Jim "Hawk" Hawkins
Jim "Hawk" Hawkins of the Great Lakes Inter-Tribal Council
Title: Corporate Counsel to Great Lakes Inter-Tribal Council since 1988
Organization: Great Lakes Inter-Tribal Council
Great Lakes Inter-tribal Council is a non-profit corporation comprised of the eleven federally recognized Indian tribes located in Wisconsin, plus the Lac Vieux Desert Tribe located just across the border at Watersmeet, Michigan. The eleven tribes in Wisconsin are individually recognized tribes with reservation and trust lands located across northern and western Wisconsin. Map attached.) GLITC began as an association in 1963, partially in response to concerns about the effects of termination of the Menominee Tribe from federal recognition in 1961, to fill a need for an inter-tribal forum and voice for mutual interests among the tribes, and to provide a conduit for some of the services needed in the reservation communities. It has become a vehicle for direct services, funding, and technical assistance to the tribal communities and governments, with an annual budget of approximately 8 million dollars.
Education: Graduated from University of Wisconsin-Madison in 1971, and Baylor University Law School in 1977. Admitted to the Wisconsin Bar in September 1977.
CDC Public Health Law News: How did you become interested in Tribal Law?
Hawkins: My first job upon passing the bar exam in Wisconsin was with Joseph Preloznik in Madison WI, working with the Menominee Restoration Committee. The Committee was created with the re-recognition of the Menominee Tribe following the federal Menominee Restoration Act of 1972, and was tasked with re-establishing a tribal constitution and constitutional government under provisions and processes similar to the Indian Reorganization Act of 1934. The process of adoption of the tribal constitution and re-establishing a tribal legislative body took several years, and was finally completed with the seating of the Tribal Legislature in February, 1979. During my time working with the MRC, I received daily lessons in the foundations and challenges of tribal government, the interface of tribal, federal, and state jurisdiction, and the different approaches that tribes can and do take to creating and maintaining their governmental institutions and services.
CDC Public Health Law News: How did you become Corporate Counsel to Great Lakes Inter-Tribal Council?
Hawkins: Working in Madison, I was introduced to the Great Lakes Inter-tribal Council in late 1978 as a result of several federal district court case decisions pertaining to hunting and fishing rights of the six Chippewa tribes in the State, when the Board of Directors met in Madison to discuss the cases and pass a resolution urging a federal appeal of the unfavorable decisions. With the completion of the Menominee Restoration process, I was out of a job, and went to work for Wisconsin Judicare in Wausau, WI in early 1979. That job involved providing civil legal services to low-income Indian people on and near the reservations, and co-incidentally providing services to several of the tribal governments and attending meetings and advising the GLITC board of directors. This was long before the advent of tribal bingo and other gaming or other tribal enterprises that we know of today, when tribal council members were lucky to receive expense reimbursements, and several of the elected tribal leaders were actually paid from Comprehensive Employment and Training Act funds. In 1988 I was recruited to work on the GLITC staff and have worked here since then. Essentially, I have worked with or for GLITC since 1979.
CDC Public Health Law News: How is Tribal law different from federal Law?
Hawkins: It's an important point to recognize that the tribes were here first. In pre-colonial times, the tribes were recognized as separate, sovereign, and independent nations, having their own diverse territories, governments, institutions, memberships, political and decision-making processes, dispute resolution processes, external relations, and cultures. That fundamental recognition has not changed, although circumstances have changed and some of the perquisites of their nationhood have been lost or limited. When the British were finally excluded from U.S. territory in 1815, the tribes lost the power to enter into alliances with other nations besides the United States. The United States continued to recognize the tribes' other aspects of sovereignty, bargaining with the tribes for land, settling inter-tribal disputes and questions of jurisdiction, entering into peace treaties, and compensating for incursions and violations. And because the tribes were here first and because their members were recognized as citizens of the various tribal nations, they were deemed not subject to the inter-state agreement that was ultimately recognized as the United States Constitution and the establishment of the U.S. as a country. So there is a fundamental difference between the federalism that characterizes federal, state, and local law, and tribal law that descends from an individual tribe's own history and social structure. It isn't possible to generalize about tribal law, as each tribe's nationhood and history is unique, influenced by its environment, its cultural, social and spiritual history, and its decision making processes, as well as by its particular history of contact.
CDC Public Health Law News: How is Tribal law different from state law?
Hawkins: Because of the historical and legal background, the tribes in general are not subject to state and local law within their tribal territory. There are certain exceptions, as where Congress has enacted a law that applies state law to reservation territory. This is so where Congress has applied state criminal law to reservations under Public Law 280, passed in 1953, which selected a number of reservations across the country to be subject to state criminal law. Other federal laws of general applicability have been held to apply on the reservations, extending state jurisdiction. But the general rule is that state and local civil and regulatory law does not apply on the reservations. And on non-280 reservations, criminal law is a matter of either tribal or federal jurisdiction. It is for this reason, for example, that conservation laws or gambling laws do not apply in reservation territory, while federal game and endangered species laws do apply, albeit with exceptions carved out for Native uses.
CDC Public Health Law News: Since the Tribes are sovereign nations, how are federal laws negotiated by Tribes and how does the federal government negotiate Tribal law?
Hawkins: Tribes have their own networks through general and specialized Native interest groups, and in some notable cases, states actively consult with the tribes about federal statutory and regulatory law. In Wisconsin, for example, the tribes and the state executive departments consult together twice each year in each department's area of influence, and discussions include their mutual interests in federal law and programs. But just as state legislatures change, so does Congress, and tribes are repeatedly called on to re-tell their story, to remind Congressional representatives that there is a "fourth estate" to be dealt with in the federal relationship – the tribes. And for many small tribes the burden of educating and re-educating legislative representatives and their staffers is quite onerous, and federal executive department staff and program operations staff need to be educated and re-educated about the tribes. Because tribal people are only a small percentage of the total population, it is sometimes all too easy at the federal level to dismiss tribes as another "interest group," when in reality they are political entities with a unique and independent set of circumstances that affect the fit of federal programs, whether they devolve directly to the tribes or as state pass-throughs.
CDC Public Health Law News: Do Tribes promulgate their own public health laws? If so, how is it done?
Hawkins: Much of public health law, such as food safety practices or disease control or emergency response, stems from state law and therefore does not apply within the reservations. Federal laws of general applicability would most likely be held to apply within the reservations. Many tribes do enact and enforce their own public health laws, and for non-members residing or doing business on the reservations, navigating the interface between federal, state, local, and tribal law can be confusing. Some tribes re-enact existing state laws as a matter of tribal law, or they reach agreements with state or local agencies as to joint jurisdiction in the interests of public safety, and because the tribes lack the technical systems or enforcement resources to effectively exercise public health authority.
CDC Public Health Law News: What issues do tribes face with regard to Tribal sovereignty?
Hawkins: Although not universal, there are certainly challenges to tribal sovereignty in every state that encompasses one or more federally recognized tribes. State and local government officials sometimes fail to see the lines between their authority and tribal sovereignty, and the cause and effects of tribal sovereignty and the dual citizenship of tribal members are confusing and provoking to certain non-governmental individuals. An ongoing battleground is the matter of the Indian Child Welfare Act of 1978 (ICWA), a federal law which recognized that tribal children are the key to the continuing viability of tribal society and self-government. The ICWA sets out certain standards and procedures to prevent the wholesale separation of children from their reservations, families and culture under the rubric of "neglect", but the enunciated federal policy of the ICWA is both passively and actively resisted by other federal and state funding and practices. The future of Indian children is the future of the tribes and their sovereignty, and the continued draining of Indian children away from their communities, as recently documented on NPR, is a huge threat to the tribes' future.
CDC Public Health Law News: How can state and local government collaborate with Tribes?
Hawkins: As for tribal-state relations, I would point in particular to the successes of the Wisconsin consultative processes. Within the executive branch, this was initiated by former Governor Doyle and continued by current Governor Walker as an executive order, directing each of the executive departments to meet and consult with the tribal leaders and staff. This occurs twice annually for each department. The Tribes also have an annual consultative event with the State Legislature, and they have a consultative relationship between the tribal courts and the State Supreme and lower courts. This is not to say that everything is sweetness and light, but the tribes and the State of Wisconsin have achieved some remarkable state-wide results. Great Lakes Inter-tribal Council is a forum for the tribal leaders and may sometimes act as a conduit for state-tribal relations, but it is the tribal governments meeting with state officials who speak most clearly for the tribes, and that is something that we at GLITC are always mindful of, particularly when someone approaches GLITC thinking that we are some kind of spokesman or gatekeeper for the tribes.
Tribal and local government relations, on the other hand, are a little more variable, being swayed by local interests, personalities, and politics. Common ground, however, is frequently found in matters of public health and safety, and in those areas that are easily identified as having regional impact. There are some very good tribal-local cooperative models to be found in Wisconsin in public health and emergency planning and response, law investigation and enforcement, conservation, social services, and education. We saw closer cooperation between tribes and adjacent counties during the H1N1 influenza mobilization. Tribes and townships often share emergency response crews, training, and equipment, and Wisconsin holds an annual multi-jurisdictional law enforcement conference, involving state, local and tribal law enforcement agencies to share information, projects, investigation resources, and administrative solutions. The tribes, counties, state and other stakeholders cooperated over a period of several years on the drafting and development of the recently enacted Wisconsin Indian Child Welfare Act, 2009 Wisconsin Act 94. Some of these successes just don't get enough press and come as a great surprise to other tribes and states across the country.
CDC Public Health Law News: Is there anything you would like to add?
Hawkins: Public health is a very high priority for the tribes. The incidence of chronic disease is high in Indian Country, and is a continuing drain on tribal health resources. The remoteness of the reservations influences access to health care. Chronic disease influences morbidity, perinatal health and infant mortality. Add to this the public health difficulties that so many non-Indian communities share – drugs, addictions, risky behaviors, and lack of mental health resources, and the inherent remoteness of reservation communities and lack of commerce and the lack of authority and tax base to generate revenue. Across the board, federal Indian health systems are less well funded than the federal prison health system, whether you look at facilities or level of need. Add to this the slowness of Congress to address the Indian Health Care Improvement Act reauthorization – more than 10 years in Congress -- and you can begin to see the scope of the challenges that tribal governments face.
This Month's Feature: Interview with Geoffrey Strommer
Organization: Hobbs Straus Dean & Walker
Education: Solano Community College, A.A. (with honors), 1984; University of California, Berkeley, B.A. (with distinction), 1986; Georgetown University Law Center, J.D., 1990.
CDC Public Health Law News: How did you become interested in Tribal Law?
Strommer: During my second year in law school I clerked for Hobbs Straus in Washington, DC. I loved the intellectual challenges associated with the work and have stayed in the field ever since. I believe that tribes are a very important and unique part of our constitutional system and that they need to have access to the best legal representation possible as they develop and implement programs – like health care programs - that benefit their citizens. Working for tribal governments on these issues has been very rewarding and a privilege.
CDC Public Health Law News: On what Tribal public health law projects have you worked?
Strommer: For close to 20 years I have worked with numerous tribal clients throughout the United States that have assumed from the federal government responsibilities and funds to provide health care to Indian people under the Indian Self-Determination and Education Assistance Act (ISDEAA) and other Indian-specific statutes including, for example, the Indian Health Care Improvement Act (IHCIA). In that work I have been actively involved in lobbying for the enactment and implementation of the ISDEAA and IHCIA's provisions. I have also negotiated numerous contracts, compacts, and funding agreements between tribes and the Indian Health Service (IHS) and I have assisted tribal clients on a range of policy and legal issues as they developed and implemented their health programs. I have also litigated a number of healthcare-related disputes in administrative forums and federal court. More recently I was counsel of record for close to 350 tribes nationally and filed an amicus brief on behalf of the National Indian Health Board and many tribes around the country in State of Florida, et al., v. HHS (3:10-cv-91) (N.D.Fla. Jan. 31, 2011), one of the cases that is challenging the constitutionality of the Affordable Care Act.
CDC Public Health Law News: What is the Indian Self-Determination and Education Assistance Act (ISDEAA)?
Strommer: Up until the mid 1970's virtually all health care provided to Indian people by the federal government was provided directly by federal employees. In the early 1970's President Nixon ushered in the self-determination policy, which sought, among other things, to reduce federal involvement in providing services to Indian people directly, help tribes to build their internal capacities and administer programs benefiting Indian citizens, and give tribes the ability to govern themselves with more flexibility and less oversight from federal officials. The ISDEAA was the first piece of legislation that implemented this new policy and also acknowledged that tribal governments were capable of assuming and performing these roles. Based on the unique government-to-government relationship that exists between tribal governments and the federal government, the Act allows any qualified Indian tribe to assume as a matter of right from the federal government programs, functions, activities and associated funds relative to services provided to Indian people and provide those services directly. The statute has been amended numerous times since it was enacted and today it includes a number of Titles that offer tribes different options to assume a broad range of programs, services, functions and activities previously provided to Indian people by federal employees. The most recent titles implement the self-governance programs within the Department of Health and Services (DHHS) and the Department of the Interior (DOI), both of which are designed to maximize the flexibility of tribes to reallocate funds and redesign programs that they assume and reduce the level of oversight that federal officials can exercise after programs have been assumed.
CDC Public Health Law News: How is ISDEAA related to Tribal public health law?
Strommer: As noted above, the ISDEAA allows tribes to assume from DHHS and IHS public health programs, services, functions, activities and associated funds relative to services provided to Indian people and provide those services directly. Reflecting on the flexibility inherent in the statute, these authorities have been exercised in a number of different ways throughout the United States and have resulted in tribes developing and implementing a variety of successful health programs. For example, starting over 15 years ago, the over 220 tribes in Alaska collectively began to assume the entire IHS health care delivery system in the state. Today, these tribes are all signatories to the Alaska Tribal Health Compact, one agreement with the United States that in 2010 transferred approximately $550 million from the federal government to tribes in the state. Tribes very successfully manage the only health care delivery system available to both Indians and non-Indians in many parts of the state. In a different example, the Jamestown S'Klallam Tribe in Washington State, has, over the past 11 years, grown a small clinic that initially focused on providing health care to only tribal citizens to an extremely successful large facility, with 17 provider staff. In addition to fulfilling the health care needs of the Jamestown tribal citizens the newly expanded clinic also provides the bulk of the services to over 11,000 non-Indians who reside in a two-county area. The Jamestown S'Klallam Tribe's health care delivery program has become a model example which successfully demonstrates that collaboration between tribal governments, local governments and public hospitals can result in increased access to health care for people – both Indian and non-Indian – who have historically been badly underserved.
CDC Public Health Law News: In what ways has Tribal public health changed or improved through ISDEAA?
Strommer: The ISDEAA has dramatically changed the way health care is delivered to Indian people in a number of ways. Most significantly ISDEAA has transferred real and meaningful decision making authority from federal bureaucrats to tribally elected officials who are the most tuned in to the health needs of their communities and are best able to implement programs at the local level to address local problems. Tribal governments have also demonstrated extraordinary creativity and resourcefulness and have designed programs that more efficiently deliver better services to beneficiaries. They have also aggressively sought additional financial resources that have allowed them access to more and better quality health care.
CDC Public Health Law News: What changes do you foresee in Tribal public health law?
Strommer: Tribal health care programs face many of the same problems as other public health care systems in this country. They are also struggling to address skyrocketing costs and diminishing resources and are looking for creative and successful ways to increase the services they provide to Indian beneficiaries, a population that has historically been tremendously underserved. Finally, like other health care providers, tribes are actively working to adapt to the changes in the nation's health care system contained in the Affordable Care Act.
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Case No. S11A1014
Decided on October 17, 2011
Opinion by Chief Justice Carol W. Hunstein
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Faber v. Jefferys
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Opinion by Judge Louis B. York
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Opinion by Judge Thomas Feinman
About Public Health Law News
The CDC Public Health Law News is published the third Thursday of each month except holidays, plus special issues when warranted. It is distributed only in electronic form and is free of charge.
The News is published by the Public Health Law Program, Office for State, Tribal, Local, and Territorial Support, Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (DHHS). Lindsay Culp, J.D., M.P.H., Editor; Abigail Ferrell, J.D., M.P.A., Writer. Special thanks to Stacie Kershner, J.D., for help with the Special Feature.
News content is selected solely on the basis of newsworthiness and potential interest to readers. CDC and the Department of Health and Human Services (DHHS) assume no responsibility for the factual accuracy of the items presented from other sources. The selection, omission, or content of items does not imply any endorsement or other position taken by CDC or DHHS. Opinions expressed by the original authors of items included in the News, or persons quoted therein, are strictly their own and are in no way meant to represent the opinion or views of CDC or DHHS. References to products, trade names, publications, news sources, and non-CDC Websites are provided solely for informational purposes and do not imply endorsement by CDC or DHHS. Legal cases are presented for educational purposes only, and are not meant to represent the current state of the law. The findings and conclusions reported in this document are those of the author(s) and do not necessarily represent the views of CDC or DHHS. The News is in the public domain and may be freely forwarded and reproduced without permission. The original news sources and the CDC Public Health Law News should be cited as sources. Readers should contact the cited news sources for the full text of the articles.
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