by Rob Natelson, Electric City Weblog
Government agencies and pressure groups campaigning for more taxpayerÂ money can create a fictitious â€œhistoryâ€ almost overnight. First, they make some claim about how something has been recognized since (whenever), and before you know it, journalists are uncritically repeating it, and it is plastered all over the Internet.
Recently Iâ€™ve seen a burst of allegations that the U.S. government assumed a treaty obligation in 1787 to provide reservation Indians with free health care. If you Google â€œhealth care treaty Indian 1787,â€ you will find a long list of sources â€“ including supposedly objective news stories â€“ making that assertion.
Hereâ€™s a sample from Montanaâ€™s Lee newspapers: â€œA treaty dating to 1787 requires the government to provide tribal members living on reservations with free health care.â€
Now when presentedÂ with such a claim, a journalistâ€™s crap-o-meter should start sounding like a fire alarm, because the claim is soÂ inherently improbable.
First, the reservation system as we know it didnâ€™t exist in 1787.
Second, the cash-strapped Confederation Congress would not have had the resources to meetÂ such a commitment. (Remember that shortage of funds was one reason Congress called the constitutional convention.)
Third, a treaty is a bilateral document â€“ even if the Confederation Congress had committed itself to provide health care to the Delaware tribe, for example, it wouldnâ€™t follow that the government had committed itself to provide health care to all Indians for all time.
So I checked into the claim and found that â€” sure enough â€” it isÂ flatly false. Here are some details:
* According to Charles Kapplerâ€™s authoritative collection of treaties between the U.S. Government and Native American tribes, there was no such treaty in 1787. In fact, 1787 was a year in whichÂ no U.S.-Indian treaties were signed at all!
* There were over 20 U.S.-Indian treaties before 1800, but none obligated the federal government to provide Indians with health care, free or otherwise.
* The last U.S.-Indian treaty was signed in 1868. Some of the later onesÂ provided that the government would pay annuities toÂ some IndiansÂ â€“ but often even this term was leftÂ discretionary with the government. NeitherÂ my own search nor the Kappler index of all treaties disclosedÂ any reference to a treaty obligation to provide free (or any)Â health care.
We canâ€™t blame the myth wholly on activists and inattentive journalists, however â€” the U.S. Government bears some responsibility as well. The journalist who authored the story quoted above referred me to a PR webpage from the U.S. Indian Health Service.
It states: â€œThe provision of health services to members of federally-recognized tribes grew out of the special government-to-government relationship between the federal government and Indian tribes. This relationship, established in 1787, is based on Article I, Section 8 of the Constitution, and has been given form and substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders.â€
Now, this statement certainly does not say that any treaties created an obligation to provide free health care. But it has problems of its own.Â ItÂ repeats the false 1787 date.Â And by stating that the Indian-federal â€œrelationshipâ€ has been â€œgiven form and substanceâ€ by . . . treaties,â€ it implies that treaties created an obligation to provide health care, although they have not.
The website refers to Article I, Section 8, a part of the Constitution that creates congressional powers (not treaty obligations). Clause 3 of that section provides in part that â€œThe Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.â€ It is true that Congress claims this â€œIndian Commerce Clauseâ€ gives it plenary authority to regulate Indian affairs. But as I have shown elsewhere, the only authority this provisionÂ actuallyÂ granted to Congress was a power to regulate trade between tribesÂ and non-Indians.
It certainly did not confer authorityÂ to turn tribes into wards, to meddle in internal tribal affairs,Â or to put tribalÂ members on the federal dole.
Latest posts by Rob Natelson (see all)
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- What Does the Constitution Say About Federal Land Ownership? - February 10, 2016
- English Law and the Constitution - January 22, 2016