Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting - Revised Report. 1.1 Early Tribal-Federal Relations


The United States has recognized Indian Tribes as distinct governments since the adoption of the Federal Constitution in 1789. Congress has enacted statutes dealing with Indian Tribes based upon the Commerce Clause as well as the powers granted by the Treaty clause. The Constitution's Commerce clause, in particular, makes specific reference to Indian Tribes. For the last 200 years, Congress has enacted statutes dealing with Indian Tribes, based upon the Supreme Court's interpretations of these Constitutional authorities. Indian Tribes are not foreign nations and they are not States. As asserted by Marshall's Court, they are considered domestic dependent nations with inherent attributes of sovereignty. One of these attributes is their right to self-government. Additionally, however, the United States Congress has asserted, and the Supreme Court has upheld, the plenary power of Congress over tribal governments.

The Indian Appropriation Act, 1871, ended the period of treaty making. The policy of making compulsory land allotments to the Indians ended by 1934. By the 1950's, Congress began a legislative policy of tribal termination. Congress terminated the legal existence of at least 109 Indian Tribes through various legislative acts. By 1955, the Bureau of Indian Affairs estimated that there were only 280,000 Indians left living on reservations. Treaty making, discretionary Federal administration, wars, depredations, deprivation, termination acts, and disease had taken their toll on Indian and tribal governments, land rights, way of life and their health.

Health services to Indians had begun through the War Department. At first, Army physicians acted to curb smallpox in the vicinity of military posts in order to protect soldiers from infection. In 1819, Congress appropriated funds to the Civilization Fund to be used for health care among many other purposes. By 1832 large-scale smallpox vaccinations of Indians commenced, but the program reached only a small percentage of the Indian population. The program did not prevent an epidemic in 1838 from killing an estimated 17,200 Indians in the Northwest alone. While nearly two-dozen treaties contained provisions for health care, most of the Treaty funds had been expended by 1871. The Interior Department (DOI) adopted a policy of continuing health services. By 1900 the Indian Medical Service at the DOI employed 83 physicians and 25 nurses. In 1921 the Snyder Act was passed, making the relief of distress and conservation of Indian health an appropriated purpose.

On July 1, 1955, the Indian Health Service was transferred to the Department of Health, Education and Welfare (DHEW). Congress believed that the Public Health Service would not only be better able to provide health care services to Indians, it would also be better able to integrate Indian health into public and private health care systems at the State level.