By Andrew Westney

Law360 (April 2, 2019, 6:16 PM EDT) — The great majority of federally recognized tribes in the United States have urged the Fifth Circuit to preserve portions of the Affordable Care Act specific to Native Americans, saying those provisions have nothing to do with the individual mandate a lower court found unconstitutional.

A group of nearly 500 tribes, along with many national and local tribal organizations, told the Fifth Circuit in an amicus brief on Monday that a Texas district judge failed to analyze the history and purpose of the Indian Health Care Improvement Act, the “primary, stand-alone statutory framework for the delivery of health care services to Indian people by the United States” that was included in the ACA.

The IHCIA and other parts of the ACA dealing with tribal health care “provide the foundation for an independent, freestanding Indian health care system,” and were made part of the larger law in order to fulfill the government’s trust responsibility to tribes and individual Indians, according to the brief.

“Striking down the IHCIA and other Indian health provisions on the ground that a wholly unrelated private insurance coverage mandate is constitutionally invalid would disregard those responsibilities and subvert federal Indian health care policy, without any indication that Congress had anticipated — let alone intended — such a result,” the tribes said.

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