Through treaty making and its general course of dealings, the United States took on a special and unique trust responsibility for Indians and Indian tribes. In entering into those treaties, Indian tribes as political entities had exercised their sovereignty by bargaining for what they could in exchange for portions of their land or other concessions—all with the goal of providing for their people under the circumstances they faced. In turn, treaty promises made by the federal government helped to shape the young country’s view of its responsibilities to Indians and Indian tribes. As the Supreme Court recently noted, although the federal trust responsibility to Indian tribes is not the same as a private trust enforceable under common law, “[t]he Government, following a humane and self imposed policy . . . has charged itself with moral obligations of the highest responsibility and trust.”

What could be more obviously integral to the welfare of tribes than health care?

The United States has been committed to providing health care to Native Americans for nearly 150 years.

Congress initially provided for the health care of Indians through the ratification of treaties that specifically obligated the United States to provide care for Indians, including health care, and through discretionary appropriations. By 1871, when Congress ceased treaty making and instead dealt with Tribes through statute, at least 22 treaties had obligated the United States to provide for some type of medical service.

Congress updated provisions for tribal health care as recently as 2010. President Trump, though, has no interest in law, history or Native Americans’ welfare. His administration is claiming that tribal citizens must work to receive health care supplemented by the federal government. Three states have so far been given permission to impose the Medicaid work requirement and another 10 have put in requests. That adds up to more than 600,000 Native Americans already affected or at risk of being affected.

Even Native Americans in states that oppose Trump’s measures may be affected.

Some states, like Arizona, are asking HHS for permission to exempt Native Americans from their proposed work requirements. But officials at the National Indian Health Board say that may be moot, as federal officials can reject state requests.

The tribes, former officials, and legal experts have pushed back against the administration’s purported rationale, that exempting tribes constitutes racial bias.

The tribes insist that any claim of “racial preference” is moot because they’re constitutionally protected as separate governments, dating back to treaties hammered out by President George Washington and reaffirmed in recent decades under Republican and Democratic presidents alike, including the Clinton, George W. Bush and Obama administrations. “The United States has a legal responsibility to provide health care to Native Americans,” said Mary Smith, who was acting head of the Indian Health Service during the Obama administration and is a member of the Cherokee Nation. “It’s the largest prepaid health system in the world — they’ve paid through land and massacres — and now you’re going to take away health care and add a work requirement?”

Trump’s shot across the bow has major long-term implications.

Tribal leaders and public health advocates also worry that Medicaid work rules are just the start; President Donald Trump is eyeing similar changes across the nation’s welfare programs, which many of the nearly 3 million Native Americans rely on. “It’s very troublesome,” said Caitrin McCarron Shuy of the National Indian Health Board, noting that Native Americans suffer from the nation’s highest drug overdose death rates, among other health concerns. “There’s high unemployment in Indian country, and it's going to create a barrier to accessing necessary Medicaid services.

Imposing a work requirement on Native Americans is not only unlawful, given treaties and precedent, but bad policy.

Native Americans’ unemployment rate of 12 percent in 2016 was nearly three times the U.S. average, partly because jobs are scarce on reservations. Low federal spending on the Indian Health Service has also left tribes dependent on Medicaid to fill coverage gaps. “Without supplemental Medicaid resources, the Indian health system will not survive,” W. Ron Allen — a tribal leader who chairs CMS’ Tribal Technical Advisory Group — warned Verma in a Feb. 14 letter.

Trump’s push to violate tribal sovereignty would further harm Native American communities—whether by forcing members to leave the reservation to seek work or by stripping access to health care and critical social benefits.

Of course, none of this comes as a surprise: The administration’s been pushing for cuts and dismissing tribal input.

The Trump administration also targeted the Indian Health Service for significant cuts in last year’s budget, though Congress ignored those cuts in its omnibus funding package last month, H.R. 1625 (115). The White House budget this year proposed eliminating popular initiatives like the decades-old community health representative program — even though tribal health officials say it is essential. Tribal officials noted that both HHS Secretary Alex Azar and Deputy Secretary Eric Hargan skipped HHS’ annual budget consultation with tribal leaders in Washington, D.C., last month. The secretary’s attendance is customary; then-HHS Secretary Tom Price joined last year. However, Azar canceled at the last minute. His scheduled replacement, Hargan, fell ill, so Associate Deputy Secretary Laura Caliguri participated in his place. That aggravated tribal leaders who were already concerned about the Trump administration’s policies.

Predictability doesn’t make Trump’s attack on tribes any less devastating. Fortunately, the war’s far from over: A 33-page memo from Hobbs, Straus, Dean & Walker LLP shreds the administration’s arguments and provides that there’s ample legal firepower standing by to defend tribes’ rights.