SAN FRANCISCO (AP) — When Liz DeRouen needs any kind of health care services, from diabetes counseling to a dental cleaning, she checks into a government-funded clinic in Northern California's wine country that covers all her medical needs.
Her care and the medical services for her children and grandchildren are paid for as part of the government's treaty obligations to American Indian tribes dating back nearly a century.
Under the Patient Protection and Affordable Care Act (PPACA), DeRouen and tens of thousands of others who identify as Native American will face a new reality.
They will have to buy their own health insurance policies or pay a $695 fine from the Internal Revenue Service unless they can prove that they are "Indian enough" to claim one of the few exemptions allowed under the PPACA mandate that all Americans carry insurance.
"I'm no less Indian than I was yesterday, and just because the definition of who is Indian got changed in the law doesn't mean that it's fair for people to be penalized," said DeRouen, a former tribal administrator for the Dry Creek Rancheria Band of Pomo Indians who lost her membership amid a leadership dispute in 2009. "If I suddenly have to pay for my own health insurance to avoid the fine, I won't be able to afford it."
PPACA takes a narrow view of who is considered American Indian and can avoid the tax penalty, which will reach a minimum of $695 when fully phased in. It limits the definition to those who can document their membership in one of about 560 tribes recognized by the U.S. Bureau of Indian Affairs.
Yet more than 100 tribes nationwide are recognized only by states and not the federal government. Many tribes do not allow their members to enroll before they are 18, meaning some school-age children whose parents are American Indian might not be considered "Indian" under the definition in the act.
Other tribal governments have complicated blood-quantum requirements or rules that all members must live on the reservation, even though nearly two-thirds of American Indians and Alaska Natives now live in metropolitan areas, partly a legacy of federal relocation and adoption programs.
The definition of Indian in the Affordable Care Act is roiling emotions on reservations and in native enclaves across the country, but U.S. Department of Health and Human Services spokeswoman Erin Shields said the agency is powerless to change it without an act of Congress.
The problem is so new that the federal government is still seeking to establish how many people might be affected, although Indian health advocacy groups estimate it could be up to 480,000.
In California alone, about 21,000 people who currently receive free health care through Indian clinics are not recognized as Native American by the federal government and would have to pay the penalty, according to the nonprofit California Rural Indian Health Board.
"We have and will continue to encourage a robust dialogue with American Indian and Alaska Native communities about this matter, and welcome their input and ideas for solutions," Shields said in a statement to The Associated Press. "Under the law, it would require a legislative rather than regulatory change to address this matter. And as we consider approaches to the best possible solution, we are eager to work with Congress."
The IRS is working with the definition but has not yet decided how the agency will verify who qualifies as Indian or assess the penalty on tax returns, agency spokesman Eric Smith said. The IRS and U.S. Treasury have scheduled a May 29 public hearing on their proposed rules establishing who qualifies for an exemption from the insurance coverage requirement.
Republican Rep. Tom Cole, a member of the Chickasaw Nation in Oklahoma and one of just two federal legislators who are members of a federally recognized tribe, said he was aware of the concerns and would ensure that care for native people was not compromised as the health overhaul rolls out. He declined to comment about whether he would sponsor a bill to address the issue.
