INDIANS - MEDICAL INDIGENTS - RESIDENCE ON A RESERVATION AS AFFECTING ELIGIBILITY FOR MEDICAL CARE UNDER THE PUBLIC ASSISTANCE LAWS OF THE STATE OF WASHINGTON.
Division of medical care of the department of public assistance is legally authorized to expend state funds for medical care of Indians who are enrolled tribal members domiciled within the boundaries of the state whether on or off reservations and on taxable or tax-free lands.
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January 13, 1960
Honorable George C. Starlund
Director, Department of Public Assistance
Social Security Public Lands Building
Olympia, Washington Cite as: AGO 59-60 No. 96
This is in answer to your request for the opinion of this office on the following question:
"Can the Division of Medical Care legally authorize expenditures of State funds under the general assistance or medical indigent programs on medical care for persons of Indian descent who are enrolled tribal members of a recognized tribe, domiciled within the boundaries of Washington, on or off reservations, on taxable or tax-free land?"
We answer your question in the affirmative.
In 1924, the Federal government, by an act of Congress, conferred Federal citizenship upon all noncitizens or tribal Indians born within the United States. 43 U.S. Stats. at L. 253, 8 U.S.C.A. 601, (now covered by 8 U.S.C.A. § 1401). In addition, § 1 of the Fourteenth Amendment to the Constitution of the United States of America provides that:
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"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. . . ." (Emphasis supplied)
Thus, we think it is clear that after the enactment of 1924, all Indians, regardless of whether they were living on reservations or not, obtained the status of citizens and electors of the several states. SeeDeere v. State of New York, 22 F. (2d) 851 (1927). Accordingly, since an Indian cannot be classified as an alien he must of necessity be a lawful resident of the county in which the reservation is situated.
The specific statutory provisions which provide for medical care under the department of social security are found in chapter 74.09 RCW. RCW 74.09.010 (6), defines medical indigents as follows:
"As used in this chapter:
"(6) 'Medical indigents' are persons without income or resources sufficient to secure necessary medical services."
RCW 74.09.070 provides for the determination of eligibility of medical care for public assistance recipients and medical indigents as follows:
"The determination of eligibility of recipients for public assistance shall be the responsibility of the department.
"Recipients of public assistance shall be entitled to such medical services as are defined by the assistant director, who shall consider the recommendations thereon of the welfare medical care committee.
"The determination of eligibility of medical indigents shall be the responsibility of the division of medical care with consideration to the standards recommended by the welfare medical care committee. The division of medical care is empowered to employ the necessary personnel to carry out the standards established."
Pursuant to RCW 74.09.900, all of the provisions of Title 74, not otherwise inconsistent therewith, are to apply to the provisions of [[Orig. Op. Page 3]] chapter 74.09 RCW, providing for medical care.
RCW 74.04.005 (15) defines "income" as follows:
"'Income' -Net income is cash or kind available to an applicant or recipient, the receipt of which is regular and predictable enough that an applicant or recipient may rely upon it to contribute appreciably toward meeting his needs: . . ."
Subsection (16) defines "need" as follows:
"'Need' -The amount by which the requirements of an individual for himself and the dependent members of his family, as measured by the standards of the department, exceed all income and resources available to such individual in meeting such requirements."
RCW 74.04.005 (17) defines "resource" as follows:
"'Resource' -Any asset, tangible or intangible, which can be applied toward meeting an applicant's or recipient's need, either directly or by conversion into money or its equivalent: . . ."
The Federal social security act on its face made the grants to the states contingent upon the fact that no citizenship requirement should exclude any citizen of the United States from relief benefits, and since Indians are citizens, they must be covered by the act. State ex rel. Williams v. Kemp, 106 Mont. 444, 78 P. (2d) 585 (1938).
In 1936 the Solicitor of the Interior Department rendered an opinion which held that the social security act was applicable to the Indians. The act then contemplated direct aid to needy aged individuals, to needy dependent children and to needy individuals who were blind. It was determined at that time that since a state plan must be in effect in all the political subdivisions of the state and since Indian reservations are included within the states, counties and other political subdivisions, Indians were entitled to aid under state plans.
The leading case which appears directly in point is the case ofAcosta v. San Diego County, 126 Cal. App. (2d) 455, 272 P. (2d) 92 (1954). That case involved an action by an Indian resident of the Pala Indian Reservation within San Diego County for indigent relief. The county welfare department contended that plaintiff was not a resident of the county and [[Orig. Op. Page 4]] accordingly was entitled only to emergency relief available to dependent nonresidents. The court there held that the plaintiff was a resident of the county of San Diego, California, and as such was entitled to assistance as a resident.
In the course of the opinion, the court pointed out that during the last twenty-five years a definite trend has taken place in the legal position of the American Indians which has had the effect of lessening the control of the United States over the activities of the Indians, and integrating the Indians into the political, social and economic culture of the nation. (SeeHarrison et al. v. Laveen, 67 Ariz. 337, 196 P. (2d) 456 (1948).) The court also pointed out that the jurisdiction of the United States over Indians residing on Indian reservations in California is not exclusive, and that the American Indians living on such Federal reservations are in fact residents of the state and county in which the reservation is located for certain purposes even though they are to a considerable extent still subject to the jurisdiction of the United States government. For example, the states have been authorized by Federal statute to enter upon Indian lands for the purpose of making inspection of health and educational conditions and enforcing sanitation and quarantine regulations, and to enforce compulsory school attendance by Indian pupils. 25 U.S.C.A. § 231. In addition, under the Federal highway act, Indian lands are deemed as much a part of the area of a state as other private lands. Reservation Indians are counted in the Federal census as residents of the state and are included in the population figures which are used to determine representation in Congress, as well as a basis for the allocation of positions in the Federal Civil Service and as a basis for various contributions of the Federal government to the education and welfare of the state. See 20 U.S.C.A. § 11, et seq.; 20 U.S.C.A. § 15 (i), et seq.; 42 U.S.C.A. § 1751, et seq. In addition, there can be little doubt but that at the present time no Indian reservation is self-sufficient and accordingly, the residents of the reservation cannot help but travel beyond its borders nor can they escape the ordinary state cigarette, gasoline, sales or use taxes.
In theAcosta case, supra, the court stated that in view of its conclusion that Indians living on reservations in California were citizens and residents of the state
". . . it must therefore follow that under section 1, Amendment XIV of the Constitution of the United States they are endowed with the rights, privileges and immunities equal to those enjoyed by all other citizens and residents of the state. . . ." (272 P. (2d) 92, 98.)
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We think that the reasoning used by the court in the Acosta case, supra, is pertinent to the present inquiry and its conclusions are persuasive. (See, also,State ex rel. Williams v. Kemp, supra.)
Prior to 1954, medical care of Indians was under the jurisdiction of the Bureau of Indian Affairs. 25 U.S.C.A. § 13, provided:
"The Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes:
"General support and civilization, including education.
"For relief of distress and conservation of health." (Emphasis supplied)
By the act of August 5, 1954 (42 U.S.C.A. § 2001) Congress provided that:
"All functions, responsibilities, authorities, and duties of the Department of the Interior, the Bureau of Indian Affairs, Secretary of the Interior, and the Commissioner of Indian Affairs relating to the maintenance and operation of hospital and health facilities for Indians, and the conservation of the health of Indians, are transferred to, and shall be administered by, the Surgeon General of the United States Public Health Service, under the supervision and direction of the Secretary of Health, Education and Welfare: . . ." (Emphasis supplied)
While the Federal government has many legal obligations towards the Indians, Congress has not always appropriated sufficient funds to discharge its responsibilities. Thus the allotment of funds by Congress has never been sufficient to care for the old, destitute, sick and helpless Indians. Nor is this a field of exclusive jurisdiction of the Federal government since the government has continuously indicated its desire to shift all such welfare activities to the states, and the Federal social security act requires that Indian citizens resident on a reservation be given the same assistance as provided to other residents of the state.
As we have previously noted, all Indians, regardless of whether or not they reside off a reservation or on a reservation on either tax-free or taxable land, are citizens and residents of the state of Washington. Accordingly, since there is nothing in the public assistance laws of [[Orig. Op. Page 6]] the state of Washington or the Federal social security act which specifically exempts Indians from the operation of those acts, they would be entitled to the same privileges and coverage as non-Indians. The fact that the Federal government has in the past, and may continue to afford a certain amount of medical service to Indians, does not necessarily relieve the state of any obligation it may have to provide the same medical service to Indians as it provides to all other residents of the state. A refusal to treat Indian citizens in the same manner as nonIndians would deprive them of the equal protection of the law guaranteed by the Fourteenth Amendment to the Federal Constitution. Thus there is no legal basis for excluding Indians from the benefits of the medical indigent program merely because they are Indians, regardless of their need. The standards recommended by the medical care committee to aid the division of medical care in determining eligibility for medical indigents pursuant to RCW 74.09.070,supra, must be based upon the statutory definition of a medical indigent as one in need.
The test in each instance is not whether the applicant is an Indian, or if an Indian where residing, but only whether the individual in question is actually in need as that word is defined in RCW 74.04.006 (16), RCW 74.09.010 (6), and other pertinent provisions of Title 74. Under RCW 74.09.010 (6), the department is authorized and required to take into account all income and resources available to such individual. Thus, if the Federal government, through the Public Health Service, Department of Health, Education and Welfare, is providing medical care to any Indian who would otherwise be eligible as a medical indigent, then that Indian is not in fact in need and cannot receive medical care from the state of Washington as a medical indigent. However, if, in fact, the Federal government is not now providing medical care to Indians, both those residing on and off the reservation, on tax-free or taxable lands, then such Indians, if otherwise qualified under the public assistance statutes of this state, are qualified for medical care as medical indigents.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
JANE DOWDLE SMITH
Assistant Attorney General