08/20/2012 03:52 pm ET Updated Oct 20, 2012

Who's an Indian? The Feds Aren't So Sure

America's notion of who's an Indian is, as usual, in flux. Johnny Depp -- presumably on the basis of his upcoming portrayal of Tonto in the new Lone Ranger movie -- has recently been adopted (a ceremonial recognition) by the Comanche Tribe. At the same time, Senate candidate Elizabeth Warren's (D-Mass.) claim to Cherokee Indian-ness was roundly denounced by a small but angrily vociferous group of Cherokee women. Clearly, the notion of celebrity Indian-ness has captured the nation's imagination.

But how the government defines who is an American Indian determines who gets health care and other benefits.

In truth, anyone can claim to be an American Indian or Alaska Native and the Census Bureau will not challenge them. For most people, the claim is made in good faith. Millions of Americans have been told by their parents or other relatives that they have some Indian heritage.

Many Americans go through life expressing their identity in terms like, "I'm part French, English and Native American." In the 2010 Census, nearly 16 percent of multi-race white Americans reported one of their other races as American Indian despite the fact that Indians comprise only about 1 percent of the nation's population.

However, American Indian is not just a race. It means citizenship in a tribe, and all of the responsibilities that go with being a member of not only a tribe, but often also a clan within the tribe. When American Indians talk about their right to vote in tribal elections, they used terms like "enrolled member" of a tribe. Tribal rolls are like voting lists. As sovereign nations, tribes get to decide the terms of citizenship. Many tribes set a minimum "blood quantum," sometimes as high as 50 percent.

The federal government gets to decide which people are qualified to receive benefits entitled for American Indians and Alaska natives. Definitions of American Indian in federal laws and regulations can determine eligibility for health services, housing assistance and college scholarships.

The Centers for Medicare and Medicaid Services, in implementing provisions of the Affordable Care Act, has added another level of complexity in the "who's an Indian" debate. In its recently published regulations, the agency defines Indians in the narrowest possible manner -- members of federally-recognized tribes.

The definition runs counter to long-standing landmark legislation established by the the Indian Health Care Improvement Act (1976), the Indian Self Determination and Education Assistance Act (1978), and even the existing Federal Tax Code. These Acts define Indians as members or descendants of recognized tribal members -- a definition used by the Indian Health Service to determine eligibility for health services.

If the narrow definition prevails, thousands of Alaska Native village members, California Indians and other legitimate Native descendants will become ineligible for special protections under the Affordable Care Act. The federal government and states that are planning to operate Health Insurance Exchanges may face a difficult challenge in trying to develop a single streamlined application for health insurance plans offered through Exchanges, Medicaid and Child Health Insurance Programs. Each program has different definitions of Indian that apply to the special provisions in the federal law.

The Affordable Care Act is a major new federal program with tax credits to help make health insurance more affordable and thereby reduce the enormous health disparities in our country. While Native Americans have some of the worst health status, and Congress has tried to create an opportunity for them to access more health care resources, this intent may be thwarted by a simple misunderstanding of the definition of American Indian. As federal agencies can't even agree about the definition of American Indian, once again, the U.S. government will have failed its trust responsibility to American Indians and Alaska Natives.

One of my best friends, a Cherokee elder, spoke the language fluently, was deeply couched in traditional spirituality, yet could not find public records to prove that he was an American Indian. His ancestors had settled in Missouri, outside of tribal lands, and so had missed being listed on the Dawes Roll created around 1900 and used as a criteria for determining who is a descendent eligible for Cherokee citizenship. His quest for identity became obsessive before he died of cardiac arrest, still unrecognized as an American Indian -- still ineligible for care from the Indian Health Service.

It's time, after more than two centuries of dealing with American Indians, for the feds to get their act together and accept the broader definition of who's an American Indian in the Affordable Care Act. Millions of American Indians -- the real ones -- would approve.