OF STATUTES ESTABLISHING FEDERAL PROGRAMS PROVIDING FOR INDIAN HEALTH CARE. SEE GENERALLY MCNABB V. BOWEN, 829 F.2D 787, 790-95 (9TH CIR. 1987) (OUTLINING HISTORY OF FEDERAL INVOLVEMENT IN INDIAN HEALTH CARE); CALIFANO, 437 F. SUPP. AT 551-553. NEVERTHELESS, AS THE NINTH CIRCUIT HAS STATED, "CONGRESS AND THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, . . . DID NOT VIEW FEDERAL RESPONSIBILITY EXCLUSIVE AND PREEMPTIVE OF STATE RESPONSIBILITY." MCNABB, 829 F.2D AT 792. IN ADDITION, ALTHOUGH A NUMBER OF REGULATIONS HAVE BEEN PROMULGATED FOR FACILITIES OPERATED BY THE INDIAN HEALTH SERVICE AND AS TO FACILITIES RECEIVING FEDERAL GRANTS, I HAVE NOT IDENTIFIED ANY ANALOGOUS REGULATIONS GOVERNING PRIVATE HEALTH CARE FACILITIES OPERATING ON INDIAN LANDS.
IN LIGHT OF THE ABSENCE OF FEDERAL REGULATION OF PRIVATE HEALTH CARE FACILITIES ON INDIAN LAND, I FIND THE SITUATION THAT YOU ARE CONCERNED WITH TO BE DISTINGUISHABLE FROM THOSE CONSIDERED BY THE COURTS IN WHITE MOUNTAIN AND SEGUNDO. THEREFORE, IT IS MY OPINION THAT, AS TO PRIVATE HEALTH CARE FACILITIES ON INDIAN LAND, STATE REGULATION IS NOT PREEMPTED BY FEDERAL LAW. AS A RESULT, AS I HAVE EXPLAINED ABOVE, WHETHER THE STATE MAY PROPERLY REGULATE SUCH FACILITIES THAT TREAT NON-INDIANS DEPENDS UPON THE PARTICULAR FEDERAL, TRIBAL AND STATE INTERESTS INVOLVED. THE STATE'S INTEREST IN PROTECTING ITS CITIZENS BY MEANS OF THESE REGULATIONS IS, I THINK, ENTITLED TO GREAT WEIGHT.
FINALLY, AS TO YOUR QUESTION INVOLVING THE ISSUANCE OF A CERTIFICATE OF NEED, I KNOW OF NO AUTHORITY HOLDING THAT THE FACT THAT A CERTIFICATE OF NEED HAS BEEN APPLIED FOR AND ISSUED DETERMINES FUTURE JURISDICTIONAL QUESTIONS. THEREFORE, IT IS M OPINION THAT WHETHER THE STATE HAS JURISDICTION OVER A PARTICULAR HEALTH CARE FACILITY DEPENDS UPON THE FACTORS I HAVE DISCUSSED ABOVE RATHER THAN ON WHETHER A CERTIFICATE OF NEED HAS BEEN ISSUED IN THE PAST.
(ROB RAMANA)