Native Americans bristle at suggestions they offer abortions on tribal land

Shortly after a leaked Supreme Court draft opinion seeking to end women’s constitutional right to abortion, Oklahoma Governor Kevin Stitt appeared on Fox News, suggesting that the Native American tribes in his state, seeking to circumvent Oklahoma’s tough new abortion ban, could “implement abortion on demand” on one of the state’s 39 Indian reservations.

“You know, the tribes in Oklahoma are super liberal,” Stitt said, “They go to Washington, D.C. They talk to President (Joe) Biden at the White House. They kind of embrace those strategies.

FILE – Oklahoma Governor Kevin Stitt holds his signature on the bill that makes it a crime to perform an abortion, punishable by up to 10 years in prison, April 12, 2022, in Oklahoma City, Oklahoma.

The U.S. government recognizes the tribes as sovereign nations and as such has the right to enact their own laws regulating abortion on tribal lands, subject to certain limitations.

Stitt’s comments sparked widespread speculation in the press and on social media about whether abortion seekers might turn to Indian tribes for abortion services in states where the procedure is or will be. soon banned now that Roe v. Wade was canceled.

Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez called on the White House to open up federal lands and resources to provide reproductive health services. No legislator has made reference to Indian reservations, and tribes have not suggested any interest in opening up abortion havens.

“They were journalists. They were activists looking for some sort of solution,” said Stacy Leeds, a Cherokee Nation citizen in Oklahoma and a law professor at Sandra Day O’Connor College of Law in Arizona. “And now, in the last two days, it’s started to escalate, with politicians almost warning the tribes that they better not do it.”

On Tuesday, the White House ruled out the possibility of using federal lands for abortion services.

But that hasn’t stopped the conversation on social media.

It is a conversation, however, that most Native Americans find problematic, if not downright offensive.

“Any time there’s a call for tribes to do something that doesn’t come from their own thought processes, it really reeks of further colonization,” Leeds said. “You know, the outsider trying to tell a local tribal government what their law and policy should be.”

Native Americans find the conversation particularly upsetting given a well-documented history of sexual violence against Native women that ranged from rape and trafficking to forced sterilizations in the 1970s.

Illustration from a 1970s family planning pamphlet produced by the Department of Health, Education and Welfare.

Illustration from a 1970s family planning pamphlet produced by the Department of Health, Education and Welfare.

“And you also have this story of mass removal of Indigenous children from their families and communities to boarding schools or adopted into other communities. It’s just traumatic for a lot of people,” Leeds said.

In its decision Roe v. Wade of 1973, the Supreme Court decriminalized abortion, but this did not guarantee that all women had access to it. The Hyde Amendment of 1976, which was amended several times over the following years, prohibits the use of federal money to pay for abortions except in cases of rape, incest, or endangerment of life. of the woman. The Indian Health Service relies on federal funds and is the only health care provider available to many Indigenous communities.

To look to tribes for abortion services is to assume Native Americans are a leftist monolith, Leeds said.

“Politically, the (natives) are everywhere. You know, it’s a big step to automatically assume that everyone would want that,” she said. “And many tribal spiritual traditions hold life sacred from beginning to end.”

Tyisha ArrowTop Knot, right, sprays her nieces and nephews with a garden hose while tending to them in the backyard of their home on the Blackfeet Indian Reservation in Browning, Montana, on Thursday, July 12, 2018.

Tyisha ArrowTop Knot, right, sprays her nieces and nephews with a garden hose while tending to them in the backyard of their home on the Blackfeet Indian Reservation in Browning, Montana, on Thursday, July 12, 2018.

In 2010, for example, the Supreme Court of the Navajo Nation ruled on a case involving the death of an unborn fetus in a motor vehicle accident, stating, “We take judicial notice that the child, even the ‘unborn child, occupies a space in Navajo culture that can be described as holy or sacred, although neither word accurately conveys the status of the child. The child is awę́ę́ t’áá’íídą́ą́’ hiną́, alive at conception, and develops perfectly under the care of the mother.

Native Americans had little opportunity to voice their opinions on abortion. One exception is a 2020 study by the Southwest Women’s Law Center and the nonprofit Forward Together that interviewed Native American women on and off reservations in New Mexico — a state where abortions remain legal and available, even after the recent Supreme Court decision.

When asked whether they would support or oppose a law that would criminalize doctors performing abortions, 45% of respondents said they would oppose it; 25% said they would support it and 27% said they didn’t have a strong opinion one way or the other.

“Most Indigenous women speaking out nationally are shocked by the latest Supreme Court ruling,” Leeds said. “But I don’t see any of them advocating that their communities then become the saviors of everyone else’s communities.”

The tribes are sovereign nations and have the right to pass their own laws regulating abortion within the territories of the tribal lands. But criminal jurisdiction in Indian country is complex; the jurisdiction of tribal, state or federal governments depends on the nature of the crime, the identity of the perpetrator and victim, and where the crime takes place.

In theory, tribes could perform abortions, Leeds said, but only at tribally funded facilities on native patients by native practitioners. Anyone else could be subject to federal or state law.

“And that’s the infuriating piece of this whole conversation,” Leeds said. “You want the tribes to take this risk for you that could negatively impact their entire world indefinitely? People just don’t understand what they are really asking for.

The U.S. Supreme Court ruled Wednesday that Oklahoma would be allowed to prosecute non-Native Americans for crimes committed on reservations when the victim is Native, a decision that reduces the court’s 2020 ruling that a large portion of eastern Oklahoma – about 43% of the state – remains an Indian reservation.

Stitt celebrated the decision.

“Today our efforts have proven successful and the court has confirmed that Indian Country is part of a state, not separate from it,” Stitt said.

Oklahoma passed the nation’s toughest abortion ban in May. Wednesday’s decision reduces the likelihood of a tribal abortion haven in that state.

Nohemi M. Moore