Why tribal lands are unlikely to become abortion sanctuaries

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Editor’s note: This story was originally published on May 22, 2022. It has been updated to reflect that Roe v. Wade has since been canceled.



CNN

With Roe v. Wade now canceled, tribal lands are returning to conversations on social media and elsewhere as potential havens for those seeking abortions.

In Oklahoma, which has enacted some of the most restrictive abortion laws in the country, Republican Gov. Kevin Stitt previously warned Native tribes against setting up abortion clinics on their land — comments that the Cherokee Nation, the state’s largest tribe, called irresponsible speculation and an attack on tribal sovereignty.

Although the United States recognizes tribal nations as sovereign entities with inherent authority to govern themselves, the reality is much more complicated. As a result, tribal and federal Indian law experts say reservations are unlikely to offer a viable solution to the challenge of abortion access, especially for those who are not tribal members.

“There is a legal scenario where this could work for a small class of patients and providers,” said Lauren van Schilfgaarde, director of the Tribal Legal Development Clinic at UCLA School of Law. “But I think it’s safe to say that’s just not a realistic option.”

One of the biggest hurdles to opening abortion clinics on tribal land — assuming the tribes even have an interest in doing so — is funding, van Schilfgaarde said.

A majority of American Indians and Alaska Natives obtain their health care from Indian health servicea division of the Department of Health and Social Services. But for decades, abortions have been largely excluded from such health care due to the Hyde Amendment, which prohibits the use of federal dollars for abortions except in cases of rape, incest and threats to mother’s life.

A 2002 survey by the Native American Women’s Health Education Resource Center – one of the few existing sources of abortion data as it pertains to Native women in the United States – found that 85% of Indian health service facilities did not provide access to abortion services or refer patients to abortion providers, even in situations permitted by the Hyde Amendment. Not much has changed in 20 years, said Charon Asetoyer, CEO and founder of the organization that conducted the survey.

“This system is put in place to put up barriers for us and prevent us from having access to abortion,” she said, adding that women in indigenous cultures have traditionally had the autonomy to make decisions about their own body.

In other words, Indigenous women have long lived in a post-Roe reality.

“We’ve already had to find other ways to pay for abortions privately and have had to travel hundreds of miles,” said Elizabeth Reese, an assistant professor at Stanford Law School and an expert on Indian tribal, constitutional and federal law. “I don’t think this will make a lot of tribes feel like this is an urgent change for them.”

Given the restrictions imposed by the Hyde Amendment, any tribe providing abortion services on its lands would have to rely heavily on private funds — something few tribes would likely be able to afford, van Schilfgaarde said.

Another potential A workaround may involve outside providers not affiliated with a tribal government establishing abortion clinics on reservations.

If a tribe consented to such a scenario, patients and providers would have to navigate a complicated patchwork of tribal, state, and federal jurisdictions, depending on whether state abortion laws target patients or providers, whether these restrictions whether civil or criminal, and that the penalized person is a tribal citizen, van Schilfgaarde said.

Despite the sovereign status of tribal nations, states have long encroached on tribal sovereignty and sought to limit their jurisdiction in ways that could affect the potential to provide abortions on reservations, according to van Schilfgaarde.

Take, for example, Oklahoma.

A law that will take effect this summer would make abortion or attempted abortion a felony punishable by up to 10 years in prison and/or a $100,000 fine, except in medical emergencies. If a non-Native provider performed an abortion on a reservation for another non-Native, Oklahoma could sue the supplier because the two parties involved are not tribesmen, van Schilfgaarde said.

This calculation could change if the vendor is a Tribal Citizen. The 2020 Supreme Court decision in McGirt v. Oklahoma affirmed that much of eastern Oklahoma is a reservation. Under federal laws that govern criminal jurisdiction on reservations, an Indigenous provider performing an abortion on a reservation would potentially fall under the jurisdiction of the tribe and the federal government, and therefore could avoid state punishment, Reese said. .

Since the McGirt ruling, however, Oklahoma has continued to challenge tribal sovereignty in criminal cases, van Schilfgaarde said. If the state wins Oklahoma vs. Castro-Huerta, a case currently before the Supreme Court, it could potentially prosecute non-natives who commit certain crimes against natives on reservations. This means that a non-Indigenous provider performing an abortion for an Indigenous person on tribal land could be penalized.

Other factors could further complicate matters, Reese said. If a state’s abortion law treats the fetus as a legal victim, whether the fetus is considered Native American should be considered. State laws that allow private citizens to sue anyone who performs or assists in an abortion, such as Oklahoma’s, add another layer.

In other words, the circumstances under which abortions on reservations might not be subject to state restrictions are extremely narrow, van Schilfgaarde said — and that’s assuming tribes are even willing to look into the matter. .

So far, no tribe in Oklahoma has indicated they would be willing to allow abortion clinics on their lands, according to National Indigenous News. And there are a number of reasons why a tribe might not want to, experts said.

The first is that facilitating abortions may not align with the views of a tribe or its members. As a result of Christian missionary efforts on tribal lands, some tribes espouse a mix of Christian and traditional beliefs and may be conservative, van Schilfgaarde said.

Others may want to avoid the political backlash that could arise from taking an oppositional stance on abortion. There is a precedent for them to be nervous. In 2006, Cecelia Fire Thunder, then president of the Oglala Sioux Tribe, announced plans to build an abortion clinic on the reservation after South Dakota banned most abortions in the state. The decision proved highly controversial and she was eventually impeached.

Cecelia Fire Thunder was deposed while president of the Oglala Sioux Tribe after she vowed to build an abortion clinic on the reservation.

“It’s going to be very difficult to get a tribe from the Midwest and Southwest and southern states to make this move to open a clinic,” Asetoyer added.

Still others might fear that going against states on abortion will spur conservative politicians to make new attempts to limit Indigenous autonomy.

“I know there’s a lot of hope for tribes to become these safe havens for abortion care, especially since many tribes are blue-leaning areas in a wide swath of red states,” said Reese. “However, that’s a lot to put on Indian Country. I don’t think that’s fair. And frankly, that puts a lot of political and legal risk on tribal sovereignty.

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