Why tribal lands are unlikely to become abortion sanctuaries
Originally Published: 26 JUN 22 12:01 ET
Editor's note: This story originally ran on May 22, 2022. It has been updated to reflect that Roe v. Wade has since been overturned.
(CNN) -- With Roe v. Wade now overturned, tribal lands are again coming up in conversations on social media and elsewhere as potential safe havens for those seeking abortions.
In Oklahoma, which has enacted some of the nation's most restrictive abortion laws, Republican Gov. Kevin Stitt previously warned Indigenous tribes against setting up abortion clinics on their lands -- comments that the Cherokee Nation, the largest tribe in the state, referred to as irresponsible speculation and an attack on tribal sovereignty.
Though the US recognizes tribal nations as sovereign entities with the inherent authority to govern themselves, the reality is much more complicated. As a result, experts in tribal and federal Indian law say it's unlikely that reservations will offer a viable solution to the challenge of abortion access, particularly for those who aren't 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 the UCLA School of Law. "But I think it's safe to say that this is just not a realistic option."
Opening abortion clinics would require private funding
One of the biggest obstacles to opening up abortion clinics on tribal lands -- assuming tribes even have an interest in doing so -- is funding, said van Schilfgaarde.
A majority of American Indians and Alaska Natives get their health care from the Indian Health Service, a division ofthe Department of Health and Human Services. But for decades, abortions have largely been excluded from that health care because of the Hyde Amendment, which prohibits the use of federal dollars on abortions except in the cases of rape, incest and threats to the mother's life.
A 2002 survey by the Native American Women's Health Education Resource Center -- one of few existing sources of abortion data as it relates to Indigenous women in the US -- found that 85% of Indian Health Service facilities did not provide access to abortion services or refer patients to abortion providers, even in situations allowed under the Hyde Amendment. Little has changed in the 20 years since, said Charon Asetoyer, CEO and founder of the organization that conducted the survey.
"That system is set up to put barriers in front of us and to make it difficult for us to be able to access abortion," she said, adding that women in Indigenous cultures traditionally had the autonomy to make decisions about their own bodies.
Put another way, Native women have long been living in a post-Roe reality.
"We've already had to figure out alternative ways to privately pay for abortions and had to drive hundreds of miles," said Elizabeth Reese, assistant professor at Stanford Law School and an expert in tribal, constitutional and federal Indian law. "I don't think this will force a lot of tribes to feel like this is an urgent change for them."
Given the restrictions under the Hyde Amendment, any tribe providing abortion services on their lands would largely need to rely on private funds -- something that few tribes could likely afford, van Schilfgaarde said.
States have long encroached on tribal sovereignty
Another potentialworkaround might involve outside providers not affiliated with a tribal government setting up 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 jurisdiction, depending on whether the state's abortion laws target patients or providers, whether those restrictions are civil or criminal, and whether the person being penalized 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 for providing abortions on reservations, according to van Schilfgaarde.
Take, for example, Oklahoma.
One law set to take effect there this summer would make performing or attempting to perform an abortion a felony punishable by up to 10 years in prison and/or a $100,000 fine, except in the case of medical emergencies. If a non-Native provider performed an abortion on a reservation for another non-Native, Oklahoma could prosecute the provider because both parties involved are not tribal members, van Schilfgaarde said.
That calculus could change if the provider is a tribal citizen. The Supreme Court's 2020 ruling in McGirt v. Oklahoma affirmed that much of eastern Oklahoma is a reservation. Under the federal laws that govern criminal jurisdiction on reservations, a Native provider performing an abortion on a reservation would potentially fall under the jurisdiction of the tribe and the federal government, and therefore could avoid the state's penalties, Reese said.
Since the McGirt decision, however, Oklahoma has continued to challenge the sovereignty of tribes in criminal cases, van Schilfgaarde said. If the state is victorious in Oklahoma v. Castro-Huerta, a case currently before the Supreme Court, it could potentially prosecute non-Natives who commit certain crimes against Natives on reservations. That means a non-Native provider performing an abortion for a Native person on tribal land could be penalized.
Otherfactors might complicate matters further, Reese said. If a state's abortion law treats the fetus as a legal victim, whether the fetus is considered Native American would have to be taken into consideration. State laws that allow private citizens to sue anyone who performs or aids an abortion, such as the one in Oklahoma, 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 wade into the issue.
Aiding abortion access is risky for tribes
So far, no tribes in Oklahoma have indicated that they would be open to allowing abortion clinics on their lands, according to National Native News. And there are a number of reasons that a tribe might not have the appetite to do so, experts said.
One is that facilitating abortions might 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 blend of Christian and traditional beliefs and might lean conservative, van Schilfgaarde said.
Others might want to avoid the political backlash that could come with taking an oppositional stance on abortion. There's precedent for them to be nervous. In 2006, Cecelia Fire Thunder, then the 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 move turned out to be highly contentious, and she was ultimately impeached.
"It's going to be very difficult to get a tribe in the Midwest and the Southwest and the Southern states to make that move to open up a clinic," Asetoyer added.
Still others might fear that running counter to states on abortion could prompt conservative politicians to make further attempts to limit Indigenous autonomy.
"I know that there is a lot of hope that tribes might become these safe havens for abortion care, particularly since a lot of tribes are blue leaning areas within a large swath of red states," Reese said. "However, that's a lot to put on Indian Country. I don't think that that's fair. And frankly, it's putting a lot of political and legal risk on tribal sovereignty."
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