Shortly after the leak of a draft Supreme Court opinion to end women’s constitutional right to abortion, Oklahoma Governor Kevin Stitt appeared on Fox News suggesting Native American tribes in his state, looking to get around Oklahoma’s tough new abortion ban, might “set up abortion on demand” on any of the 39 Indian reservations in that state.
“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 adopt those strategies.”
The U.S. government recognizes tribes as sovereign nations, and as such, have the right to pass their own laws regulating abortion on tribal land, subject to certain limitations.
Stitt's comments set off wide speculation in the press and in social media about whether abortion seekers could turn to Indian tribes for abortion services in states where the procedure is or soon will be banned now that Roe v. Wade has been overturned.
Senator Elizabeth Warren and Representative Alexandria Ocasio-Cortez have called on the White House to open up federal land and resources to provide reproductive health services. Neither lawmaker referenced Indian reservations, nor have tribes suggested any interest in opening abortion havens.
“It’s been journalists. It's been activists looking for some sort of a solution,” said Stacy Leeds, a citizen of the Cherokee Nation in Oklahoma and a law professor at the Sandra Day O’Connor College of Law in Arizona. “And now in the last couple of days, it has started to escalate, with politicians almost warning tribes that they better not do this.”
Tuesday, the White House ruled out the possibility of using federal lands for abortion services.
But that hasn’t stopped the conversation in 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 is not originating in their own thought processes, it very much just reeks of further colonization,” said Leeds. “You know, the outsider trying to tell a local tribal government what their law and policy ought to be.”
Native Americans find the conversation particularly upsetting given a well-documented history of sexual violence against Indigenous women that ranged from rape and trafficking to forced sterilizations in the 1970s.
“And you also have this history of the wholesale removal of Native children away from their families and communities to boarding schools or being adopted out to other communities. It’s just traumatic for a lot of people,” Leeds said.
In its 1973 Roe v. Wade decision, the Supreme Court decriminalized abortion, but that didn’t guarantee all women had access. The 1976 Hyde Amendment, which was amended several times in later years, prohibits federal money being used to pay for abortions except in cases of rape, incest or endangerment to the woman’s life. The Indian Health Service relies on federal funds and is the only health care provider available for many Native communities.
To look to tribes for abortion services is to assume Native Americans are a left-leaning monolith, Leeds said.
“Politically, (Native) people are all over the place. You know, it's a large leap to just automatically presume that everybody would want this,” she said. “And a lot of tribal spiritual traditions hold life as sacred from beginning to the end.”
In 2010, for example, the Navajo Nation Supreme Court ruled on a case involving the death of an unborn fetus in a highway collision, saying, “We take judicial notice that the child, even the unborn child, occupies a space in Navajo culture that can best be described as holy or sacred, although neither of these words convey the child’s status accurately. The child is awę́ę́ t’áá’íídą́ą́’hiną́, alive at conception, and develops perfectly in the care of the mother.”
Native Americans have been given few opportunities 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 surveyed Native American women on and off reservations in New Mexico — a state where abortions remain legal and available, even after the recent Supreme Court ruling.
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 did not have a strong opinion one way or the other.
“Most of the Native women who are speaking out nationally are upset about the Supreme Court’s latest decision,” Leeds said. “But I don't see any of them advocating that their communities then become the saviors of everyone else's communities.”
Tribes are sovereign nations and have the right to pass their own laws regulating abortion on tribal land territories. But criminal jurisdiction in Indian Country is complex; whether tribal governments, state governments or the federal government has jurisdiction 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, said Leeds, but only in tribally funded facilities on Native patients by Native practitioners. Anyone else could be subject to state or federal law.
“And that's the galling piece of this whole conversation,” Leeds said. “You want tribes to take this risk for you that might negatively impact their whole world indefinitely? People just don’t understand what they are truly asking.”
The U.S. Supreme Court ruled Wednesday that Oklahoma will be allowed to prosecute non-Native Americans for crimes committed on reservations when the victim is Native, a decision that cuts back on the court’s 2020 ruling that a large chunk of eastern Oklahoma — about 43% of the state — remains an Indian reservation.
Stitt celebrated the decision.
“Today, our efforts proved worthwhile, and the court upheld that Indian country is part of a state, not separate from it," Stitt said.
Oklahoma in May passed the Nation’s toughest abortion ban. Wednesday’s ruling reduces the likelihood of any tribal abortion haven in that state.