So you want to visit a reservation to get an abortion?
The problem with seeing Indigenous sovereignty only when it suits your needs.
WASHINGTON — Stacy Leeds, Foundation Professor of Law and Leadership at Arizona State University’s Sandra Day O'Connor College of Law, has been throwing some legal shade at people, of late, who are speculating that if the U.S. Supreme Court does strike down Roe v. Wade, as is soon possible, that sovereign Indian reservations could provide safe harbor to people in states that thus choose to outlaw abortion.
“I seriously get 1 - 4 inquiries per day on this issue (not unique among my colleagues),” Leeds, a citizen of the Cherokee Nation, recently wrote on Twitter. “I wish the health care needs of Native women + sovereignty of Indigenous Nations got this much attention before it was presumed to benefit others. It’s exhausting and pretty darn tone deaf.”
Why it’s tone deaf: A growing number of female Indigenous legal experts are taking the time to explain the problems here, in depth.
“To turn to tribes now is galling,” Leeds and Native legal scholars Lauren van Schilfgaarde, Aila Hoss, Ann Tweedy and Sarah Deer write in a new article from the Law and Political Economy (LPE) Project. (Read the whole thing, folks.)
“It reveals a disappointing ignorance of the legal battles tribes have been fighting, seemingly without end. But it also reveals a problematic disregard for the trauma and vulnerability that Native peoples face. No, tribes do not offer a safe-harbor from harmful state abortion prohibitions. It’s time we step up to address why.”
Indigenous Wire had been researching this idea ourselves, knowing that mainstream, non-Indian folks (maybe within a Vox explainer, or in a Slate “Dear Prudence” piece) would soon turn to the idea of reservations as potentially providing safe harbor — as the mainstream has been known to do in the past on issues like marijuana legalization, payday loans, gaming and prostitution. The list goes on and on.
It seems that whenever something can’t be done legally on federal or state grounds — or there are significant legal challenges — Indian reservations suddenly become popular as a place to explore the idea of doing such deeds.
It’s a big problem, Leeds and company write, that the people who look to make such arguments, as they are doing now, haven’t seemed to give much care or concern to tribal sovereignty, Indian criminal and civil jurisdiction, and Native legal, political and cultural belief systems in the past.
One main point, which cannot be understated, is that Indians in America do not universally love the idea of abortion. They tend to vote Democratic — and most Dems tend to be on board with safe, legalized abortion — but just like America at-large, Native Americans wildly diverge on whether they think abortion is just and/or should be universally legal.
“Indian country is so very diverse in terms of culture, religion and values,” Leeds writes. Like every other society, the individuals inside these Nations do not all think the same. Far from it.”
To ask — or to expect — tribal governments to now offer safe harbor to all people in certain states to have abortions on tribal lands is a confounding step too far for people like Leeds.
But this issue goes beyond partisan politics. There are currently several very real legal reasons — on the criminal and civil jursdiction and health law fronts — why most tribes would face legal hurdles in providing unlimited abortions if their respective states choose to outlaw it. (Expect Oklahoma, as a result of the McGirt decision in particular, to be of major focus here.)
Few people beyond Indian law experts and federal officials forced to deal with Indian law actually choose to understand any of those legal hurdles that tribes and tribal advocates have been fighting for decades.
Again, the LPE Project has written up a succint brief on the matter, titled, “The Indian Country Abortion Safe Harbor Fallacy.” It’s worth the read.
Finally: To the folks at Axios, who might think that all us Indians — or at least the “vast majority” of us — will be able to get abortions at the Indian Health Service (IHS) no matter what the Supreme Court decides, we’ve got news for you.
“IHS follows federal law,” an agency spokesperson tells Indigenous Wire. “IHS appropriations may be used to pay for or otherwise provide for an abortion when a woman suffers from a physical condition that would place the woman in danger of death unless an abortion is performed, or when the pregnancy is the result of an act of rape or incest.”
If Roe is struck down, IHS will be forced to change its rules.
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