An unprecedented leak from the nation’s highest court is coming amid extreme uncertainty for tribes and their sovereign rights.
Lauren van Schilfgaarde, a legal clinic director at the UCLA School of Law and a member of the Cochiti Pueblo, said that people are looking for ways to ensure abortion access if Roe v. Wade falls but that the reservation solution is problematic. “I think people are throwing spaghetti at the wall and then suddenly remembered, ‘Oh, yeah, tribal sovereignty.’”“It’s sort of a weird argument to say, ‘Oh can tribes help?’ Like, no, tribes are already in a worse position than you are,” she said.Some tribes lack running water and funding, Many Indigenous people — once targeted with nonconsensual sterilizations — still don’t have access to high-quality health care.Oklahoma is among the states making national headlines for passing abortion restrictions. Its governor, Republican Kevin Stitt, is also pushing back against a 2020 U.S. Supreme Court decision that expanded tribal jurisdiction in the state. Stitt said during an appearance on Fox News in May that he thinks tribes might try to offer “abortion on demand. They think that you can be 1/1,000th tribal member and not have to follow the state law. And so that’s something that we’re watching.”Carly Atchison, a spokesperson for Stitt, told KHN that the Oklahoma attorney general’s office advised the governor that tribes might be able to offer abortions on their land. She said she hadn’t seen any clear statement from tribes on whether they might try. Spokespeople from the five largest tribes in Oklahoma did not respond when KHN asked whether any tribal members or elected representatives had suggested offering abortions.But Cherokee Nation Principal Chief Chuck Hoskin Jr. did respond to Stitt’s comment. “Speculating on what tribes should do based on a leaked U.S. Supreme Court draft decision is irresponsible,” Hoskin wrote in a statement released to the media. “Just as irresponsible is the governor of Oklahoma and his disguised media campaign, which is really meant to attack tribes and our sovereignty.”Lorenzo and other Indigenous advocates said many non-Indigenous people now discussing the possible use of reservation land for abortions have been silent on related issues that affect Native Americans.Many Indigenous people living on reservations have lacked access to abortion services since 1976, when the so-called Hyde Amendment went into effect, Lorenzo said. Through the Hyde Amendment, Congress prohibited federal money from being used to pay for most abortions. And that means the federally funded Indian Health Service — the main health care provider on many reservations — can provide abortions in only limited circumstances.Even if tribes wanted to allow abortion services on their land, the legality of doing so would be murky, van Schilfgaarde said. Criminal cases on Native American reservations are handled by tribal, state, or federal courts, depending on the situation.
Today, Lauren van Schilfgaarde, @ailahoss, @SarahDeer72, @Atweedy01, and @stacyleeds explain why it is unlikely that tribal lands will serve as abortion safe havens in conservative states.https://t.co/slCr4BRGqa— LPE Blog (@LPEblog) June 6, 2022
Non-Indigenous people accused of committing crimes against other non-Indigenous people within a reservation’s boundaries are usually under state jurisdiction, van Schilfgaarde said. So if a state outlaws abortion, state prosecutors might be able to charge a non-Indigenous doctor who provided abortions on a reservation.The legal questions could get even more complicated under a new type of abortion restriction, first seen in Texas, van Schilfgaarde said. She expects to see more of those laws, which are enforced in civil, instead of criminal, courts. Determining whether tribal, state, or federal courts have jurisdiction in civil cases is even more tricky than it is in criminal cases, van Schilfgaarde said.Legal issues wouldn’t be the only barriers to providing abortion services on tribal land. Tribal councils would be unlikely to approve such clinics, said Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center on the Yankton Sioux reservation in South Dakota.Asetoyer said many tribal leaders’ views on abortion are shaped by religion. “The churches have a pretty big hold,” she said. “Politically, I think it would be very challenging to see one of our leaderships stand up for the rights of women. I really don’t think it’s going to happen.”
Chief Hoskin clarifies candidates' false claims that tribes will become 'safe-havens' pic.twitter.com/dH9ZKTLOVP— Cherokee Nation (@CherokeeNation) June 22, 2022
The legacy of colonialism continues to exist in 2022 through this most recent action by the U.S. Supreme Court to deny Native — and all — women the right to body sovereignty.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.
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