Legal, financial, political and ethical considerations make it unlikely that Tribal reservations could be a safe place for abortion procedures, according to a new article on the subject.
Written by Indigenous law scholars, the article entitled “The Indian Country Abortion Safe Harbor Fallacy,” looks at why Indian Country is not likely to be a place for safe harbors for abortion access in light of the U.S. Supreme Court’s decision to overturn Roe v. Wade.
The article came about because of an onslaught of media requests and social media posts regarding the issue, said Stacy Leeds, foundation professor of Law and Leadership at the Sandra Day O’Connor College of Law at Arizona State University, in an interview with The Daily Yonder.
“Everyone was presuming that there was some loophole around a potential abortion ban, if these clinics could be open on an Indian reservation. And so the legality question was raised to a number of us,” she said of herself and other Indigenous legal scholars.
“We were trying to just provide a resource – one, just to help guide people through the political and the legal issues. But the other is a bit of a pushback of the rush of people outside of Indigenous communities to presume that that would be something that people on reservations would even want. It was the centering of mainstream views without asking at all what the viewpoint of a tribe might be.”
Under the legal considerations, there are criminal and civil jurisdiction as well as health law. Additionally, financial, political and cultural reasons are other issues to consider.
“The weeks after the release of the draft Dobbs opinion have, among much well-placed scrutiny and dismay, produced a troubling impulse to view tribes as a legal escape-hatch—a work-around to soften the blunt of harmful state abortion prohibitions,” according to the article.
“This response repeats an unfortunate history in which tribes have been ignored until (poof!) they might suddenly be useful to non-Indian interests. Such neglect has allowed devastating blows to tribal sovereignty to fester.”
The paper notes that in 2006, Cecilia Fire Thunder, then-president of the Oglala Sioux Tribe, suggested opening an abortion clinic on the Tribal reservation in response to a law passed in South Dakota. Tribal citizens ultimately impeached her for her stance on reproductive rights.
Leeds, a former Supreme Court Justice for the Cherokee Nation, said she was struck by the presumption that an Indian reservation is a “bubble,” where federal law and state law would never cross. “So that stuck out to me on the legal side of things,” she said in the interview with The Daily Yonder, adding: “On the more personal side of things, what stuck out to me was just this presumption to take over the voice of Indigenous people.”
What didn’t surprise her was that people across the United States tend to think generically about Indigenous communities.
“There is a single monolithic Indian in their mind, and it probably has feathers and lives on the Plains and is stuck in the 1800s,” she said. “So when people think about Native communities, they don’t think often about how, politically, religiously, culturally, they’re very different, even if they happen to today be next door to each other geographically. And so just the complete lack of appreciation for the diversity, even inside those communities as well, that a Native viewpoint is going to be the same across the board. And that you presume to know what that is.”
Tribal communities have a lot of priorities, she said, “And so I would just ask that people step back for a second and start at the source. And if you want to know what a Native perspective is, ask those Tribal leaders or Native people in the community.”
Leeds said she and the other experts will write a longer law review article examining each issue more in depth in the future.
The other authors of the piece were: Lauren van Schilfgaarde, the San Manuel Band of Mission Indians Tribal Legal Development Clinic Director at UCLA School of Law; Aila Hoss, associate professor at Indiana University McKinney School of Law; Sarah Deer, a University Distinguished Professor at the University of Kansas; and Ann E. Tweedy, associate professor at University of South Dakota School of Law.
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