OPINION:
Shortly before the Supreme Court effectively overturned Roe v. Wade in its June 24 Dobbs decision, 25 Senate Democrats signed a letter to President Biden urging him “to use federal property and resources to increase access to abortion.”
The letter does not expressly reference the idea of using Native American reservations as abortion-clinic safe havens, but Republican Oklahoma Gov. Kevin Stitt, who belongs to the Cherokee Nation of Oklahoma, told Fox News last month he believed there was a possibility that Indigenous tribes may attempt to do so.
“You know, the tribes in Oklahoma are super liberal,” Mr. Stitt said in an appearance shortly after the draft opinion overturning Roe v. Wade leaked. “They go to Washington, D.C. They talk to President Biden at the White House. They kind of adopt those strategies.”
The idea then went viral on social media and in the press after the letter’s first signatory, Democrat Sen. Elizabeth Warren, along with Rep. Alexandria Ocasio-Cortez, openly called for the Biden administration to open up federal land and resources to guarantee reproductive health services.
Many legal scholars however are already pushing back on why such a move would be illegal and inconsistent with the values of tribal nations.
First and foremost, Native American health clinics operating on Indian federal lands could not perform abortions except in highly unusual situations because of the 1976 Hyde Amendment, which prohibits state funds for such services.
Stacy Leeds, Cherokee Nation tribe member and professor at Arizona State University’s Sandra Day O’Connor College of Law told Voice of America, “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. You know, the outsider trying to tell a local tribal government what their law and policy ought to be.”
ASU law professor Robert Miller who is also an expert in Native American law, told The Arizona Republic that the law isn’t the only consideration as many tribes take issue with the idea of abortion.
“The first question would be, is this even practical? Is there any tribal government that would want to take this on?” Mr. Miller told the Republic. “The history of some tribal nations is they were heavily proselytized by Christian religion. In the 1870s, the Grant administration put churches in charge of reservations. There are some reservations that are known as being this denomination or that denomination. There is a possible political and or religious objection to tribes even doing this.”
Ms. Leeds affirmed Mr. Miller’s comments, saying that a number of tribes hold “really conservative ideas” from both the Christian faith and their indigenous spiritual beliefs.
This can be evidenced by the fact that in 2010, when the Navajo Nation Supreme Court ruled on a case involving the death of an unborn fetus, it opined, “The child is … alive at conception, and develops perfectly in the care of the mother. The umbilical cord … is the lifeline mother between the mother and unborn child. The mother, and now the surviving grandmother and aunts have the maternal role, which encompasses bearing, raising and teaching a child.”
“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 ruling jurists wrote.
Finally, the U.S. Supreme Court also recently ruled that states can prosecute non-Native Americans on tribal lands for nontribal crimes on tribal land, opening the door for criminal prosecution of non-Native American doctors performing health services on reservations.
Principal Chief Chuck Hoskin Jr. of Oklahoma’s Cherokee Nation said in a statement to Native News Online described the move as an attack on Indian country.
“Cherokee citizens hold a range of views on this subject,” he said. “Now is not the time for politicians or candidates for office to use the issue to demonize Tribes and drive a wedge between citizens in order to attack Tribal sovereignty.”
We could not agree more.
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