The question of whether abortions can be provided on Indian reservations in anti-abortion states isn’t a new one, but it’s been renewed in the past week.
With the U.S. Supreme Court poised to reverse the Roe v. Wade decision, choice advocates are finding ways for women to obtain abortion services in states like Oklahoma, which will ban the procedure except to save the life of the woman.
One possibility is for abortions to be provided on tribal lands.
In Oklahoma, the 2020 Supreme Court ruling known as McGirt found that the Muscogee reservation was never de-established for purposes of criminal prosecutions. That has been extended to five other tribes located in the state, covering about 40% of eastern Oklahoma.
The decision reaffirmed the reservations’ existence but didn’t give a clear view on how that intersects with anti-abortion laws, says Aila Hoss, an assistant professor of law at the University of Tulsa specializing in Indian law and health law.
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“Other tribes have wrestled with this question,” she said. “The same conversation about safe havens happened in 2006 in South Dakota when abortion bans were being passed. None of this is unique to Oklahoma. The criminal jurisdiction is the same anywhere in Indian Country.”
The federally funded Indian Health Service cannot provide abortions because of the 1976 Hyde Amendment. It forbids using federal money for abortions except in cases of rape or incest or to save the woman’s life.
States that provide coverage for abortions as part of their Medicaid programs have gotten around the law by keeping federal funds separate from operations of abortion facilities.
With tribal sovereignty, it’s possible for tribal citizens with medical licenses to perform abortions because the state doesn’t have the authority to prosecute them. It could cause problems if the state decides to assess a fine or revoke the medical license.
The situation of legality depends on who owns the clinic, state law, tribal code and tribal citizenship status of the patient and provider, Hoss said.
“It really depends on a lot of factors,” she said.
Case law around the power of states regulating activities on tribal land typically addresses taxation, but the principles may fold into health regulation.
A 1980 Supreme Court case — The Confederated Tribes of the Colville Reservation v. Washington — found that a state could exert regulation over non-tribal citizens on tribal reservations in certain situations. The case dealt with cigarette taxation in tribal smokeshops.
A companion case that year — the White Mountain Apache Tribe v. Bracker — held that a non-Indian contractor working exclusively for a tribe on the tribe’s reservation was not subject to state taxation.
It gets murkier when Indian law moves into civil cases.
Oklahoma passed a Texas-style civil abortion law, Senate Bill 1503, that opens up a Wild West of potential lawsuits. Anyone can sue anyone suspected of assisting in an abortion — like providing a phone number, giving a ride or providing funding.
“When entering civil jurisdiction, things get complicated,” Hoss said. “There is more variability in how courts decide when a state can assert jurisdiction within the boundaries of the reservation, especially over members. The analysis is very unpredictable.”
That unpredictability is what the law was meant to create: a chilling effect. Lawmakers supporting the bill want the threat of a lawsuit to scare people away.
Challenges to the Texas law are making their way through the courts, centered on whether civil jurisdiction is appropriate to enforce criminal laws. It could be overturned eventually.
In the context of a state asserting civil jurisdiction in Indian country, the federal courts have been inconsistent in rulings, Hoss said.
“There is a political and legal calculus, especially post-McGirt,” Hoss said. “McGirt created so much animosity and misinformation about criminal jurisdiction in Indian County. The Supreme Court could change settled criminal or civil jurisprudence. Are you willing to take that risk?
“The more legal issues that come up, the more opportunity there is to litigate and more opportunity to change the law. There are a lot of things to think through.”
The backdrop is that Indigenous women are two times more likely to experience rape or sexual assault. Three out of five Native women have been assaulted in their lifetime.
“Access to abortion care is incredibly important for Indigenous people because of a variety of issues,” Hoss said.
“They have been denied access to health care, and federal law long failed tribes in providing consistent quality care. The Hyde Amendment disproportionately burdens Indigenous women if you get primary care through Indian Health Services.”