Though the US recognizes tribal nations as sovereign entities with the inherent authority to govern themselves, the reality is much more complicated. As a result, experts in tribal and federal Indian law say it’s unlikely that reservations will offer a viable solution to the challenge of abortion access, particularly for those who aren’t tribal members.
“There is a legal scenario where this could work for a small class of patients and providers,” said Lauren van Schilfgaarde, director of the Tribal Legal Development Clinic at the UCLA School of Law. “But I think it’s safe to say that this is just not a realistic option.”
One of the biggest obstacles to opening up abortion clinics on tribal lands — assuming tribes even have an interest in doing so — is funding, said van Schilfgaarde.
“That system is set up to put barriers in front of us and to make it difficult for us to be able to access abortion,” she said, adding that women in Indigenous cultures traditionally had the autonomy to make decisions about their own bodies.
Put another way, Native women are already living in a post-Roe reality.
“We’ve already had to figure out alternative ways to privately pay for abortions and had to drive hundreds of miles,” said Elizabeth Reese, assistant professor at Stanford Law School and an expert in tribal, constitutional and federal Indian law. “I don’t think this will force a lot of tribes to feel like this is an urgent change for them.”
Given the restrictions under the Hyde Amendment, any tribe providing abortion services on their lands would largely need to rely on private funds — something that few tribes could likely afford, van Schilfgaarde said.
States have long encroached on tribal sovereignty
Another workaround in the event that Roe is overturned might involve outside providers not affiliated with a tribal government setting up abortion clinics on reservations.
If a tribe consented to such a scenario, patients and providers would have to navigate a complicated patchwork of tribal, state and federal jurisdiction, depending on whether the state’s abortion laws target patients or providers, whether those restrictions are civil or criminal, and whether the person being penalized is a tribal citizen, van Schilfgaarde said.
Despite the sovereign status of tribal nations, states have long encroached on tribal sovereignty and sought to limit their jurisdiction in ways that could affect the potential for providing abortions on reservations, according to van Schilfgaarde.
Take, for example, Oklahoma.
Other factors might complicate matters further, Reese said. If a state’s abortion law treats the fetus as a legal victim, whether the fetus is considered Native American would have to be taken into consideration. State laws that allow private citizens to sue anyone who performs or aids an abortion, such as the one in Oklahoma, add another layer.
In other words, the circumstances under which abortions on reservations might not be subject to state restrictions are extremely narrow, van Schilfgaarde said — and that’s assuming tribes are even willing to wade into the issue.
Aiding abortion access is risky for tribes
One is that facilitating abortions might not align with the views of a tribe or its members. As a result of Christian missionary efforts on tribal lands, some tribes espouse a blend of Christian and traditional beliefs and might lean conservative, van Schilfgaarde said.
“It’s going to be very difficult to get a tribe in the Midwest and the Southwest and the Southern states to make that move to open up a clinic,” Asetoyer added.
Still others might fear that running counter to states on abortion could prompt conservative politicians to make further attempts to limit Indigenous autonomy.
“I know that there is a lot of hope that tribes might become these safe havens for abortion care, particularly since a lot of tribes are blue leaning areas within a large swath of red states,” Reese said. “However, that’s a lot to put on Indian Country. I don’t think that that’s fair. And frankly, it’s putting a lot of political and legal risk on tribal sovereignty.”