After Roe, can states stop abortions on Native American lands?

·6-min read

Republican Oklahoma Gov. Kevin Stitt on Sunday hinted at retribution for Indigenous Oklahomans should doctors readily perform abortions on tribal lands if Roe v. Wade is overturned.

But he was stepping outside the boundaries of state authority, according to Indigenous legal experts.

“The tribes in Oklahoma are super-liberal,” Stitt said on “Fox News Sunday,” as he discussed the implications of the leaked Supreme Court majority draft opinion, which indicated that the court is soon likely to revoke the constitutional right to an abortion. “We think that there’s a possibility that some tribes may try to set up abortion on demand. They think that you can be the 1/1,000th tribal member and not have to follow the state law. And so that’s something that we’re watching.

“Oklahomans will not think very well of that, if tribes try to set up abortion clinics,” he added.

Stitt signed one of the most restrictive abortion laws in the country this month. Experts in tribal sovereignty law, however, say that the legality of abortion on reservations probably won’t be up to the state government. While Oklahoma would criminalize abortion procedures if Roe v. Wade is overturned, as is widely anticipated, recognized tribes have considerable autonomy under federal law.

“Tribal nations existed before Oklahoma, and have a long history of women making health decisions for themselves,” Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law, told Yahoo News.

“Tribal nations, including the ones in Oklahoma, often entered in treaties — legal documents — with the United States. And, generally, treaties guarantee health services. Native Americans are the only people in the United States guaranteed public health services, and that’s administered through the federal agency called the Indian Health Service. There’s nowhere along the line of health care where the state attaches, or its laws come into play, for tribal members.”

Gov. Kevin Stitt at the microphone in the State Dining Room of the White House, in front of an Oklahoma flag.
Oklahoma Gov. Kevin Stitt addresses a roundtable at the White House in June 2020. (Alex Wong/Getty Images)

Many Native American women already lack direct access to abortions. Most pregnant women cannot obtain abortions from the Indian Health Service because of a 1976 law, known as the Hyde Amendment, which bars federal funding for abortions except in cases of rape, incest or threat to the life of the mother. Those exceptions can be hard to prove. As a result, a 2002 study by the Native American Women’s Health Education Resource Center found that only 25 abortions had been performed in the Indian Health Service system since the law was passed.

Rachael Lorenzo, executive director for Indigenous Women Rising, an Indigenous abortion fund, recently told Indian Country Today that local Indian Health Service officials in Oklahoma and New Mexico don’t always offer abortion services even to women who qualify for one of the exceptions.

“Even though they are legally allowed to provide that care, they still don't, and every medical director has a different policy that guides their providers when they have a patient who is expressing they want to terminate their pregnancy,” Lorenzo said. “We have been told by providers ourselves that their medical directors tell them that they're not allowed to even mention abortion.”

Most Native American women who get abortions go to abortion clinics outside tribal land, which has already become increasingly difficult in more conservative states. Stitt recently signed a strict anti-abortion law, vowing that he wants his state to be “the most pro-life state in the country.” The Oklahoma law does not have an exception for victims of rape or incest.

Demonstrators chant as they jointly hold a huge banner saying: Our Bodies, Our Abortions, as well as signs saying: Stand With Black Women, Rape Survivor Re-traumatized by ... SCOTUS, and so on. and others.
Advocates for abortion rights march on Constitution Avenue in Washington, D.C., to the Supreme Court on May 14. (Jose Luis Magana/AFP via Getty Images)

If the Supreme Court strikes down Roe next month, states would have even more leeway to enact strict abortion bans.

But state criminal law does not apply on reservations. “States are ousted from criminal jurisdiction on reservations,” EagleWoman said. “An understanding of tribal sovereignty and tribal jurisdiction would lead to the conclusion that there would be no engagement with state law whatsoever on tribal health care decisions or services.”

Oklahoma has the largest Native American population of any state, at more than 526,000, accounting for 13% of the state’s population. Oklahoma is home to 39 Indigenous nations and 19 million acres of reservation land, accounting for more than 40% of the state’s total.

Under a 1953 federal law, there are six states — Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin — that have jurisdiction over criminal law on reservations. Some other states, including Florida, Idaho, Montana and Washington, later obtained criminal law jurisdiction on reservations, but a 1968 law prevented any more states from doing so without tribal permission.

That is precisely why Stitt is concerned about Indigenous tribes setting up abortion clinics on reservations, once the facilities have been shuttered in the rest of his state. (Stitt’s office did not respond to a request for comment.)

The specific limits of tribal authority on the issue, however, have yet to be adjudicated by the courts. While a Native American provider of abortions on tribal land would be exempt from the Oklahoma law making it a felony, punishable by up to 10 years in prison, to perform the procedure, that exception to state criminal law does not necessarily apply to interactions between non-Indigenous people, even on a reservation. If a non-Native doctor performed an abortion on a non-Native woman, Oklahoma might be able to prosecute a case, even if the clinic was on a reservation.

Under 19th century Supreme Court rulings, “white on white” crime on Native American land is still subject to state law. Oklahoma could argue that a non-Native doctor performing an abortion on a non-Native patient falls into this category, although it’s unclear whether a court would agree. (As a practical matter, experts say, state investigators would lack the legal authority to gather evidence on a reservation, making it difficult to prosecute.)

A nurse in a mask monitors the blood pressure of a Navajo woman, also masked, who has complained of virus symptoms, in a white tent.
A nurse checks the vitals of a Navajo woman at a COVID-19 testing center at the Navajo Nation town of Monument Valley, Ariz., in May 2020. (Mark Ralston/AFP via Getty Images)

Then there’s the possibility that federal prosecutors could enforce state laws against abortion under federal laws that allow the federal government to prosecute under state law “major crimes” such as murder on reservations.

“Let’s say you are not an Indian, and you’re on Indian lands, and you engage in some acts related to abortion that is criminalized in the state. Here’s how you are federally prosecuted: The federal government will assert that it has exclusive jurisdiction over that crime,” Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University and chief justice of the Poarch Band of Creek Indians Supreme Court, told Yahoo News. “So, if it is a crime in the state and the federal crime doesn’t prohibit it, what the United States attorney can do is bring a federal prosecution by assimilating state law. They borrow the state criminal law and apply it in federal court.

“That’s a choice that likely will not occur in the event of a Democratic administration,” Fletcher added. “But in a Republican administration, you could totally see it happening.”

Taken as a whole, law professors say, the laws governing state crimes on Indigenous land amount to a “jurisdictional maze.”

“It’s a gray area,” Fletcher said. “It’s messy.”