Note: This is not a debate about abortion itself, but about possible state or Federal control of health measures on Native American lands.
I just read an article about Republican Oklahoma Gov. Kevin Stitt striking back at Native Americans if they ignore the strict abortion laws that already exist, and the stricter laws that may come into effect if Roe v. Wade is overturned. After Roe, can states stop abortions on Native American lands? [Video]
Can the state or Federal government actually do anything to restrict abortion procedures on Native American controlled soil?
Modnote: I want to make this clear up front. Talk about the legality of regulating abortion on Native American Lands only. Not other countries, not what states are doing not on Native American Lands.
Stay on topic.
As a starting point: Worcester v. Georgia (1832) — This case involved the application of Georgia state law within the Cherokee Nation. It also maintained that only Congress has overriding power over Indian affairs and that state laws do not apply in Indian Country.
Do state laws apply to non-Native Americans that received otherwise restricted health care while on Native American lands?
Another starting point - the Hyde Amendment has already had a disproportionate effect on Native American women, because Indian Health Services is their principal provider, and it’s federally funded.
The relationship between State laws and Indian reservations with territory inside of a State’s borders is largely–complicated and variable. The U.S. Constitution makes very clear–treating between the Indian tribes and the government is the sole authority of the Federal government, period. However, Congress vested with this legislative authority has chosen to delegate some of its power to the States–this is a statutory grant basically of some Federal power down to the State level.
Public Law 280, passed in 1953, was just such a statutory grant by the Federal government of Federal power to select States. That law basically allows the named States to exercise criminal law jurisdiction over Indian tribes. The States named in the act:
- California
- Minnesota
- Nebraska
- Oregon (excluding the Warm Springs Reservation)
- Wisconsin (excluding the Menominee Indian Reservation)
- Alaska
The act also allowed additional states to assume this same arrangement, if the tribes in those States consented. That has occurred in the following States:
- Arizona
- Florida
- Idaho
- Iowa
- Montana
- Nevada
- North Dakota
- South Dakota
- Utah
- Washington
[If one is curious why tribes would consent to a loss of sovereignty, it essentially comes down to governance and money. Some of the tribal reservations are just extremely impoverished and cannot really maintain a properly functioning police or court system, but the tribal leaders, and tribal members, obviously desire to have at least some level of proper law enforcement. In tribes that don’t have arrangements with the States, that falls to the Bureau of Indian Affairs police, who can call on the FBI to assist in more serious crimes. However, some tribes perceive this as insufficient for “day to day” poilcing, and when said tribes likewise cannot easily maintain their own police, it can make sense to opt for this arrangement with the States.]
You will see Oklahoma is not on either list. Fairly straightforward then–the Governor and legislature of Oklahoma have no constitutional power whatsoever to enforce state criminal statutes on reservation land. Given that even the conservative wing of the court (including Gorsuch) have been…shockingly friendly to tribal rights, I doubt this will change.
Edit: In answer to the other component of your question–the Federal government can regulate abortion inside Indian reservations through any ordinary Federal law, but it would obviously require an act of congress.
These states will certainly enact legislation to the effect that any non-Native resident entering a reservation for the purpose of pursuing an abortion is committing a crime.
As a bit of clarification, Public Law 280 was explicitly not a regulatory or general grant of authority, it is confined to criminal code enforcement. Several states in the wake of PL280 tried a few shenanigans–one State attempted to begin levying State property taxes against tribes, the Supreme Court ruled that PL280 had granted no such authority. California attempted to criminalize Indian gaming, but the court ruled that California’s gambling laws were regulatory and not prohibitory. Meaning–California had not actually banned gambling, it had regulated gambling such that most gambling was not permitted, but because California had allowed one form of gambling to continue–the State run lottery, its gambling laws were a regulatory regime–and PL280 doesn’t extend regulatory regimes over the reservations. If California had implemented a true criminal ban of all gambling (and shut down the State Lotto), then because it is a listed state under PL280, it could have then shut down Indian casinos.
The Indian Gaming Regulatory Act of 1988 which was passed after that case formalized many rules around Indian gaming as it was then becoming a significant issue of concern.
States thus fully banning abortion, that are covered by 280, probably could enforce that inside the reservations. States that simply “regulate” abortion through medical regulations probably would not be able to impose those regulations.
That ties into a large debate about to what degree States can get away with such laws. That is more of an open question, and was discussed extensively here:
Yeah, I’m not making any kind of statement about whether those laws will stand up to scrutiny and review. But they will certainly be enacted.
Well as long as we’re talking about controversial Supreme Court decisions, let’s throw in Dred Scott.
The Dred Scott decision of 1857 covered several points. One thing it ruled was that black people could not be citizens. This was later overruled by the enactment of the Fourteenth Amendment.
But the Dred Scott ruled on some other issues. It placed limits on Congress’s ability to enact legislation in territories. While this was aimed on stopping Congress from prohibiting slavery in territories, the language used was fairly broad.
During the time it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States, and may establish a Territorial Government, and the form of the local Government must be regulated by the discretion of Congress, but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States in respect to the rights of persons or rights of property.
The territory thus acquired is acquired by the people of the United States for their common and equal benefit through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of persons or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.
Congress have no right to prohibit the citizens of any particular State or States from taking up their home there while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The territory is acquired for their equal and common benefit, and if open to any, it must be open to all upon equal and the same terms.
So, at last, my question. While Dred Scott v. Sandford was overruled on the issue of black citizenship, was its rulings on the issue of congressional control over territories ever overruled? Or are they still in effect?
How are they going to know?
Let’s say for the sake of argument, that the Chickasaw Nation sees another money making opportunity beyond casinos in the piece of south-central Oklahoma that they govern, and opens up women’s health clinics that do abortions just on the other side of the Red River from Texas, as part of the WinStar Casino complex.
How is anyone going to know what anyone is going to that area for? Does Oklahoma have any jurisdiction there? How would Texas know whether someone is going to gamble, get abortions, both, or neither (there are golf courses there too)?
As part of this discussion, is there an indirect way for states/feds to punish Native reservations, like the feds did with 55 mph? I’m ignorant of the economic relationships.
It’s the same consideration as hashed out in the long thread about coming after someone for traveling to a different state for the same locally-prohibited purpose. Just a territory inside state boundaries instead of a neighboring territory. A sufficiently motivated state could track purchase of pregnancy tests, or require reporting from doctors, etc. It’s not worth rehashing here.
Well, you can’t do the states/feds part–the Federal government has a lot of authority over Indian tribes, States have much less. The Federal government likely could outright ban abortion on tribal lands via Federal law, the States aside from the ones I’ve already mentioned, are more limited in what they can do.
The States in most cases don’t kick a lot of support to the tribes outside of certain narrow areas, the Federal government does send money to the tribes but there is some precedent that you’re only allowed to restrict so much of said money as a political cudgel.
As a resident of Oklahoma, I believe that we’ll find out pretty quickly. Governor Stitt has a very poor relationship with the tribes. He issued a preemptive threat about the issue and it was not well received. Even members of his own party consider his views to be racist.
Doesn’t the recently leaked Alito opinion specifically state that the power to regulate abortion belongs to the states?
He can do as follows- block all power, water, and road access into the reservation. Might not be legal, but he won’t care.
It doesn’t state that per se, no. Indian Tribes further, without the exceptions I mentioned above (which are statutory), are not subject to the States at all.
I found this several days ago and didn’t know whether to include it as a Stupid Republican Idea of the Day, but it’s relevant to this thread. A candidate for U.S. Senate for Oklahoma has pledged to introduce legislation to disestablish the Indian Reservations.
I saw another article that suggested it was because of Oklahoma finding it impossible to enforce so much as a traffic ticket on the reservations, let alone, you know, the important crimes such as murder, but seeing this thread makes me wonder if abortion is the real reason.