The Roe v. Wade decision issued on January 22, 1973 affirmed women’s right to abortion without excessive government interference. However, not all women are able to exercise this right – even in 2021.
Native women in particular have not had equal access to this fundamental right. Access to health care, including abortion services and birth control is challenging, particularly in rural areas. In addition to geographic barriers, Native women who use Indian Health Services (IHS) endure additional obstacles due to IHS policies. Health care is a treaty-protected right for many Native women, but accessing care can be challenging, whether reservation based or in urban/suburban places.
Tribal Sovereignty and Treaty Rights
The National Congress of American Indians states there are 574 federally recognized Indian Nations, as well as many state-recognized Tribes throughout the United States.[1] Federally recognized tribes are sovereign nations and have the inherent authority to make decisions concerning collective and individual rights, manage resources, set social policies, and establishing legal codes within their geographical boundaries. The concept of sovereignty is not derived from acts of the United States; rather, it was imposed on tribes when they were “discovered” by European explorers and colonists. While tribal sovereignty is a settler-colonial concept, it has been somewhat useful for tribes as a means to assert jurisdiction and protect their resources and political autonomy.
Treaties are agreements between sovereign nations, “A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations.” (U.S. Supreme Court, Washington v. Washington State Commercial Passenger Vessel Association, 1979). The United States Constitution, Article VI states “All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Treaties are reserved rights, “The treaty was not a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted..” (United States Supreme Court, U.S. v. Winans, 1905).
By signing treaties with tribes, the U.S. government recognized their existence as sovereign nations and incurred a legal and moral obligation, frequently ignored, to behave as such.
Termination and Relocation – Creating Urban Indian Areas in the United States
In 1953 the United States attempted to assimilate tribal members into American culture by creating policies that terminated its trust responsibilities to Indian Nations, another misguided action in a long history of forced and coerced assimilation. The Indian Relocation Act of 1956 continued this assault on treaty rights and sovereignty. The federal government set up relocation offices in Chicago, Cincinnati, Cleveland, Dallas, Denver, Los Angeles, St. Louis, San Francisco, and San Jose, and undertook to pressure tribal members to leave their reservation communities.[2] Native people also moved to Minneapolis, Portland, Seattle, and other metropolitan areas. According to the Urban Indian Health Institute, 7 out of 10 American Indians and Alaska Natives live in urban areas today.[3] There are 41 Urban Indian Health Programs across the United States.[4]
Defining the systems of AI/AN health care
Reproductive health and rights for indigenous women are directly affected by the relationship between IHS, tribal sovereignty, Indian Nations and tribal members. The Indian Health Service is tasked with providing health care services for enrolled tribal members from federally recognized tribes.
The Indian Health Service is divided into twelve Areas across the United States and supports forty-one Urban Indian Health Organizations (UIHOs). It is important to note that not all Native peoples utilize these services. The services provided vary throughout the Areas, for example some clinics and Urban Indian Health Organizations provide prenatal care locally, while others contract prenatal care out to providers in communities adjacent to reservations. Some tribal members travel great distances for appointments.[5] The Indian Health Service interacts with Tribes and Native peoples in several different ways, including:
- Indian Health Service – Tribal members receive health care services directly from HIS.[6]
- Office of Direct Service and Contracting Tribes Title I Self-Determination Contracting – Tribes contract with IHS to manage some programs the IHS would otherwise provide directly.[7]
- Office of Tribal Self-Governance Title V Self-Governance Compacting – Tribes compact with IHS to take full control of health care programs that IHS would otherwise provide.[8]
In addition to institutional barriers, and a stream of Supreme Court decisions that have undermined tribal sovereignty in the last 40 years, Indian Country faces other aggressive attacks on their inherent right to self-governance. This ranges from giant energy companies that attempt to push through development projects threatening tribal treaty rights, resources and community health; organized anti-Indian groups like the Citizens Equal Right Alliance that seek to terminate tribes outright and abrogate all treaties; groups like the Citizens Alliance for Property Rights that would gut environmental regulations and have allied their cause with such anti-Indian activists; and libertarian “think tanks” like the Goldwater Institute that have initiated litigation in an attempt to overturn the Indian Child Welfare Act, a critical piece of legislation that created means for Indian Nations to make decisions about the welfare of tribal children. All of these assaults, by impinging on tribal sovereignty, threaten the capacity of tribes to protect the reproductive rights of indigenous women.
Lived Experiences of Native women and families
The American government maintained genocidal policies well into the 20th century, for example forcing Native children into boarding schools. This directly violated reproductive rights by undermining Native peoples’ abilities to grow their families and pass their culture to their own children. Indian Country still deals with social problems set in motion by these actions.
The forced sterilization of Native women in the 1970s continued a genocidal practice and constituted a direct and abject assault on indigenous reproductive rights. A 1976 study by the GAO covering just Albuquerque, Phoenix, Oklahoma City, and Aberdeen, South Dakota found over 3,000 Native women were sterilized between 1973 – 1974 without their consent.[9] An earlier 1974 study conducted by Dr. Connie Pinkerton-Uri (Choctaw/Cherokee) found 1 in 4 Native women in some IHS areas were sterilized without their consent and, even more disturbing, asserts that IHS singled out full-blood Native women for sterilization.[10]
The full scope of these acts of genocide remains unknown to this day and, to this author’s knowledge, the perpetrators of these crimes have never been brought to justice.
Barriers to reproductive rights also confront Native women dealing with sexual assault – itself a violation of reproductive rights. This includes access to abortion services. The Hyde Amendment prevents the use of federal funds to pay for abortions, with limited exceptions (rape, incest). IHS requirements include reporting rapes within 60 days and obtaining signed documentation from law enforcement along with a police report, as well as obtaining signed documentation from a health care facility. In addition, the incident must meet the legal definitions of rape or incest. Unfortunately, sexual assault is vastly under-reported and accurate data collection remains an enormous challenge.[11]
Convenient and open access to birth control is imperative for all women; however, it remains a challenge for Native women. The Native American Women’s Health Education Resource Center, located in Lake Andes, South Dakota, works to protect the reproductive health and rights of indigenous peoples. NAWHERC’s work includes educating and advocating for Native women to have full self-determination over their bodies. In 2010 they filed a lawsuit to ensure the Plan B pill would be available at IHS clinics.
Upholding Sovereignty and Reproductive Justice
Full funding for IHS is imperative to begin addressing the public health crisis in Indian Country. While there has been some increase in funding for IHS, it has not been enough to meet the needs of Native people. Full funding is necessary in order for the United States to meet its treaty obligations and trust responsibility.
Policies that respect tribal sovereignty and the rights of women to make informed decisions impacting their bodies are critical. Recognizing that solutions are found within communities is vital to creating those policies. As Charon Asetoyer, Executive Director of NAWHERC, states “For Native American women, reproductive decisions were the business of women and not decided for her by her male partner or by the male members of her Nation.”[12]
It is also important to note that other critical issues related to Reproductive Justice for indigenous peoples include birth equity and the high rates of infant mortality faced by Native families, missing and murdered indigenous people, and accurate data collection, to name just a few.
In spite of the centuries of trauma and harm placed upon Native women, resiliency and a firm desire to protect future generations motivates Native women to persevere.
NOTES
[1] National Congress of American Indians. ncai.org/about-tribes
[2] WERNATIVE. The Urban Relocation Program. Wernative.org/articles/the-urban-relocation-program
[3] Urban Indian Health Institute. uihi.org/urban-indian-health/
[4]Indian Health Services ihs.gov/urban/
[5] More information about the Indian Health Services can be found at: www.ihs.gov/. More information about Urban Indian Health Organizations can be found at: www.uihi.org/.
[6] Indian Health Services. www.ihs.gov
[7] Office of Direct Service and Contracting Tribes Title I Self-Determination Contracting. www.ihs.gov/odsct-title1
[8] Office of Tribal Self-Governance Title V Self-Governance Compacting .https://www.ihs.gov/selfgovernance/
[9] Native Voices. 1976: Government admits unauthorized sterilization of Indian Womeh. nlm.nih.gov/nativevoices/timeline/543.html; Torpy, Sally J. 2000. Native American Women and Coerced Sterilization: On the Trail of Tears in the 1970s. American Indian Culture and Resource Journal. Vol. 24 (2):1-22. https://www.law.berkeley.edu/php-programs/centers/crrj/zotero/loadfile.php?entity_key=QFDB5MW3
[10] Native Voices. 1974: Study finds American Indian women forcibly sterilized. nlm.nih.gov/nativevoices/timeline/664.html; Gurr, Barabara. 2012. The Failures and Possibilities of a Human Rights Approach to Secure Native American Women’s Reproductive Justice. ” Societies Without Borders Volume 7 (1): 1-28; Torpy, Sally J. 2000. Op cit.
[11] Allison Herrera, Indigenous women face extra barriers when it comes to reproductive rights, High Country New, February 14, 2020 (printed January 18, 2021)
[12] Native American Women’s Health Education Resource Center, Free The Pill, Native American women and the need for “Over The Counter” access to birth control pills! Roundtable Report Native American Women’s Prespective (sic) To Over The Counter (OTC) Oral Contraceptives, June 2019
