Dobbs in Historical Context: The View from Indian Country

Even as the field of reproductive history dedicates greater attention to racial subjectivities and other forms of difference, attention to Native peoples and Indian Country remains limited; this relative absence persists despite Indigenous feminists’ frequent engagement with the topics of pregnancy, childbirth, and motherhood. The cause of such marginalization is not a complete mystery. The marginalization of Native reproductive histories reflects continuing patterns of Indigenous erasure in the context of U.S. settler colonialism and derives from the specificity of tribal nationhood, sovereignty, and Native nations’ trust relationship with the U.S. government, all of which defy tidy integration into the field’s existing narratives.¹ It is also a product of the methodological challenges that these realities pose for nonspecialists. I wrote Reproduction on the Reservation: Pregnancy, Childbirth, and Colonialism in the Long Twentieth Century in part to intervene in these trends. Published in 2019, Reproduction on the Reservation is the first book-length history of reproduction that centers Native American women.² It contends that in a nation like the United States, colonialism is a vital frame for understanding histories of reproduction.

This is the vantage point from which I have been assessing the consequences of Dobbs v. Jackson Women’s Health Organization and from which I approach this forum. A Native-centered historical analysis underscores the limitations of a narrow scholarly or political focus on the now overturned Roe v. Wade and the question of abortion’s legality, a point long emphasized by Indigenous women, women of color, and working-class women. As Indigenous Women Rising founder Rae Lorenzo (Mescalero Apache, Laguna Pueblo, and Xicana) recently argued, “Roe v. Wade has never been a reality for Native people.”³ Nor, one might add, has Roe ever been enough to meet Native people’s needs, as they have faced countless other obstacles in the pursuit of abortion access, reproductive health, and bodily autonomy. And yet, as Native attorneys and reproductive activists powerfully argued in an amicus brief submitted for the defendants in Dobbs, the overturning of Roe portends particularly harmful consequences for Native peoples.⁴ While in tension, these realities—that Roe was illusory in the lives of many Native people and that its repeal carries particular burdens and dangers—reflect the duality of federal control and neglect that the sociologist Barbara Gurr has identified in the provision of “imperialist medicine.”⁵ They speak to the need for robust reproductive justice agendas that attend to settler colonialism in the past and present and imagine vibrant Indigenous futures.⁶

Native reproductive agendas have long been informed by the exigencies of Native women’s struggle to have children and Native families’ struggle to raise them in safe, healthy, and culturally centered environments without undue external intervention.⁷ For centuries, Native peoples have endured the efforts of policy makers, Bureau of Indian Affairs employees, and missionaries to assimilate them into U.S. society, a thankfully unsuccessful yet nonetheless destructive attempt to eliminate Native cultures and dissolve tribal nations. The education of Native children was a cornerstone of federal assimilation efforts. Well into the twentieth century, authorities removed Native children from their homes and communities to carry out this education, an intentional effort to destabilize children’s ties to their families and homelands. Authorities justified these actions in part on allegations of Native maternal apathy or incapacity.⁸ Such stereotypes existed alongside and buttressed self-serving tropes regarding Indigenous promiscuity and domestic deficiency, even as colonization rendered Native women vulnerable to sexual violence.⁹ Colonial surveil-lance of and intervention in Indigenous home and family life rested on racist assumptions about the need for “moral uplift” of individuals and communities.

Health and healing, too, were sites of assimilationist intervention in Indian Country. The reservation system that federal officials embraced following the Civil War produced a cascade of public health disasters. Native nations faced land dispossession, a forced sedentary lifestyle, malnutrition due to government neglect, and economic underdevelopment. These conditions facilitated the rapid spread of disease, and infant mortality and maternal morbidity rates reached alarming heights in many locations. The federal government further hindered communities’ ability to meet these health challenges by criminalizing the work of Native healers and undermining that of midwives, whose knowledge and expertise extended far beyond birthing.¹⁰

In response to the crises manufactured by the settler state, federal policy makers introduced physicians, nurses, and hospitals to reservations, but the rhetorical promotion of Western medicine—and denigration of Indigenous healing practices—long outpaced the development of this medical infrastructure. Nor did Native peoples always feel safe with government health workers or in government institutions. In Reproduction on the Reservation, I document a particularly egregious example of this lack of safety in the story of Susie Walking Bear Yellowtail, a Crow mother and nurse who was sterilized without her consent or prior knowledge in the 1930s.¹¹

By the 1970s, a historical moment in which the reproductive organizing of many white feminists focused on abortion rights, Native women found their procreative capacity and maternal rights under assault in ways that continued these longstanding patterns. Today, scholars are most likely to think of the sterilization abuses that galvanized well-publicized resistance and activism. Scholars estimate that physicians sterilized as many as 25 percent of Native women of childbearing age in the years following 1970, when the federal government subsidized such procedures for Indian Health Service and Medicaid patients.¹² Activists condemned both the volume of surgical sterilizations and the circumstances under which they were performed, which is to say coercively and, many argued, with genocidal intentions. They further became concerned about long-acting contraceptives like Depo-Provera—not yet approved by the FDA for contraceptive use at the time but prescribed to poor women and women of color at disproportionate rates—as both a possibly coercive form of “intermittent sterilization” and a threat to Native women’s health.¹³ Coercive sterilization presented a multilayered assault on individuals, families, Indigenous nations, and even indigeneity itself.

Yet Native reproductive agendas during and beyond this period were necessarily wide ranging as other threats to Native women and families occurred alongside—and in relation to—sterilization politics. Even as federal enthusiasm for Indian boarding schools had waned since the 1930s, Indigenous child removal continued through the child welfare system. Activists, relatives, and a growing cadre of Native social workers argued that these alarming rates reflected authorities’ racism and class prejudice and served as another mechanism to eradicate indigeneity.¹⁴ Native parents feared that public schools, too, often functioned as sites of assimilation, through curricular content but also a carceral logic that funneled Native youth into the child welfare system and winnowed their futures through incarceration.¹⁵ Moreover, decades of federal intervention had not solved the health and demographic crises of the early twentieth century. A 1971 report described Native infant mortality as “dangerously high” and found Native women to be particularly at risk for pregnancy-related complications.¹⁶ Nor could maternal and infant health outcomes be understood apart from unyielding struggles over Native land and resources. For example, the environmental degradation of Indigenous homelands—through uranium mining, industrial pollution, and other processes—hindered people’s ability to bear and raise healthy children.¹⁷

All of the above compromised Indigenous futures, and activists insisted that reproductive agendas address the full context of their lives. When representatives from the Women of All Red Nations (WARN), a grass-roots organization that emerged in the late 1970s, collaborated with non-Native feminists through organizations like the Reproductive Rights National Network, for example, they argued that true reproductive freedom required attention to issues including “toxic chemical poisoning” and “the attempted takeover of Native lands and resources.”¹⁸ An especially significant theoretical contribution to emerge from Native women’s organizing in this era was the recognition that the wide-ranging concerns that they addressed are fundamentally interconnected—an insight that derived from cultural teachings as well as Native peoples’ experiences with colonialism. As Katsi Cook (Akwesasne Mohawk) put it, “We are concerned with issues that for Indian people are issues that mean our very survival. . . . We can’t separate these issues into individual battles. . . . We can’t fragment the issues as the White man would have us do. We can’t separate the birth of our children, the care and feeding of our children, from the health and education of our children.”¹⁹ Nor, Cook argued, could these issues be separated from the pressing struggle for sovereignty, in its political, cultural, and personal forms.

To consider abortion politics within this broader context is not to dismiss the importance and urgency of abortion as an issue; it is to challenge the idea that such politics can be viewed in isolation—“separate,” as Cook might say—from a given community’s contemporaneous reproductive and political struggles. All too often, however, Native women have found the mainstream women’s movement unresponsive to priorities that did not fit neatly within a pro-choice framework. When Indigenous women and women of color successfully advocated for the adoption of new federal guidelines to provide tangible protections against sterilization abuses in the late 1970s, for example, liberal feminist organizations like the National Organization for Women opposed them, fearing any loss in their members’ rights to reproductive technologies including abortion.²⁰ Such resistance notwithstanding, Indigenous women and women of color achieved tangible success in spreading awareness of sterilization abuses and expanding white feminist reproductive agendas to include the right to bear children (or, at least, the lower bar of the right to not be sterilized without one’s informed consent), but the Comanche women’s health advocate Charon Asetoyer later recalled that this was often where their progress stalled.²¹ When Asetoyer convened a gathering of women from Plains Indigenous nations in 1990, their reproductive agenda included the right to safe, affordable, and legal abortions alongside more than a dozen other planks.²²

As Indigenous Women Rising founder Rae Lorenzo reminds us, Native peoples have often lacked such access to abortion services in the half century following Roe. Just three years after the Supreme Court’s ruling, Congress passed the Hyde Amendment, which prohibits the use of federal funds for abortions except in very limited circumstances. The Hyde Amendment hinders the ability of all low-income women to terminate a pregnancy and disproportionately affects women of color. Native activists charge, however, that the act discriminates against them specifically as Native people because histories of treaty making and trust agreements entitle them to receive health care through a federal agency.²³ A study by the Native American Women’s Health Education Resource Center, an organization founded by Asetoyer, further found that the Indian Health Service often failed to provide abortion services even in those circumstances Hyde permits.²⁴ At a congressional briefing co-organized by then-congresswoman Deb Haaland (Laguna Pueblo) in early 2019, a panel of Native experts advocated for the repeal of the Hyde Amendment, which they characterized as a violation of Native peoples’ bodily autonomy and of the federal government’s trust responsibility, as well as a detriment to Native health.²⁵

Conservative politicians, in contrast, believe Hyde to be too limited. In the decades preceding the Dobbs decision, lawmakers like Senator David Vitter (R-LA) attempted, with limited success, to double down on Hyde by making the prohibition on abortion services for federal health programs serving Native people permanent.²⁶ Native peoples living on rural reservations, especially in politically conservative states, have been further affected by the same trends that have limited many non-Native people’s access to abortion in recent years. Restrictive state laws—an influx of which are sure to follow Dobbs—produced a sharp decline in the number of abortion providers operating in many regions, resulting in mounting obstacles related to time, transportation, and cost. This was the situation that existed before Dobbs, when Roe v. Wade remained settled law.

Where does this history leave us in the present? What does it demand of us moving forward? For Native women, and many others, the status quo was never enough. Tracing settler-colonial histories and the activist agendas of Native women over the past half century and beyond underscores the necessity of reproductive justice agendas that encompass issues of health, safety, and culture, among other pressing issues. As I write these words, I’m reminded of Phil Deloria’s presidential address at the 2022 meeting of the Organization of American Historians. After asserting that, despite hundreds of years of settler attempts at and predictions of Indigenous erasure, Native peoples are “still here,” Deloria recounted waking up “in a nightmarish cold sweat,” convinced that the address he was preparing was “profoundly unoriginal . . . just the same old, same old!”²⁷ His anxiety stemmed from the recognition that Native people had articulated the same sentiment for generations. But in the calm of the morning, he concluded that he repeated it because it still needed to be said—and heard. So, too, have the Native women cited in this essay, and many others, championed reproductive agendas informed by the realities of their lives. Alongside Black, Latina, Asian American, and other activists, they have achieved some success in shifting the discourse of reproductive rights proponents and organizations toward more expansive visions of reproductive justice. And yet, too often rhetoric surpasses praxis at best, and at worst rhetoric stands in for praxis.

Dobbs, as Lauren van Schilfgaarde et al. argue, is not the “main barrier to abortion for Native people,” but Dobbs exacerbates Hyde’s damage, particularly following the similarly disruptive Castro-Huerta decision, which held that states have criminal jurisdiction over non-Natives on tribal lands.²⁸ We know that pregnant people will not experience our post-Roe world in the same way. Draconian abortion restrictions create a situation ripe for coercion: in limiting an individual’s ability to terminate an undesirable pregnancy, they increase the pressure to “choose” more permanent measures. This risk is particularly acute for Native people, given still painful histories of sterilization abuses and Native women’s disproportionate sterilization rates in the twenty-first century.²⁹ Furthermore, in their dissent, justices Breyer, Sotomayor, and Kagan noted experts’ prediction that abortion bans “increase maternal mortality by 21 percent,” with noteworthy disparities by race.³⁰ Native women are already two to three times more likely than white women to die of pregnancy- or birth-related complications.³¹ As advocates for missing and murdered Indigenous women and girls emphasize, so, too, are Native women at the greatest risk for domestic violence and sexual assault, for which they often lack adequate health care, support services, and legal protections.³² One can’t talk about reproductive justice in Indigenous communities, van Schilfgaarde recently argued at a conference on “Reproductive Justice and the Afterlife of Colonial Reproductive Violence,” without centering sexual violence.³³ In short, the inequities and disparities compound.

Finally, while Dobbs presents a devastating blow to pregnant people’s reproductive rights, those committed to reproductive justice in Indian Country recognize additional threats on the horizon. In November 2022, the Supreme Court heard oral arguments in Brackeen v. Haaland, and the Indian Child Welfare Act hangs in the balance. The ICWA, passed in 1978 in response to the harm caused by the removal of Native children from their communities through the child welfare system, recognizes tribal governments’ jurisdiction over foster and adoptive cases involving Native children and protects Native children’s right to remain in their families or communities. Moreover, the ICWA has long been a target of opponents of tribal sovereignty, and a ruling in favor of the plaintiffs could undermine the nation-to-nation relationship between Native nations and the federal government. This, too, is inimical to Native reproductive justice. How will we respond?