The Turtle Mountain Band of Chippewa's tribal council wobbled out on a limb to pass a resolution that bans abortions on their reservation. "Under no circumstances," their resolution reads, "will abortions be performed and allowed."
But the council's on a branch that could easily snap.
When tribal governments pass resolutions such as this one -- resolutions that run counter to the U.S. Constitution -- those government leaders tend to be depicted as neophytes who are less than knowledgeable of federal laws that all citizens, including tribal members, must abide by. In other words, the resolutions make the tribal councils look bad and give the appearance of poor government.
The Turtle Mountain Band is a North Dakota tribe with a small land base and an enrollment of more than 30,000 members. The reservation borders Canada.
Here is the ruling that the tribe is up against: The 1973 Supreme Court ruling Roe v. Wade overturned all state and federal laws outlawing or restricting abortions. Further, it declares that a woman can have an abortion up until a fetus becomes viable, meaning the point where it could live outside the mother's womb.
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That ruling is constitutional law unless and until it's changed.
Regarding the tribe, I wondered: Why now? Roe v. Wade has been on the books since the 1970s. To find out, I made some calls and reached Ernie Azure, council member from Turtle Mountain. Azure said their chairman, David "Doc" Brien, told them in a council meeting that he'd heard Indian Health Service was going to allow abortions.
"It might or might not be true," Azure told me, but the council passed the resolution just to be safe. The superintendent of the Bureau of Indian Affairs met with them, but they are sticking with the resolution. "This is the way the tribe is going to go," he said.
Turtle Mountain isn't the first tribe to step out on such a limb. The Oglala Sioux of Pine Ridge S.D., dealt with abortion in 2006, although in that case, the limb was on the other side of the ideological tree.
Then-tribal Chairwoman Cecilia Fire Thunder took on the state of South Dakota, which had, earlier in 2006, tried to challenge the Supreme Court by banning almost all abortions.
Fire Thunder objected to the move. "To me, it is now a question of sovereignty," she said.
"I will personally establish a Planned Parenthood clinic on my own land, which is within the boundaries of the Pine Ridge Reservation where the State of South Dakota has absolutely no jurisdiction."
It didn't work.
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Pro-choice Fire Thunder was impeached by the anti-abortion tribal council. "Life is sacred -- the winged, two-legged, four-legged," said Patrick Lee, than the chief judge. "You hear constant references to respect for life. It is tribal law. Respect for the unborn is specifically stated in the juvenile code of tribal law." He added the law applies when "a child is conceived."
The BIA requires copies of tribal resolutions from most tribes, and most of those resolutions require no federal action.
There are, however, resolutions that run counter to federal law or the U.S. Constitution. The Secretary of the Interior can disapprove those resolutions.
The resolution to ban abortion is likely to meet that fate.
Unfortunately for tribes, "many resolutions don't mean anything because there are no penalties for breaking the law nor anyone to enforce them," Thomas Disselhorst, attorney for United Tribes Technical College in Bismarck, told me.
Enforcement is a big problem on reservation.
Furthermore, the federal government does not provide funding for abortions. The Indian Health Service clinic and hospital in Belcourt is a federal program. That's one reason why no abortions have been performed there, Indian Health Service sources say. I suspect the same is true on the Pine Ridge and other reservations that have Indian Health Service facilities.
I realize that tribal councils try to do their best for their people. But tribal governments sometimes are saddled by laws that they don't like, as the Turtle Mountain council is by Roe v. Wade. In those cases, the councils have few good ways to show their displeasure.
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As you can see by the situation at Turtle Mountain, their resolution is just paper. They're running counter to constitutional law, and when you couple that with the fact that federal health programs don't pay for abortions, the issue is moot.
In order for tribal governments to be stronger, they must prove that they can run their governments with insight, thoughtfulness and certainly an awareness of the laws that they operate under. If they take a stand against abortion, how are they going to enforce it on the reservation? Besides, if abortions are not funded at Turtle Mountain, they probably won't be performed in the first place, at least not in the local hospital or clinic.
If tribal leaders feel that strongly about the issue, they should get involved with anti-abortion advocates and work to overturn Roe v. Wade.
