A unique relationship has developed between the Native peoples and the United States government, which in some ways resembles the relationship between the States and the federal government.Historically, however, the term “domestic dependent nation” has been applied to the sovereignty status of a tribe. Exclusive federal authority and tribal sovereignty trump many laws of the particular state in which the tribal lands are located. Gaming is a well known example, but to what extent are other state laws inapplicable to Indian land located within the boundaries of a particular state? Michigan has civil and criminal statutes prohibiting the use of live or dead embryos and human somatic cell nuclear transfer technology to produce a human embryo. In the opinion of Michigan State Representative Andy Meisner, these statutes severely limit stem cell research, negating the potential medical benefits that may be derived from such research, and are among the most restrictive in the nation. There is enough concern in promoting stem cell research in Michigan, that a newly formed group called Michigan Citizens for Stem Cell Research & Cures, has launched a stem cell public education project. On the other end of the spectrum, some states are actively promoting and funding stem cell research. Despite the laws in Michigan inhibiting stem cell research, could research that is prohibited by state law be conducted on Indian land should the Indian governing bodies so desire? The answer depends on many factors, but none more important than Indian tribal sovereignty.
For example, state laws restricting gaming are unenforceable on Indian land, at the discretion of the tribal government. Michigan has some of the most restrictive laws concerning stem cell research, when compared to most other states. The question of whether this type of research could be done on Indian lands is compelling because there are medical diseases which affect the native populations disproportionately compared to Caucasian populations, and for which stem cell research shows great promise to cure or improve the treatment. One of the most devastating diseases that has disproportionate affects on Native Americans is diabetes, a disease that has been hailed as having great potential to be cured with stem cell research. Additionally, the economic benefit from a large research center on Indian lands would greatly aid the Native population financially. Third, there is the consideration of keeping top Michigan scientists in the field from moving (along with their research dollars, prestige, and programs for budding Michigan scientists) to other states, such as California, that allow, encourage, and fund embryonic stem cell research.
This article provides a background for the legal considerations that play a part in debates concerning embryonic stem cell research and therapeutic cloning as it affects this research being performed on Indian lands. This article first examines the importance of stem cell research (Part I), Indian sovereignty (Part II), the Michigan statutes prohibiting such research (Part III), the status of international, federal, and other state laws (Part IV), the legal status of an embryo (Part V), and discusses the ethics of embryonic stem cell (Part VI). In Part VII, the issue of whether embryonic stem cell research and cloning can be done in Indian lands is discussed. This article argues that under most scenarios, embryonic stem cell research, and probably therapeutic cloning, could be performed on Indian reservations in Michigan despite the state statutes prohibiting such research.