Lauren van Schilfgaarde has posted “Native Reproductive Self-Determination,” forthcoming in the UCLA Law Review, on SSRN. Here is the abstract:

Like the overall well-being of Indigenous peoples, Native reproductive health has been deeply impacted by the direct and collateral consequences of settler colonialism. Today, Natives experience some of the most dire reproductive health disparities. Unlike other health care systems, however, Native health care is sui generis. The federal government has treaty, trust, and statutory obligations to provide Native Americans with health care, most prominently operationalized in the Indian Health Service (IHS). Unfortunately, the perpetual underfunded status of IHS coupled with draconian policies has meant that Native reproductive health is dismally served. Moreover, reproductive health tends to be exceptionalized—treated as a distinct component of health care that is often underprioritized or even entirely cut. But even if the IHS budget was instantly enhanced and even if reproductive health care was instantly prioritized across health systems, Native reproductive health care would still lack its most essential ingredient: self-determination.

The term “self-determination” has grown significant national and international meaning, both in relation to Tribes and reproductive justice. Native reproductive self-determination, however, remains an undertheorized confluence. Indigenous reproductive health was only explicitly acknowledged by an international body in 2022, General Recommendation 39 issued by the Committee on the Elimination of Discrimination Against Women (CEDAW) regarding Indigenous women and girls. General Recommendation 39 acknowledges both the collective rights of Indigenous peoples to exist as a self-determined people and the unique vulnerability of Indigenous women and girls. This framework offers an important and expansive conceptualization of the federal duties owed to Native reproductive self-determination and a path out of the paternalistic and harmful logics that have historically formed Native reproductive health care. Indigenous rights must be positioned within a historical context to inform not just the rights of Indigenous peoples to be recognized and to self-govern but also to stress the positive obligations that the nation-state owes toward Indigenous peoples. A historical context that informs the nation state’s positive obligations are themselves background to the realization of a self-determined collective—in this case, to ensure Native reproductive self-determination.