Commentary Race

The Ongoing Problem of Racism Against Native Americans

Jennie Stockle

Recent events coming out of the Oklahoma Governor's Mansion have brought aggression, discrimination, and racism against Native Americans into the limelight again. Nationwide attention was focused most recently on the Fallin family when Oklahoma Gov. Mary Fallin's daughter, Christina Fallin, publicized a questionable photo.

Recent events coming out of the Oklahoma Governor’s Mansion have brought aggression, discrimination, and racism against Native Americans into the spotlight again. Nationwide attention was focused most recently on the Fallin family, when Oklahoma Gov. Mary Fallin’s daughter, Christina, publicized a photo of herself wearing a Native American headdress.

The photo was titled “appropriate culturation”—a word play on cultural appropriation. The culturally significant item she appropriated was from one of the most extreme minority groups in the United States, representing less than 2 percent of the population. Native American people, who have survived genocide and cruelty to keep their cultures alive, see what she did as a grave disrespect against them, especially considering Fallin represents the decedents of the white settlers who inflicted much death and trauma on Native American families in the region.

Natives were thoroughly insulted and hurt by Fallin’s actions. Many Native Americans, upon reading Christina Fallin’s issued statement responding to their outrage, viewed it as the equivalent of “Sorry, not sorry!” rather than an actual apology.

Christina Fallin’s supporters called the Native Americans who were criticizing her “sheep,” a reference to being easily misled and influenced. Wayne Coyne of the band the Flaming Lips defended Fallin against the ire of Native Americans by posting pictures on social media of people and animals wearing Native American headdresses. What’s more, Coyne’s drummer, Kliph Scurlock, says Coyne fired him for agreeing with Native Americans and criticizing Fallin, telling him, “Go stick up for your Indian friends if it’s so important to you.”

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Since then, Scurlock has become widely regarded as a heroic role model for speaking out against misappropriating Native American culture. He’s been compared in some ways with Adam Silver, the NBA commissioner who banned billionaire LA Clipper’s owner Donald Sterling for life for making racist remarks—though of course Scurlock lost a job he had held for 12 years, while Silver is still part of the NBA.

Several weeks after Fallin posted the initial photo, Fallin’s band, Pink Pony, announced in a social media post that the band members would be appearing in “full regalia” at the Norman Music Festival. This is a common Native term, so many Natives regarded the intent of Pink Pony’s single sentence, with no context, as directed at Native Americans. Pink Pony later admitted in a statement following their appearance that the social media post was their response to the Native Americans concerned about what Pink Pony would do at the festival.

On Saturday, April 26, 2014, we posted “I heard Pink Piny [sic] was wearing full regalia tonight” on our Facebook page. This was because we heard rumors about ourselves, spread by people organizing a protest at our concert, that the band would perform in “full regalia.” This was never our plan or intention. It was a rumor and a false one. That is why our post said “I heard Pink Piny [sic] was wearing full regalia tonight” not “Pink Pony will preform [sic] in full regalia tonight.”

At the festival, many Native protesters and supporters came and held signs as Pink Pony got on stage.

Pink Pony performed what many witnesses, including Native Americans, describe as more hateful displays against Native culture. Fallin showed up wearing what the protesters recount as a mock Native shawl; many Native Americans and those close to Native American culture who’ve seen the photographs and video agreed with the resemblance. People across the country took the reports of what happened seriously, and trusted that Native Americans know when their culture is being mocked by fake war dances and Native regalia.

Following the incident, both Gov. Mary Fallin and the Norman Music Festival issued an apology, but Christina Fallin still denies she did anything at the festival connected with Native American culture.

Recently, a Christina Fallin supporter who invited Pink Pony to appear at the grand opening of a salon and spa called the accounts of Native Americans “fabrications” when questioned about her choice to include Fallin in the event.

Wayne Coyne also remains strongly in support of Fallin.

While these events are harrowing when considering the scope, many people argue that actions taken by her mother—the precursors to Christina Fallin’s recent offenses—are just as awful. Native Americans living inside and outside of Oklahoma allege that prejudice against Native American sovereignty and culture started immediately after Gov. Mary Fallin was sworn into office in 2011. In May of that year, “[d]espite pleas from several members to wait and study the proposal [HB 2172],” Michael McNutt of reported that the Oklahoma House of Representatives passed legislation that disbanded the 43-year-old Oklahoma Indian Affairs Commission. The Oklahoma Indian Affairs Commission was in charge of a formal process of communication between the 39 Tribal Nations and the Oklahoma state government. Gov. Fallin did not veto this bill or make any suggestions to restore the Oklahoma Indian Affairs Commission to its full staff. (Toward the final days of the commission, two Native American women had the task of juggling the needs of 39 nations.)

The Tribal Nations had only a six-day notice that the established lines of communication would be severed. The bill required Fallin to appoint a Native American Affairs Liaison by December 2011. Fallin did not appoint one until September 2012. The bill also called for the creation of a Native American Cultural and Education Authority; an audit available on the state website notes that the group suffers from “inconsistent funding, inadequate budgeting” and “mixed messages from the Legislature.”

Many Natives see the actions happening in the Oklahoma state capitol as signs that a frigid political climate exists toward Native Americans living in the state.

For example, in October of 2013, U.S. Marshals arrived in military-style vehicles to force Dusten Brown, an active duty soldier, and the Cherokee Nation to give his 4-year-old Cherokee girl, publicly known as Baby Veronica, to white adoptive parents from South Carolina. Gov. Fallin intervened before the U.S. force crossed into Cherokee Nation jurisdiction by signing extradition papers to place the father in jail for wanting to continue to raise his daughter.

All Native American children are protected under the Indian Child Welfare Act, which respects their rights to remain citizens of their respective Tribal Nations. The Indian Child Welfare Act was established in 1978 to end the forced removal of Native babies and children from their families and ethnic groups. In part, it was meant to end the wicked residential school system that was created to force assimilation on Native children and destroy indigenous cultures.

Baby Veronica was born to a non-Native biological mother and a biological Cherokee father, Dusten Brown, a soldier in the U.S. Army National Guard. The biological mother put Veronica up for adoption after civil communication broke down between the two biological parents. Veronica was transported to her prospective adoptive parents as soon as she was born. But paperwork that the law required to notify the Cherokee Nation of the adoption was not filled out properly. Dusten Brown began fighting for custody when he was notified that Veronica had been placed for adoption. In December 2011, after two years of legal wrangling, Dusten Brown and his parents were able to bring Veronica back to Oklahoma. Veronica remained with her biological father and extended family from the time she was 27 months old until she was a few days past her fourth birthday. Her prospective adoptive parents, the Capobiancos, took their outrage at having lost in their case to keep Veronica, after the South Carolina courts said ICWA applied to the Cherokee girl, to the Supreme Court of the United States.

The Supreme Court ruled that parts of the Indian Child Welfare Act had not applied to Dusten Brown specifically, but Veronica was considered a Cherokee Nation citizen and that ICWA still applied to her placement in other regards. Supreme Court Justice Sotomayor‘s dissent stated that custody rights of the grandparents and other Cherokee Nation citizens could be considered. 

When the Oklahoma Supreme Court lifted the stay that had been preventing the removal of custody of Baby Veronica from the Browns and the Cherokee Nation to the prospective adoptive parents, a dissenting justice, Justice Gurich, stated: “There was not one shred of evidence presented to indicate how such a custody transfer would affect the rights and well-being of Baby Girl [Veronica].”

Justice Gurich also pointed out that South Carolina had been ignoring similar custody orders from Illinois. Gov. Fallin could have called attention to South Carolina’s recent past of ignoring orders of custody from Illinois in order to let South Carolina courts have time to decide cases where a child’s best interest needed special care. Calling attention to how the South Carolina courts system had acted would have been reason enough for Mary Fallin to not capitulate to Haley’s demands and stand by the State of Oklahoma and the Cherokee Nation. Instead, Mary Fallin signed extradition papers for Dusten Brown after initially saying she would not.

It was revealed last week in an Associated Press article that Fallin’s spokesperson, Alex Weintz, had communicated with the office of South Carolina Gov. Nikki Haley, at the time when the governor “sought to speak with advisers about repercussions with the Cherokee Nation as she considered intervening” in the case. According to the AP, Weintz wrote in an email to Fallin on August 14, “Just FYI I spoke with (South Carolina’s communications director) and explained our position.” Weintz added: “He said thanks, they understand. Also said they weren’t doing any national media appearances on this subject and were conscious of avoiding a Gov vs. Gov storyline.”

It is unclear how Fallin felt about the outcry from the state’s Cherokee Nation citizens, from other Natives, and from supporters across the country who were devastated by the forced removal of a Native child by a U.S. government institution.

The United Nations issued an advisement letter to Gov. Fallin and the state government to respect the child’s rights. Natives have pointed out that forced removal of children is a violation of the UN Declaration on the Rights of Indigenous People, and what happened is an act of genocide. One Oklahoma senator was very critical, and stood alone, when he called Gov. Fallin and the state government’s actions a violation of federal law. Lawsuits were filed against Fallin to force the release of more emails, phone call recordings, and memos.

In addition, a heinous killing of a Native teen occurred in December 2013. Wilbur and Melissa Goodblanket called the Custer County Sheriff’s office for help regarding their son, a Cheyenne-Arapaho teenager, who was distressed. According to the Goodblankets, within minutes of two Custer County sheriff’s deputies arriviving at their home, the officers shot their son, Mah-hi-vist “Red Bird,” seven times, which an autopsy confirmed. Both parents say the teenager was unarmed. The deputies say he had a knife. Native Americans protested in the streets and called for justice. Gov. Fallin has not gotten involved in this small town’s disaster with full press coverage, as she often does in the case of tornadoes and other events that tear a community apart.

This is the hostile climate that exists in Oklahoma. Discrimination and racism against Native Americans can be connected to the disconnect and outright apathy of the family in the Oklahoma Governor’s Mansion. Native Americans and supporters announced they will be protesting the way they have been treated on May 19 by coming to rally in Oklahoma City and delivering a petition sponsored by Eradicating Offensive Native Mascotry, a group that is comprised of Native American parents and allies that have resolved to see the end of racism and discrimination of Native Americans, and Rewire to the office of Gov. Mary Fallin herself.

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

News Law and Policy

Court Blocks Two Extreme Alabama Anti-Abortion Provisions

Jessica Mason Pieklo

The temporary order prevents officials in Alabama from enforcing a ban on later abortions and implementing a law that would regulate abortion clinics in a similar fashion as sex offenders.

A federal judge on Wednesday temporarily blocked two Alabama abortion restrictions set to take effect August 1 that would ban abortion clinics near schools and criminalize the most commonly used later abortion procedure.

In May, Alabama Gov. Robert Bentley (R) signed into law a ban on abortion clinics within 2,000 feet of public K-8 schools. He also approved a separate measure banning the most common method of performing a later abortion, known as dilation and evacuation, or D&E, abortions.

The American Civil Liberties Union (ACLU) challenged both provisions on behalf of providers in the state, arguing they were unconstitutional. According to attorneys for the ACLU, the location restriction would close the state’s two busiest abortion clinics, while the method ban would hamper access to later abortions.

The first blocked measure would prohibit the Alabama Department of Public Health from issuing or renewing a health center license to an abortion clinic or reproductive health center close to some public schools. As reported by Rewire, this would effectively regulate abortion clinics in the same manner as registered sex offenders. In Alabama, sex offenders cannot reside within 2,000 feet of a school or child-care facility.

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The second blocked measure would outlaw most surgical abortions. Dilation and evacuation, the most common form of surgical abortion, is used in the majority of abortions after 13 weeks of pregnancy, according to the American College of Obstetricians and Gynecologists. It is extremely safe, with less than one in 1,000 patients experiencing complications.

Dr. Willie Parker, a physician who provides later abortions in Alabama, wrote in a statement to the court that, if allowed to take effect, the law would prevent him from performing abortions after 15 weeks of pregnancy.

According to Dr. Parker’s submission to the court, the only alternative to D&E is to induce labor in a hospital, a much riskier and expensive alternative for the patient.

U.S. District Judge Myron Thompson Wednesday issued a temporary restraining order to block the state from enforcing the provisions until after an October 4 hearing. In the meantime, both sides were ordered to submit written arguments to the court in advance of that October hearing.

Alabama is not the only state to attack later abortion access. Kansas and Oklahoma both passed similar bans, but those laws remain blocked by court order.