Native America's Children
The Unintended consequences of undoing the righting of wrongs
Indian Residential Schools contributed to the genocide of Native Americans and their cultural continuity of traditions from one generation to the next. Break any link in that chain and you destroy a family, a Tribal Nation, a National treasure.
The first federal residential school for Native American children was established in 1819 and the last, in 1969. Out of the context of history it would seem like a reasonable federal objective to education the children for which they have responsibility under dozens of treaties, and the federal trust responsibility to Tribal Nations. But looking at the residential/boarding schools in the context of federal Indian policy it begins to look very dark. Here is the nutshell version of that history: From colonization to about 1788, the objective was trade and commerce and both the colonists and Native Americans had commercial relationships, but as Manifest Destiny drove settlers and states to expand into Native American land, a policy of genocide and removal from 1835 to 1861 resulted in a massive genocidal destruction of indigenous culture and place. Native people whose traditions tie closely with the land they occupy was shredded by forcibly removing them from their land and walking thousands of miles to a new and vastly different land with no resources. You may have heard of the Trail of Tears, but that was only one of about one hundred such removals that were carried out during this period. After the Removal period which ended about the time the Civil War began and ran to 1887, the reservation period began where lines were drawn between Tribal Nations and reservation boundaries were set up to serve as prisons for Native People who were not allowed to leave them, even to resume hunting and fishing to maintain their traditional subsistence lives. Children and families died of starvation at the shameful acts of the federal government, as a form of genocide. The policy of the U.S. moved toward assimilation and destruction of Native culture by taking children to boarding schools, and to “kill the Indian and save the man” which was the actual statement of the creator of the residential school program at the Bureau of Indian Affairs.
Children were snatched from their communities by federal trucks driving by while agents grabbed children by their braids and swung them into the back of the truck. When they had time to prepare to leave their mothers’s carefully selected clothes were ripped from their bodies and thrown away when they arrived at the school on their first day. Their long hair was cut into a western style and they were beaten for speaking their native languages. In that dark period, children died and no explanation was forthcoming, sometimes nothing more than a terse letter to the parents that their child was dead. Sometimes the parents were notified, but the remains were never returned to their families. If they lived through boarding school, sometimes, they would return home, with no connection to their tribal families after a decade or more of separation. Parents were not allowed to see their children. Some parents camped outside the schools just to be near their children.
Residential schools were expensive and as the public became more critical of them as the cruelty became more apparent, the federal government began to shift away from this policy to a new, more efficient evil — straight adoption of Native children by white families. Again, out of context, this does not sound evil, but it was one of the most evil policies to emerge, born of saving money to “kill the Indian” and shifting the expense to families in need of children, who may be glamorizing the taking of a Native child to give them what they believe is a better life. Nothing could have been further from the truth. Social workers were enlisted in this effort to find reasons to remove Indian children from their homes and place them with white families. There is no denying that some Indian families could be unfit homes for children just like any other ethnic or racial group, but the wholesale removal of children from Native homes was staggering and far out of proportion to the population. The policy effectively left Tribal Nations with their children and future being taken and traditional learning for tribal continuity was under increasing attack.
In the 1950s the federal government once again embarked on a destructive policy to terminate Tribal Nations and their reservations by literally moving everyone away from their reservation homes to urban areas with no resources, support or plan. Cities like Chicago and San Francisco became the home for people who were removed and sent from their homes. Wilma Mankiller, the first woman to serve as Chief of the Western Cherokee Nation, talks about how her family and friends were herded onto trains with no information and only what they could carry as they were transported like cattle to urban areas.1 The American Indian Movement resistance arose from this dark and destructive policy era. Children lost their roots with their communities and homes.
The first light to try to correct these destructive genocidal policies came late, but in 1978, the Indian Child Welfare Act was passed to prevent the removal of Native American children from their homes without first contacting their Tribal governments as well as their families.2 This was an unprecedented statute that had the effect of imposing a legal obligation on state courts where family law matters are decided. That law has worked with states for more than four decades, but in 2021, a white family demanded they should have custody of a Native child, and be-damned any federal law that might hinder them. The states of Texas, Louisiana and Indiana and individuals joined to demand the right of states to take Native children from the sovereign territory of a Tribal government and conduct adoption proceedings in state court without any legal obligation to contact the Tribal government or families beyond state law. Although not parties, 325 tribal nations, 21 states, and individuals and organizations have signed onto amicus briefs in support of the Indian Child Welfare Act.3 The case, Brackeen v. Bernhardt was first heard in 2019 by the U.S. Court of Appeals for the Fifth Circuit 4 and the U.S. Supreme Court accepted the petition for certiorari from both parties, and will hear the case during the October 2022 term.5 The States want the U.S. Supreme court to overturn the part of the 5th Circuit opinion that found ICWA to be constitutional. The Tribes want to keep the statute intact with the same standards that have been working for decades and affirm the government to government relationship between Tribal Nations and the federal government. Turning off this one light that appeared in 1978 , following centuries of darkness, would make us a lesser Nation.
Last year, horrific news of the discovery of hundreds of Native children in unmarked graves in a Canadian residential school,6 rightly demanded an answer and justice. The same policies existed in the United States. The Secretary of the U.S. Dept. of Interior, Deb Haaland, the first Native American (Laguna Pueblo) to serve in that role, began an investigation of the residential school system in the U.S. and released a report on that investigation, May 2022.7 The scope of the impact of these schools is immense:
“The Department found that between 1819 to 1969, the Federal Indian boarding school system consisted of 408 Federal schools across 37 states or then-territories, including 21 schools in Alaska and 7 schools in Hawaii. Some individual Federal Indian boarding schools accounted for multiple sites. The 408 Federal Indian boarding schools accordingly comprised 431 specific sites.”8
One of the largest of the federal Indian boarding schools, Carlisle, in Pennsylvania, has resisted the desire of parents and tribes to identify the remains of their families and bring them home for burial. An existing law, NAGPRA,9 likely gives Tribes and descendants the legal right to have those remains repatritated to the Tribal Nation for burial. However, the U.S. Army, which is the federal organization that controls Carlisle has argued that NAGPRA does not apply because a cemetery does not meet the definition of a “collection” under NAGPRA, and instead, created complicated processes for requests from individuals and even excluded Tribal Nations from making a request even if a descendant was no longer alive.10 Justice for these children continues to be sought, and the Sec. of Interior has committed to the process of revising NAGPRA11 to make repatriation of a Tribal Nation’s children a reasonable one.
Another solution would be to pass legislation that gives subject matter and personal jurisdiction over any Native American child in any family law matter to the respective Tribal Nation’s court. That would take any discretion away from state courts and put non-Tribal member parents in Tribal court to decide their adoption cases. Based on the constitutional relationship between Tribes and the federal government this is on solid constitutional ground. Not all Tribal governments have the judicial resources to take on more cases, but this could be part of increasing resources for bolstering judicial capacity for Tribal Nations.
Unraveling the Indian Child Welfare Act in the demand for state sovereignty over an area in which states constitutionally have none (Indian affairs) would result in unintended consequences that would send this nation back to the dark policies of the past.
Genocidal policies to destroy Tribal Nations was not an unintended consequence. Let’s hope that we avoid any possible unintended consequences that would come with the narrow interest of three states out of fifty and several individuals. Fortunately, when the U.S. Supreme Court hears this case and decides on its constitutionality, they will be looking at the law in context rather than listening to the squeaky wheel.
If you would like to know more about American Indian Law, I wrote this book, “Decolonizing the Foundations of American Indian Law, for a short introduction to understanding why we are where we are today.
Wilma Mankiller, “Mankiller. A Chief and her People” (1993).
https://www.bia.gov/bia/ois/dhs/icwa
https://www.narf.org/cases/brackeen-v-bernhardt/
https://www.narf.org/nill/documents/20190809brackeen-icwa-opinion.pdf
https://www.narf.org/cases/brackeen-v-bernhardt/
https://www.nytimes.com/2021/05/28/world/canada/kamloops-mass-grave-residential-schools.html.
https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf.
https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf.
https://www.nps.gov/subjects/nagpra/index.htm
https://nativenewsonline.net/sovereignty/why-don-t-indigneous-children-buried-at-carlisle-and-other-former-indian-boarding-schools-qualify-for-repatriation-under-nagpra.
https://content.govdelivery.com/accounts/USDOI/bulletins/2e844f5.