Excerpted From: Monica Shaffer, Constitutionality of Reparations for Native Americans: Confronting the Boarding Schools, 49 Mitchell Hamline Law Review 403 (April, 2023) (282 Footnotes) (Full Document)


MonicaShafferCrimes of violence and genocide against Native Americans--on land now considered the United States--existed long before the Jamestown colony was formed, African people were imported for slavery, and the United States declared itself free from England. While the harm done is nearly impossible to fully understand or catalogue, the U.S. government's creation of the Native American boarding schools was and still is a particularly gruesome chapter. These “schools” forced tens of thousands of children from their homes, caused the deaths of thousands, and resulted in the destruction of entire nations. In fact, the boarding schools were so horrific that they alone satisfy the definition of genocide, according to the United Nations Genocide Convention.

This Note hopes to provide a springboard for advocates working to create change and obtain reparations in light of the U.S. Department of the Interior's investigation into the Native American boarding schools. It is reasonable to expect the investigation will produce far more horrifying results than non-Native people can imagine. This Note will begin by explaining the historical context and experience of the boarding schools and their impact on survivors, communities, and descendants. Next, this Note will provide a general explanation of reparations and their common forms, followed by a discussion of the international and domestic legal landscape for reparations. The discussion of the U.S. landscape will include an enumeration of the powers held by each branch of government to pass reparations and the respective standards of scrutiny to apply. Finally, this Note will conclude with a look at the Department of the Interior's current investigation and the steps advocates should take to get the best reparations result.

Before proceeding, it is important to address the use of language throughout this Note. It was written with the awareness that no one single term is universally accepted, and each term used to describe Indigenous or Native people is rife with political and cultural pain and history. The term “Indian” will appear on occasion in this Note as it is the formal term used throughout U.S. law. However, this author will use “Native,” “Native people,” or “Native American” to refer to American Indians, Native Americans, Native Hawaiians, and Alaska Natives whenever possible. The word “Tribe” is also problematic as it does not accurately describe the sovereign identity of Native Americans, but “Tribe” is a legal term that will appear in this Note to mean “Native nation.” This author will use “nation” or “Native nation” whenever possible to properly identify their sovereignty. The term “nation” will not be used to refer to the United States.

Lastly, this author discloses her identity as a white woman and acknowledges the strong likelihood that mistakes may be made in this Note because of her identity as non-Native. In advance, I apologize and hope this Note will still bear fruit for Native Americans and the fight for justice.

[. . .]

Reparations should be made to Native Americans by the federal government, and it is likely that they will survive judicial review if the right formula is used. The investigation ordered by Secretary of the Interior, Deb Haaland, is an important first step in the reparations process. On June 22, 2021, Secretary Haaland announced the Department of the Interior's (“the Department”) Federal Indian Boarding School Initiative (“the Initiative”), investigating the U.S. boarding schools. The Initiative is broken down into three parts: collection, consultation, and reporting (mirroring truth and reconciliation commissions employed elsewhere). While the Initiative is underway, it is far from complete, mostly because it will take an incredible amount of time as the U.S. government has never undertaken a project related to the boarding schools before now.

So far, the Department has combed through its records to find any information or reference to the boarding schools, the identities and numbers of students enrolled, and their nation or Tribal affiliations. The search paid particular attention to finding any records related to cemeteries or possible burial sites associated with the boarding schools so a search can be conducted to locate and identify the remains. The Initiative ordered any believed cemeteries and burial sites to be protected. The Department began reporting when it released Volume 1 of the investigation in May 2022.

The investigation found that from 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. The investigation identified marked or unmarked burial sites at approximately 53 different schools across the school system. As the investigation continues, the Department expects the number of identified burial sites to increase.

Volume 1 includes an explanation of the investigative process, defines the boarding schools (compared to other (also harmful) institutions for Native children), likely sources of money used to pay for the schools, general methodologies of the schools, and initial indicators of gravesites. The Department is still searching its own records to compile Volume 2, which will include a list of marked and unmarked burial sites, the amount of federal funding distributed to the boarding schools, and investigations into the legacy impacts of the boarding schools on Native nations, communities, and people.

As Volume 1 was released, the Department announced that it would begin its “Road to Healing” project and collect oral histories by talking to survivors of the boarding schools. In November 2021 alone, the Department spoke with 707 survivors. This began the final component of the Initiative: to consult with all Native nations. Conversations centered around the nature and scope of the proposed work, addressed cultural concerns regarding the dissemination of the information gained, and ensured the burial sites would be protected so any human remains could be repatriated.

Although the Department's Initiative does not plan to address the full spectrum of harm done to Native Americans as a result of the boarding schools, it is an important first step. The president of the Native Congress of American Indians, Fawn Sharp, told NPR that the investigation will “lead us down a path of truth, and a path of justice, and a path of righteousness,” demonstrating the hope some Native people feel in light of this proclamation. Other Native people, such as Jacki Thompson Rand, professor of American Indian Studies at the University of Illinois Urbana-Champaign, met the investigation with wariness: “As a Native person who's grown up in the system, I don't know what the secretary of the interior can do to give me my life back ... [b]ut it's a start.”

A reparations plan can begin even while the Initiative is in progress. However, more fact-finding must take place in order to create a comprehensive picture that details the extent of harms perpetrated by and resulting from the U.S. boarding schools. This can be done by the executive or legislative branch, and could continue or expand the Initiative underway by the Department. As stated above, the record must establish nonpartisan, concrete facts of what happened, including stories from any survivors, descendants of the survivors, Bureau of Indian Affairs records, and records from other non-governmental organizations already being compiled (such as what is being done by the National Native American Boarding School Healing Coalition). After a full record is developed, conversations must continue with Native communities to determine a path forward. Creating a reparations bill of any kind without participation of Native nations and Native people will not bridge the gap or repair the damage in any meaningful way. The goal of reparations should always be to fully rectify the past harm--even though it is impossible--and this certainly cannot be done without the full participation of those harmed by the injustice. Any recommendations for reparations should be compiled and submitted along with the complete record of harm and its lasting effects.

After the Legislature receives the report, a bill must be drafted that acknowledges the harm done, offers an apology, and provides reparations as requested by Native Americans. As long as the record is detailed, the evidence is discussed in the legislative history, and the reparations granted are rationally related to the purpose of the bill, it should pass judicial scrutiny.

Reparations for Native Americans have begun elsewhere, including Canada (which prompted the Department's Investigation). Private organizations have issued apologies and developed reparations plans unique and related to their specific participation in the boarding schools. The U.S. government, and anyone else seeking to remedy the harm caused by the boarding schools, can certainly look to other governments or private entities for examples of what to do--or not do.

It is important for everyone to recognize who was present first on these lands known today as the United States. If all Americans can remember, it is more likely that change and the reparations owed will come. For “effective change comes from the citizenry rather than from their elected representatives.” It is the responsibility of every person to advocate for and recognize the sovereignty of Native nations.

J.D. 2023, Mitchell Hamline School of Law.