Crimes 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.