Addressing Indian Residential Schools in the U.S. & Australia

MEMORANDUM

TO: CLAIHR

DATE: November 15, 2007

FROM: Mark Gustafson

AT: University of Toronto, Faculty of Law, International Human Rights Clinic

RE: Addressing Indian Residential Schools in the U.S. & Australia

Issues

This memorandum addresses the following question:

• How have other countries who had residential schools (US, Australia) tried to achieve the stated goals of Canada’s TRC? [1]

To answer this question this memorandum will look at the two countries listed above individually to identify the following:

• What types of mechanisms/initiatives have they utilized?
• How effective have they been?
• Was there civil litigation/class actions involved?

Executive Summary

Very little has been done formally in the United States to achieve goals similar to those of the Canadian IRS TRC. First, the only goal substantially met in the United States has been the creation of a historical record. This has been achieved through independent scholarship and the publishing market. Second, the United States Government has partially acknowledged past abuses in government reports but has not significantly addressed other goals of Canada’s TRC. Lawsuits have neither played a role in meeting goals of the Canadian TRC nor in forcing the US Government to pursue such goals. Non-profit groups have not been a significant mechanism.

The Australian government has been more directly involved in achieving the stated goals of Canada’s TRC. The major mechanism in addressing these goals has been the Australian Human Rights and Equal Opportunity Commission’s Bringing Them Home Report which was essentially a TRC. While lawsuits were important for providing the impetus for the Bringing them Home Report, lawsuits have not played a large role since the Report. Other mechanisms have included the post of Aboriginal and Torres Strait Islander Social Justice Commissioner and the Counsel for Aboriginal Reconciliation. While the above mechanisms were initially effective, that has been limited by the current federal government’s refusal to apologize for and address past abuses. As a result, sub-national governments and non-profit organizations have begun to take more responsibility for meeting the goals of Australia’s TRC. The effectiveness of these initiatives is hard to gauge given the availability of resources.

Discussion – The stated goals of Canada’s TRC

There are 8 stated goals in the mandate for the Canadian TRC. They are summarized as follows:

1. Acknowledge IRS experiences, impacts and consequences;
2. Provide former students, their families and communities with an opportunity to tell their stories in a holistic, culturally appropriate and safe setting;
3. Promote truth and reconciliation events at both the national and community levels;
4. Promote public awareness of and education about the IRS system and its impacts;
5. Create a complete and accurate historical record which will be available to the public;
6. Submit a report with recommendations to the government; and
7. Support commemoration of former IRS students and their families.

These goals will be referred to herewith by the corresponding letter listed above.

United States

Brief History

The boarding school system in the United States is perhaps most well known for a single quote delivered by the man who designed the first Indian boarding school, Captain Richard Pratt. Pratt stated that the goal of his school, the Carlisle Indian School, towards each of its students was to “Kill the Indian in him and save the man.”[2] In the late 19th century this policy became the founding principle behind a growing number of boarding schools which aimed to strip young Indians of their culture and educate them in white culture. During this period federal legislation required parent authorization for the removal of their children to these schools, but coercion was widespread.[3] By 1902 there were 25 off-reservation boarding schools in operation.[4] At the schools children faced a range of physical and psychological abuses. Native languages were not allowed to be used, names were changed, corporal punishment was used routinely and living conditions were abhorrent leading to malnutrition and epidemics of disease.[5]

The role of off-reservation boarding schools began to decline in the 1920s and 1930s as local day schools were promoted as more culturally friendly alternatives. By 1930 only one-sixth of Indian students attended off-reservation boarding schools.[6] Assimilationist policies were reintroduced in the 1940s and 1950s until a new wave of government reforms beginning in the late 1960s allowed for more Indian control over education and greater protection of Indian children.

Mechanisms and Effectiveness

The mechanisms with which the United States has attempted to address the legacy of the boarding school system can be dividing into four categories; government reports & legislation, independent scholarship, lawsuits, and other mechanisms.

(i) Government Reports and Legislation

The United States government has focused almost exclusively on goal (f) of the stated goals of the Canadian TRC, i.e. gathering recommendations. In particular, on two occasions the United States government has commissioned reports to review the curriculum and treatment of students in Indian schools and has enacted legislation as a result of the findings.

The first was “The Problem of Indian Administration” Report, better known as the Meriam Report, in 1928. The Report characterized the Indian education policies as a failure and made a number of recommendations such as hiring qualified personnel, changing the curriculum, increasing the role of Indian parents and communities in education, and reducing the dependence on off-reservation boarding schools.[7] The result of the Report was the closure of some boarding schools, increased inclusion of Indian culture in schools and Senate hearings on boarding schools.[8] While these steps did acknowledge the abuses taking place at boarding schools, there was no attempt to aid those who had suffered abuses either by allowing them to testify at the Senate hearings regarding the Meriam Report or by facilitating reconciliation events.[9] In short, students and others affected where not able to tell their own stories on either a local or federal level thus precluding Goals (b) and (c).

The second report in 1969 was entitled “Indian Education: A National Tragedy–A National Challenge” but is better known as the Kennedy Report. While focused on Indian education as a whole, the Kennedy Report had particularly strong criticism for the 19 boarding schools in existence at that time. It stated that elementary boarding schools destroyed students and their families emotionally and culturally, and that off-reservation boarding schools had become dumping grounds for students considered to have serious social and emotional problems that the schools did little to address and even exacerbated.[10] The Kennedy Report led directly to the passage of numerous pieces of legislation designed to solve these problems. The first was the Indian Education Act in 1972 which increased federal funding and oversight of schools.[11] This was followed by the Indian Child Welfare Act which, inter alia, aimed to prevent Indian children from being removed to boarding schools and by the Tribally Controlled Schools Act of 1988.[12]

In sum, while these two reports recognized the links between inadequate education policies and entrenched social problems such as alcoholism, these reports were not concerned with giving those affected by abuses an opportunity to tell their stories (Goal (c)). Additionally, both reports were only concerned with acknowledging students’ experiences to the extent that they identified trends that should be fixed for future Indians.

Interestingly, the closest the United States government came to meeting the Canadian TRC’s goals of acknowledging boarding school experiences and encouraging testimony arose not out of a government sponsored report, but from an anniversary. On the occasion of the 175th anniversary of the Bureau of Indian Affairs [BIA] in 2000, Assistant Secretary of the Interior Kevin Grover gave a speech in which he apologized on behalf of the BIA for abuses at boarding schools and for the consequences the abuses have had.[13] Grover quickly retreated from this position and said subsequently that the apology, while sincere, had no legal effect and was not given on behalf of the American government, only the BIA. The most recent attempt to prod the federal government into acknowledging IRS experiences was a bill introduced by Senator Ben Nighthouse that, if adopted, would be an official federal apology for many instances of mistreatment inflicted on Indians.[14] As part of the bill writing process, some Indians were invited to give testimony to Congress which was a first step in meeting goal (b) of Canada’s TRC.[15] However, opportunities for testimony were very limited. The bill, S.J. Res. 37, has been tabled since 2004 and the testimonies were not published.[16]

In sum, the United States Government has slightly met Goals (a) and (f) of Canada’s TRC through two government reports and one partial apology. Yet, it is important to note that the government’s response has focused on preventing subsequent abuses rather than meeting Goals (b), (c), (d), and (e) of Canada’s TRC.

(ii) Independent Scholarship

To date, the only significant mechanism for creating an accurate and comprehensive historical record of the boarding school system in the United States (goal (e)) is the publishing market. Largely since the 1990s, numerous books have been published in the United States on both specific Indian boarding schools and on the broader development of governmental policies towards Indian education from the 1870s to the present. A few titles are “They called it prairie light: the story of Chilocco Indian School”, “Education for Extinction: American Indians and the Boarding School Experience”, “The Rapid City Indian School, 1898-1993” and “Boarding School Seasons: American Indian Families, 1900-1940.”[17] These books combine historical records from the schools and government archives with materials taken from diaries and letters of students at boarding schools. Similarly, in the age of the internet multiple sites now exist which document experiences at boarding schools. As such, both these books and websites are cognizant of Indian perspectives and responses to boarding schools and thus meet goal (a) of the Canadian TRC to some degree.

The problems with leaving the establishment of a complete and accurate historical record to independent scholars and the publishing market are numerous. Because scholars are normally interested in particular aspects of larger issues, this approach places the responsibility of interested parties to track down numerous books and articles in order to get a comprehensive history of boarding school experiences. Additionally, and related to the foregoing, in the absence of any publicity campaigns or government sponsorship, it may not matter that these books are publicly available, for it is unlikely that a large percentage of the population will seek out these books. Thus, while in the aggregate a fragmented but comprehensive, accurate and public historical record is available in the United States as a result of independent scholarship, using the publishing market as the main mechanism for disseminating this information does not effectively address Goal (d).

(iii) Lawsuits

Unlike the situation in Canada, lawsuits have played an utterly minor role in encouraging the United States to meet goals similar to Canada’s TRC. In fact, there have only been 2 lawsuits relating to abuses at Indian Boarding Schools. Neither has been successful.

The first Begay v. United States (Begay Iand later Begay v. United States (Begay II) was filed by 11 Navajo women who claimed that they had been sexually abused at an on-reservation boarding school. The first complaint was dismissed for failing to exhaust all administrative remedies, namely filing a claim with the BIA. The BIA found no proof of the allegations and the second claim in federal court was dismissed on the grounds of the BIA findings.[18]

Most recently, a class action was filed in 2004 in South Dakota seeking $25 billion for abuses at boarding schools between 1921-1924 and “perhaps unspecified dates”.[19] The named plaintiff, Sherwyn Zephier, did not consult any tribes before filing this suit and it is unclear whether it has any support within tribal communities.[20] Regardless of its level of support, this case was dismissed on the same grounds as the Begay I case, ie, for failure to exhaust all administrative remedies.[21] The case’s current status within the BIA administrative system is not publicly available.

Even if by some chance the BIA doesn’t dismiss the action and it returns to federal court, the ability of any Indian to sue successfully for abuses at Indian boarding schools is tenuous at very least. First, most, if not all, claims will be barred by the statute of limitations which is 6 years.[22] To overcome the statute of limitations issue, potential plaintiffs will most likely have to argue that there was a breach of the “Bad Men” clause treaty provision.[23] If a breach of this treaty obligation is found, then the Tucker Act gives United States Court of Federal Claims jurisdiction regardless of when the breach occurred. Unfortunately, the parameters of claims based upon the “bad men” clause have not yet been fully defined. Additionally, as boarding schools were run by the BIA which is part of the executive branch of power, the plenary power doctrine will probably be used as a defense to argue that the decision on how to handle a boarding school case is an executive branch decision over which the judiciary has no power.[24]

Thus, lawsuits have neither achieved success on their own nor forced the United States government to more vigorously pursue the stated goals of the Canadian TRC.

(iv) Other Mechanisms

In reaction to the failure of the main plaintiff in the Zephier case to consult any tribes before filing, a coalition of Indian rights groups formed the Boarding School Healing Project [BSHP] in 2004. Its stated goals are 1) Healing through the creation of support groups, 2) Education through public events, 3) Documentation through gathering oral testimony and 4) Accountability of the government and churches to Indians as a whole community, not as individuals.[25] These goals align very closely with those of the Canadian TRC, with the primary difference being that the BSHP is a purely non-governmental organization without any ties to the government.

Unfortunately, the work of the BSHP has gone nowhere, and it appears to have stopped its work before it really began when the Zephier complaint was dismissed.[26] It seems that the group’s primary purpose was to convince people not to join the Zephier complaint in the fear that it if the Zephier case were decided negatively it would preclude any and all future recovery relating to abuses at boarding schools and potentially other treaty violations.[27]

Summary

In the United States little has been done to address any of the goals of Canada’s TRC. The United States government seems satisfied with its role in initiating fact finding reports which led to legislation that has helped prevent future abuses and which has transferred much responsibility for education to Indians. Other than a non-legally binding apology from the BIA, there has been no governmental action to acknowledge the consequences of boarding schools or to promote public awareness of the past. Rather, this has been left in the hand of the publishing market and independent scholars. Litigation has not played a factor in any sense.

Australia

Brief History

Unlike the situation in the United States where Indian child removal was limited to children’s tenure at boarding schools, in Australia aboriginal child removal was connected to a broader policy of forced adoptions, orphanages and labor. It is also interesting to note that the policies authorizing child removal were not driven by federal legislation. Rather each state and territory developed its own laws regulating aboriginal child removal.

Despite the local nature of child removal laws, the policies were strikingly similar across Australia: child welfare laws were used as a pretense for removing children from their families in order to control reproduction and destroy aboriginal cultures. Most children removed from their families were placed in foster homes or forced to work and were not allowed any contact with their families. In most Australian states and territories, the practice of removing aboriginal children from their families continued from the 1860s through the 1960s.

Mechanisms and Effectiveness

(i) Federal Government Initiatives

In 1991 the federal government in Australia sponsored the Royal Commission into Aboriginal Deaths in Custody [Royal Commission] which revealed a complex and devastating picture of the effects of dispossession, colonization and institutional racism on Aboriginal peoples.[28] Since that time, the federal government has initiated three key mechanisms which address the goals of Canada’s TRC: the Council for Aboriginal Reconciliation, the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner within the Human Rights and Equal Opportunity Commission, and the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, better known as the Bringing them Home Report.

The Council for Aboriginal Reconciliation [CAR] was established in 1991 when the government passed the Council for Aboriginal Reconciliation Act. CAR was given a 10 year mandate.[29] CAR members were made up of Aboriginals, Torres Strait Islanders and non-Indigenous Australians suggesting that CAR meets goal (b) of Canada’s TRC. However, the forum created by CAR was not predominately concerned with facilitating discussions about abuses stemming from child removal policies. Rather CAR focused on “reconciliation” in the sense of closing the gap between native and non-native socioeconomic, health and political conditions.[30] These development goals are not expressly stated as goals of Canada’s TRC.

Yet, CAR did make important contributions in addressing goals (c) and (d) through public advocacy and social research. CAR promoted national reconciliation events such as Bridge Walks for Reconciliation and National Reconciliation Week which have attracted wide levels of public participation in Australia: over 250,000 people participated in one Bridge Walk and CAR claimed that over 10,000 people participated in regional learning circles.[31] CAR also created learning kits which were distributed to public schools countrywide.[32] Although the ultimate purpose of these materials was to promote socioeconomic development in Aboriginal communities, a positive byproduct was much greater awareness of Aboriginal issues within Australian society. After its mandate ended in 2001, CAR converted into a non-profit organization, Reconciliation Australia which will be discussed below.[33]

Also arising out of the Royal Commission was the creation of the post of the Aboriginal and Torres Strait Islander Social Justice Commissioner in 1992 [Commissioner] within the Human Rights and Equal Opportunity Commission. The Commissioner is responsible for keeping Indigenous issues before the federal Government and the Australian community and to promote understanding and respect for the rights of Indigenous Australians.[34] Specifically, the Commissioner’s duties are broken into 4 areas: advocating for the rights of Indigenous peoples, promoting an Indigenous perspective on different issues, building support and understanding for an Indigenous perspective, and empowering Indigenous peoples.[35]

The area in which the Commissioner most clearly addresses goals similar to those of Canada’s TRC is through its annual Social Justice Reports, which have been delivered to the federal government since 1993.[36] These reports analyze the key human rights issues facing Indigenous Australians over a given year and a central part of these reports are sections on the current status of reconciliation efforts and recommendations for improvement in that regard. For example, in its 1998 Social Justice Report, the Commissioner reported on the status of church apologies for their role in the removal of aboriginal children and outlined a plan for monitoring how local governments address reconciliation efforts.[37] The 2000 report described structural factors which were impeding reconciliation efforts.[38] In 2003 the Commissioner strongly criticized Prime Minister Howard for failing to take steps to sufficiently acknowledge the impact of child removal.[39] These Social Justice Reports play an important role in maintaining both public awareness and making recommendations to the government.

While CAR and the Commissioner have been instrumental in meeting goals (d) and (f) of Canada’s TRC, the main mechanism used in Australia to address all of the goals of Canada’s TRC was the Bringing them Home Report. While officially titled a National Inquiry, the Bringing them Home Report was in most respects a formal TRC. The National Inquiry had four terms of reference: tracing past laws of child removal, examining the need for changes in laws and assistance for those affected, determining the justification for compensation, and advising on policies of self-determination.[40]

From 1995-1997, the National Inquiry received evidence and submissions from 777 people and organizations. Of that number, 535 were Indigenous people who had been affected by child removal policies and wished to share their experiences.[41] In order to obtain this information, the Inquiry both travelled around the country to hear evidence and allowed written submissions. All witnesses were provided with a social worker during their testimony and a psychologist for follow-up consultations. Additionally, an Indigenous Advisory Council was appointed to help in the drafting of recommendations.[42]

The result was a comprehensive historical report which combined historical documentation interspersed with testimony. Once the historical policies were laid out, the Report then examined the impacts and consequences of removal policies. The Report also provided a thorough discussion on grounds for reparations, including a finding that the policies of child removal constituted genocide under international human rights law.[43] The Report contains 54 recommendations ranging from the need for further testimony, grounds for compensation, the need for an official apology and suggestions for a variety of legislative changes. [44] In short, the Bringing them Home Report thoroughly met the goals of acknowledging child removal experiences and consequences, allowing those affected to tell their stories, creating an historical record and making recommendations to the government. The fact that over 60,000 copies of the Report were sold during its first year of publication suggests strongly that it was also effective in addressing the goal of raising public awareness.[45]

Unfortunately, while the Bringing them Home Report succeeded in meeting all of the stated goals of Canada’s TRC, its effectiveness has been limited by the failure of the federal government to implement the Report’s recommendations. Prime Minister Howard has refused to address most of the recommendations contained in the Report and has even criticized the Report for being biased and telling only one side of the story.[46] Many in Australian society have relied on the government position as a justification for not acknowledging the experiences and impacts of those affected by child removal policies. While this group is in the minority, the effect of the Bringing them Home Report will continue to be hampered unless the government accepts at least some of the Report’s recommendations, particularly the issuance of a governmental apology.

(ii) State and Territory Initiatives

Unlike the federal government, most state and territorial governments have issued formal apologies for their policies of child removal which is an important step in meeting goal (a) of Canada’s TRC. However, these governments have not taken any additional steps to provide settings for those affected to continue to tell their stories. Rather, they have introduced a variety of initiatives similar to those of CAR to address the socioeconomic and health disparities that have arisen out of the policies of segregation and child removal. For example, the ACT Government established the Interdepartmental Committee on Aboriginal and Torres Strait Islanders Issues to improve the delivery of social services.[47] The Victorian Government has declared its intention to develop a public consultation process to address land claims, past injustices and health issues.[48] The status of that process is unclear. In sum, it seems that most sub-national governments in Australia are satisfied that the Bringing them Home Report has provided a sufficient opportunity for Indigenous Australians to tell their stories and thus that they can focus solely on “practical reconciliation”, ie, closing gaps in economic, health and education levels.

The Tasmanian Government stands out for more directly addressing goals similar to those of Canada’s TRC. Firstly, the Education Department of Tasmania has produced a learning-kit for primary school students which details Tasmanian Aboriginal history through to today’s Tasmanian Aboriginal community.[49] Additionally, the Tasmanian Parliament passed the Stolen Generations of Aboriginal Children Act 2006 which created a compensation fund, increased access to records and a streamlined claims process.[50] It is unclear how many claims have been filed to date and thus it is hard to judge the effectiveness of the Act.[51]

(iii) Lawsuits

While Australia did not experience the flood of lawsuits relating to its child removal policies as Canada did, lawsuits have played an important role. The introductory section of the Bringing them Home Report acknowledges that the filing of two cases in 1994 and 1995 regarding injuries resulting from child removal policies were a pivotal factor in causing the government to commission the National Inquiry.[52] The two cases, Williams v Minister, Aboriginal Land Rights Act 1983 and The State of New South Wales[53] and the consolidated case Kruger and Bray v. Commonwealth[54] were ultimately dismissed on the grounds that the legislation authorizing their removal from their families was constitutional at the time of removal.[55] Interestingly, while both cases were dismissed, the decisions in both cases are over 100 pages and create a large historical record of the policies, actions and effects of child removal which contributes to the creation of a historical record.

After the Bringing them Home Report, a handful of lawsuits have been brought in state and territory courts in Australia. [56] Most have been unsuccessful. On one occasion the lawsuit was withdrawn because the plaintiff found the process too traumatic.[57] This suggests that Australian courts are not culturally sensitive environments that Goal (b) of Canada’s TRC envisages. Most recently, the case of Trevorrow v South Australia (No 5) found that the South Australian policy of child removal was unconstitutional and awarded damages to the plaintiff.[58] Similar to the cases of Williams and Kruger, the decision in the Trevorrow case was over 300 pages and created a substantial historical record of government policies and their effects on the plaintiff.

In sum, the two lawsuits in 1994 and 1995 played an important role in leading the government to begin addressing the goals of Canada’s TRC. Since that time, the few court cases that have been filed have had little success. Those cases that have been fully litigated have led to the creation of comprehensive historical records. However, it seems unlikely that others would elect to pay for litigation if there is little to no possibility of success.

(iv) Non-Governmental Organizations

In the era after CAR and the Bringing them Home Report non-governmental groups have begun to play a larger role in maintaining a focus on the goals of Canada’s TRC. The increased role of these groups is largely due to government inaction, for the federal government has largely washed its hands of continuing to pursue goals similar to Canada’s TRC since the Bringing them Home Report.

When CAR’s mandate expired in 2001, it morphed into a non-profit organization called Reconciliation Australia with the same mission and goals as CAR.[59] It continues to create educational kits and to promote dialogue between Aboriginal groups and business and community groups. It has also created semi-autonomous spin-off reconciliation organizations in each state and territory in Australia.[60] These groups continue to keep reconciliation in the public eye by sponsoring events such as National Reconciliation Week, but as stated above, their focus is largely on development needs as opposed to creating a setting to hear evidence of past abuses.

Additionally, groups such as Link-Up are working to help those affected by child removal policies to reunite with their families.[61] As such, these groups are helping to alleviate the consequences of child removal policies.

Summary

Largely through federal initiatives in the early and mid 1990s, Australia has been very effective in meeting goals similar to those of the Canadian TRC. The Council for Aboriginal Reconciliation effectively promoted awareness of past abuses and facilitated educational initiatives. The Aboriginal and Torres Strait Islander Social Justice Commissioner has consistently helped to continue acknowledging past abuses and the government’s failure to provide adequate remedies. The Bringing them Report stands out as a powerful and effective mechanism which successfully addressed all of the goals of the Canadian TRC. However, the current conservative government has somewhat undermined the Report’s effectiveness by not addressing its recommendations and by not sponsoring forums for further reconciliation events. Still, the Report has created a comprehensive record consisting in large part of actual testimony of those affected by child removal policies and has been read widely in Australia. Lastly, most current mechanisms for continuing to meet the goals of Canada’s TRC are proceeding on the level of sub-national governments and thr