Federal and International Legal Implications of the History of Indigenous Boarding Schools in the United States and Their Current Impacts

Today, there are over 40,000 graves of Native American children around the United States on properties that operated as boarding schools for Indigenous youth. [1] These gravesites reveal a fraction of the impact of the mistreatment at these federally sanctioned schools, and of the number of Indigenous youth harmed emotionally and physically that led to diminished populations and resources, little culturally relevant schooling, and increased mental and physical illnesses in Indigenous communities. 

Indigenous boarding schools’ social and educational impacts reveal fundamental flaws in the international legal human rights framework. Its opt-in nature and lack of retroactive violation responses permit rampant inequity in educational opportunities, denying justice to the victims of these Indigenous boarding schools over the nineteenth and twentieth centuries and affecting Indigenous youth today. Diminished Indigenous populations are a direct result of intentional violence against them, leaving populations with fewer generational relationships and cultural ties and impacting their sense of belonging in society. Moreover, the lack of culturally relevant and historically accurate curricula devalues and invalidates the perspectives of Indigenous people, and diminishes the extent of the violence experienced. Lastly, the generational impacts of violence paired with the deficit of governmentally allocated resources in areas populated by Indigenous people has led to disproportionate untreated mental and physical illnesses, contributing to an ongoing genocide of the population overall. International human rights laws’ shortcomings hinder the monitoring of violations and legal recourse for victims, thereby proliferating Indigenous discrimination, poverty, inadequate healthcare, poor education, and the population’s ties to their heritage, as is evident in ongoing civil rights litigation. 

Understanding the historical context of Native American boarding schools in the United States is crucial in understanding its current legal impacts. The first boarding school for Indigenous children was founded in Carlisle, Pennsylvania in 1879 by Richard Henry Pratt, a white jailer of Indigenous people in the U.S. army, and the Carlisle Indian Industrial School was used as a model for hundreds of others. [2] Having collaborated with U.S. government officials to create the school, Pratt hoped that it would lead Indigenous children to contribute to white American society through physical labor. Therefore, the education was not comparable to the education that white American youth received. [3] Pratt and his colleagues blatantly lied about their schools’ curricula to increase attendance and abducted Indigenous children from their communities, taking their clothing, cutting their hair, prohibiting native hairstyles, punishing them for speaking native languages, and attempting to convert them to Christianity. [4] The educational opportunities Indigenous communities were promised were nonexistent—instead, school days consisted of English lessons and manual labor, which included the upkeep of the school. [5] Moreover, the poor conditions of the boarding schools, including extreme crowding, unsanitary spaces, and meager food portions often resulted in illness and sometimes death. [6] The schools prevented native students from continuing cultural practices or having ties to their families, and Indigenous practices and culture remain permanently hindered in society today, generations after the last of the schools’ closures in the mid-twentieth century. 

These devastating and evasive practices contributed to the cultural and physical genocide of Indigenous people in the United States over the nineteenth and twentieth centuries. Although there is not an established definition of cultural genocide in international law, genocide itself is defined as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. [7]

Despite not being recognized to the same extent, cultural genocide is arguably included in this definition. The continued marginalization that Indigenous communities face in all aspects of life is proof that adequate legal action is still not being taken to protect them and remedy the legacy of the boarding schools that has led to their physical and cultural genocide.

With the U.S. government and legal system complicit in the genocide of Indigenous people, their only other recourse is international human rights law—a framework that continues to fail them and allow further legal injustice. The international legal framework’s opt-in nature and non-existent retroactive response framework to violations before its establishment hinders reparatory actions to uphold Indigenous rights. Because the United Nations (UN) and the 1948 Universal Declaration on Human Rights (UDHR) were established after the majority of the boarding schools ceased to operate, a retroactive response framework would be needed to address the human rights violations carried out by the United States government and its collaborators in Indigenous boarding schools. Moreover, the United States’ decision to opt out of international agreements such as the 1989 Convention on the Rights of the Child (CRC) and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) upon their ratification frees the United States from the monitoring and implementation mechanisms of the agreements. Although the United States has since joined UNDRIP,  because the structure of the international law lacks retroactive responses, the United States still cannot be prosecuted for their state-sanctioned wrongdoings in the boarding schools, nor can international courts legally order rectificatory actions on behalf of the wronged Indigenous communities.

Conversely, New Zealand, who is party to the CRC and was a later signatory of UNDRIP in 2010, has become an exemplar for Indigenous education reform. [8] The Indigenous population in New Zealand, largely the Māori, faced extensive mental and physical violence throughout the nation’s history, but notable efforts to curtail educational inequities are underway. A portion of these efforts have been in the “development of the first codified early childhood curriculum” in Aotearoa, New Zealand, called “Te Whariki: He Whariki Matauranga mo nga Mokopuna o Aotearoa: Early Childhood Curriculum,” founded and operating on Māori principles. [9] Although there are still immense improvements to be made, such restoration efforts are notable because they begin to mend lost ties to Indigenous practices and culture and show the reform that can be made when UN member states ratify and implement international conventions. 

On the other hand, the lasting harms of the boarding schools and lack of current action in the United States has shed light on the ways in which the country itself and the international human rights framework are failing Indigenous populations by not providing retribution for past and ongoing violations. For instance, Article 9 of the CRC discusses family separation, namely that “States Parties shall ensure that a child shall not be separated from his or her parents against their will,” as many Native children forcibly were, severing familial ties for future generations. [10] Additionally, Article 30 outlines children’s rights to their own religion, language, and minority culture; “a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language,” [11] violated by the schools in their banning of Indigenous clothing, languages, and hairstyles. These are two of many examples that demonstrate how the opt-in structure of the international human rights framework as well as its prohibition of retroactive responses thus pose obstacles for legal and social equality, particularly in the United States, as it allows for continued legal inaction when members choose not to ratify agreements.

The 2018 U.S. District Court case of Yazzie/Martinez v. State of New Mexico exemplifies the inequitable education Indigenous students are given because of the lack of rectificatory measures for past wrongdoing in human rights law. In this case, families and school districts, represented by the Mexican American Legal Defense and Educational Fund, sued the New Mexico Public Education Department (PED) for failing to adequately provide consistent and uniform curricula to and about the Indigenous children of New Mexico, a right which had been previously granted to them by the education clause of their state constitution. [12] Although this case is not solely pertinent to the rights of Native American children, the lack of prioritization of Indigenous children’s education is a direct continuation of inequities exacerbated in the boarding schools. In the case, the plaintiffs argued that marginalized students, especially Native American, low income, disabled, or English Language Learner (ELL) students, were not receiving an equitable education, as seen in a lack of funding and the subsequent impacts. [13] 

Representing the Court majority, Judge Sarah Singleton ruled that all New Mexico students have a right to this education and that the state was failing to uphold this responsibility, and cited as evidence the state’s low graduation rates, reading proficiency rates, and rates of college remediation, the first two of which are some of the lowest in the country. [14] Judge Singleton explained that “the state has failed to comply with state and federal laws regarding the education of Native American and ELL students,” and that “the state must come up with the necessary funding to meet New Mexico students’ right to a sufficient education.” [15] Federal laws concerning education are largely based on the Indian Education Act of 1972, which established “a comprehensive approach to meeting the unique needs of American Indian and Alaska Native students.” [16] This legislation has evolved and been incorporated into newer legislation, such as the 2001 No Child Left Behind Act, which makes four distinctions with regard to the education of native youth. It is the only piece of legislation addressing Native American education from kindergarten through graduate learning, recognizing the unique needs of Native Americans, centering Native American education and government responsibility, and providing services to Native Americans that are not provided by the Bureau of Indian Affairs. [17] 

Thus, although legislation such as the No Child Left Behind Act explicitly articulates a federal responsibility to address inequities in education, existing practices are not aligned with these requirements. The Yazzie/Martinez judgment established that the state of New Mexico had until April 2019 to ensure sufficient action was taken to remedy the situation. Ultimately, Yazzie/Martinez v. State of New Mexico is crucial in understanding the ongoing legal implications of the lack of effective legal action taken in response to the legacies of the boarding schools with regards to the aforementioned definitions of genocide, as well as rights established in the CRC. The previous failures to address the injustices that occurred in the boarding schools on federal and international levels has led to a lack of care for Indigenous education that necessitates further legal action as in Yazzie/Martinez v. State of New Mexico.

Similarly, ongoing U.S. District Court case Yellow Kidney et al. v. Montana Office of Public Instruction exemplifies how the federal and international legal systems are failing to provide Native American youth their right to equitable education. In July of 2021, the American Civil Liberties Union (ACLU) of Montana, in partnership with the Native American Rights Fund (NARF), filed a lawsuit against the state of Montana for failing to uphold the state constitutional requirement of teaching public school students about the culture and history of Native Americans in Montana. [18] The lawsuit was filed by the Assiniboine et al. against the Montana Office of Public Instruction (MOPI), the Montana Superintendent of Public Instruction (SPI) Elsie Arntzen, the Montana Board of Public Education (MBPE), and Montana Board of Public Education Chair. [19] The state constitution established the obligation of all public schools to provide instruction about Indigenous people to preserve Indigenous “cultural integrity.” [20] This obligation is also specifically provided in the Indian Education For All Act in 1999. [21] 

In 2007, the Montana Supreme Court explicitly ruled that annual funding must be put towards Native American education; however, this lawsuit suggests that the reality has been entirely different. [22] Indeed, there is little to no comprehensive compliance with the standards that the legislation puts forward, as MOPI does not require reporting from school districts about their curricula or funding. [23] Although ongoing, there have been no updates on the case since the lawsuit was filed, and the historical silencing of Indigenous voices is ongoing. This instance demonstrates the failures of the legal system to both effectively protect Indigenous youth in education and monitor the upkeep of past legislation and international agreements. Indigenous education continues to uphold the inequities in Indigenous boarding schools, and the weaknesses of international human rights law fails to provide a remedy. 

It is worthwhile to recognize the legal progress that has been created to protect Indigenous rights, including in UNDRIP, the Indian Education Act of 1972, and the Indian Education For All Act in 1999, but this legislation is not enough to truly reform the systems of oppression at play. The aforementioned cases shed light on the ways Indigenous people in the United States overall have been discriminated against and significantly disadvantaged in education—an issue exacerbated by the lack of international legal action taken to protect the rights of Indigenous populations. Yazzie/Martinez v. State of New Mexico and Yellow Kidney et al. b. Montana Office of Public Instruction are direct results of the emotional, physical, economic, and cultural violence that occurred in the boarding schools, and are proof of our collective lack of action to acknowledge Indigenous lives. Yazzie/Martinez v. State of New Mexico and Yellow Kidney et al. b. Montana Office of Public Instruction illustrate the perpetuation of human rights violations due to the lack of retroactive legal responses and the opt-in nature of international conventions and agreements, as is exemplified in the United States’ lack of participation in the CRC and initially in UNDRIP. These federal and international failings have harmed Indigenous youth. Ultimately, this piece seeks to find retribution for the lives lost and to contribute to a discussion on how Indigenous peoples deserve more legal protection and societal recognition.

Edited by Amogh Dimri

Sources:

[1] Sam Yellowhorse Kesler, “Indian Boarding Schools' Traumatic Legacy, And The Fight To Get Native Ancestors Back.” National Public Radio, 2021. Retrieved from https://www.npr.org/sections/codeswitch/2021/08/28/1031398120/native-boarding-schools-repatriation-remains-carlisle.

[2] Kesler, “Indian Boarding Schools.”

[3] Kesler, “Indian Boarding Schools.”

[4] Erin Blakemore, “A Century of Trauma at U.S. Boarding Schools for Native American Children,” National Geographic, 2021. Retrieved from https://www.nationalgeographic.com/history/article/a-century-of-trauma-at-boarding-schools-for-native-american-children-in-the-united-states.

[5] Blakemore, “A Century of Trauma at U.S. Boarding Schools for Native American Children.”

[6] Blakemore, “A Century of Trauma at U.S. Boarding Schools for Native American Children.”

[7]  “Rome Statute of the International Criminal Court.” United Nations, 1998. Retrieved from https://legal.un.org/icc/statute/99_corr/cstatute.htm. 

[8] “UN Declaration on the Rights of Indigenous Peoples” Ministry of Māori Development, 2022. Retrieved from https://www.tpk.govt.nz/en/a-matou-whakaarotau/te-ao-maori/un-declaration-on-the-rights-of-indigenous-peoples.

[9] Diti Hill & Adrienne Sansom, “Indigenous Knowledges and Pedagogy: A Bicultural Approach to Curriculum.” Counterpoints, 2010. Retrieved from http://www.jstor.org/stable/42980587.

[10]  “Convention on the Rights of the Child Text.” UNICEF, n.d. Retrieved from https://www.unicef.org/child-rights-convention/convention-text 

[11]  “Convention on the Rights of the Child Text.” UNICEF.

[12]“Yazzie/Martinez v. State of New Mexico Decision,” NM Center on Law and Poverty, 2019. Retrieved from http://nmpovertylaw.org/wp-content/uploads/2018/09/Graphic-Yazzie-Martinez-Decision.pdf.

[13] “Yazzie/Martinez v. State of New Mexico Decision,” NM Center on Law and Poverty.

[14] “Yazzie/Martinez v. State of New Mexico Decision,” NM Center on Law and Poverty.

[15] “Yazzie/Martinez v. State of New Mexico Decision,” NM Center on Law and Poverty.

[16] Office of Elementary and Secondary Education, “History of Indian Education,” U.S. Department of Education, 2005. Retrieved from https://www2.ed.gov/about/offices/list/oese/oie/history.html.

[17] “History of Indian Education,” U.S. Department of Education.

[18] “Yellow Kidney et al. v. Montana Office of Public Instruction, et al.,” American Civil Liberties Union, 2021. Retrieved from https://www.aclu.org/cases/yellow-kidney-et-al-v-montana-office-public-instruction-et-al.

[19] “Yellow Kidney et al. v. Montana Office of Public Instruction, et al.,” ACLU.

[20] Montana State Const. Art. 10. Retrieved from https://courts.mt.gov/External/library/docs/72constit.pdf.

[21] Montana State Const. Art. 10.

[22] “Yellow Kidney et al. v. Montana Office of Public Instruction, et al.,” American Civil Liberties Union, 2021. Retrieved from https://www.aclu.org/cases/yellow-kidney-et-al-v-montana-office-public-instruction-et-al.

[23] “Yellow Kidney et al. v. Montana Office of Public Instruction, et al.,” ACLU.