Lorie Graham on Reparations

Lorie Graham just published her paper, “Reparations, Self-Determination, and the Seventh Generation” (SSRN link), with the Harvard Human Rights Journal. From the intro:

Indigenous teachings on law and family help define our responsibility toward future generations and how the decisions that we make today can impact the wellbeing of each generation to come. This message is particularly relevant in this time of climate change, warfare, and lack of respect for basic human rights. So too is it an important message as we reflect upon the thirtieth anniversary of the Indian Child Welfare Act of 1978 (“ICWA”) and look to the future. We are just over one generation removed from this landmark legislation–legislation that I will argue in this article constitutes partial reparations for human rights violations committed against Native peoples and their children. According to the Haudenosaunee’s Great Law of Peace, we have six more generations to consider before we can truly understand the full impact of this law.

However, before looking forward, let us take a moment to look back. The long history of injustices against indigenous peoples of the Americas is well-documented. For purposes of the ICWA, the relevant historical point would be what one scholar has referred to as the “Native American holocaust in the nineteenth century.”

During this time the U.S. Government officially embraced policies of forced assimilation aimed at the breakup of the American Indian family. As early as 1867, the U.S. Commissioner of Indian Affairs advocated for the forcible removal of Indian children from their tribal nations as “the only successful way to deal with the ‘Indian problem’.” This was merely the beginning of what would amount to over one hundred years of U.S. policies aimed at separating the Indian child from his family and nation, and the consequences of these policies are still being felt today by the seventh generation of young children.

In more recent times, the federal government has embraced a policy of self-determination for Native American nations and has made some attempts to redress the myriad of wrongs committed against them. The ICWA is part of that effort. In this article, I explore whether the ICWA achieves a genuine measure of reparations for some of these wrongs. Working directly with Native American nations and organizations, Congress passed the ICWA in response to the massive displacement of Native American children to non-Indian adoptive homes, foster care, and educational institutions by federal, state, and private child welfare authorities. This article will explore the relevance of this law within the context of emerging international human rights precepts. While the ICWA fails to provide complete relief under these principles, it is nevertheless an innovative approach to addressing past wrongs and deterring future wrongs.

Why is it important that we consider this legislation within the context of international human rights law? First, the ICWA clearly has its detractors, from scholars, to judges, to legislators. For instance, every few years, legislation to amend the ICWA is introduced in Congress. While some of these amendments seek to clarify ambiguities in the law, others–such as the codification of the “Existing Indian Family doctrine”–would eliminate important safeguards designed to prevent the repetition of human rights abuses against indigenous children and their families. In order to properly assess these challenges, courts and policymakers should have a clear understanding of what the rights of indigenous peoples are under international law and how the ICWA furthers those rights. Secondly, reparation claims are gaining momentum in other areas. For instance, there is a growing movement among Native Hawaiians to redress the illegal overthrow of Hawaiian rule and the loss of Native Hawaiian lands, and among African Americans as a means of remedying centuries of slavery and Jim Crow laws. More globally, countries like Australia and Canada are grappling with their own comparable legacies of forcible removal of indigenous children. The ICWA may well serve as an important guidepost to countries looking to address similar types of human rights violations. It demonstrates the potentially broad contours of future reparation plans (beyond mere compensation). Finally, from the perspective of international law and policy, United Nations member states have recently adopted an important U.N. document that will further clarify the rights of indigenous peoples throughout the world, particularly as they relate to the question of self-determination. Laws such as the ICWA demonstrate how these international human rights precepts might be implemented through domestic action.