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801
ADOPTED
AMERICAN BAR ASSOCIATION
SECTION OF CIVIL RIGHTS AND SOCIAL JUSTICE
COALITION ON RACIAL AND ETHNIC JUSTICE
COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE
COMMISSION ON HOMELESSNESS AND POVERTY
COMMISSION ON HISPANIC LEGAL RIGHTS AND RESPONSIBILITIES
COMMISSION ON RACIAL AND ETHNIC DIVERSITY IN THE PROFESSION
COMMISSION ON SEXUAL ORIENTATION AND GENDER IDENTITY
COMMISSION ON YOUTH AT RISK
COUNCIL FOR DIVERSITY IN THE EDUCATIONAL PIPELINE
HISPANIC NATIONAL BAR ASSOCIATION
MASSACHUSETTS BAR ASSOCIATION
NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION
NATIONAL BAR ASSOCIATION
NATIONAL NATIVE AMERICAN BAR ASSOCIATION
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1 RESOLVED, That the American Bar Association urges all persons, organizations, and
2 governmental entities with access to American Indian and/or Alaska Native boarding
3 school records, materials, and other information to support and assist the Department of
4 the Interior’s Federal Indian Boarding School Initiative, in partnership with tribal nations
5 and organizations;
6
7 FURTHER RESOLVED, That the American Bar Association urges the United States
8 Administration and Congress to:
9 1. Fully fund and provide subpoena power to the Department of the Interior’s
10 Federal Indian Boarding School Initiative, and require reports to Congress on
11 its findings and recommendations; and
12 2. Enact the Truth and Healing Commission on Indian Boarding School Policy Act
13 or similar legislation, creating a Commission to investigate and document all
14 aspects of the United States Indian Boarding School program, including issuing
15 reports regarding the root causes of human rights abuses at Indian Boarding
16 Schools, and to make recommendations to prevent such future atrocities; this
17 process should fully include tribal nation and organization leadership; and
18 3. Use all reasonable efforts to obtain boarding school records; and801
1 4. Ensure the repatriation of all relevant items and remains; and
2 5. Conduct oversight hearings, including field and legislative hearings; and
3 6. Direct the Federal Indian Boarding School Initiative to conduct meaningful
4 consultation with Tribal Nations on all aspects of the Department of the
5 Interior’s Federal Indian Boarding School Initiative.
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REPORT
On July 17, 2021, the remains of nine Rosebud Sioux children were returned to their
ancestral grounds on the Rosebud Sioux Indian Reservation for burial. The children died
nearly a century earlier in the Carlisle Indian Industrial School, one of the United States’
many forced boarding schools designed to eradicate indigenous culture. Many of these
children died of illness, owing to the unsafe, unsanitary conditions which were
commonplace at such institutions. Others died attempting to escape the abuse endured
at Carlisle.1
Upon returning home, the children were honored according to traditional ceremonial
rites—sage smudging, buffalo skin wrappings, and prayer—and were offered spirit food
of chokeberries and water. The other unidentified children who died at Carlisle will be
denied these sacred rituals, buried in unmarked graves. While it is impossible to bring
back these children’s lives, the cultural trauma of their unresolved loss endures. In the
words of United States Secretary of the Interior Debra Anne Haaland, “Native families
want the children who were lost to come home, regardless of how long ago they were
stolen.”2
On Thursday May 27, 2021, Chief Roseanne Casimir of the Tk'emlups te Secwepemc
First Nation announced that the unmarked graves of 215 children were identified at the
Kamloops Indian Residential School in British Columbia.3 The announcement sparked
international outcry and brought new attention to a devastating truth and loss felt by Native
peoples in the United States and Canada today. The forced assimilation and attempted
eradication of Native people through compulsory “residential schools” resulted in the loss
of life, the loss of a generation of relatives, language speakers, and culture bearers. The
grief and sense of loss in the present is overwhelming and cannot be ignored. Since the
announcement, several similar announcements have been made across Canada,4
including over 600 identifications at the former Marieval Indian Residential School in
1
Annie Todd, “‘Will rest in the quiet’: Rosebud Sioux children, taken to a boarding school over 140 years
ago, finally laid to rest,” USA Today (July 19, 2021), available at:
https://www.usatoday.com/story/news/nation/2021/07/19/rosebud-sioux-remains-children-buried-carlisle-
boarding-school/8022434002/.
2
Deb Haaland, “Opinion: Deb Haaland: My grandparents were stolen from their families as children. We
must learn about this history.” The Washington Post (June 11, 2021), available at:
https://www.washingtonpost.com/opinions/2021/06/11/deb-haaland-indigenous-boarding-schools/.
3
“Canada mourns as remains of 215 children found at indigenous school,” BBC News (May 29, 2021),
available at: https://www.bbc.com/news/world-us-canada-57291530.
4
“More unmarked residential school graves discovered in Canada,” Al Jazeera (July 13, 2021), available
at: https://www.aljazeera.com/news/2021/7/13/more-unmarked-residential-school-graves-discovered-in-
canada; Steven Dyer, “‘I’ve been very overwhelmed’: Survivors gather at former residential school site,”
CTV News (July 6, 2021), available at: https://edmonton.ctvnews.ca/i-ve-been-very-overwhelmed-
survivors-gather-at-former-residential-school-site-1.5499456.801
Saskatchewan5 and 182 unmarked graves at St Eugene’s Mission School in British
Columbia.6
The identification of these children in Canada has spurred new calls for the United States
to face its own dark “boarding school” history.7 For years, Native organizations and
communities have advocated for action, truth-telling, and healing for both those who died
at these institutions and for those who survived.”8 We now have a federal government
official, a descendant of “boarding school” survivors, as Secretary of the Department of
Interior who believes, “Though it is uncomfortable to learn that the country you love is
capable of committing such acts, the first step to justice is acknowledging these painful
truths and gaining a full understanding of their impacts so that we can unravel the threads
of trauma and injustice that linger.”9 The time to work on healing is now. Some paths
toward healing and addressing these threads of trauma and injustice spun by the U.S.
“boarding school” policy are possible and prioritized by this resolution.
A History of Indian Boarding Schools Within the United States
Starting in the early 1800’s, the United States funded church-run schools for the purpose
of assimilating Native children. In 1869, as a part of President Ulysses S. Grant’s “Peace
Policy,” the United States government formalized the forcible removal of indigenous
children from their communities and subsequent placement of the children in government-
sponsored boarding schools, many of which continued to be operated by churches.10 The
objective of this program was to assimilate and “civilize” indigenous children through the
eradication of tribal culture. By 1909 there were more than 175 boarding schools in
operation and over 300 day schools. Thousands of Native children were forced into
attending these schools.
At the boarding schools, students experienced notoriously abhorrent treatment that has
been the subject of international acknowledgment and condemnation.11 Students were
5
“Canada: At least 600 graves found at Indigenous boarding school,” Al Jazeera (June 24, 2021), available
at: https://www.aljazeera.com/news/2021/6/24/canada-hundreds-of-graves-found-at-indigenous-boarding-
school.
6
“Canada: 182 unmarked graves found at another residential school,” Al Jazeera (June 30, 2021), available
at: https://www.aljazeera.com/news/2021/6/30/canada-182-unmarked-graves-found-at-another-
residential-school.
7
Mary Louise Kelly, Lauren Hodges, and Patrick Jarenwattananon, “U.S. Boarding Schools Were The
Blueprint For Indigenous Family Separation in Canada,” NPR (June 3, 2021), available at:
https://www.npr.org/2021/06/03/1003020286/u-s-boarding-schools-were-the-blueprint-for-indigenous-
family-separation-in-cana.
8
See e.g. The Native American Boarding School Healing Coalition and the National Congress of American
Indians.
9
Deb Haaland, supra note 2.
10
Native American Rights Fund, Trigger Points: Current State of Research on History, Impacts, and Healing
Related to the United States’ Indian Industrial/Boarding School Policy, 7 (2019), available at:
https://www.narf.org/nill/documents/trigger-points.pdf.
11
See, e.g. “Indigenous peoples and boarding schools: a comparative study,” E/C. 19/2010/11, Permanent
Forum on Indigenous Issues, United Nations Economic and Social Council; see also, Inter-American
Commission on Human Rights 140 Period of Sessions, “Situation of Indigenous Children in Schools in the
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required to adopt new names and prohibited from speaking their indigenous languages.12
They were subjected to harsh discipline, and often experienced physical and sexual
violence. The conditions at the schools were often abysmal, and students suffered from
poor sanitation and nutrition. Disease was rampant.13
Families were compelled to send their children to federal boarding schools. If they
resisted, their rations could be cut off or they could be incarcerated. In one example,
nineteen Hopi men were incarcerated at Alcatraz in 1895 for nearly a year.14 According
to the Adjutant General of Alcatraz they were to be held until, “they shall evince, in an
unmistakable manner, a desire to cease interference with the plans of the government for
the civilization and education of its Indian wards.”15 Federal policy was aimed at
completely severing the familial and cultural ties of Indian children. John B. Riley,
Superintendent of Indian Schools, described the government’s preference for sending
Indian children to off-reservation boarding schools saying “only by complete isolation of
the Indian child from his savage antecedents can he be successfully educated.”16 Indian
children were discouraged from returning home during school breaks, and an “Outing
System” was created to send them to stay with white families where they were required
to perform unpaid labor.17 Many children died in the outing program or while at the
schools, and often their families never received word about what had happened to them.
In 1928, the Meriam Report described the Indian boarding school system as a failure,
noting:
“The theory was once held that the problem of the race could be solved by
educating the children, not to return to the reservation … The plan failed …
[The] worst of its features still persists, and many children today have not
seen their parents or brothers and sisters in years.”18
The cruelty and brutality of the boarding school policy has been repeatedly recognized by
the United States. In 2000, Assistant Secretary-Indian Affairs Kevin Gover formally
apologized for the cultural genocide perpetrated against AI/AN communities by the Board
of Indian Affairs.19 Gover made specific reference to the institution of Indian Boarding
Schools, saying “these wrongs must be acknowledged if the healing is to begin.” In 2009,
Congress similarly passed an apology resolution, introduced by Senator Brownback, that
United States”. Participants: State of the United States, Boarding School Healing Project and others. Online:
http://www.oas.org/es/cidh/audiencias/TopicsList.aspx?Lang=en&Topic=16.
12
Native American Rights Fund, supra note 10.
13
David Adams, Education for Extinction: American Indians and the Boarding School Experience 1875-
1928, 1995.
14
Wendy Holliday, “Hopi Prisoners on the Rock,” National Park Service, available at
https://www.nps.gov/articles/hopi-prisoners-on-the-rock.htm.
15
WGEID submission, p. 2
16
U.S. Department of the Interior, “Report of the Indian School Superintendent, 1886,” Annual Report of
the Commissioner of Indian Affairs for the Year 1886, Washington, D.C.: U.S. G.P.O., 1886, LXI.
17
Native American Rights Fund, supra note 10 at 13.
18
Institute for Government Research, The Problem of Indian Administration, 574 (Lewis Meriam ed., Johns
Hopkins Press 1928).
19
U.S. Dep’t of Interior, Indian Affairs, “Gover Apologizes for BIA’s Misdeeds,” (Sept. 9, 2000), available at:
https://www.bia.gov/as-ia/opa/online-press-release/gover-apologizes-bias-misdeeds.
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acknowledged the forcible removal of Indian children and the boarding school policy and
apologized “to all Native Peoples for the many instances of violence, maltreatment, and
neglect inflicted on Native Peoples by citizens of the United States.”
The United States was not alone in its use of educational institutions as a tool for forced
assimilation of indigenous peoples. Similar histories occurred in Australia, New Zealand,
India, Canada, and many other nations.20 Canada and the United States have especially
parallel histories, and the United States policy served as a model for the residential
schools in Canada. In the late 1800’s, Canadian officials toured Indian schools in the
United States to discuss the policy of “aggressive civilization.”21
The Canadian and U.S. experiences diverge, however, when it comes to efforts to
acknowledge and redress the harms done through federal Indian education policies. In
2007, as a result of a class-action settlement, Canada launched a compensation fund to
provide reparations to survivors of its residential school system. The Indian Residential
Schools Settlement Agreement (IRSSA) included a Common Experience Payment for all
individuals who attended the schools; provided a five-year endowment for the Aboriginal
Healing Foundation; and created an Independent Assessment Process (IAP) to
adjudicate claims involving abuse at the schools. A recent report found that over $3 billion
was paid to survivors.22
In addition to the IRSSA, from 2007 to 2015, the Canadian government invested $72
million in its Truth and Reconciliation Commission, a body explicitly appointed to
investigate the legacy of the Canadian Indian Residential Schools. The Commission
spoke with more than 6,500 witnesses, and the 2015 Commission report condemned the
Canadian government for cultural genocide.23 The Commission concluded that over
6,000 children had died while attending Canada’s residential schools.
While multiple U.S. government reports have acknowledged the abuses of the federal
Indian schools, there has previously been no serious effort akin to the TRC and no effort
whatsoever to compensate those individuals impacted by the federal Indian boarding
schools. Lawsuits filed on behalf of boarding school survivors have been dismissed by
the U.S. courts. The 2009 Apology Resolution explicitly stated that it did not authorize any
legal claims. The United States government has never determined how many children
died or disappeared in their custody nor provided a list of students who attended
residential schools.
The ongoing impacts of the federal Indian boarding schools are felt on a daily basis in
many Native communities. In addition to carrying the intergenerational trauma of relatives
who returned from the boarding schools, many families also continue to experience the
20
Indigenous peoples and boarding schools: a comparative study, E/C. 19/2010/11, Permanent Forum on
Indigenous Issues, United Nations Economic and Social Council
21
Native American Rights Fund, supra note 10 at 23.
22
Independent Assessment Process Oversight Committee, Final Report (2021), available at:
http://www.iap-pei.ca/media/information/publication/pdf/FinalReport/IAP-FR-2021-03-11-eng.pdf.
23
Government of Canada, Truth and Reconciliation Commission of Canada, at: https://www.rcaanc-
cirnac.gc.ca/eng/145012440559Government 2/1529106060525.
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pain of knowing that some relatives did not return. Families and advocates have been
seeking information about their missing relatives for many years.24 Tribal communities
are committed to bringing their children home, no matter how many years have passed.
It has proven nearly impossible in many cases for families to uncover information about
individual students who attended the boarding schools.25
The Federal Indian Boarding School Initiative
On June 22, 2021, United States Secretary of the Interior Debra Anne Haaland introduced
the Federal Indian Boarding School Initiative, a program which aims to investigate the
destructive assimilationist legacy of Indian Boarding Schools within the United States.26
According to Secretary Haaland’s June memorandum, the Department of the Interior will
undertake an investigation to locate and record Indian Boarding School sites and
indigenous student burial sites. It will further create a database of the identities and tribal
affiliations of children held at these facilities.
Prior to undertaking this endeavor, the Assistant Secretary – Indian Affairs will consult
with leaders of Tribal Nations, Alaska Native corporations, and Native Hawaiian
organizations to ensure that the collection and disclosure of potentially sensitive
information is carried out in a culturally sensitive manner.
Secretary Haaland’s initiative has received the support of the National Indian Child
Welfare Association,27 the National Congress of American Indians,28 and the National
Native American Boarding School Healing Coalition29.
24
The International Indian Treaty Council, the Native American Rights Fund, the National Native American
Boarding School Healing Coalition, and the National Indian Child Welfare Association, “Joint Submission
to the UNWGEID 118th Session on the Obstacles in the United States of America to Implementation of the
Declaration on the Protection of All Persons from Enforced Disappearance; And on Individual
Disappearances,” (April 12, 2019), available at,
https://secureservercdn.net/198.71.233.187/ee8.a33.myftpupload.com/wp-
content/uploads/2019/05/WGEID-Filing_Final-Submission_04122019.pdf
25
Ibid. p. 10
26
The Secretary of the Interior, “Federal Indian Boarding School Initiative,” (June 22, 2021) available at,
https://www.doi.gov/sites/doi.gov/files/secint-memo-esb46-01914-federal-indian-boarding-school-truth-
initiative-2021-06-22-final508-1.pdf
27
National Indian Child Welfare Association, “NICWA Applauds U.S. Interior Secretary Deb Haaland in the
Announcement of the Federal Government’s Plan to Launch the Federal Indian Boarding School Initiative,”
(June 22, 2021), available at, https://www.nicwa.org/nicwa-applauds-u-s-interior-secretary-deb-haaland-in-
the-announcement-of-the-federal-governments-plan-to-launch-the-federal-indian-boarding-school-
initiative/
28
The National Congress of American Indians, “NCAI President Sharp Addresses Today’s Announcement
of the Federal Indian Boarding School Initiative,” (June 23, 2021), available at
https://www.ncai.org/news/articles/2021/06/23/ncai-president-sharp-addresses-today-s-announcement-
of-the-federal-indian-boarding-school-initiative
29
The National Native American Boarding School Healing Coalition, NABS Supports Federal Indian
Boarding School Investigation and Calls for Congressional Truth Commission, (June 25, 2021), available
at, https://boardingschoolhealing.org/nabs-supports-federal-indian-boarding-school-investigation-and-
calls-for-a-congressional-truth-commission/
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Relevant Legislation
In September of 2020, Senator Elizabeth Warren and then-Representative Debra Anne
Haaland introduced the Truth and Healing Commission on Indian Boarding School Policy
Act, which would create a commission to study the previous and lasting effects of the
practice of Indian Boarding Schools within the United States.30 The commission would
formally investigate and document - cultural genocide, assimilation practices, and human
rights violations of Indian Boarding Schools in the United States. It would also study the
impact and ongoing effects of historical and intergenerational trauma in Tribal
communities. In turn it would provide a forum for indigenous victims and families to
discuss the personal impacts of physical, psychological, and spiritual violence. Another
goal of the commission is to further develop recommendations for the Federal
Government to acknowledge and heal the historical and intergenerational trauma caused
by the Federal Indian Boarding School Policy and other cultural genocide practices. This
includes recommendations to stop the continued removal of Native children from their
families and Tribal communities under modern-day assimilation practices carried out by
State social service departments, foster care agencies, and adoption services.31 Senator
Warren has announced her intention to reintroduce this act in the 117th Congress.32
Resolution #AK-21-004 by the National Congress of American Indians endorses the
passage of this bill.33
This Congress, Senator Cory Booker and Representative Barbara Lee have additionally
introduced concurrent resolutions urging the establishment of a Commission Truth, Racial
Healing, and Transformation. The commission would seek to properly acknowledge,
memorialize, and be a catalyst for progress toward—
(A) jettisoning the belief in a hierarchy of human value;
(B) embracing our common humanity; and
(C) permanently eliminating persistent racial inequities.
In doing so it would, among other measures, investigate the legacy of slavery, federal
Indian Boarding School policies in the 19th and 20th centuries.34
In Line with Existing ABA Policy
The ABA has long supported the rights of Native peoples, including upholding the right to
self-determination of Indigenous peoples, the opportunity to address historic injustices,
the fulfillment of the United States’ historic and unique federal trust responsibility owed to
30
Truth and Healing Commission on Indian Boarding School Policy, S. 4752, 116th Congress (2019-2020).
31
Ibid.
32
Elizabeth Warren, Twitter post, June 22, 2021, 7:52 p.m., available at,
https://twitter.com/SenWarren/status/1407486799501537280
33
National Congress of American Indians, “The National Congress of American Indians Resolution #AK-
21-004,” (June 20-24, 2021), available at,
https://secureservercdn.net/198.71.233.187/ee8.a33.myftpupload.com/wp-content/uploads/2021/07/AK-
21-004-NCAI-Reso.pdf
34
A Concurrent Resolution Urging the Establishment of a United States Commission on Truth, Racial
Healing, and Transformation, S.Con.Res.6, 117th Congress (2021-2022).
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Indian tribes, the need to address threats to the health and well-being of American Indian
and Alaska Native (AI/AN) people, the cultural importance of keeping AI/AN children with
their families and Native communities, the need to endorse and implement the United
Nations Declaration on the Rights of Indigenous Peoples, the need to acknowledge and
prioritize responding to the ongoing crises of missing and murdered Indigenous persons
and the need to investigate and address injustices through support for federal
commissions, federal initiatives, and federal legislation. This resolution is a natural
extension of these existing ABA policies.
In 1980, the ABA adopted Resolution 80M110, urging strict adherence to Indian treaty
obligations.35 The report to the resolution notes:
The trust responsibility imposes on the United States an important standard of
conduct. In Seminole Nation v. United States, 316 U.S. 286 (1942), the Supreme
Court stated that the United States “has charged itself with moral obligations of the
highest responsibility and trust. Its conduct, as disclosed in the acts of those who
represent it in dealing with the Indians should therefore be judged by the most
exacting fiduciary standards.” Id. at 297. … Under the trust responsibility to Indian
tribes, specifically recognized by Congress and the courts and secured by the
treaties, statutes, and 150 years of judicial precedent, Indian tribes should be able
to look to the future confident that the federal government will approach its
obligation to Indian tribes in a manner consistent with its duty of protection.
80M110, 2-3.
In 2002, the ABA adopted Resolution 02A110, which urged the consideration of factors
including “the opportunity to address historic injustices and fulfill the continuing federal
trust obligation to support viable tribal communities…”36 In 2019, the ABA adopted
Resolution 19A115A which “encourages and supports legislation that: (1) addresses
threats to the health and well-being of American Indian and Alaska Native people” and
“(4) contributes to the fulfillment of the United States’ historic and unique federal trust
responsibility owed to Indian tribes.”37
The ABA has adopted multiple resolutions supporting the cultural importance of keeping
AI/AN children with their families and Native communities. Resolution 13A111A38 urged
full compliance with the Indian Child Welfare Act (ICWA)39 which recognizes the harm
inflicted by the government-orchestrated separation of AI/AN children from their parents
and articulates the cultural importance of keeping AI/AN children with their families and
35
Resolution 80M110, https://www.americanbar.org/content/dam/aba/administrative/crsj/committee/feb-
80-indian-treaty-obligations.authcheckdam.pdf.
36
Resolution 02A110, https://www.americanbar.org/content/dam/aba/administrative/crsj/committee/aug-
02-water-rights.authcheckdam.pdf.
37
Resolution 19A115A, https://www.americanbar.org/content/dam/aba/directories/policy/annual-
2019/115a-annual-2019.pdf.
38
Resolution 13A111A, https://drive.google.com/file/d/1M4xwYVdupiUoKq8TURWkzI9-W5oO_E3x/view.
39
P.L. 95–608, Approved November 8, 1978 (92 Stat. 3069) Indian Child Welfare Act Of 1978. 25 U.S.C.
§§1901-63.
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tribal communities. Resolution 19A115C further supported the constitutionality of the
Indian Child Welfare Act.40
Resolution 15M111A41 adopted the recommendations from the Indian Law and Order
Commission’s November 2013 Report, “A Roadmap for Making Native America Safer.”42
In its recommendations, the Commission addressed the importance of keeping American
Indian and Alaska Native children in the care of tribal members in order to preserve tribal
culture. It further made note of the “intergenerational trauma” experienced by indigenous
youth as a result of Indian Boarding Schools and other such assimilationist measures.
Resolution 15A11343 urged the prompt implementation of certain recommendations of the
U.S. Attorney General’s Advisory Committee on American Indian/Alaska Native Children
Exposed to Violence November 2014 report, “Ending Violence so Children Can Thrive.”44
The report focused attention on the vulnerable position of American Indian and Alaska
Native children and the ongoing challenges they have had to confront. In addition to
recommending ICWA compliance, the report also recommended strengthening ICWA.
Among its recommendations, the report called for tribal criminal jurisdiction over all
persons who commit crimes against American Indian and Alaska Native children,
increased tribal access to student records, increased funding for tribal child dependency
and delinquency systems, and increased “training in culturally adapted trauma-informed
interventions and cultural competency to provide appropriate services to AI/AN children
and their families.”
Resolution 21M107D urged the adoption of the United Nations Declaration on the Rights
of Indigenous Peoples, which affirms the rights of indigenous tribes to self-
determination.45 There are multiple relevant provisions in the United Nations Declaration
on the Rights of Indigenous Peoples including, but not limited to, the following:
1. 2nd clause of Article 7 provides that “Indigenous peoples have the collective right
to live in freedom, peace and security as distinct peoples and shall not be subjected
to any act of genocide or any other act of violence, including forcibly removing
children of the group to another group.” [emphasis added];
2. Article 8 protects indigenous peoples from the “forced assimilation or destruction
of their culture” and further demands that states provide “effective mechanisms for
prevention of, and redress for” any such actions; and
40
Resolution 19A115C, https://www.americanbar.org/content/dam/aba/directories/policy/annual-
2019/115c-annual-2019.pdf.
41
Resolution 15M111A, https://www.americanbar.org/content/dam/aba/administrative/crsj/committee/feb-
15-make-native-america-safer.authcheckdam.pdf.
42
https://www.aisc.ucla.edu/iloc/report/index.html.
43
Resolution 15AA113, https://www.americanbar.org/content/dam/aba/administrative/crsj/committee/aug-
15-violence-against-children.authcheckdam.pdf.
44
https://www.justice.gov/sites/default/files/defendingchildhood/pages/attachments/2014/11/18/finalaianre
port.pdf.
45
Resolution 21M107D,
https://docs.google.com/document/d/1MZiAnDafoHmwFeBjKxaJcgTcUmzV1g7D/edit.
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3. Article 12 provides that “Indigenous peoples have the right to manifest, practise,
develop and teach their spiritual and religious traditions, customs and ceremonies;
the right to maintain, protect, and have access in privacy to their religious and
cultural sites; the right to the use and control of their ceremonial objects; and the
right to the repatriation of their human remains.” [emphasis added] and “States
shall seek to enable the access and/or repatriation of ceremonial objects and
human remains [emphasis added] in their possession through fair, transparent
and effective mechanisms developed in conjunction with indigenous peoples
concerned”; and
4. Article 14 provides that:
“1. Indigenous peoples have the right to establish and control their educational
systems and institutions providing education in their own languages, in a manner
appropriate to their cultural methods of teaching and learning.
2. Indigenous individuals, particularly children, have the right to all levels and
forms of education of the State without discrimination.
3. States shall, in conjunction with indigenous peoples, take effective measures,
in order for indigenous individuals, particularly children, including those living
outside their communities, to have access, when possible, to an education in
their own culture and provided in their own language.”
Resolution 20M10A “urges federal, state, local, territorial, and tribal governments to
acknowledge and prioritize responding to the Missing and Murdered Indigenous Women
(MMIW) crisis” and “urges Congress to enact legislation that:46
1. Makes accurate national data collection on the MMIW crisis a priority that includes tribal
access to those databases; 2. Requires federal and state officials to develop inter-
jurisdictional protocols for tracking and responding to the MMIW crisis that include
collaborative efforts with tribal nations; and 3. Provides resources to respond to the MMIW
crisis to include training of law enforcement and funding for tribal justice systems.” This
MMIW resolution is especially relevant here since the missing and murdered boarding
school children that are the focus of this resolution are essentially missing and murdered
Indigenous persons in earlier eras and the specific actions urged here are consistent with
the specific actions urged in the prior MMIW resolution.
The ABA has also adopted resolutions that argue for the creation of commissions to study
historic injustices in other contexts. For example, Resolution 06M108A endorsed the
creation of a commission to study the lasting social, political, and economic
consequences of slavery upon persons of African descent within the United States. The
American Bar Association’s passage of this resolution reflects support for the study of
past systematic violence perpetrated against minority communities by the United States
government. The trauma inflicted upon AI/AN communities through the practice of Indian
Boarding Schools requires an analogous investigation.
46
Resolution 20M10A, https://www.americanbar.org/content/dam/aba/directories/policy/midyear-
2020/2020-midyear-10a.pdf.
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Addressing the pain, trauma, and injustice experienced by tribal communities because of
the U.S. “boarding school” era falls directly in line with prior ABA policy and will represent
a significant call to action for a long-ignored, dark part of American history.
Respectfully submitted,
Angela J. Scott
Chair, ABA Section of Civil Rights and
Social Justice
August 2021
10801
GENERAL INFORMATION FORM
Submitting Entity: Section of Civil Rights and Social Justice
Submitted By: Angela J. Scott, Section Chair
1. Summary of Resolution(s).
This resolution urges all persons, organizations, and governmental entities
to support and assist the Department of the Interior’s Federal Indian Boarding
School Initiative and the Truth and Healing Commission.
2. Indicate which of the ABA’s Four goals the resolution seeks to advance (1 – Serve
our Members; 2-Improve our Profession; 3-Eliminate Bias and Enhance Diversity;
4-Advance the Rule of Law) and provide an explanation.
The resolution seeks to advance Goal 3 to eliminate bias and enhance diversity.
In acknowledging the reality of the atrocities committed and the extent of the
impact of the “boarding school” policy, the ABA can play a role in addressing the
injustice that has gone on for so long.
This resolution additionally advances Goal 4, to advance the rule of law, by
providing answers, accountability, and relief for past abuses, and ensuring the
applicability of the rule of law in the future.
3. Approval by Submitting Entity.
Approved by the Section of Civil Rights and Social Justice Executive Committee
on July 29, 2021.
4. Has this or a similar resolution been submitted to the House or Board previously?
No.
5. What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
15M111A, 19A115C, and 15A113 support protections for vulnerable indigenous
children. 21M107D affirms the rights of indigenous people. 20M10A supports
research into Missing and Murdered Indigenous Women. 06M108A calls for the
creation of a commission to study the effects of slavery and its denial thereafter.
95M110 affirms the rights of children generally. 84M103A urges the legal
profession to direct attention to issues affecting children and 09A118B urges
federal and state legislatures to implement and enforce laws that promote a safe
and supportive school environment for all children.
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6. If this is a late report, what urgency exists which requires action at this meeting of
the House?
On July 12, 2021, ABA President Patricia Lee Refo became the first ABA President
to visit the Navajo Nation. During her visit, Navajo officials, including Navajo
President Jonathan Nez and Delegate Amber Kanazbah Crotty, asked for the
ABA’s assistance in addressing the Indian Boarding School Crisis as news of the
identification of unmarked, mass graves of Indian children have been found on the
grounds of boarding schools in Canada. In the last month, the mass graves of
more than 1,500 children have been found on the grounds of seven former
residential schools in Canada. The boarding school practice was not limited to
Canada. Recognizing that, on June 22, 2021, Interior Secretary Debra Anne
Haaland, a member of the Pueblo of Laguna and the first Indigenous person to
lead a Cabinet agency, announced an investigation into the U.S.’s Indian Boarding
School Policy. The investigation seeks to gather information on possible unmarked
graves at boarding school facilities in the U.S. and on the decades of
institutionalized, federally funded cultural assimilation that has led to a host of
negative outcomes for survivors and their families, from mental health issues to
the loss of entire communal generations.
7. Status of Legislation.
Senator Elizabeth Warren (D-MA) has announced her intention to re-introduce S.
4752 - Truth and Healing Commission on Indian Boarding School Policy Act in the
117th Congress. The bill was initially introduced on September 29, 2020 but did
not advance beyond referral to the Senate Committee on Indian Affairs during the
116th Congress. This resolution will allow for the ABA to lobby in favor of the
pending legislation, and similar federal, state, and local legislation.
8. Brief explanation regarding plans for implementation of the policy, if adopted by
the House of Delegates.
The Section will work with relevant internal and external stakeholders and the
Governmental Affairs Office to ensure implementation of the resolution.
9. Cost to the Association.
The adoption of the proposed resolution would result in indirect costs related to
ABA and Section staff time devoted to advocacy for the subject matter of the
resolution, as part of overall staff responsibilities.
10. Disclosure of Interest. N/A
11. Referrals.
Coalition on Racial and Ethnic Justice
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Commission on Disability Rights
Commission on Domestic and Sexual Violence
Commission on Hispanic Legal Rights & Responsibilities
Commission on Racial and Ethnic Diversity in the Profession
Commission on Sexual Orientation and Gender Identity
Commission on Women in the Profession
Commission on Youth at Risk
Council for Diversity in the Educational Pipeline
Criminal Justice Section
Diversity and Inclusion Center
Division for Public Education
Hispanic National Bar Association
King County Bar Association
Massachusetts Bar Association
National Asian Pacific American Bar Association
National Bar Association
National Native American Bar Association
Section of State and Local Government Law
Tribal Courts Council
12. Contact Name and Address Information (Prior to the Meeting).
Paula Shapiro, Section Director
ABA Section of Civil Rights and Social Justice
Tel.: (860) 508-5550
Email: paula.shapiro@americanbar.org
13. Contact Name and Address Information. (Who will present the Resolution with
Report to the House? Please include best contact information to use when on-site
at the meeting. Be aware that this information will be available to anyone who views
the House of Delegates agenda online.)
Mark I. Schickman, CRSJ Section Delegate
San Francisco, CA
Tel.: (510) 4672909
E-mail: mark@schickmanlaw.com
Paul R. Q. Wolfson, CRSJ Section Delegate
Washington, D.C.
Tel: (202) 663-6390
Email: paul.wolfson@wilmerhale.com
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EXECUTIVE SUMMARY
1. Summary of the Resolution
This resolution urges all persons, organizations, and governmental entities
to support and assist the Department of the Interior’s Federal Indian Boarding
School Initiative and the Truth and Healing Commission.
2. Summary of the Issue that the Resolution Addresses
The United States government committed cultural atrocities through the institution
of Indian Boarding Schools during the nineteenth and twentieth centuries. In the
absence of comprehensive, transparent data on the wrongs which occurred,
indigenous communities are unable to heal from this cultural trauma.
3. Please Explain How the Proposed Policy Position Will Address the Issue
This resolution calls for data collection and recommendations for constructive
action. United States Secretary of the Interior Debra Anne Haaland’s Federal
Indian Boarding School Initiative seeks to uncover and create an accurate record
of the violent history of Indian Boarding Schools. A Truth and Reconciliation
Commission will investigate the root causes to ensure that no similar atrocities
occur in the future.
4. Summary of Minority Views or Opposition Internal and/or External to the ABA
Which Have Been Identified
None have been identified.
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