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Events History Informational News Student Reflections

The Impact of Covid-19 on Native American Students’ Access to Technology

By William Dunn

Native American communities across the country have experienced numerous hardships over the course of the pandemic, ranging from limited access to medical care and other basic needs to extreme isolation for the most vulnerable members. The impact on student education will be felt for years in the future no matter where students sheltered in place, and it will be especially recognizable in rural areas where geographic and social isolation have always created barriers for students. Lack of access to technology limits one’s ability to complete assignments and limits access to other resources such as classroom instruction and tutoring services. Amid the shelter-in-place orders, students have faced many barriers like this that are crucially tied to academic performance. Recognizing the historical and social factors that have exacerbated the impact that Covid-19 has had on Native American students is essential to understanding why there have been such disproportionate effects compared to the rest of the country.

            With New Mexico already facing some of the lowest rates of broadband access in the country, Native American families encountered particular struggles to adapt to stay-at-home guidelines. Lack of access to broadband and Wi-Fi services was a primary concern. In 2018, the

Federal Communications Commission estimated that roughly 35% of individuals living on tribal lands in the United States lacked access to broadband services compared to only 8% of Americans in the rest of the country.[1]  Reasons for this may include costs of Wi-Fi services, limitations on digging within historical areas on reservations, and the physical structure of adobe homes in rural communities.[2] According to the New Mexico Public Education Department, “as of April 10, 2020, approximately 23,398 Native American students were in need of broadband capabilities and devices.”[3] Many students thus had to find other ways of submitting assignments and attending classes.

            To stay on top of assignments, students have reported writing and submitting papers on their cellphones or doing assignments by hand and submitting photos.[4] There are also reports of parents driving their children to libraries, restaurants, and other, sometimes very remote, locations to have access to high-speed Internet.[5] Most students were initially able to engage in distanced learning through cell phone video services, however, limited data and call minutes removed that as a permanent solution.[6] Some students are reported to have taught themselves lesson material where they had no other resources to learn.[7] The severity of the situation is elevated by the limitations on access to basic needs such as clean water, food, and adequate medical attention.[8] Native communities were impacted at much higher rates than other demographics in the country and it is important to understand some of the systemic factors that caused the pandemic to exacerbate problems in Indian Country to such a great extent.

            The disproportionate impact that Covid-19 had on Native communities, compared to that of other demographics, laid bare the “historically embedded structural vulnerabilities” that have impacted student access to technology in Indian Country. Tribal land status and infrastructure limitations are two major factors that lie at the heart of the issue. According to a 2020 study by the University of British Columbia, “[t]ribal land status is also related to the lack of Internet access as Tribes have unique geopolitical and geophysical terrain influenced by colonization, cultural practices, sovereignty and Tribal governance.”[9] Access to Internet services is highly dependent on Tribal sovereignty and is limited by “external obstacles such as federal policies, statutory and regulatory requirements, and historically overlooked and underfunded Internet infrastructure.”[10] The study explored five “historically-identified vulnerability” variables, which have contributed to the disproportionate impact of Covid-19 among Native Americans. The five variables include “percent of housing units without telephone, percent of housing units without Internet, percent of housing units without complete plumbing, Tribal land status, and presence of abandoned uranium mines.”[11] The barriers to student education throughout the pandemic must be understood by recognizing the impact of historical racism that has created the structural vulnerabilities that Native American students have had to contend with in socially distanced learning.

             Native American students living in rural parts of the country have had to endure some of the greatest challenges to receive an education compared to students in the rest of the country. Broadband access and infrastructure continue to create barriers to student access to technology and education as well as other vital health services in tribal land. As a result, students have been forced to adapt in all sorts of ways to stay on top of schoolwork and attend remote classes. If there is any hope of creating the systemic change necessary to make educational resources more available for Native American students, it is essential to understand the factors that have created these barriers to access including the destructive impacts of federal policy and Western cultural practices.


[1] Gabriel R. Sanchez et al., Internet Access and the Impact on Tribal Communities in New Mexico, UNM Nᴀᴛɪᴠᴇ Aᴍ. Bᴜᴅɢᴇᴛ & Pᴏʟ’ʏ Iɴsᴛ. 3 https://www.iad.state.nm.us/wp-content/uploads/2020/06/nabpi-iad-broadband-report-final.pdf (last visited April 13, 2022).

[2] Id. at 4.

[3] N.M. Pᴜʙʟɪᴄ Eᴅᴜᴄ. Dᴇᴘᴛ., Iɴᴛᴇʀɴᴇᴛ Cᴏɴɴᴇᴄᴛɪᴠɪᴛʏ Cᴏɴᴄᴇʀɴs ᴏɴ Tʀɪʙᴀʟ Lᴀɴᴅs: Gᴜɪᴅᴀɴᴄᴇ Dᴏᴄᴜᴍᴇɴᴛ (2020).

[4] Anja Rudiger, Pathways to Education Sovereignty: Taking a Stand for Native Children, Tʀɪʙᴀʟ Eᴅᴜᴄ. Aʟʟ. 27 (Dec. 2020), https://nabpi.unm.edu/assets/documents/tea-full-report_12-14-20.pdf.

[5] Sanchez, supra note 1, at 4.

[6] Candi Running Bear et al., Challenges for Rural Native American Students With Disabilities During COVID-19, 40 Rᴜʀᴀʟ Sᴘᴇᴄɪᴀʟ Eᴅᴜᴄ. Q. 60, 64 (2021).

[7] Rudiger, supra note 4.

[8] Running Bear, supra note 6, at 61.

[9] Aggie J. Yellow Horse et al., COVID-19 in New Mexico Tribal Lands: Understanding the Role of Social Vulnerabilities and Historical Racisms, Fʀᴏɴᴛɪᴇʀs ɪɴ Sᴏᴄɪᴏʟᴏɢʏ 3 (2020).

[10] Id.

[11] Id. at 5.

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Commentary Events Indigenous Law

Jurisdiction Over American Indian Child Custody Cases

By Barbara Ryan

The United States Supreme Court will hear arguments about whether the Indian Child Welfare Act (ICWA) is constitutional later this year.[1] The Court may decide to keep the law, modify it or strike it altogether.  Before ICWA, child welfare agencies were ignorant or insensitive to cultural differences in child-rearing.[2] Over 75 percent of Indian families living on reservations lost at least one child to either private or public agencies.[3] In 1978, Congress enacted ICWA in recognition that children were vital to the continued existence of Indian tribes.[4] The purpose of ICWA was to  

“…protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture…”[5]

ICWA established minimal standards for the removal of American Indian children and provided guidelines for the placement of those children in either foster or adoptive homes that reflected their values and culture.[6] Later this year, the Supreme Court will decide if those protections are still needed. 

Before decisions about placement or permanency are made, there must be a determination about which court has jurisdiction over child custody proceedings. A “child custody proceeding” is an adjudicatory hearing where the court determines the necessity and placement of children, including foster placement, termination of parental rights, and adoptive placements.[7] The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) uses four factors to determine jurisdiction.[8] The factors are based on the child’s affiliation to the State.[9] First, a home state is where the child has lived for at least the last six months before any custody action.[10] The second is a significant connection with substantial evidence of a connection to that state.[11] Third, an emergency resulting from an urgent circumstance such as abandonment or abuse that requires an immediate protective response.[12] Fourth is via vacuum when no other jurisdiction basis exists.[13]  These factors are used for children across the country but do not apply to American Indian children.

UCCJEA does not apply to custody cases involving American Indian children; instead, they are governed by ICWA.[14]  Tribal-State jurisdictional disputes may occur only when States have enacted the optional Section 104 of the UCCJEA.[15]  In such cases, States must treat tribes, Tribal courts, and Tribal court custody orders with full faith and credit as they would with other states.[16]  Tribes have exclusive jurisdiction over an Indian child who lives on the reservation and is enrolled or is eligible for enrollment, except where such jurisdiction is vested in State or Federal law.[17]

Many years of advocacy and litigation have shaped Tribal jurisdiction.  In United States v. Mazurie, the  Supreme Court held that state jurisdiction is based on where the parties live, but tribal jurisdiction is determined by the relationship the member has with the tribe irrespective of where any of the parties live.[18]   In Miles v. Chinle Fam. Ct., the State Court held the Navajo Nation had jurisdiction over their enrolled members regardless of where either the parent or child lives.[19]  The determining factor in jurisdiction is the enrollment status.[20] In Father J v. Mother A, the Court concluded that children have “rights and privileges” as enrolled members including to access the tribal courts. [21] Additionally, the Court concluded that UCCJEA did not effect in any way the Indian Child Welfare Act, thus did not apply. [22]  Further, the Court stated that in “child custody proceeding involving an Indian child is not subject to the UCCJEA.”[23]Lastly, the Court emphasized that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to a Nation unless the Tribe had adopted it.[24]

The Miles Court also addressed two critical aspects as delineated in UCCJEA. First, the Court emphasized that Tribal Nations are entitled to comity and should also be afforded res judicata like other states.[25]  Second, the State Court stayed action until tribal remedies had been exhausted.[26] Tribal exhaustion means that the Tribe must be given a chance to resolve the issues.[27]  The exhaustion requirement also provides the Tribe an opportunity to determine the scope of the issues, develop a complete record, and explain tribal jurisdiction.[28]   The United States Supreme Court concluded in National Farmers Union Insurance Cos. v. Crow Tribe that defendants with cases pending in Tribal Court must exhaust all available remedies at the tribal level before proceeding with an action in federal court. [29] Exhaustion could include challenges to jurisdiction or of the action in Tribal court.[30]

Along with exhaustion, many courts have considered and attempted to preempt conflicting judgements. The Father J v. Mother A Court emphasized the importance of avoiding conflicting judgments in cases with similar substance and procedure.[31] In Garcia v. Gutierrez, the Court wrestled over the concern of concurrent jurisdiction resulting in contradictory decisions.[32]  After considering the Infringement Test, the Court relied on the principle that Indian Nations are a “separate people” possessing “the power of regulating their internal and social relations…”[33] Only the federal government, not the states, can make such determinations because Congress has plenary power over Tribal Nations.[34]  For example, in Halwood v. Cowboy Auto Sales, Inc., the State Court acknowledged the Navajo Nation’s tribal sovereignty and “full faith and credit” of the Nation.[35]  Further, in Jim v. CIT Fin. Servs. Corp., the State was forced to use tribal law due to the full faith and credit of the Navajo Nation.[36] Many courts now recognize the power of Tribes over their own members and thus, give Tribal courts an opportunity to resolve custodial cases before they consider or accept jurisdiction.

Tribal Nations have jurisdiction above other courts over enrolled tribal members and children either enrolled or eligible for enrollment regardless of where they live.  A child custody case may be filed in federal court due to diversity jurisdiction; however, federal courts have historically either stayed or declined to adjudicate such claims in order to afford Tribal courts the first opportunity to determine their jurisdiction.[37]  The federal government has recognized that American Indian children are critical to the existence and integrity of their Nations and thus, enacted ICWA.  Although all states must comply with ICWA now, that may change with a decision on Brackeen.[38]  Although the federal government has recognized that Tribal Nations have the right “to make their own laws and be ruled by them,”[39] changes to ICWA causing erosion to tribal sovereignty could have a devastating effect on the survival of Tribal Nations.


[1] See Generally, Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).

[2] State of Montana, ICWA History and Purpose, https://dphhs.mt.gov/cfsd/icwa/icwahistory (last visited Mar. 6, 2022).

[3] Id.

[4] Indian Child Welfare Act, 25 U.S.C. § 1902 (1978).

[5] Id.

[6] Id.

[7]  25 U.S.C. §1903(1) (1978).

[8] U.S. Dep’t of Justice, The Uniform Child Custody Jurisdiction and Enforcement Act, Juvenile Justice Bulletin, 5 (Dec. 2001), https://www.ojp.gov/pdffiles1/ojjdp/189181.pdf.

[9] Id. at 2.

[10] Id.

[11] Id.

[12] Id. 

[13] Id. 

[14] Id. at 5.

[15] Id. (Native nations are sovereign and each tribe has its own child custody jurisdiction law.)

[16] U.S. CONST. art. IV, § 1 (full faith and credit requirement is derived from Article IV, Section I of the Constitution, that state courts respect the judgments of courts from other states.)

[17] 25 U.S.C. § 1911 (1978).

[18] United States v. Mazurie, 419 U.S. 544, 557 (1975).

[19] See generally Miles v. Chinle Family Court, No. SC-CV-04-08, 2008 WL 5437146.

[20] Id. at 613.

[21] Father J v. Mother A, No. MPTC-CV-FR-2014-207, 2015 WL 5936866, *2 (Mash. Pequot Tribal Ct. Aug. 21, 2015).   

[22] Id. at *5.

[23] Id.

[24] Id.; See also, 28 U.S.C. § 1738A (2000), (This law was enacted in 1980 to resolve jurisdictional conflicts, promote cooperation between states and abductions during interstate child custody disputes.) 

[25] Miles, SC-CV-04-08 at 7.

[26] Id. at 6.

[27] National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 857, 857 (1985).

[28] Id.

[29] Id. at 856.

[30] Id. at 857.

[31] Father J, 2015 WL 5936866 at *304.

[32] See generally Garcia v. Gutierrez, 147 N.M. 105, 217 P.3d 591 (2009).

[33] United States v. Kagama, 118 U.S. 375, 381–382 (1886). 

[34] Garcia, 147 N.M. at 107.

[35] Halwood v. Cowboy Auto Sales, Inc., 124 N.M. 77, 78, 946 P.2d 1088 (1997).

[36] See Generally Jim v. CIT Fin. Servs. Corp., 87 N.M. 362, 533 P.2d 751 (1975).

[37] National Farmers Union Insurance Cos., 471 U.S. at 857.

[38] See Generally Brackeen, 994 F.3d 249.

[39] Williams v. Lee, 358 U.S. 217, 219–220 (1959).

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Uncategorized

The Prior Existence, Authority and Necessity of Tribal Customary Law

by Nina Chester

Each Tribal Nation has experienced a unique introduction to settler society. American jurisprudence is a foreign judicial system that was imposed upon Tribal Nations by the United States federal government through regulations promulgated by the Bureau of Indian Affairs.[1] They were called Courts of Indian Offenses or Code of Federal Regulations Courts (CIO/CFR courts).[2] The initial purpose of the CIO/CFR courts was to prosecute Indians for practicing traditional Native American ceremonies, versus the compliant acceptance of Catholicism.[3] They were installed throughout Indian Country as boiler-plate court systems that operated in the written and spoken foreign English language.[4]Non-Indigenous settlers perceived Indian Nations to be without lawful order, “in response to such a perceived void the Secretary of the Interior relied upon his general authority over Indian affairs, not an express statutory authorization, to establish these courts.”[5] Despite the lack of Congressional initiation, the Courts of Indian Offenses and Code of Federal Regulations Courts remain.

Retrospectively, the CIO/CFR courts served as the foundational step towards establishing and operating a tribal court. Where tribes have had the capacity to operate a court within their sovereign governments, they have had more time to adapt their court systems to accommodate their cultures. Some Tribes continue to operate under ‘boiler-plate’ CIO/CFR courts. Where tribes currently do not have the capacity to operate their own tribal courts, the BIA operates CFR Courts for Tribes to use.[6]

To illustrate the origin and importance of tribal systems of social order, it is helpful to understand that before European, Spanish, French, and non-Indigenous settlement in North America, this vast piece of land existed in its natural state, largely undisturbed by development. For successful human survival on such wild terrain, intimate knowledge of plants, animals, and water resources were required; as was involvement with a community, a tribe. Each Tribal Nation accomplished societal order through customs, traditions, societies, and clanship systems bestowed upon them by their Deities, which ensured the emotional, physical, social, and psychological well-being and survival of the Tribe. Creation stories served as the basis for orientating Tribal Members within the world they were born into. The creation stories developed relationships between the individual and plants, insects, stones, mountains, animals, human beings, wind, water, fire, Earth, Deities, everything, and everyone. The individual learned that everything on Earth is sentient and capable of relationships. The individual also learned that there is a natural order to the way Mother Nature conducts her business of life, death, harvest, and hardship.[7]

For example, the word for balance or “the perfect state”[8] in Navajo is hozho. To be in harmony with Mother Nature one must seek to live in hozho. A Navajo-to-English translation of this view of the natural order is offered by former Navajo Nation Supreme Court Chief Justice Robert Yazzie, “The Navajo word for ‘law’ is beehaz’aanii.… Navajos believe that the Holy People ‘put it there for us from the beginning’ for better thinking, planning and guidance…. Through these prayers and ceremonies we are taught what ought to be and what ought not to be.”[9] Together, a tribal human society, the natural world, and the spiritual laws conferred upon a Tribe by their Deities, form what is contemporarily referred to as customary law. It is an expression of the rights and wrongs of conduct in relationship with other human beings, family members, affiliates, the natural world, and the Deities.

In 1832, the Supreme Court of the United States had no awareness of Tribal customary laws. Nevertheless, the Court supported the sovereignty of tribes over encroachment by state governments in Wocester v. Georgia, when it stated:

The Cherokee nation, … is a distinct community, occupying its own territory, … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress.[10]

In 1896, the Court supported the sovereignty of tribes over encroachment by the federal government in Talton v. Mayes when it reasoned that Indian Nations are sovereign because the United States has entered into treaties with them, “The very term ‘nation,’ … means a ‘people distinct from others.’ The constitution, by declaring treaties … to be the supreme law of the land, has adopted and sanctioned … treaties with the Indian nations, and … admits their rank among those powers who are capable of making treaties.”[11] Wocester and Talton affirmed the sovereignty of federally-recognized Tribal Nations for all civil judicial matters. However, the judicial powers of Indian Nations to prosecute their own Tribal members, Non-member American Indians, and Non-Indigenous people in criminal matters has become very limited.

Within the timeline of federal Indian policy, the Court has “recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments.”[12] Through use of the Court’s interpretation of cultural differences, the concept of quasi-sovereignty has been one of many tools used by the Court to attempt to deteriorate Tribal sovereignty. Other “tools” include the Major Crimes Act,[13] the Indian Reorganization Act,[14] and the Indian Civil Rights Act,[15] among others.

Given the historic mistreatment of Tribal Nations, Michael Taylor argues that, “[w]ithout an Indian judiciary, the tribes will always be dependent on foreign, sometimes hostile, state or federal judges to decide crucial questions that arise within the tribal territory.”[16] Therefore, a middle route is necessary. The Courts of Indian Offenses and Code of Federal Regulations Courts need to be fully embraced and imbued with cultural elements that reflect the belief systems of the Tribal Nations they serve. In this manner, they support the Tribal Nation internally and externally.

In order for a judiciary to be effective, it must match the values of a society. For Tribal Nations, customary law carries a weight equivalent to that of American Jurisprudence. Generally, individual sovereignty and an inherent responsibility or duty to one’s relations are foundational concepts of an indigenous worldview. When a dispute arises, a conversation involving families, clans, leaders, elders, and/or a spiritual component occurs about how the parties would prefer to proceed forward. This, generally and broadly speaking, is the judicial system. Everyone is an important piece in the process and everyone resolves the problem together.

Former Justice Yazzie describes the difference between the American adversarial approach to a judicial system and the traditional Navajo approach to a justice system, as “vertical justice”[17] vs. “horizontal justice.”[18] He shares that according to Navajo “religious leaders and elders … man-made law is not true ‘law.’ Law comes from the Holy People who gave the Navajo people the ceremonies, songs, prayers, and teachings to know it.”[19] In his statement, Former Justice Yazzie speaks to an inherent Navajo understanding of the spiritual essence of all that is and he stresses that human beings are but one piece to the universe. For contrast, he adds, “while Anglo law is concerned with social control by humans, Navajo law comes from creation.”[20] A “‘vertical’ system of justice is one which relies upon hierarchies and power[,]”[21] has a “preoccupation with the truth[,]”[22] and it “looks back in time to find out what happened and assess punishment for it.”[23] Vertical justice “does not try to find out what went wrong in order to restore the  mind, physical well-being, the spirit, and emotional stability. Conversely, Horizontal justice, in the form of Navajo justice, has a “focus on healing, integration with the group, and the end goal of nourishing ongoing relationships with the immediate and extended family, relatives, neighbors and community.”[24] The fundamental purpose of “Navajo justice is problem solving. Navajo legal thinking requires a careful examination of each aspect of a given problem to reach conclusions about how to best address it.”[25]

In 1982, the Navajo Nation established the Navajo Peacemaker Court, which incorporated traditional horizontal justice into the vertical CIO/CFR court system that was previously established. The Navajo Peacemaker Court gives Navajo judges and those seeking the services of the Navajo court an opportunity to reach a resolution by “talking things out.”[26] Peacemaking is similar to the option of mediation in American jurisprudence, but with spiritual and cultural elements distinct to the Navajo culture and society.[27] Another method of horizontal justice that is available for incorporation and similar to peacemaking is the talking circle, which also allows disputants the opportunity to heal through talking things out, making things right, and healing relationships.

Overall, Tribal Nations require different methods to achieve their own definitions of justice. Therefore, it is natural and necessary for Tribal Nations to reintroduce Tribally-developed systems of justice for proper and satisfactory judicial outcomes for Indian Country.


[1] Gloria Valencia-Weber, Tribal Courts: Customs and Innovative Law, 24 N.M. L. Rev. 225, 235 (1994).

[2] Id.

[3] Native Voices, Timeline Defining Rights and Responsibilities, National Library of Medicine (last visited Mar. 14, 2022), https://www.nlm.nih.gov/nativevoices/timeline/364.html.

[4] Valencia-Weber, supra note 1, at 236.

[5] Id. at 235.

[6] Bureau of Indian Affairs, Court of Indian Offenses, U.S. Department of the Interior (last visited Mar. 14, 2022), https://www.bia.gov/CFRCourts.

[7] See Ella Cara Deloria, Waterlily (University of Nebraska Press: Lincoln and London, 1988).

[8] Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. Rev. 175, 175 (1994).

[9] Id.

[10] Wocester v. Georgia, 31 U.S. 515, 520 (1832).

[11] Talton v. Mayes, 163 U.S. 376, 383-84 (1896).

[12] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 1684 (1978).

[13] Major Crimes Act of 1885, 18 U.S.C. § 1153.

[14] Indian Reorganization Act of 1934, 25 U.S.C. § 5123.

[15] Indian Civil Rights Act of 1968, 18 U.S.C. §§ 1301–1304.

[16] Michael Taylor, Modern Practice in Indian Courts, 10 U. Puget Sound L. Rev. 231, 274 (1987).

[17] Yazzie, supra note 8, at 177-180.

[18] Id. at 180-187.

[19] Id. at 176.

[20] Id. at 176.

[21] Id. at 177.

[22] Id. at 179.

[23] Id. at 179.

[24] Id. at 182.

[25] Id. at 176.

[26] Id. at 186.

[27] Id. at 187.

Categories
Commentary Criminal Law

The Violence Against Women Act and The Necessity to Protect Indigenous Women

By: Bree Barnett

Introduction

            The Violence Against Women Act (VAWA) is once again up for reauthorization in 2021. VAWA has been reauthorized only three times since its enactment in 1994, in hopes of combatting the pervasive crimes that were being committed against women. Since its original passage in the mid-nineties, the act has been somewhat successful, with the overall rate of domestic violence declining tremendously.[1] However, the problem is nowhere close to being eliminated, as one in three women will still experience domestic violence in their lifetime. The statistics for Indigenous women are even bleaker, with 4 in 5 experiencing domestic violence and more than 1 in 2 having experienced sexual violence.[2] Native American women continue to suffer the highest rates of forcible sexual assault and experience almost 10 times the rate of domestic violence compared to the rest of the United States.[3] This gap can be partially attributed to the historic failures of VAWA’s protections for Indigenous women. This paper will discuss these failures, the newest iteration of the bill, and how federal protections like VAWA could be strengthened to provide adequate protections for Indigenous women.

The History of VAWA and its Failure to Protect Indigenous Women

            The original version of VAWA was one of the first federal packages that was designed to end violent crimes that are often perpetuated against women like domestic violence and sexual assault. The bill was created to provide funding for victim services, strengthen criminal protections for these crimes, and also attempted to make the process of receiving a restraining order easier. While this bill felt like a victory to the many women’s rights activists who had lobbied tirelessly to implement this legislation, in many ways it fell short, especially for Indigenous women across America. Indigenous women were not even a group that was specifically named and targeted for help in the bill until its 2005 authorization, despite many statistical showings that they are one of the most vulnerable populations for these kinds of crimes.[4] It took a great deal of pushback for the 2005 reauthorization of the bill to implement provisions that would combat gender-based violence on tribal land.

            However, VAWA has continuously fallen short due to the complications and conflicts presented by criminal jurisdiction on tribal lands. Criminal jurisdiction in Indian country has long been divided amongst federal, tribal, and state governments; a determination that is largely dependent upon the facts of the case. The race of the perpetrator, the seriousness or the type of crime, and the race of the victim all influence which governmental body will have jurisdiction to try the case.[5] These issues are further compounded by a Supreme Court case which severely limited the ability of tribal governments to prosecute non-native offenders for crimes committed in Indian country. In the 1978 case, Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal courts could not exercise criminal jurisdiction over non-native defendants.[6] This case has created distinct issues for victims of sexual assault and domestic violence, as a majority of the crimes against Native American women are perpetuated by non-native men.[7] Oliphant disempowered tribal governments and revoked their ability to pursue justice for the women in their communities who are suffering domestic violence and sexual assault at the hands of non-native men. Congress’s failure to include the necessary provisions to further expand the jurisdiction of tribes and provide a safe harbor for Native American women meant that VAWA was largely useless to tribes and the women in their communities.

            It has taken Congress many years and several reauthorizations to create even a partial fix to the limitations created by Oliphant. In 2013, Congress amended VAWA and the Indian Civil Rights Act [8] to authorize “special domestic violence criminal jurisdiction,” which granted tribal courts oversight of criminal cases against non-native offenders who commit domestic violence related offenses under some very limited circumstances.[9] Importantly, the “special domestic violence criminal jurisdiction” did not grant jurisdiction over many of the crimes that VAWA intended to protect women from. Tribal courts still lack the authority to hear cases involving sexual assault, sex trafficking, and stalking. Additionally, while this provision did grant tribes the authority to oversee domestic violence cases occurring within the context of a romantic relationship between the victim and the perpetrator, tribal authority does not apply if the non-native defendant lacks sufficient ties to the tribe.[10] For tribes to benefit from this jurisdictional expansion, the defendant must reside on tribal lands, be employed on tribal lands, or be the spouse of a tribal member who resides on tribal land. Therefore, if the crime did not take place on tribal land, or the defendant lacked sufficient ties to the tribe, the tribal court still did not have jurisdiction to oversee the case. Additionally, for Tribes to even be eligible to utilize the jurisdictional expansion granted in this amendment, Tribal nations have to agree to uphold many of the enumerated rights of the non-native defendants and ensure that they are afforded the due process rights that exist under the United States Constitution..[11] Therefore, Indigenous women who are assaulted outside of their tribe’s territory, belong to a tribe who did not implement VAWA’s special jurisdiction, or have been assaulted by a defendant with insufficient ties to the tribe cannot turn to their own tribal government to pursue justice.

            The 2013 version of the bill stands as the most current rendition, due to the inability of Congress to reauthorize an updated version in 2018, after numerous disputes around what protections should be amended. Although VAWA has technically expired, funding for the programs remains in effect and continues to provide support for women across the United States. Ultimately, no new provisions or expansions in funding can take place unless Congress can successfully agree on the amendments this year.

The Proposed 2021 Legislation

            The 2021 amendments seek to maintain and expand many of the existing protections that were later included for Indigenous women. For example, new provisions of this bill seek to restore tribal jurisdiction over non-native perpetrators for crimes of sexual assault, stalking, child abuse, elder abuse, assault against law enforcement officers, and trafficking if they are committed on tribal lands, eliminating the earlier mentioned caveats.[12] The proposed amendments also aim to create a pilot project for up to five tribes in Alaska to implement special criminal jurisdiction. This is important because Alaska Native lands were not included as part of Indian country within any prior enactments of this bill and were therefore afforded no protections under VAWA.[13]

Additional portions of this bill also seek to support tribes in combating the human rights crisis of missing and murdered Indigenous women. As it stands, Indigenous women and girls are disproportionately impacted by homicide and sexual assault. As of 2016, the National Crime Information Center reported almost 6,000 cases of missing Indigenous women, and by comparison the U.S. Department of Justice only showed 116 missing Indigenous women.[14] The jurisdictional issues between state, local, federal and tribal law enforcement, combined with a lack of communication between the authorities responsible for tracking missing persons, make it nearly impossible to investigate cases of missing Indigenous women, thereby creating a legal vulnerability. [15] Section 901 of the 2021 bill clarifies the responsibilities of federal, state, tribal and local governments when responding to cases of missing and murdered Indigenous women, in the hopes that Congress can facilitate a path forward in facing the epidemic of these crimes.[16]

Continued Obstacles to Justice

            Despite the fact that each reiteration of VAWA has sought to improve upon the legislation and expand the availability of justice to Indigenous victims, the 2021 version of the bill falls short in its protections. An overarching theme present in federal legislation is that many politicians lack respect for and trust in the tribal court system, which is apparent in VAWA’s issues surrounding special criminal jurisdiction. One of the reasons many limitations exist to prevent tribes from holding jurisdiction over non-native defendants is because many elected officials and United States’ courts are concerned that tribal courts would not provide sufficient constitutional protections to non-native offenders accused of crimes and are simply not trusted enough to oversee the prosecution of these defendants.[17] These concerns infringe on tribal sovereignty and prevent tribal nations from being able to protect their members from serious violent crime. Congress must recognize the legitimacy of tribal courts and implement legislation that overturns the limited tribal jurisdiction established in Oliphant. If an individual commits a crime on tribal lands and victimizes a member of that tribal nation, the individual should be held liable to the justice system and codes of that tribe.

However, due to the historical limitations on tribal court systems, tribal nations would likely need a great deal of support to create and accommodate to taking on the prosecution of crimes that target Indigenous women. As it currently stands, many tribal codes do not contain laws against severe and violent offenses because these kinds of crimes have always fallen underneath the purview of the federal codes. Other obstacles may depend on the specific tribe, as some nations may have small-scale or limited funding for police forces, which pose issues in terms of the time and manpower available to take over the prosecution of offenses against women. Therefore, the road to tribal empowerment will not be accomplished overnight and is not a simple fix. The government must authorize tribal nations to protect their people and provide adequate funding so that they are actually equipped to develop strong codes, appropriate police forces, and effective judicial systems. Otherwise, simple reauthorizations of federal policies like VAWA will only be small steps in the right direction. To truly protect Indigenous women, Congress must uphold and support tribal sovereignty. Until then, the impact of VAWA will be severely limited and its true purpose will continue to be undermined.


[1] See generally Jennifer L. Truman and Rachael E. Morgan, Nonfatal Domestic Violence, 2003-2012, Bureau of Justice Statistics (2014), https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf.

[2] Ending Violence Against Native Women, Indian Law Resource Center, https://indianlaw.org/issue/ending-violence-against-native-women (last visited Nov. 4, 2021).

[3] Id.

[4] Sheena L. Gilbert, Emily Wright, and Tara Richards, Federal Policy has Failed to Protect Indigenous Women, The Conversation (June 18, 2021, 8:32 AM), https://theconversation.com/federal-policy-has-failed-to-protect-indigenous-women-159679.

[5] Introduction to the Violence Against Women Act, Tribal Court Clearinghouse, https://www.tribal-institute.org/lists/title_ix.htm (last visited Oct. 23, 2021).

[6] See generally Oliphant v. Suquamish Indian Tribe,435 U.S. 191 (1978).

[7] Lyndsey Gilpin, Native American Women Still Have the Highest Rates of Rape and Assault, High Country News (June 7, 2016), https://www.hcn.org/articles/tribal-affairs-why-native-american-women-still-have-the-highest-rates-of-rape-and-assault.

[8] The Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-1304 (2013).

[9] Tribal Court Clearinghouse, supra note 5.

[10] Id.

[11] Special Domestic Violence Criminal Jurisdiction, The National Congress of American Indians, https://www.ncai.org/tribal-vawa/sdvcj-overview/due-process-requirements (last visited Nov. 1, 2021).

[12] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 903 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[13] Charlene Koski, Reauthorization Efforts Continue, Including Focus on Expanding Jurisdiction for Alaska Native and Other Tribes, The National Law Review (Aug. 6, 2021), https://www.natlawreview.com/article/vawa-reauthorization-efforts-continue-including-focus-expanding-jurisdiction-alaska.

[14] Murdered Missing and Indigenous Women, Native Women’s Wilderness, https://www.nativewomenswilderness.org/mmiw (last visited November 1, 2021).

[15] Id.

[16] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 901 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[17] Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes, 166 U. Pa. L. Rev. 745, at 774-775 (2018).

Categories
Commentary

Reproductive Justice in Indian Country

By: Barbara Ryan

Reproductive justice is on the minds of women from coast to coast, but likely not more than for Native American women living in Texas.  Native women face two harsh realities that will have a disproportionate impact on them, their families, and their communities. Native women experience higher rates of sexual violence than any other group[1]and Native populations experience higher rates of economic hardships.[2] These two realities will leave Native women residing in Texas that experience unwanted or unplanned pregnancies with serious, even deadly, outcomes as a result.

The restrictive new law in Texas, S.B. 8 (otherwise known as the Texas Heartbeat Act), bans abortions after six weeks when a ‘fetal heartbeat’ can be detected.[3]The law applies to all women without exceptions for rape or incest.[4] Further, private citizens are incentivized to sue any person or organization that “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”[5]The statutory damages awarded for each incident of abortion include a minimum of $10,000, plus associated costs and attorney’s fees.[6]

The Texas Heartbeat Act is an affront to fifty years of precedent establishing the unconstitutionality of banning abortions before viability. In 1973, Roe v. Wade established protection of the “right to privacy” and a person’s right to choose whether or not to have an abortion before viability under the Due Process Clause of the Fourteenth Amendment.[7]In 1992, in Planned Parenthood of Se. Pa. v. Casey, the Supreme Court reinforced the holding in Roe v. Wade and held that while State interests were important, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.”[8]The Court also prohibited the imposition of an undue burden placed on women exercising their constitutional right to determine whether they will terminate a pre-viability pregnancy.[9]The Supreme Court has found this constitutional right, affirmed it and reaffirmed it various times in the last five decades.[10] The Texas law circumvents precedent in two ways.  First, the threat of lawsuits against anyone whose conduct abets in the performance of abortion creates an undue burden.[11]Second, the State is avoiding responsibility as a state actor, which is prohibited by 14th Amendment protections, by deputizing private citizens to enforce S.B. 8.[12]

The Texas Heartbeat Act does not make exceptions in cases of rape or incest. A key aspect in whether a pregnancy is an unplanned or unwanted pregnancy is due to the manner that led to conception. Native women experience violence at higher rates than any other group in the United States. “American Indians” are 2.5 times more likely to experience sexual assault crimes compared to all other races.[13]In effect, 34 percent of Native women are raped in their lifetimes.[14] Violence, including sexual violence, against Native women, occurs across a continuum of their lives.[15] Most Native women do not report such crimes because of the belief that nothing will be done.[16] This suggests that actual rates are much higher.

The Texas Heartbeat Act will disproportionately impact minority populations, especially those with scarce resources. While people with resources can travel to other states for abortion services, those without resources do not typically have that option.  Unfortunately, Native Americans rank high in all meaningful categories related to lack of resources. The national poverty rate which included all races in 2016 was 14 percent.[17] The percentage of single-race American Indian and Alaska Natives who live in poverty was higher than any race group during the same time at 26.2%.[18] The median household income in 2016 for the nation was $57,617.[19] The median household income of single-race American Indian and Alaska Natives during the same time was $39,719.[20] Another critical category includes health insurance. The national average for people lacking health insurance in 2016 was 8.6 percent of the population.[21] The percentage of single-race American Indian and Alaska Native people who lacked health insurance coverage during the same time was 19.2 percent.[22] In Texas, single-race American Indians/Alaska Natives make up 0.5 percent or 141,425 of the nearly 30 million residents, and approximately half are women.[23] 

The combination of draconian abortion laws, high rates of sexual violence, and the economic realities of native women in Texas will be devastating for them and their families. With the threat of lawsuits, the state has effectively amputated non-profit healthcare and advocacy organizations from guiding and supporting the community at the exact time girls and women need it the most. The most obvious option is to travel to neighboring states to seek care, however, that option is only available to women with support, resources, and time.  Unwanted or unplanned pregnancies, especially those resulting from sexual violence, may lead to tragedy. Lack of resources and healthcare options may drive many women to attempt to perform their own abortions, resulting in severe injury and even death.

On December 1, 2021, the United States Supreme Court will hear Dobbs v. Jackson Women’s Health Organization.[24] This high-profile case is asking the Supreme Court to essentially overturn both Roe v. Wade and Planned Parenthood of Se. Pa. v. Casey, by allowing the State’s interest to trump women’s constitutional rights.[25] The petitioners want the Court to abandon the undue burden test and viability requirement, and allow the State to implement a rule prohibiting abortions after 15 weeks.[26] This high-profile case may also impact the ultimate fate of S.B. 8 in Texas. S.B. 8 is currently entangled in various court battles, but meanwhile, women in Texas are caught in the middle without the benefit of resources or time. 

S.B. 8 has not incapacitated all organizations from providing support and resources to women in need of abortions in Texas.  There are several organizations that continue to fight and provide resources in Texas.[27] ACLU of Texas is dedicated to fighting back against laws that threaten the reproductive rights of women in Texas.[28]  Equal Access Fund provides emotional and financial support for lower-income women residing in Texas.[29] Fund Texas Choice continues to provide support for out-of-state travel to women seeking abortion services.[30]The Lilith Fund provides funds for women who need abortions and cannot afford to pay for them.[31]The public can contribute by contacting or donating directly to these and other organizations.  


[1] Maze of Injustice, The Failure to Protect Indigenous Women from Sexual Violence in the USA, 2, https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf (last visited October 9, 2021).

[2] United States Census Bureau, https://www.census.gov/newsroom/facts-for-features/2017/aian-month.html (last visited October 9, 2021).

[3] S.B. 8, 87th Leg., 1st Spec. Sess. (Tex. 2021).

[4] Id.

[5] Id.

[6] Id.

[7] Roe v. Wade, 410 U.S. 173 (1973).

[8] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (emphasis added).

[9] Roe v. Wade, 410 U.S. 173 (1973).

[10] See, e.g., Whole Woman’s Health v. Hellerstedt, 579 U. S. 136 S. Ct. 2292 (2016), (State cannot place restrictions on delivery of abortion service that create an undue burden); McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (striking down a ban on pre-viability abortions at 20 weeks with exceptions); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (striking down a ban on pre-viability abortions at 6 weeks with exceptions), cert. denied, 136 S. Ct. 981 (2016); Carhart v. Stenberg, 192 F.3d 1142, 1151 (8th Cir. 1999) (striking down a ban on “the most common procedure” used to perform abortions after 13 weeks), aff ’d, 530 U.S. 914, 922 (2000); Women’s Med. Prof ’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (same), cert. denied, 523 U.S. 1036 (1998).

[11] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

[12] S.B. 8, 87th Leg., 1st Spec. Sess. (Tex. 2021).

[13] Maze of Injustice, The Failure to Protect Indigenous Women from Sexual Violence in the USA, 2, https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf (last visited October 9, 2021).

[14] Id.

[15] Id.

[16] Id.

[17] United States Census Bureau, https://www.census.gov/newsroom/facts-for-features/2017/aian-month.html (last visited October 9, 2021).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] World Population Review, https://worldpopulationreview.com/states/texas-population (last visited October 20, 2021).

[24] Dobbs v. Jackson Women’s Health Organization, https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/ (last visited October 14, 2021).

[25] Id.

[26] Id.

[27] Fast Company, How to Help Abortion Rights Activists in Texas: 8 Things You Can Do Right Now, Sept. 2, 2021, https://www.fastcompany.com/90672132/how-to-help-abortion-rights-activists-in-texas-8-things-you-can-do-right-now (last visited Oct. 21, 2021).

[28] ACLU of Texas, https://www.aclutx.org/en/issues/reproductive-freedom (last visited Oct. 21, 2021).

[29] Texas Equal Access Fund, https://teafund.org/ (last visited Oct. 21, 2021).

[30] Fund Texas Choice, https://fundtexaschoice.org/ (last visited Oct. 21, 2021).

[31] Lilith Fund, https://www.lilithfund.org/ (last visited Oct. 21, 2021).

Categories
Commentary Events Student Reflections

Opinion: Federal Bar Association’s Indian Law Conference

The Federal Bar Association’s Indian Law Conference took place from April 5-6, 2018 at the Talking Stick Resort in Scottsdale, Arizona. This year, the Federal Bar Association celebrated its 43rd Annual Indian Law Conference. The theme of this year’s Indian Law Conference was the examination of how tribal nations can use existing and new tools to effectively protect and secure their futures. In addition, 2018 marked the 40th anniversary of the Indian Child Welfare Act (ICWA), the 30th anniversary for the Indian Gaming Regulatory Act (IGRA), and 50th anniversary of the Indian Civil Rights Act (ICRA).

The annual Indian Law Conference covers many areas of law that are most relevant and controversial in Indian Country. Among the areas of law covered, the conference highlighted the three anniversary statutes by addressing them as part of their plenary line up, such as: “30 Years Later: IGRA and Economic Development,” “The Indian Civil Rights Act at 50: The Intersection of Individual Civil Rights, Human Rights, and Tribal Sovereignty,” and “40 years later: ICWA and the Role of Tribal Courts.” Each session was not only insightful, but compelling. The “IGRA and Economic Development” illustrated the personal relationships between the head of the National Indian Gaming Commission and tribal leaders. Del Laverdure shared an entertaining anecdote about a hostile meeting he had with a tribal leader, where the tribal leader was so frustrated and angry that he had to shout his demands at Del. Only after the meeting, the tribal leader approached Del and apologized as if it was another day at the office. Del had shared with the audience that he understood where the tribal leader was coming from. Just like Del had tribal leaders to answer to, the tribal leader had his people to answer to. In the same plenary, Larry Roberts presented IGRA facts that was compelling. Since the enactment of the Indian Gaming Regulatory Act, the Indian communities that have adopted Indian gaming in their areas, have exponentially increased their employment rate, revenues, and overall economies. The Indian gaming industry is now worth more than thirty-one billion dollars.

The Fed Bar Indian Law Conference attracts hundreds of legal professionals and law school students from around the country. Thus, it creates an opportunity for many legal professionals and law students to network and exchange information. It is not uncommon for students to meet with potential employers and for legal professions to develop a working relationship with other tribes or firms. This would be one of the most attractive features of the conference.

In addition, the National Native American Law Student Association (NNALSA) uses the annual Indian Law Conference as a platform to network, meet, and hold elections for its board. NNALSA hosts informational panels for their members to meet practicing attorneys and network with other law students.

Overall, the Fed Bar conference was a great experience because it provided insightful panel discussions, excellent networking opportunities, and a good platform for NNALSA to have its annual meeting.

During the Conference, it was also announced that it will be returning to Albuquerque, New Mexico for the 2019 Conference! We look forward to seeing all of the Indian law attorneys present in TLJ’s home city!

By Lyman Paul

Lyman Paul is a 2L students at UNM School of Law. He is from the Navajo Nation (Diné). He is of the Sleeping Rock People Clan (Tsenabił nii) and born for the Bitter Water Clan (Tódich’ii’nii). He is from Pine Hill, New Mexico on the Ramah Navajo Chapter, near Ramah, NM. He has a Bachelor of Science in Engineering in Civil Engineering from the Northern Arizona University in Flagstaff, Arizona.

Categories
Events ICRA Symposium Student Reflections

Reflections on the ICRA Symposium

I was the timekeeper for the “Indigenous Civil, Cultural, Political, and Human Rights: E/Merging Issues” panel hosted by Prof. Christine Zuni-Cruz.  I did not know what to expect, truthfully, but I can say that by the time the panel discussion was over, I was a bit shaken.  Each speaker spoke of the profound effects both the laws of the dominant society and how the inner-tribal laws often fail the most vulnerable of the tribal societies. Every time I had to raise the timekeeping cards, I felt as though I was now also part of the short-changing mechanism.  I also started thinking about why none of these issues ever get any real discussion or coverage? I am not sure how these issues are best resolved but talking about them is a start. My dream would be for the TLJ to be a contributor in turning the dialogue into real solutions.

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By Kaythee Hlaing

Kaythee Hlaing was born in Rangoon, Burma and came to the United States in 2002.  She attend  Bard College in Annandale-on-Hudson, NY and received her Bachelor’s in Political Studies in 2006.  Prior to attending law school, she worked as an Associate at a mutual fund in Santa Fe, NM, while also obtaining a Masters degree in Liberal Arts from St. John’s College.​  Kaythee’s interests include: dogs, books, learning new languages, and stewardship of natural resources.

Categories
Events

Indian Blood: A Presentation

On November 8, 2017 the UNM Native American Law Student Association, in collaboration with the State Bar of New Mexico Indian Law Section, hosted a lecture titled “Indian Blood.”  The event–covering a very important and often controversial issue–received overwhelming attention throughout the state and beyond.  The lecture was well attended, filling the largest UNM Law School lecture hall to capacity.   Tribal leaders, tribal members, UNM School of Law students and alumni, and many interested community members gathered for an evening of education and dinner.  The speakers covered topics including the history of blood quantum in Indian communities, the effects of blood quantum on individual identity and belonging within a tribal community, and the impacts on a community divided by opposing viewpoints.

In order to set the stage for such a controversial and often emotion topic, the lecture began with a prayer by Governor Benavidez from Pueblo of Isleta, and a prayer was also offered by Chad Abeita (2L UNM School of Law Student – Navajo) before the meal.

Audience members, all affected in their own way by Indian Blood and blood quantum issues appeared to be grateful to listen and learn from some of the experts in the field and to hear how one community member experienced blood quantum membership changes first hand.

If you would like to view a recording of the event, please follow this link: https://lawmedia.unm.edu/public/special_events/Indian_Blood/

By Roshanna Toya

Roshanna Toya is from Pueblo of Isleta.  She is a second-year student at UNM School of Law pursuing a juris doctorate and a certificate in Indian Law.

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Categories
Commentary

Missing And Murdered Indigenous Women Vigil

Community members gathered on a chilly fall day to honor the lives of the many indigenous women who have been murdered or gone missing. On October 27, 2017, indigenous women from four local organizations (First Nations Community Healthsource, Planned Parenthood, Albuquerque Indian Health Board, and Coalition to Stop Violence Against Native Women) held a vigil in remembrance of those lost and to promote healing.

The event held at the New Mexico Veterans Memorial included prayers, a drumming circle, candles, poetry, and tribal songs. In addition, attendees were encouraged to bring a single earring to represent the Missing/Murdered Indigenous Women. There were guest speakers and audience volunteers that spoke about their experiences with violence. One of the speakers,  a transgender woman, spoke of the heightened risk of violence faced by the indigenous LGBT community. Debra Haaland, former New Mexico Democratic Party chair and current Congressional candidate, spoke of the gaps between tribal and federal law enforcement which have played a role in exacerbating the issue of violence.

By Verenice Peregrino

Verenice is a 2L at UNM School of Law. She is the Vice President of the Mexican American Law Student Association (MALSA) and hopes to go into education law.

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Categories
History Indigenous Law

Historical Trauma and Healing from Boarding School Abuse

From the 1890s to the 1970s, the U.S. government sought to “Christianize” Native Americans by separating children from their Native culture, which ultimately led to one of the darkest chapters in Native American history: boarding schools.[1] Many Native American children suffered from both physical and emotional abuse while attending boarding schools, which has given rise to historical trauma.[2]

Historical trauma is unresolved grief from past experience that negatively impacts the emotional and physical welfare of survivors and the next generations.[3] Thousands of children in both the United States and Canada suffered from many acts of cruelty, including severe emotional, physical, and sexual abuse.[4] Many children were forced to live in unsanitary and unsafe conditions, as well as given  insufficient meals from food of very poor quality.[5] In addition to these horrific, disease-filled living conditions, the children were forced to do hard labor to teach them the meaning of hard work.[6] Boarding schools attempted to eradicate the Native American culture, traditions, and languages by punishing or beating children for practicing their culture.[7] As a result, one of the major impacts of the boarding schools was the loss of culture and personal identity.[8]

Today, depression, substance abuse, and suicide are common issues in Native American communities.[9] One research study on historical trauma interviewed elders who attended boarding schools as children.[10] Most of the elders participating in this interview stated that they suffered from depression and alcoholism as adults.[11] Some also shared that they developed a strict parenting style with their children similar to the strictness that they were treated with growing up in the boarding schools.[12] Survivors often struggled as parents because the forced separation from their families deprived survivors of the opportunity to learn their culture, traditions, and parenting skills from their families.[13]

In another research study that focused on healing from historical trauma, boarding school survivors discussed ways of healing from the historical trauma of boarding schools.[14] A participant suggested creating awareness of the cruelties suffered at the boarding school to start a dialogue about the effects of the boarding schools and to educate future generations on the history of boarding schools.[15] Another participant discussed returning and reconnecting to traditions and spirituality.[16] The power of language was also discussed by one participant, who stated that relearning the language helped to heal the trauma of the forced assimilation of the boarding schools.[17] As survivors heal from their experience at boarding schools, the path to legal remedies becomes more complicated due to the government’s unwillingness to acknowledge the physical and emotional damage caused by the boarding schools.

Hundreds of survivors have brought suits against individuals from the boarding schools and institutions responsible for physical and sexual abuse.[18] However, some states have attempted to prevent lawsuits from boarding school survivors. South Dakota, for example, passed legislation that set the statute of limitations to three years after the survivors turned twenty-one.[19] Sadly, this is not the first  attempt to avoid consequences from the abuses from the boarding schools. In 1948, the UN Convention on Punishment and Prevention of the Crime of Genocide expanded the definition of genocide to include more than the mass killing of groups of individuals.[20] As a result, the U.S. could have faced punishment for its treatment of both Native Americans and African Americans. To avoid punishment, however, the U.S. did not ratify this 1948 Genocide Convention until 1988.[21]

Many survivors suffered unthinkable forms of abuse, and they have continued to feel the effects of the trauma they experienced as children. Reconnecting with culture, traditions, and language has helped survivors to heal from the physical and emotional abuse committed at the boarding schools. Today, we can create awareness of the effects of historical to better understand this dark time in history.

By Savanna Duran

Savanna Duran is a 2L at UNM School of Law. She was born and raised in Albuquerque, New Mexico, and double majored in English and Spanish at UNM. In her spare time, she enjoys reading, watching movies, and listening to music. She would like to thank her family, husband, and son for their support.


[1] Andrea A. Curcio, Civil Claims for Uncivilized Acts: Filing Suit Against the Government for American Indian Boarding School Abuses, 4 Hastings Race and Poverty L. J. 46 (2006).

[2] Lisa Greyshield et. al. Understand and Healing Historical Trauma: The Perspectives of Native American Elders, 37:4 Journal of Mental Health Counseling 295 (2015).

[3] Id. at 296.

[4] Curcio, supra note 1, at 46-47, 68.

[5] Id, at 63-64.

[6] Id. at 64-67.

[7] Greyshield, et. al., supra note 2, at 296; Curio, supra note 1, at 60-61.

[8] Curio, supra note 1, at 59-61.

[9] Greyshield et. al., supra note 2, at 296.

[10] Barbara K. Charbonneau-Dahlen, John Lowe & Staci Leon Morris. Giving Voice to Historical Trauma Through Storytelling: The Impact of Boarding School Experience on American Indians, 25 Journal of Aggression, Maltreatment & Trauma 598, 602 (2016).

[11] Id. at 611.

[12] Id.

[13] Curcio, supra note 1, at 73-74.

[14] Greyshield et. al., supra note 2, at 303.

[15] Id.

[16] Id.

[17] Id.

[18] Charbonneau-Dahlen, John Lowe & Staci Leon Morris, supra at note 10, 612-613.

[19] Id. at 613.

[20] Curio, supra at note 1, at 111-112.

[21] Id.