Rx Reparations
U.S. Obligations to Native Nations: Treaties, Trusts, and Reparations
Makini Chisolm-Straker
Reparations to U.S. Blacks may struggle for achievement in the existing U.S. infrastructure due to White supremacists’ weaponization of the 14th Amendment. But Native identity is more than a socially constructed race because Native nations are sovereign. Since its inception, the U.S. federal government has entered into trade agreements and at least 374 treaties with Native nations. People belonging to Native nations hold a political identity separate from and in addition to U.S. citizenship.
This political identity has even been supported by SCOTUS. For example, 2023’s Haaland v. Brackeen upheld the Indian Child Welfare Act of 1978 which prioritizes keeping children eligible for membership in a Native nation in the homes of their people. Just as the United Nations recognizes systematic removal of a group’s children as a form of genocide, the 1978 U.S. Congress recognized, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” While White supremacists contest race-based reparations for race-based structural harms, the same argument should not be applied to the political entities of Native nations or people.
Many conflate upholding or fulfilling treaty obligations with making reparations. Treaties are contracts, “…in writing between two or more political authorities (such as states or sovereigns) formally signed by representatives duly authorized…” (emphasis added). For example, provision of health care via Indian Health Services (IHS) is not reparations. Health services were negotiated treaty terms but IHS is often understaffed and under resourced meaning the U.S. repeatedly fails to fulfill this treaty obligation. Sufficient funding and resourcing to provide comprehensive care to First Nations would significantly improve the wellbeing of Native nations. But even when the Native-White health gap is closed, even when every Native nation member has access to high-quality health care, even when every Native person experiences good health, the U.S.’ duty to provide access to health care does not cease or wane. The treaty obligation is binding; it is a solemn, unconditional oath, to be honored so long as both entities exist.
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Similarly, the United South and Eastern Tribes Sovereignty Protection Fund’s “Marshall Plan for Tribal Nations” describes the federal government’s trust obligations to (federally recognized) tribes as similar to the U.S. treaty obligation to First Nations: “The trust obligation, including with regard to federal funding, exists in perpetuity….It is not a ‘needs-based’ obligation.” It was SCOTUS that proposed and established the U.S.’ “…politically based trust obligations to protect the interests of Tribal Nations.” By Executive Order 13,175, the federal government is legally obliged to consult with Native Nations on any federal action that may impact Tribal wellbeing.
Any actions the U.S. takes toward treaty or trust fulfillment do not qualify as reparations but are the meeting of a contractual or legal obligation. Such responsibilities are wholly different from reparations. Reparations are “…measures to redress violations of human rights by providing a range of material and symbolic benefits to victims or their families as well as affected communities.” Reparations are about making amends for uncivilized acts that breach human rights. The U.S. has not met the standard set by the Office of the High Commissioner of Human Rights at the U.N. which dictates that reparations should be “…proportional to the gravity of the violations and the harm suffered.” With this internationally recognized bar, the U.S.’ 1946 authorization of $1,000 to recipients of 176 tribes for stolen land was colossally insufficient to be reparations. Even the U.S.’ 5th Amendment requires “just compensation” for property taken via eminent domain (which shouldn’t even be applied to other nation’s members).
Besides land theft, the U.S. is guilty of many more human rights violations against First Nations. Most people familiar with even false U.S. origin mythologies know that Native nations were here first. But Native people did not simply “die off” or acquiesce to settler land theft. The systematic, prolonged, concerted effort to annihilate Native people to obtain more and more land were settler acts of genocide. But the U.S. government’s abuse of Native nations didn’t stop at murder and land theft via fraud, coercion, and violence.
The federal government also engaged in another genocidal activity: theft of Native children. In the past decade, more non-Native people are learning about compulsory boarding and residential schools. Elders alive today still remember being kidnapped from their families and forced into clothes, hair, language, food, religion, and culture that was not their own. Food deprivation and physical assault could be the punishment for speaking the only (non-English) language a child knew. Many children were sexually assaulted. Dispossessed of their birthright culture and not accepted into “Whitestream” society, many boarding school survivors struggled to find jobs or a sense of identity and self-worth. The purpose of such “schools” was to “kill the Indian” by training their cultures, ties to the land, and Native identity out of them. Before ICWA, U.S. child “welfare” agents separated Native children from their people using a variety of legal and illegal means. Children were placed with non-Native families, stealing their kinship and sense of belonging in their nations. The U.N. recognizes these acts of family separation as genocide.
Less well-publicized are governmental acts of forced or coerced sterilization and experimental contraception testing on Native women. Settler efforts to control the population of Native people supported settler land claims by synthesizing false narratives of First Nations people “dying out.” Further, as settler-colonial imposed Native poverty worsened, Whitestream society considered Native women a “drain” on the nation’s economy, with sterilization being an appropriate remedy. Harkening to the U.S.’ recent past as progenitors of legal eugenic policies, physicians were socially and practically authorized to impose White supremacist values on patients. Healthcare practitioners presumed a professional right to “better society” via “fertility control.” Legislation like the Family Planning Act of 1970 (which reimbursed up to 90% of sterilization costs) legitimized these actions. Between 1968 and 1982, Native women were, often under duress or without informed consent, sterilized at the highest rate per capita of any ethnic group: 42%. These were governmentally sanctioned and facilitated acts of genocide.
“In November of 1972, a young Native American woman entered the Los Angeles office of Dr. Connie Pinkerton-Uri…The young woman, only twenty-six years old, proceeded to ask her for a womb transplant because she and her husband were planning to start a family. After further investigation, Dr. Pinkerton-Uri found that the woman had been given a complete hysterectomy by an Indian Health Service (IHS) physician six years ago….Dr. Pinkerton-Uri had to tell the woman that despite what the physician had previously told her, the operation was irreversible and there was no such thing as a ‘womb transplant.’ She would not be able to have children. The woman left Dr. Pinkerton-Uri’s office in tears and her husband later divorced her because of her inability to have children.” (Alex Maceika)
Offenses against the humanity of Native nations abound in the U.S. story and for these, reparations are due. Each Native nation is authorized to make and receive demands for comprehensive amends from the U.S. Neither trust obligations nor treaty fulfillment are reparations. Importantly, not all Native nations welcome the term “reparations” and rather, some focus on the concept of being made whole again. This could be conceptualized as restitution, one of the five forms of reparations delineated by the U.N. But more important than terminology are the actions of the historical aggressor in finally respecting the human rights of survivors and heirs. The basic purpose of reparations is that the harmed group is recognized and “made whole” and that the harming entity eschews such actions in perpetuity.
Please subscribe to and share Rx Reparations. In coming editions, I explore the power of reparations to Native nations and U.S. Blacks to undercut structural White supremacy. Message me to host a bespoke reparations workshop for your circle and community. Together, let’s repair, create, and experience liberatory joy.
