I always wonder where the ghosts are & if they still celebrate the living
– Kinsale Drake, Diné poetFootnote 1I formally apologize as president of the United States of America, for what we did.
– Joe Biden, U.S. presidentFootnote 2I. Introduction
All too common, among the too many wrongs done to oppressed communities, is child-taking. Child-taking occurs when a state or similar powerful entity takes a child and then endeavors to alter, erase, or remake the child’s identity.Footnote 3 Examples include, in this decade, reported removals of thousands of children by Russia and China, and in the last century, abductions of children by regimes in Latin America, Nazi Germany, and the Ottoman Empire.Footnote 4 Child-taking’s elements may constitute crimes proscribed in national legal systems, such as kidnapping and abduction,Footnote 5 as well as international offenses, such as genocide, crimes against humanity, and war crimes.Footnote 6 Its commission is also tortious, as well as a violation of rights recognized in both national and international systems.Footnote 7 Despite its manifest illegality, however, there has been little to no justice for child-taking—few successful prosecutions, scant acceptances of responsibility, and little redress for present-day survivors, let alone for future generations or the ghosts of the past.
This Article focuses on a recent counterexample, an effort to secure a modicum of justice for wrongs done by the United States-supported residential school system that had forced Native children to conform to Westernized, Christianized notions of civilization. In 2021, the U.S. Executive Branch launched a Federal Indian Boarding School Initiative. In 2024, the initiative’s final Report documented the schools’ 150-year history and recommended reparative measures, including acknowledgment and apology for wrongs done, restoration of lost lands and repressed languages, and respectful treatment of burial sites.Footnote 8 The Report soon gave rise to an apology by President Joe Biden. But the return to the White House of Biden’s predecessor imperiled prospects for further implementation.
The Report bore hallmarks of transitional justice, a global field that encompasses not only post-conflict transitions from war to peace, but potentially any effort to redress past wrongs, through an array of forward- and backward-looking measures.Footnote 9 Segments of the Report discussed the global doctrine of discovery—the centuries-old doctrine at the core of what Professor Robert J. Miller has labeled “the international law of colonialism.”Footnote 10 The enmeshment of U.S. law with international law is as old as the United States itself. Nevertheless, as Professor Maggie Blackhawk has demonstrated, U.S. “legal elites” long have deemed international law “‘external’” to U.S. legal frameworks.Footnote 11 The Report itself made no mention of international law, and spoke only briefly of international “issues.”Footnote 12 Nor was the U.S. initiative recognized as a global legal project. International civil society said little, while mainstream media pursued human-interest angles; by contrast, Native communities’ attention, participation, and commentary remained constant. The U.S. initiative thus was a largely localized venture, quite unlike the internationalized processes often discussed in transitional justice literature. Evaluation of that dynamic requires thick description of the initiative.
II. The U.S. 2021–2024 Federal Indian Boarding School Initiative
In March 2021, Congresswoman Deb Haaland won Senate confirmation to lead the Executive Branch agency that, as one reporter wrote, bears “responsibility for the well-being of the nation’s 1.9 million Native people.”Footnote 13 Weeks later, news of 215 unmarked burials at a British Columbia boarding school site outraged Native communities, on both sides of the border.Footnote 14 Secretary Haaland, the first Native person to lead the Department of the Interior, wrote in an op-ed: “My maternal grandparents were stolen from their families when they were only 8 years old and were forced to live away from their parents, culture and communities until they were 13. Many children like them never made it back home.”Footnote 15 She instructed her staff to “undertake an investigation of the loss of human life and the lasting consequences of residential Indian boarding schools” that operated in the United States.Footnote 16
Thus began a three-year process during which Interior Department officials scoured archival records and engaged other governmental agencies that also had enabled the system.Footnote 17 Officials collaborated with Indigenous groups. One was the National Native American Boarding School Healing Coalition, formed in 2012 after community discussions about processes in Canada inspired a “strategy that increases public awareness and cultivates healing for the profound trauma” the U.S. system caused.Footnote 18 Officials also met with survivors via a twelve-stop Road to Healing tour.Footnote 19 The process produced a two-volume Report under the direction of Bryan Newland, assistant secretary for Indian affairs and a leader in his Native community.Footnote 20 Completed in July 2024, the Report: first, established an extensive record of the United States’ schooling system; second, issued a call for acknowledgment that prompted President Biden to act in the last months of his term; and third, recommended other reparative measures, including engagement with Canada, Australia, and New Zealand.
A. Official Record
The Report was noteworthy not least because of its numerical specificity, realized due to “instrumental” assistance from Native activists.Footnote 21 During the period “between 1819 and 1969,” it stated, “the Federal Indian boarding school system consisted of 417 Federal schools across 37 states or then-territories, including 22 schools in Alaska and 7 schools in Hawai‘i.”Footnote 22 (Operating in parallel were at least “1,025 other institutions,” schools that resembled but did not quite match those in the system.Footnote 23) The system’s legal foundations included “171 Treaties with Indian Tribes” and the United States.Footnote 24 Even though the system was called “Federal” because it received financial, administrative, and military support from the U.S. government, it had relied so heavily on non-governmental actors that “210 of 417 Federal Indian boarding schools were operated” by one of “at least 59 religious institutions and organizations.”Footnote 25 The Report enumerated “by name and Tribal identity at least 18,624 Indian children” who had attended the schools,Footnote 26 confirmed that “at least 973 documented Indian child deaths occurred,” and pinpointed “74 marked or unmarked burial sites at 65 different schools.”Footnote 27 It followed each statistic with the statement that the Interior “Department acknowledges that the actual number … is greater.”Footnote 28
Illustrating these data were grim, emotive histories of the schools. The Report’s first volume opened by recalling that after “Goyaałé (Geronimo) and his band surrendered,” the “surviving Apache children were forcibly removed from their families” by the U.S. military and then “shipped by train” to Carlisle, a notorious boarding school 2,000 miles away;Footnote 29 its second volume, by describing the Alcatraz cell where the U.S. military had confined “19 Hopi government and religious leaders for refusing to send Hopi children to boarding school.”Footnote 30 Viewing such incidents as far from happenstance, the Report concluded that “the United States pursued a twin policy: Indian territorial dispossession and Indian assimilation, including through education.”Footnote 31 Quoting the 1969 Kennedy Report by a Senate subcommittee, the DOI Report dated that policy to the very first U.S. president.Footnote 32 It then cited other developments, including statutes giving the War and Interior Departments duties to educate Indigenous children.Footnote 33 Also cited was an 1823 judgment in which the Supreme Court endorsed the doctrine of discovery after describing, as the Report put it, how imperial Britain and France had relied on the doctrine to justify “their conquest of non-Christians and seizure of their territories through self-termed discovery and subsequent possession or occupation.”Footnote 34
The Report emphasized the schools’ importance in advancing the twin policy of dispossession and assimilation—and in advancing assimilation alone, which “eventually became an objective of Federal policy in and of itself.”Footnote 35 Assimilation’s dependence on child-taking surfaced in various sources, such as: the 1928 Meriam Report, which discussed the U.S. policy of taking schoolchildren “and keeping them away until parents and children become strangers” in hopes the children would “be absorbed one by one into the white population”;Footnote 36 and a 2023 opinion, in which three Supreme Court justices wrote that the United States had aimed at “destroying tribal identity and assimilating Indians into broader society” through what U.S. officials themselves had called the “‘complete isolation of the Indian child from his savage antecedents.’”Footnote 37 When Indigenous families resisted separation, the DOI Report added, “the United States coerced, induced, or compelled” compliance.Footnote 38
As early as 1819, Congress instructed the schools to educate Indigenous children by “introducing among them the habits and arts of civilization.”Footnote 39 In service of that civilizing mission “the United States applied systematic militarized and identity-alteration methodologies,” the Report asserted.Footnote 40 Such techniques:
included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding the following in order to compel them to adopt western practices and Christianity: (1) using Indian languages, (2) conducting cultural practices, and (3) exercising their religions.Footnote 41
Religious organizations enjoyed “an unprecedented delegation of power” to “direct educational and other activities” at the government-supported schools, and U.S. soldiers were “frequently called in to reinforce the missionaries’ orders.”Footnote 42
Schools assigned children arduous work, supposed to provide them “practical” training and certain to save costs for governmental and institutional funders.Footnote 43 Children of all ages: raised poultry, milked cows, and butchered sheep; sawed lumber, dug wells, forged metal, and built railroads; sewed garments, laundered clothes, and cooked meals.Footnote 44 Children were tasked with educating their own schoolmates.Footnote 45 The revenues generated by this forced labor and the uses to which they were put remain, according to the Report, “unknown.”Footnote 46
In words that today turn the stomach, nineteenth-century U.S. documents congratulated this regimen. “The metamorphosis is wonderful,” one exalted, “and the little savage seems quite proud of his appearance.”Footnote 47 Some children resisted; consequences for those caught ranged from withholding of food to whippings, with other children sometimes made to administer such punishments.Footnote 48 Even obedient attendees endured “‘grossly inadequate’” conditions: “[r]ampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.”Footnote 49 Such conditions of forced separation wrought lasting physical and mental harms on children and their families.Footnote 50 Even non-attendee generations were at greater risk of health problems—especially those whose fathers had spent time at an Indian boarding school.Footnote 51
Giving human voice to such data were the Report’s searing quotations of participants in Road to Healing sessions. One survivor remembered having been “impressed” when “Anaktuvuk Pass Eskimo” children arrived at school clothed in “caribou pads” and laden with salmon—and then having “cried” as school officials “stripped” the children, took their food and garments, “and burned them in the furnace, all the beautiful, beautiful parkas and everything.”Footnote 52 Another talked of forced labor: “I mean you’re put in there, treated like you was some type of a hired hand.”Footnote 53 Many depicted the pains of forced separation: an attendee’s sense of abandonment, the silence in a village emptied of children, the detachment of a father who had spent his childhood in the system.Footnote 54 Survivors spoke about all manner of brutalities. One said, simply: “It was warfare against Indian kids.”Footnote 55
Closure of the boarding schools did not end forced separations; rather, “the U.S. Government supported a new system: the removal of Indian children from their families for non-essential state foster care and adoption by non-Indian families.”Footnote 56 The Report thus dated “the United States’ official repudiation of forced assimilation through child removal as national Indian policy” to passage of the 1978 Indian Child Welfare Act, a federal statute intended to promote “cultural connectedness and family connectedness” by requiring that adoption and fostering proceedings try to keep Native children within Native communities.Footnote 57 Noting that Canada and Australia later adopted similar measures, the Report then compared those countries, New Zealand, and the United States, dubbing all four the “CANZUS states.”Footnote 58 Its survey of others’ reparative efforts mentioned lawsuits, legislation, lump-sum payments, inquiry commissions, and a papal apology.Footnote 59
B. Official Acknowledgment
The Report detailed Pope Francis’s 2022 apology “on behalf of the Holy Roman Catholic Church for its participation in Canada’s Indian residential school policies,”Footnote 60 as well as the Holy See’s consequent renunciation of the doctrine of discovery, which had found its first voice in fifteenth-century papal pronouncements.Footnote 61 The discussion laid a foundation for the Report’s acknowledgment of responsibility on behalf of the Interior Department and its recommendation for “a formal acknowledgment” by the entire federal government for its “national policy of forced assimilation … through the removal and confinement of Indian children from their families and Indian Tribes and the Native Hawaiian Community and placement in the Federal Indian boarding school system.”Footnote 62 The Report further called for the United States: to issue a “formal apology”; to “formally repudiate forced assimilation”; and to “affirm that it is the policy of the United States to ensure that American Indian, Alaska Native, and Native Hawaiian people have the right to maintain their unique cultural identities and languages.”Footnote 63
Answers to that call came quickly. Senate and House proposals to establish a Truth and Healing Commission on Indian Boarding School Policies in the United States moved forward throughout 2024; each proposal cited the DOI Report.Footnote 64 In October, President Biden traveled to the Gila River Community School in Arizona, one of the dozen Road to Healing sites, to address what he labeled among “the most horrific chapters in American history”—one “that most Americans don’t know about.”Footnote 65 Biden acknowledged that the United States had imposed residential schooling upon “generations of Native children stolen, taken away to places they didn’t know with people they never met who spoke a language they had never heard.” He cited the ensuing abuses, deaths, forced labor, and coerced adoptions, asked for a moment of silence, and then said:
After 150 years, the United States government eventually stopped the program, but the federal government has never—never—formally apologized for what happened until today.
I formally apologize as president of the United States of America, for what we did. I formally apologize. And it’s long overdue.Footnote 66
The apology was met with one audience member’s shouted questioning about “genocide in Palestine,” in a reminder that long-overdue reckonings may occur against the backdrop of present outrages.
C. Reparative Recommendations
The Report coupled its call for apology and acknowledgment with a list of recommendations aimed at fulfilling the U.S. “obligation to correct and heal the wrongs wrought by the Federal Indian boarding school system.”Footnote 67 One item received swift attention: Biden’s October apology was followed by his December establishment of a 24.5-acre national monument at the Carlisle, Pennsylvania, site to which thousands of children, including those of Geronimo’s band, had been taken.Footnote 68 The presidential proclamation first characterized the schools system as a means “to destroy” Native culture, “stifle opposition and resistance,” and “appropriate Tribal lands, waters, and resources”; it then instructed the Secretaries of the Interior and the Army to plan for managing the monument in “meaningful” consultation with “Tribal Nations and the Native Hawaiian Community.”Footnote 69
Even before the Report was completed, a private foundation had pledged funds to aid the National Native American Boarding School Healing Coalition in collecting survivors’ oral histories.Footnote 70 The Report urged such initiatives on behalf of survivors and their communities—and also on behalf of “the American people,” so that “the nation” might learn “about the existence and effects of these institutions and honor the loss of American Indian, Alaska Native, and Native Hawaiian children.”Footnote 71 Prominent among the Report’s recommendations were funding for individual and community healing, family preservation and reunification, violence prevention, educational improvements, Indigenous language revivals, and further research on the schools’ economic and health effects.Footnote 72 Recalling Secretary Haaland’s 2021 op-ed following Canada’s discovery of unmarked burials, the DOI Report prioritized identifying children who died in U.S. schools and protecting their burial sites or arranging reburials.Footnote 73
III. Child-Taking Justice and the Federal Indian Boarding School Initiative
“Family separation is a paradigmatic tool of colonialism.”Footnote 74 So stated Maggie Blackhawk in a 2024 lecture and related article on American constitutional law.Footnote 75 She welcomed the 2023 judgment in Haaland v. Brackeen, which had upheld the 1978 Indian Child Welfare Act—the same statute that the DOI Report deemed an “official repudiation” of the U.S. policy “of forced assimilation through child removal.”Footnote 76 Blackhawk faulted that Supreme Court case, however, for failing to draw links between the law of nations and the laws of the United States; to be precise, between the international law doctrines of discovery which had justified the seizure of Indigenous lands and the U.S. laws which had condoned the “erasure” of Indigenous peoples, “either with gunpowder or with … family separation.”Footnote 77 Blackhawk argued that frameworks wrongly deemed “external,” including international legal doctrines which justified colonialist practices, must be restored to the center of American legal discourse.Footnote 78
Her point applies equally to the Federal Indian Boarding School Initiative under review. The U.S. family separation policy did not begin with the twentieth-century fostering and adoption abuses prompting the 1978 Act, but rather with the centuries-old residential schooling system that imposed a Westernized concept of civilization upon Indigenous children.Footnote 79 Often run by Christian churches, with U.S. legal approval and U.S. military support, these schools often exemplified the criminal phenomenon here labeled “child-taking,” in that the state and/or similar powerful entities took Indigenous children and then endeavored to alter, erase, or remake their identities.Footnote 80
A global approach to fashioning remedies for such injustices would consult transitional justice, a field that engages as a matter of routine with international law and international institutions. Transitional justice comprises measures within and well beyond criminal courtrooms: individual and group compensation, monuments and apologies, improvements in physical infrastructure, reform of faulty legal frameworks, and mechanisms for knowledge-gathering, truth-telling, education, and intergenerational healing.Footnote 81 The “bespoke,” or custom-tailored, shaping of such justice measures must involve persons or groups with authority in affected communities, as Jaya Ramji-Nogales has observed.Footnote 82 It requires dialogue—engagement with what Colin Harvey has called the “circular quality to the interactions between the local and the global,” between international and other legal frameworks.Footnote 83 It also must stay aware of communities’ plural nature; in the case of child-taking, aware that leaders may disagree with others in their own community, or that rights-holding adults may disagree with a child’s own assertion of rights. Inevitably too, justice will turn on an assessment of what is attainable in the political moment.Footnote 84
Measures of child-taking justice—of recognition and reparation for the past and ongoing harms of forced residential schooling—eventually did occur, albeit in tiny steps and often prodded by Native activism. The 1978 Act’s repudiation of the U.S. policy was one step; so, too, the condemnations of the boarding schools published in the 1928 Meriam and the 1969 Kennedy reports.Footnote 85 Striding farther was the 2021–2024 Federal Indian Boarding School Initiative of the U.S. Department of the Interior.Footnote 86 The initiative’s Report first established a record of the ways that all three federal branches—often invoking colonialist concepts like the doctrine of discovery to justify their behavior—had bolstered the system. The Report next acknowledged the roles played by the Interior Department, and then urged action by the government as a whole. Looking forward as well as backward, and at non-Native as well as Native persons and communities, the Report also recommended new investments in education, health, healing, research, and memorials. Several aspects merit further examination in light of transitional justice principles, among them Biden’s apology and his monument proclamation, as well as the Report’s overture to CANZ states’ processes. This Article turns first, however, to the Report’s recommendation that the United States affirm “the right” of Native peoples “to maintain their unique cultural identities and languages.”Footnote 87
A. International Rights and U.S. State Practice
International lawyers likely would read that reference to a Native “right” as an allusion to international law. After all, a host of international instruments enshrines rights which the system of forced residential schooling transgressed. The 1966 International Covenant on Civil and Political Rights declares that “[a]ll peoples have the right of self-determination,” and also pledges “respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions.”Footnote 88 States parties to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, meanwhile, “undertake to … guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” in relation to rights like “security of person,” “education and training,” and “equal participation in cultural activities.”Footnote 89 The 1989 Convention on the Rights of the Child recognizes “the right of the child to preserve his or her identity, including nationality, name and family relations.”Footnote 90 Finally, the 2007 UN Declaration on the Rights of Indigenous Peoples states that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture,” 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.”Footnote 91 The DOI Report omitted such references, however. It preferred to ground discussion in U.S. law, as found in the U.S. Constitution, statutes, regulations, and treaties with Native nations, and as enacted by Congress, implemented by the president, and interpreted by the Supreme Court.
Within the field of transitional justice, this focus on the internal, or local—on experiences occurring within a national legal framework—might be seen as a salutary effort to fashion a reckoning that would resonate with affected communities more deeply than some off-the-shelf model.Footnote 92 But there are reasons to question that view in the instant local-national context.
As Blackhawk’s work shows, meaningful efforts to secure justice for Indigenous peoples must pay heed to contexts that U.S. legal elites classify as “external” even though those contexts are part of the U.S. legal framework.Footnote 93 International norms that underpinned colonialist practices constitute one such context—one that the DOI Report recognized through its discussions of now-repudiated concepts like the doctrine of discovery.Footnote 94 Yet the Report said nothing of another such context: contemporary international laws respecting rights, identity, Indigeneity, and state responsibility. Especially relevant is international child law, given its embedded prohibition of the conduct at issue, child-taking.Footnote 95 Attention to these legal frameworks is advised for a number of reasons. One is the fact that Indigenous communities traverse national borders, as is true of the United States, Canada, and Mexico, not to mention countries in the Caribbean and Pacific regions.Footnote 96 Another is the fact that the U.S. legal system locates rights of Native persons not in the text but rather in the structure of the Constitution—in acts of Congress or orders of the Executive that may prove easier to repeal than the Constitution.Footnote 97 In contrast, U.S. joinder in international instruments guaranteeing child, human, or Indigenous rights could impede later attempts to cast those rights aside. Put another way: Should political change threaten a legal norm once thought to be embedded in a nation-state’s system, that state’s prior acceptance of the norm as an international human right could stiffen resistance, particularly among elites not personally affected by such threats.Footnote 98 This potential for added “stickiness”Footnote 99 loomed large when, after final release of the DOI Report on forced residential schooling, voters elected Donald J. Trump, a former president opposed to the discourse of rights.
With or without Trump, though, the United States long has kept international law at arm’s length even as it insisted that other countries accept that law’s strictures. A movement within the United States long has sought to reverse this trend—that is, to instill a culture and practice of “human rights at home”Footnote 100—but its influence has seemed more often to ebb than flow. The United States stands alone, among the United Nations’s 193 member states and two non-member states, in its refusal to ratify the CRC.Footnote 101 The United States does belong to the ICCPR and ICERD; nonetheless, it long has endeavored to evade scrutiny under such treaties by shirking international enforcement mechanisms and by interposing jurisprudential buffers at the national level.Footnote 102 As for UNDRIP, in 2007 the United States joined its CANZ cousins to cast the only four votes against that soft law instrument.Footnote 103 All four later reversed course.Footnote 104 That said, the only official U.S. statement found online in 2024 was tepid: “While not endorsing the UNDRIP, the United States has agreed to support the Declaration.”Footnote 105 A warmer 2025 statement, posted during Biden’s last week in office, soon was relegated to Interior Department archives.Footnote 106
This reminder of the United States’ pretenses toward international legal obligations may point to strategies that underlay the 2021–2024 Federal Indian Boarding School Initiative. Its entrenchment in internal legal frameworks suggests not simply a commitment to some ideal of localized justice, but also, perhaps more so, a concession to what was attainable given the political-legal realities of the locality within which the report was produced. (“Locality” must be read as “federal government,” since the report said nothing about actions or attitudes within the constituent U.S. states.Footnote 107) The DOI Report thus chose to substantiate its damning core assertion, that forced residential schooling served the U.S. “twin policy: Indian territorial dispossession and Indian assimilation,” with this 1969 Kennedy Report declaration: “Education was a weapon by which these goals were to be accomplished.”Footnote 108 This and other references, drawn from governmental investigations, judicial opinions, and legislative activities, vested the DOI Report with federal authority and thus with localized legitimacy.
B. Not in CANZUS Anymore?
In its second volume, the Report did suggest that the United States “could strengthen engagement with other countries with their own histories of boarding schools or other assimilationist policies,” and indeed “should expand capacity … to support engagement on international Indigenous issues.”Footnote 109 At this juncture it will come as no surprise that the Report spoke only of international issues, and never of international law. Less comprehensible is its claim that the CANZUS states of Canada, Australia, New Zealand, and the United States enjoy a “distinct” legal kinship, on the grounds that all four: “derive from the British Empire”; “maintain English common law systems”; and “have political and legal relationships with Indigenous Peoples based on founding national documents, centuries-old judicial decisions, and legislative and executive actions and instruments—unlike other countries that base official interactions with Indigenous Peoples on human rights, or non-binding principles.”Footnote 110 The claim underincludes. Many countries besides these four have histories of assimilative schooling, not to mention histories of residential institutions that forced the adoptions of some children while requiring other children to perform industrial work;Footnote 111 examples may be found in former U.S. colonies like the Philippines,Footnote 112 in former British colonies like Kenya and Ireland, and indeed in Britain itself.Footnote 113
The claim also overincludes. Each CANZUS country’s relationship with Indigenous nations, with its history, and with its child-taking justice processes is marked by differences, as well as similarities. There is an evident difference in constitutional structure: unlike the United States, where the president is both head of state and head of government, Canada, Australia, and New Zealand are Commonwealth “Realms” whose head of state is the British monarch.Footnote 114 To be sure, each of the four countries had some similar experiences, from which similar insights could be drawn; for instance, the closing of boarding school systems often was followed by fostering and adoption systems, like Canada’s “Sixties Scoop,” that separated Indigenous families.Footnote 115 Yet one similarity actually undercut a premise of the DOI Report: CANZ states’ processes all invoked international rights instruments.Footnote 116
Embrace of CANZUS kinship nonetheless made practical sense. It set manageable boundaries, limiting the contemplated next round of interaction to countries that share a language and, in the case of U.S.–Canada, a border that is home to transnational Native communities. It likely served a political purpose, too, comforting some Washington elites by anchoring the U.S. initiative within a broader Anglo-American legal tradition.Footnote 117
C. Apology “as President”
Breaking somewhat from tradition was President Biden’s apology. The United States is not in the habit of making official statements of regret to its own peoples, and in recent times few presidents have done so. One exception was Ronald Reagan, who signed a 1988 statute that said “Congress apologizes on behalf of the Nation” for the United States’ World War II internment of persons with Japanese ancestry.Footnote 118 Another was Bill Clinton, who signed a 1993 congressional resolution that “apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination.”Footnote 119 In 1997, moreover, Clinton voiced an apology for the Tuskegee project that had studied syphilis by subjecting Black men to non-consensual experiments.Footnote 120 Such statements appear more frequently in other CANZUS countries. Apologies for forced residential schooling issued from the prime ministers of Australia and Canada in 2008, for instance, and just after Biden’s 2024 speech, New Zealand’s prime minister apologized for abuses in state care homes.Footnote 121 As framed in the DOI Report, however, inspiring Biden’s speech was Pope Francis’s 2022 apology at a Canadian school site.Footnote 122
Perhaps the Report pretermitted the prime ministerial apologies on account of limited space. But perhaps its emphasis signaled that the pope’s statement carried special significance for Native communities, not least because the Catholic Church had operated schools on both sides of the Canada–U.S. frontier.Footnote 123 The speech itself was powerful: “‘I humbly beg forgiveness for the evil committed by so many Christians against the indigenous peoples.’”Footnote 124 Also warranting attention was the speaker’s status as head of state of the Holy See.Footnote 125 To draw on theories of public apology, speeches by the “highest authorities of a political community” are “perceived as being offered by the whole group.”Footnote 126 Prime ministers speak for governments, partisan entities that come and go.Footnote 127 But as a matter of international law the pope and the president—and the king who is the CANZ countries’ head of state—embody, and speak for, a legal personality that enjoys a more permanent authority.Footnote 128 This difference surfaced recently in The Netherlands: concerns that a prime ministerial apology for the state’s involvement in slave-trading was insufficient led soon to a ceremony in which the Dutch king apologized on behalf of the state and also sought forgiveness on behalf of the royal family.Footnote 129 Biden delivered his 2024 Arizona speech while serving as both head of state and head of government; he thus invoked the state’s nonpartisan permanence when he declared, “I formally apologize as president of the United States of America.”Footnote 130
Yet in contrast with Pope Francis’s speech—which recalled meetings in Rome that had stirred his “painful” perception “of the suffering endured by Indigenous children,” and which described his apology as one way-station on a “journey” toward “justice, healing and reconciliation”Footnote 131—Biden’s trip to Arizona struck some reporters as a last-minute stab at securing votes in what then was thought to be a dead-heat presidential election.Footnote 132 His words of apology came amid twenty-three minutes of remarks, memorialized in a transcript difficult to read on account of repetitions and apparent ad libs. Indigenous persons welcomed his words but urged concrete actions.Footnote 133 Biden did say that his statement was “only one step toward and forward,” but then pivoted to a litany of his administration’s past actions.Footnote 134 Reports in mainstream media thus tended not to see his apology as a capstone, as it in fact was, of the U.S. Executive’s deliberate, remarkably candid, three-years-long transitional justice process.Footnote 135
The moment’s long-term effects likewise remained in doubt. Biden’s term ended three months after he uttered the apology “as president”—on behalf of the United States—and his successor was known not to feel constrained by legal or normative precedents that he himself disliked. On his very first day in office, President Trump pulled the United States out of several multilateral institutions; soon after, he reinstated anti-International Criminal Court sanctions and ordered a review of all international organizations and treaties, with an eye to U.S. withdrawal from any adjudged “contrary to the interests of the United States.”Footnote 136 Another order issued on the new president’s first day stripped the tallest U.S. mountain of its Native name.Footnote 137 It seemed there would be little place in the Trump agenda for generous investment in reparations, let alone for educating non-Native “American people”Footnote 138 about the sordid chapter of American history that the Biden-era initiative had exposed. Nor could one expect an Executive Branch tally of the economic injustices of forced residential schooling; to name a few, the profits made from unpaid child labor, the myriad costs that survivors and their communities sustain in reckoning with trauma, and the stolen value of dispossessed lands.Footnote 139 The 2022–2024 DOI Report seemed destined for a shelf alongside the 1928 Meriam Report and the 1969 Kennedy Report, all three awaiting some future effort to redress fully the wrongs done.
D. Child Ghosts and Aging Children
The same month that the Interior Department completed its Report, Poetry magazine published “Hollywood Indian” by Kinsale Drake, twenty-four years old and a member of the Diné nation.Footnote 140 Drake’s poem recalled when “we kneeled at Puvunga,” a site sacred to the Tongva people, and then continued:
I always wonder where the ghosts are
& if they still celebrate the living.Footnote 141
The couplet conjures those who perished in residential institutions. “Indians who are transformed into ghosts cannot be buried or evaded, and the specter of their forced disappearance haunts the American nation,” Renée L. Bergland wrote.Footnote 142 Holly Miowak Guise was more blunt: “Boarding school graveyards reveal deaths of Native children at colonial hands.”Footnote 143 Thousands of taken Native children died in North America; many lay in poorly tended graves, their identities eroding over time as their remains were transported from one site to another.Footnote 144 The 2022–2024 DOI Report urged respectful preservation of children’s burial sites or, if communities preferred, respectful return of children’s remains to their homelands.Footnote 145 In his last full month in office, President Biden proclaimed a national monument on a parcel where one such site, the Carlisle Indian Industrial School, once stood.Footnote 146
These actions followed decades of Native groups’ campaigns regarding deaths at residential schools, Carlisle in particular.Footnote 147 Their efforts found a powerful ally in Interior Secretary Haaland, granddaughter of boarding school attendees.Footnote 148 “In the rare event when a state does commemorate its crimes,” James E. Young wrote in his renowned essay on memorials, “it is nearly always at the behest of formerly victimized citizens.”Footnote 149 Yet as one Indigenous outlet reported, the Carlisle attendees’ graves lie beyond the new monument, on land belonging to the U.S. Army, an Executive Branch agency compelled by a lawsuit to disinter Native children’s remains when their families so demand.Footnote 150 Meanwhile, a class action complaint filed in mid-2025 at a federal courthouse near Carlisle sought “a full accounting of Native Nations’ funds used in connection with the Federal Indian Boarding School Program.”Footnote 151 Just as Native families’ habeas petitions liberated children from boarding schools a century ago,Footnote 152 litigation could spur action more quickly than the past administration’s monument proclamation—not least because of the present administration’s evident preference for what Young termed the “state-sponsored memory of a national past” which “aims to affirm the righteousness of a nation’s birth.”Footnote 153 Native activism outside the courtroom also is likely to continue. “Indian people are collectively resilient, with a willingness to undertake tasks that span generations,” the author of the DOI Report observed after his appointment had ended.Footnote 154 “People are not going to drop it and let it go.”Footnote 155
Promising to produce lasting effect was an aspect of the U.S. initiative that, to paraphrase Drake’s poem, celebrated the living.Footnote 156 Survivors’ own words had pushed the U.S. process forward; unforgettable was this 2022 congressional testimony from an Alaska Native septuagenarian, Aypayuq/Jim LaBelle: “At the end of 10 years, I did not know who I was as a Native person.”Footnote 157 Statements like these underscored the violated rights of the child—in this case, the aging child—even as they highlighted the ongoing impact of those violations. Recording survivors’ statements thus will help to ensure that any present or future process is child-sensitive, even if all survivors are adults.Footnote 158 The U.S. initiative aided efforts to preserve statements when it secured funds to gather oral histories.Footnote 159 In an ensuing video posted by the National Native American Boarding School Healing Coalition, members of Minnesota’s Upper Sioux community spoke about forced residential schooling.Footnote 160 “I can easily see in my community and even in my family,” one member commented, “how forms of physical abuse, emotional abuse, neglect, came to be part of how things just were done now.”Footnote 161 Another, alluding to old school sites, forcefully conveyed her own vision of reparation:
If they want to turn them into genocide memorials, excellent. If they want to turn them into museums discussing the horrors and atrocities perpetrated there, great. If they want to burn them to the ground, that’s utterly their prerogative. But that kind of thing comes with land return…. The only way we’re ever going to really get justice for those children is land return.Footnote 162
IV. Conclusion
This Article has examined child-taking justice; that is, transitional justice measures undertaken to redress the taking of children from their community, followed by efforts to alter, erase, or remake the children’s identities. Its focus has been the Federal Indian Boarding School Initiative, conducted from 2021 to 2024 by the U.S. Department of the Interior, with instrumental assistance from Native leaders, groups, and individuals. For centuries, Native children in the United States—many thousands of them—were taken from their families and forced attend residential schools where they were compelled to submit to Westernized and Christianized notions of “civilization.” Survivors and their descendants feel the impact to this day. The U.S. initiative conducted archival research, listened to former attendees at a dozen Road to Healing sessions, and met with counterparts in Canada, Australia, and New Zealand, three states with similar sordid histories. Its efforts resulted in a two-volume report, in President Joe Biden’s apology on behalf of the United States, and in his proclamation of a national memorial at the site where one infamous residential school once stood.
Transpiring almost exclusively within the U.S. constitutional framework, the U.S. initiative benefited from collaboration with affected communities, and it may have resonated with internal legal elites. Those elites frequently seek to hold international law at a distance; in Professor Maggie Blackhawk’s analysis, as external to U.S. legal frameworks. But Indigenous populations, no less than colonialist practices, cross national borders. Navigating this divide, the Report approached international developments with care. Its overture to other countries was tentative, and though it mentioned the doctrine of discovery, it did not identify this doctrine as an aspect of international law. Nor did it address contemporary international law instruments that guarantee child, human, and Indigenous rights. The approach reflected the fact that transitional justice processes must work within the political-legal context of the moment—a context that is changing rapidly as the administration of Biden’s successor unfolds. At some future date, greater engagement with international and transnational frameworks may fully redress those affected by the U.S. system of forced residential schooling. Till then, the 2021–2024 initiative stands as a remarkable achievement: it collaborated deeply with Native peoples; its Report established a detailed and candid official record which foregrounded Native voices and prioritized recognition of taken children’s burial sites; and it produced acknowledgments and apologies, delivered not only by an agency of the Executive Branch, but also by the head of state of the United States.
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