Secretary of the Interior Deb Haaland announced in June the Federal Indian Boarding School Truth Initiative at the Department of the Interior to investigate human rights violations at these institutions. According to the National Native American Boarding School Healing Coalition (NABS), Senator Elizabeth Warren (D-MA) is also expected this summer to reintroduce legislation in Congress to establish a “Truth and Healing Commission on Indian Boarding School Policy Act.” The work of the NABS was instrumental in drafting this bill proposal.
A process of Truth and Healing Commission in the US could finally allow for the strict documentation and analysis of the cultural genocide, forced assimilation, and human rights violations against Native children in boarding schools. The NABS stated that only 38% of boarding school documentation has been made available to them, so an investigation is critical towards building clear policies and taking steps towards healing and reconciliation.
A Truth Commission is undoubtedly of great importance to document the impact and continuing effects of historical and intergenerational trauma in communities, and to provide a forum for indigenous victims and families on the personal impacts of physical, psychological, spiritual, and symbolic violence. However, for a commission to really have an impact on the internal political life of the affected communities, it is important to analyze the role and effectiveness of Truth Commissions in various countries.
Truth Commissions, in order to be successful, must rely on the government’s political will to give open access for the investigation and documentation of cases. There must be interest and involvement of victims and witnesses, that is, full confidence in the process and in the composition of the commission, to guarantee participation and collaboration with the investigation. The integral members of a commission must be representative and neutral, in the case of an internal conflict, but in the case of the United States, it must be made up of representatives of the victims and those affected by boarding school policies. As this Harvard Law Review article indicates, the US legislative proposal, originally drafted by Deb Haaland and Elizabeth Warren, includes many of these components, as well as financial aid aimed at traditional mental and cultural healing, and a call for a national educational reform to include the history of what happened in K-12 school textbooks.
Because political will is so important, seeking legislative participation is key to the process. And although it might seem obvious to say so, in order for a Truth Commission to work, the practices and abuses that led to the need of creating a commission should have ceased.
Truth Commissions are a transitional justice tool, but they cannot be the only way to reach justice. Each commission must have a specific mandate, with full powers to execute it, and an understanding of whether its results will be legally binding or not. Those responsible for crimes are always elusive actors, linked to economic and political powers, and for that very reason, very difficult to prosecute and punish, so each country must create its own model of justice based on the commission’s results.
Each country must determine its own process of clarifying the historical truth, legal truth, and national reconciliation to make way for the reconstruction of the social fabric damaged by the conflict, abuses, or crimes committed. Ideally, members must seek international support and technical cooperation from legal and human rights experts. These are the ideals set by the United Nations based on a collective experience of more than 70 years of work in restorative justice.
Obstacles to a fair process
Failure to follow and implement a Truth Commissions’ conclusions and recommendations per the UN mandate—construction of the truth, administration of justice, legal truth with sanctions for those responsible, restitution, rehabilitation, and guarantees of non-repetition—has been one of the main reasons for a lack of effectiveness. In several countries, political personal interests of the commissioners, strong institutional ties and dependence on the government, as well as the solid presence of the alleged perpetrators in government spheres, were insurmountable obstacles to reaching successful processes of national historical truth and reconciliation. I want to mention two examples.
The first case, one I know first-hand since I was part of it, is that of my country Mexico, where the State decided that it could not “adequately handle” a Truth Commission. Therefore, it instead made the Public Prosecutor’s Office responsible for investigating itself since Mexico was “institutionally strong enough” to accommodate justice within its own branches. Based on that original tainted premise, the Special Prosecutor for Social and Political Movements of the Past (FEMOSPP, better known as the Dirty War Prosecutor’s Office) was born.
The victims of the dirty war were summoned to join that instance, not as a deliberative part of the process, not as actors, but as part of the historical investigation. Not as subjects of law with the possibility of influencing the process, but as objects of law. There was never any attempt to create a process for the victims to provide public testimonies of what happened. A national process of debate and reconciliation was not opened. It did not have an adequate budget. No autonomy. Most of the actors responsible for the human rights violations were still active, holding even more political power than when they committed the crimes they were accused of. The catastrophic result was the impossibility of reaching historical truth, which was moreover legally annulled.
The judiciary decreed that the crimes that were documented had prescribed and declared the entire investigation open — preventing the public from accessing information from ministerial investigations “in progress” — but also as res judicata — which prevents anyone from being tried twice for the same crime, therefore closing any possibility to future litigations. In the end, an authentic symmetrical timepiece was closed on the historical truth. The final work of FEMOSPP was the creation of an institutional State mechanism that validated the crimes committed by the State and decreed its eternal silence.
The Mexican State has tried, in different ways, through different governments, to offer “apologies” to the victims of the dirty war, of forced disappearances, torture, and crimes against humanity. The State must apologize as the final part of the process, doing this at the beginning only seeks the victims’ forgiveness for the crimes committed, that is, they are only looking for more impunity. After that decisive end of the FEMOSPP, the armed forces responsible for crimes against humanity have risen in power and scale in Mexico, practically creating the conditions of a separate State, with a dynamic of lack of accountability and total impunity.
For the second case, the government of Guatemala agreed to create the Commission for Historical Clarification (CEH) at the end of the war, as part of the Peace Accords with the Guatemalan National Revolutionary Unit (URNG). The commission had a similar crucial problem to Mexico’s: the actors who had committed human rights violations still occupied positions in the legislative, executive, and even the military arms of the government. The commission was expected to carry out its functions without autonomy and without a budget. It did not have binding legal powers, and its mandate was limiting. It did not generate a national debate of reconciliation, truth, and justice. The testimonies of the victims were limited to the judicial sphere (again, objects of law), and in the end, the mechanism agreed not to point out those responsible and neither issue judicial processes. Impunity as the norm has allowed for a dynamic of repeated violations to this day, indigenous people continue to be murdered with impunity in Guatemala, the same violations that generated the CEH investigation.
It is noteworthy that when a Truth Commission does not fulfill its historical, legal, ethical, cultural, and social mission, the consequences, as the above failed processes have shown, are usually adverse and catastrophic for society.
In contrast,after the largest class-action settlement in its history, the government of Canada launched a national investigation on indigenous boarding schools that included the establishment of a Truth and Reconciliation Commission that took place between 2007 and 2015. In June 2015, the commission presented its findings contained in a multi-volume final report, including 94 urgent recommendations.
Canada’s TRC was made up of six commissioners, including four members of First Nations of Canada, which initially generated certainty and confidence in the process. The commission had its own budget of $ 72 million, a communications and socialization plan, legislative ties, binding legal powers, and had the ethical and political support of local and national governments. The people involved, witnesses, and members of the commission themselves acted as subjects of law, involved in a process that incorporated them from the beginning as an integral and indispensable part of the investigation. The commission’s work opened the door to a true process of state recognition for the abuses committed, as well as healing.
We are still seeing today the result of the commission’s work in the ongoing discovery of the remains of children who succumbed to boarding school policies and abuses.
Based on that accumulated experience, a second National Inquiry on indigenous rights was launched between 2016-2019 to investigate, document, and resolve the cases of disappeared and murdered indigenous women and girls in Canada, which could also serve as an example of a Truth Commission in the US. If anyone is interested in the specific analysis of this commission, we have already written about it and can be accessed here.
It should be noted that in their design, the legal scope and the powers of the National Inquiry into Missing and Murdered Indigenous Women and Girls were autonomous, independent, and self-normative. As the documentation of cases progressed, the mandate of the Commission was broadened, until it finally encompassed First Nations, Inuit, Métis, women, girls, and 2SLGBTQQIA people, recognizing the historical prejudices by which the State acted against those vulnerable members of the population.
Through its work of investigation and accountability, they built a national process of public testimonies, with media presence, which opened a national debate on the effects of the State’s genocidal policy against its First Inhabitants.
It also recognizes the historical, multi-generational and intergenerational trauma of women and 2SLGBTQQIA people, a process of economic and social marginalization, as well as a systematic and intentional omission of their experiences. The report defines structural violence as the product of a generalized whole, a social relationship between white people and First Nations based on discrimination, racism, colonialism, forced Christianization, gender-based violence, and a certain genocidal intent with a desire to eliminate a group of people or nation.
As part of its work, the investigative team established a clear roadmap, a schedule of necessary legislative and local and national governmental changes. The recommendations include repairing cultural, social, economic, and political damages. It recognizes First Nations, Inuit, and Métis rights to culture, health, security, and justice in a grand total of 231 imperative changes at the federal level. The process must continue under close observations to avoid deviations or non-compliance, but truth and reconciliation processes in Canada are on the right track thanks to its members’ committed dedication.
Looking with hope into the future
In its report on a Truth and Reconciliation Commission for the United States, the Lakota Law Project alludes to the Canadian process as an example to take: “It is long past due that we begin a renewed process of truth and reconciliation, just as the government of Canada has recently done. This is the path to healing for all parties…the United States should follow Canada’s example by establishing a robust, well-funded truth and reconciliation commission concerning American Indian boarding schools.” The report also alludes to the need of recognizing that Canadian boarding schools were created based on US ethnocidal policies of forced assimilation. Likewise, it analyzes the current system of forced extraction of indigenous children and youth through foster care, identifying it as a continuation of those boarding schools, which continues to gravely affect indigenous communities. The Lakota Law Project points out that the number of indigenous children and youth in the US foster care system is much higher than other groups relative to its population and only half are returned to their communities.
A Truth and Reconciliation Commission in the US thus becomes an urgent process to face its dark colonial past towards First Nations and solve present social inequities inherited from that past. Yet, we remain hopeful by the work of First Nations in Canada towards truth and justice.
* Pável Uranga was the first Head of Historical Investigation of the Dirty War Prosecutor’s Office in Mexico, he is an expert in gender violence, co-founder of the National Citizen Observatory of Femicide in Mexico, a student of the issue of Trafficking for the Purposes of Sexual Exploitation in three different countries, author of the study “Trafficking before the mirror: An approach to slave sex work in Ecuador. Northern Border ”, in 2012.