Still Fighting about Birthright Citizenship

by Carol Nackenoff & Julie Novkov, authors of American by Birth; Wong Kim Ark and the Battle for Citizenship

What is the importance of the Tenth Circuit’s June 15, 2021 decision in Fitisemanu v. United States, that American Samoans, who are residents of an “unincorporated territory” of the US, are not entitled to US citizenship? Is Fitisemanu the opening salvo in a broader attempt to get federal courts to revisit the issue of birthright citizenship that the Supreme Court appeared to settle in United States v. Wong Kim Ark (1898), and about which we have recently written in the University Press of Kansas’s (June 2021) American by Birth: Wong Kim Ark and the Battle for Citizenship?

Judge Lucero’s majority opinion in Fitisemanu (20-4017) held that the issue raised by the American Samoan individuals seeking citizenship was not resolved by the citizenship clause of the Fourteenth Amendment, which dictates that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” The Circuit Court’s majority opinion reversed a 2019 decision by the District Court of Utah that had been stayed pending the appeal. Judge Lucero held that Congress had the authority to determine the status of individuals born in territories acquired by the United States at the turn of the twentieth century, as it had when it granted most Hawaiians (not ethnic Chinese) US citizenship, or Puerto Ricans citizenship (and later, birthright citizenship). Congress had considered granting American Samoans US citizenship in the 1930s but had declined to do so—the measure to grant them citizenship passed the Senate but failed in the House. These Pacific Islanders are considered “non-citizen nationals,” and as such, they can live and work, but not vote, in the United States.

The lower court’s ruling, which granted birthright citizenship to individuals born in US territories, was based upon the Fourteenth Amendment. The District Court opinion identified Wong Kim Ark as the binding precedent. The opinion accepted the plaintiff’s argument that they were born “within” the United States and thus entitled to citizenship; the Tenth Circuit’s position was that the Constitution (and the Fourteenth Amendment) did not necessarily “follow the flag,” relying on the Insular Cases (1901). The University Press of Kansas has published an excellent treatment of the Supreme Court’s decisions surrounding rights of residents of territories acquired by the US in the Spanish-American War in Bartholomew H. Sparrow’s The Insular Cases and the Emergence of American Empire.

While the case itself deals with a small number of individuals in unusual circumstances, its implications are broader. Recent efforts by the Trump administration and immigration restriction advocates to limit birthright citizenship, especially for children born in the United States to undocumented residents, loom in the background. Through administrative action, the Trump administration tried to restrict “birth tourism,” the organized and lucrative practice of arranging visits that included shopping and trips to Disneyland for pregnant women so that they could give birth in the United States, conferring US citizenship on their newborns. Building a wall served as a symbol of the resolve to deter would-be US entrants from crossing the border, and the Trump administration’s decision to separate children and parents who did manage to cross the border was designed as another deterrent. But the executive branch is limited in what it can do to end birthright citizenship—for now.

Congress, as the Circuit Court majority in Fitisemanu pointed out, also has some authority over citizenship, especially for those born outside the territorial boundaries of the United States to non-citizen parents. Congress may decide who can naturalize and exercised this authority to deny this opportunity to the Chinese in America from 1882 until 1943. Some have argued that Congress should thus be able to give or withhold its consent to the incorporation of a group as citizens (see Elk v. Wilkins, a 1884 case involving Native Americans that states “no one can become a citizen of a nation without its consent,” the General Allotment Act of 1887, and the Indian Citizenship Act of 1924). This position has been staked out by Peter Schuck and Rogers Smith in their 1985 book, Citizenship without Consent, and a subsequent article, where they claim that since illegal aliens were not a recognizable category at the time the Fourteenth Amendment was adopted, and since we cannot completely recover the intent of the framers of the Constitution or of the Fourteenth Amendment on this matter, the decision should be left to the people’s elected representatives in Congress. They reason that, in a liberal polity, the people ought to be allowed to give or withhold consent to membership, and Congress is the appropriate institution to make these determinations.

Drawing an analogy between the processes by which Native Americans were made citizens (including the nation’s consent statement in Elk v. Wilkins) and the situation for those born in the United States to non-citizen parents is faulty for a couple of reasons, however. First, Native Americans born into a tribe were, since the time of Chief Justice John Marshall, considered as members of distinct political communities and members of domestic dependent nations. In the reasoning of nineteenth-century jurists, they were in a state of pupilage, and it required action by the United States to change that status. The lands on which tribal Indians lived were not simply part of the United States and moving to an individual homestead away from the tribe did not erase tribal membership (although the General Allotment Act, passed in part to remedy that situation, did envision citizenship for those Native Americans who took up individual land allotments and lived and worked on them). These points surely could not be made with regard to the sons and daughters of English, Swedish, or even Irish, Italian, and other immigrants who came to the United States in the nineteenth century and whose offspring, born on US soil, had long been considered birthright citizens, whether or not the parents naturalized. Congress did not find it necessary to make the American-born sons and daughters of Caucasian or white immigrants citizens by birth (although an act of Congress at one time denationalized white women who married foreign men, rendering some of them stateless). English common law—recognized in early US court cases—and precedent made them birthright citizens.

Second, it is important to note that Justice Gray, who wrote the majority opinion in Elk v. Wilkins that granted Congress the power to determine Native American citizenship, also wrote the majority opinion in Wong Kim Ark. As Gray, an acknowledged expert on the law of sovereignty explained, the fundamental principle of the common law with regard to English nationality was “birth within the allegiance . . . of the King.” He noted that this principle had been followed almost without exception by courts when dealing with controversies in the colonies and the United States, even before passage of the Fourteenth Amendment. And while all conceded that the purpose of the Fourteenth Amendment was to extend citizenship to formerly enslaved Black people and their heirs, Justice Gray’s opinion pointed out that the language was “general, not to say universal, restricted by place and jurisdiction and not by color or race.” The purpose of the text of the citizenship clause, he argued, was to carve out some very narrow exceptions to the general principle of extending jus soli citizenship (citizenship derived from birthplace)—exceptions chiefly relating to children of foreign ambassadors, children of military enemies, and children born at sea. Others born here were subject to the jurisdiction of the United States in the ordinary sense of being under obligation to obey US laws. And in the years after the decision, despite increasing concern about the new legal category of illegal immigration, Congress never passed any laws purporting to limit citizenship only to the descendants of legal US residents.

The federal courts have been key players in battles over citizenship. Following United States v. Wong Kim Ark, the Supreme Court upheld the principle of birthright citizenship twice again by the mid-twentieth century. Would a now-conservative Supreme Court overturn this decision? We think it highly unlikely. It is possible, however, that the current Court would consider an argument, if a case were presented, that Wong Kim Ark, whose parents were living and working in the US with permission, did not raise or cover the case of those whose parents were living here illegally.

In American by Birth, we examine the history of birthright citizenship in the United States. The book explains how the Fourteenth Amendment was read to codify that history, extending the principle of citizenship by birth in a nation’s territory even to the American-born sons and daughters of Chinese immigrants who were so vilified that the parents were barred from naturalization in the 1882 Chinese Exclusion Act. After being rebuffed in the federal court system, nativists and immigration restrictionists turned to other routes to keep undesirables from entry and subsequent citizenship. The Asiatic Barred Zones Act (1917) and the quota system adopted in immigration restriction measures in 1921 and 1924 were noteworthy; during the Depression, efforts also included ‘encouraging’ the out-migration of Mexicans (a not insignificant portion of whom were born here) who were seen as drains on public resources. The rigid application of the quota system was also an important factor behind US inaction in the face of the humanitarian refugee crisis during the Holocaust. The desire to keep America white strongly influenced how territorial acquisitions were treated. With a noteworthy increase in immigration from Mexico, Central America, and the Caribbean beginning around the 1970s, interest in policing the Southern border and in revisiting birthright citizenship increased. American by Birth brings the examination of birthright citizenship up through efforts during the Trump administration to change current law and practice—and the reading of the Fourteenth Amendment embraced in Wong Kim Ark. The United States is not alone among nations with generous citizenship provision in experiencing backlash, and in the final chapter, we consider the different methods by which American opponents of birthright citizenship are trying to effect change now.

Carol Nackenoff is the Richter Professor of Political Science at Swarthmore College

Julie Novkov is interim dean of Rockefeller College of Public Affairs & Policy and professor of political science and women’s, gender, and sexuality studies at the University at Albany

Why is Car Insurance So Expensive? And Why Won’t Anyone Do Anything About it?

by Peter Kinzler, author of Highway Robbery; The Two-Decade Battle to Reform America’s Automobile Insurance System

If you think your auto insurance costs too much, you are not alone. Nearly everyone does. That is why, particularly in times of rising rates, there is public support for reforms that promise lower rates. As auto insurance is regulated at the state level, the demand for reform typically depends on the rates in any particular state. To see if there are changes that could help reduce what you pay for auto insurance, let’s start by looking at the highest cost in states today. Then, I will examine the reasons premiums are so high in those states and what changes might help reduce rates. Finally, I will discuss the largest single impediment to achieving reform: trial lawyers, the people whose economic interests would be adversely affected by reforms. They are the main reason why the auto insurance system remains too costly and why those changes are so hard to achieve.

In 1997, Louisiana and Michigan ranked as the twentieth and fifteenth most expensive states in auto insurance premiums. Not particularly high nor particularly low. Twenty years later, they were vying for the unwanted title of the most expensive auto insurance state in the country, words no driver in either state wants to hear. What changed in the intervening years? Was the source of the problem the same? And what can be done to remedy the problems?

Alas, the answers are not simple, starting with the fact that the two states have auto insurance systems that are polar opposites. Louisiana has a fault-based system under which the right to recover is based largely on the other driver’s degree of fault and the amount of any recovery is based on the level of the other driver’s coverage. The only way a driver can protect themself is to purchase health insurance or its auto insurance equivalent, MedPay. Both of those coverages are ones the driver pays for.

Michigan, by contrast, operates under a no-fault system. Like health insurance, no-fault pays for an injured person’s losses without regard to fault. To pay far more injured people more money than the fault system and to keep premiums from rising, no-fault laws limit lawsuits for pain and suffering (non-economic loss), typically to some defined set of very serious injuries.

To understand how to fix both the Louisiana and Michigan laws, you must first understand why some states have fault laws and some have no-fault laws and how most of them fail to deliver what insured people need—prompt, fair compensation in a timely manner for a reasonable price.

All states started with the fault system. Then, in 1932, a Columbia University study of the fault system identified inadequate compensation as the major flaw in the fault system. Later, in the mid-1960s and early 1970s, law school professors Robert Keeton and Jeffrey O’Connell and a twenty-six volume US Department of Transportation study expanded on the system’s deficiencies. They found that the requirement of fault deprived more than half of all victims of any recovery and that the system for determining fault—with the involvement of insurance claims adjusters, lawyers, and often the courts—took too long and paid almost twice as much to lawyers as it paid for the medical bills and lost wages of accident victims.

They recommended switching to a no-fault system that paid all injured persons without regard to fault, with the cost of the additional compensation being offset by strict limitations on the right to sue for pain and suffering. As the new system would deprive lawyers of substantial income, the lawyers fought back in two ways. First, they tried to preserve the fault system by proposing changes to it to improve compensation. Where that failed, they sought—and usually succeeded—in undermining the restrictions on lawsuits in no-fault states (called thresholds). That enabled them to sue in more cases than no-fault proponents wanted, undermining the basic no-fault trade-off and resulting in higher costs. The trial bar then turned around and argued against no-fault in other states and at the federal level on the ground that premiums were too high. As a result of these changes in the fault system and, in some cases, the creation of no-fault systems, compensation for injured persons improved. However, for reasons I will discuss later, only no-fault (done properly) can deliver both better compensation and lower premiums.

So, let’s start by examining Louisiana. As I mentioned, as a fault state, an injured person in Louisiana can only recover if the person was injured by another driver’s negligence. That standard has always denied recovery to nearly one-third of all people injured in accidents, those involved in single-car crashes, because no one is at fault. That will never change. Until the late 1960s, it also meant no recovery if the injured motorist was even partially at fault, the contributory negligence doctrine. These and other restrictive doctrines were the reason more than half of all injured persons recovered nothing in auto accidents in the late 1960s.

Louisiana joined fault states in seeking to remedy the compensation defects by making it easier to recover. Perhaps the most dramatic change was adopted in 1996, just one year prior to the time Louisiana ranked twentieth in premiums. The state moved to a pure comparative negligence standard, whereby motorists recover based on their percentage of fault, even when they are almost entirely at fault. In a worst-case scenario, a motorist who is 90 percent at fault could recover more than the person who is 10 percent at fault. That can happen if the primarily at-fault motorist suffers $90,000 of injuries and the largely free-from-fault driver suffered $5,000 in injuries. Advocates for change in Louisiana also contend that the state’s civil justice system contributed to the higher rates by encouraging settling all claims for policy limits ($15,000). Whatever the exact causes were, they all resulted in improved compensation. However, it is axiomatic that paying more injured people more dollars within the confines of the same system is more costly than paying fewer people. As a result of changes in the fault system and on the insurance side, the average premium jumped from $954 in 1997, placing the state twentieth in the country, to $2,480 in 2020, moving to second.

What was not the source of the dramatic rise in premiums was that Louisiana drivers had more accidents. The number of accidents in the state was in line with the rest of the country, but the number of claims was twice the average rate. Among the “reforms” adopted in 2020 were requiring an injured person to post a $5,000 cash bond within 60 days in order to file suit and changes in the collateral source doctrine. Supporters contended that these and other changes adopted by the legislature in 2020 would reduce premiums by 25 percent. Only months after the new law was adopted, one of the key insurance supporters of the changes said that Louisiana was likely to remain the most expensive state in the country. Even should the new law succeed in reducing rates somewhat, it will be because it will reduce compensation for injured persons, some of whom won’t be able to meet the new law’s financial requirements to bring suit.

If increasing compensation under the fault system addresses one problem (inadequate compensation) while creating another (higher premiums), is there a way to achieve both better compensation and lower premiums? Strangely, the answer lies in examining the Michigan’s no-fault system, which pretty much shares the top spot with Louisiana for the highest premiums.

The Michigan law, adopted in 1973, most closely resembles the model state law and the federal no-fault bills that were considered by Congress for most of the decade. While the federal bills floundered, Michigan succeeded in adopting a law with very generous benefits—including unlimited medical and rehabilitation—without increasing costs initially. It accomplished better compensation by a trade-off—guaranteed benefits in return for limiting the right to sue in very serious injury cases. The underlying concept is that motorists largely give up the right to sue for pain and suffering in return for an assured right to recover for their medical (and wage) losses, just as they do with health insurance. In fact, no-fault auto insurance is largely health insurance by another name.

The law provided benefits for all the roughly 50 percent of injured people who could not recover anything from the fault system at the time. The cost of providing guaranteed high levels of benefits to all injured people was offset by the dramatic reduction in lawsuits and the accompanying attorney fees. Its “threshold” to sue reduced both recoveries of pain and suffering in cases of small injury and the costs of attorney fees. In fault states, both of these categories exceeded the amount paid from the insurance dollar for out-of-pocket costs.

The Michigan law was an unqualified success for some twenty-five years, with the state’s premiums ranking only fifteenth in the country in 1997. Why, then, is it in a virtual tie with Louisiana as the most expensive auto insurance state today? And why do 25 percent of motorists drive without insurance? Common sense provides the obvious answers—the difficulty of predicting human behavior, changing attitudes, and ticking time bombs in the legislation. No legislation is ever perfect. It is the job of the supporters of major legislation to monitor its implementation for possible issues that might arise and to be prepared to defend its integrity and make any necessary changes to preserve its purposes.

The Michigan law started off ideally from the standpoint of its supporters, both substantively and politically. Substantively, it benefitted from the findings of the deficiencies of the tort system in a twenty-six volume US Department of Transportation study in 1970, a model state law in 1973, and the early political experience of the US Senate in considering and developing legislation. Politically, Michigan benefitted from support among the major players across the political spectrum—from Republican Governor George Romney to the powerful United Auto Workers. It even had the support of the Michigan Bar Association, though not the trial bar. The law also had the benefit of being in a midwestern state where there were fewer trial lawyers per square mile than in other states with large urban centers, such as New York, New Jersey, and Pennsylvania.

These differences from the eastern states enabled the Michigan law to operate as intended for roughly twenty-five years, with much better compensation and steady rates. The one unintended problem was that the law was mandating the Cadillac of insurance for all people, including those who could afford a Ford, at best. The result has been uninsured rates as high as twenty-five percent in Detroit and other areas with many low-income people. They need a much less costly form of insurance, one that would permit them to balance protecting themselves against injury with far more desperate needs to feed their families and pay the rent.

Where cost problems arose in other no-fault states, the primary reason was the retention of too many lawsuits. In all of them, the portion of the premium for lawsuits is higher than for the no-fault benefits. That is not the definition of a no-fault system. By contrast, in Michigan, the problems are primarily associated with its very generous no-fault benefits. Unlike in other no-fault jurisdictions, most of the cause of rising rates were the result of problems on the benefit side of the law. First, the benefits were higher than in any other form of insurance in the United States. There is no health insurance policy—Medicaid, Medicare, or private health insurance—that pays all the costs of all injuries with no limits. The original Michigan law had few of the cost controls that are traditionally contained in health insurance policies, such as deductibles, copayments, fee schedules, and limits on certain kinds of providers and the number of visits. Over time, particularly in serious injury cases, the absence of these common limitations resulted in skyrocketing benefit costs. Take, for example, personal attendant care for seriously injured people. It’s a wonderful idea if we as a society had unlimited resources. Medicare does not offer such coverage nor do traditional health insurance plans. The cost of these and other care for the very few catastrophic injury cases in Michigan eventually overwhelmed the costs of all other injuries combined.

Despite its very tight restriction on the right to sue, Michigan ultimately was not immune to its courts weakening the initial interpretation of and permissible grounds for suit. The Kreiner decision in 2010 made it easier for people to bring cases. With the cost of no-fault benefits rising well beyond the level originally anticipated and with the threshold weakened, this double whammy led to consistently rising rates until Michigan arrived in a virtual tie with Louisiana as the most expensive state for auto insurance in the country.

Thus, Michigan was faced with making reforms on both the no-fault and fault sides of the law. Recent reforms, which went into effect in July 2020, are beginning to bring down costs. People are now permitted to purchase lower levels of benefits, from $250,000 to $500,000 and $50,000 for people on Medicaid. Motorists can also opt out of buying no-fault coverage if they have qualified health coverage that applies to auto accidents. There is a fee schedule for medical providers and hospitals, although it is generous, starting at 200 percent of the Medicare rate before declining on an annual basis. Motorists now also have a managed care option, with deductibles and copayments, in return for a lower premium. Importantly, with regard to the cost of unlimited coverage, the new law limits reimbursement of family members who provide personal attendant care services to fifty-six hours a week.

So far, the reforms have led to a 60 percent drop in the charge for catastrophic coverage. Also, the option to purchase lower levels of no-fault benefits will bring down costs, but more needs to be done to fulfill the promises of no-fault. Further tightening on the benefit side will also reduce costs while leaving injured Michigan motorists with the most comprehensive coverage for auto accidents of any state in the country.

Stepping back for a minute from the problems in Louisiana and Michigan, think about what states had the highest premiums when the no-fault issue first arose in the mid-1960s. They were states with large urban populations where more accidents occurred and states with large, aggressive attorney populations. They included New York, New Jersey, and Florida. On the other hand, the lower cost states were largely rural where there were far fewer accidents, although many resulted in serious injuries. They included North Dakota, Maine, Iowa, Idaho, and South Dakota.

Nearly fifty years later, these states still fit into the same categories of cost, regardless of whether they have fault or no-fault laws, and the question remains: is it possible to lower premiums while improving compensation for the injured?

The short answer is yes. My recently released book, Highway Robbery: The Two-Decade Battle to Reform America’s Automobile Insurance System, describes in detail one way to solve the problems not only of Louisiana and Michigan but of all other states, be they tort or no-fault states—Auto Choice. In tort states, motorists would have the option to purchase no-fault coverage that will pay in all injury cases, just like health insurance, but with coverage for roughly twice the level of the existing fault coverage (about $50,000) so that it is not so high that it prices low-income drivers out of the market. Also, there would be cost controls in the auto insurance system, just as there are with health insurance, and coordinating payments for injuries between the health and auto insurance systems holds out the potential for substantial cost savings by eliminating duplicate payments. The threshold would limit lawsuits based on fault to cases of excess economic loss—economic loss beyond the level covered by the no-fault benefits. No suits for noneconomic damages would be permitted except against drunk drivers and those who intentionally injure others. In July 2003, the Joint Economic Committee of the US Congress estimated that the average driver in Louisiana who chose the no-fault option would see a drop of 70 percent in their personal injury premiums.

In no-fault states, the no-fault option would address the problems in no-fault states caused by both uncontrolled benefits and weak thresholds. The benefit levels would be modest, but about twice as much as one could recover in a fault state. The threshold would be the same as described above, eliminating all suits for non-economic loss. The 2003 JEC estimate of savings for the average person on their personal injury premiums for Michigan was 61 percent.

Importantly, the concept of Auto Choice would allow drivers choices they don’t have today—a choice between two different auto insurance systems and, if they choose the no-fault option, to pick the level of no-fault benefits and to opt out of the choice system entirely if they wish. They could choose simply to remain in the system that was in place in their state before this legislation was passed. In effect, the option to remain in the state’s existing system would provide fail-safe protection should the no-fault option not work as intended. That’s the kind of guarantee that simply isn’t offered in legislation.

Now all that’s needed are some politically courageous politicians in state capitals to resist the political pressure from those who would lose money under such a system—trial lawyers and insurers. At last count, about ten years ago, lawyer fees exceeded $11 billion a year. They won’t give up that largely easy money easily. Strong pressure from a public fed up with unnecessarily high premiums offers the most hopeful answer, with crowdfunding financing the effort instead of special interest money, and a little organizing help from that highly unpopular but often effective group—lobbyists.

Peter Kinzler served for twenty-five years as a staffer in the US House of Representatives and the US Senate, most as a subcommittee counsel, and for ten years in the private sector as president of the Coalition for Auto-Insurance Reform. He is the retired president of Kinzler Consulting and lives in Alexandria, Virginia.

Bodies and Boarding Schools

By: David Wallace Adams, author of Education for Extinction; American Indians and the Boarding School Experience, 1875–1928

Recent news of the discovery of hundreds of Native American children’s graves at a site of a former boarding school in Canada has brought to public attention one of the most tragic chapters in the history of Indigenous peoples in North America, including the United States—the story of how Native children were removed, often forcibly, from their families and communities and placed in distant boarding schools where missionaries or government officials went about the business of eradicating cultural identities in the name of “civilization” and assimilation.

Having spent more than forty years studying and writing about Indian boarding schools, I was not terribly surprised by recent revelations but felt compelled to comment on a subject so close to the focus of my own work. For those unfamiliar with this chapter in Native American history, it may be surprising to learn of the extent to which the systematic removal of Native children from their families and communities and placing them in boarding schools, both reservation and off-reservation, was a major component of late nineteenth- and early twentieth-century federal Indian policy. While it is nearly impossible to calculate the number of Indigenous children who attended such schools, my own analysis is that if a survey of Native Americans had been made in 1930, it would have shown that approximately 70-80 percent of the population attended such an institution at some point in their life. It is also important to point out that, unlike Canada, most of the enrollment in the United States was in federal (not mission) schools.

While it is true that many children adapted to the regimentation of boarding school life and saw their time of enrollment as an opportunity for acquiring knowledge and skills that would facilitate their survival in white society, for most the prolonged separation from family constituted terribly traumatic experiences which left emotional scars for years to come. Not the least of these painful memories was seeing fellow students stricken by raging epidemics of influenza, measles, pneumonia, and tuberculosis that swept through the school. Overcrowded dormitories, inadequate food, severe discipline policies, military-like regimentation, and other institutional realities all contributed to one of the darkest consequences of the boarding school experience—school cemeteries. Many of the bigger schools possessed such plots. How many of these undiscovered grounds exist, we still do not know.

The graveyard at Carlisle Indian School, one of the largest of the off-reservation institutions, contains 192 bodies with names like Lucy Pretty Eagle, Maud Little Girl, Dennis Strikes First, as well as the gravestone marked Unknown. Similarly, there are some one hundred graves at Haskell Institute, located in Lawrence, Kansas. Again, the names: Jerry Wolf Chief, Maggie Big Fire, and Charles Panther. Students’ knowledge of the school cemeteries couldn’t help but rattle their minds. Would they ever make it home? In his memoir, My People the Sioux, Luther Standing Bear, who attended Carlisle in the early years, says the news of a fellow student dying “worked on our nerves to such an extent that it told on our bodies.”

Some thirty years ago I interviewed an elderly Navajo (Diné) man who attended the off-reservation school in Santa Fe, New Mexico, and who at one point was so consumed by pneumonia that he lay in a hospital bed for several months. Near-death, and slipping in and out of consciousness, his only relief was hearing what he thought to be that of tinkling bells. It must be the sheep, he imagined. Back on the reservation, he had spent countless hours herding sheep. And now he was hearing the familiar sound. “I could hear the bells. I know the sheep was pretty close. Them days, if you don’t hear those bells, you’d better go look for them. So I had the dream all the time. I wasn’t scared. I wasn’t hurtin’ no place.” And so he managed to pull through.

The number of children who never came home was a major reason why many parents resisted turning their children over to school officials. In 1891, a chief in the Spokane Nation, which had lost sixteen of the twenty-one youths sent to eastern schools, declared, “If I had white people’s children, I would have put their bodies in a coffin and sent them home so that they could see them. I do not know who did it, but they treated my people as if they were dogs.”

Meanwhile, boarding school employees scrambled to keep the death number down, and most cared for sick children in the most humane manner possible. Many reasoned that sending homesick children to the poverty of the reservation would only seal their fate. The long distances and weather also came into play. At the same time, however, some dismissed the school’s responsibility for school deaths by claiming that many children were already showing signs of illness before arriving at school and consequently it was not attributable to school conditions. And then there was the all-to-common motivation to send a stricken child home once a serious illness was discovered with the likeliness of death, thereby reducing the risk of raising bureaucratic eyebrows in Washington for the school’s rising death toll.

With Secretary of Interior Haaland’s recent announcement of a Federal Indian Boarding School Initiative to explore the extent of burials across the boarding school system, one cannot help but wonder whether the numbers unearthed will approaching those of Canada. A thorough investigation will tell us, but I suspect not. While Canadian and US systems were driven by similar motives, like the erasure of Native cultures and land dispossession, as suggested earlier, there were also significant differences. Besides the proportional difference in the number of schools operated by the churches, there were also differences in bureaucratic oversight, at least after the 1870s when policymakers created an inspection system to monitor developments in the field.

Whatever the outcome on numbers, the fact remains that the history of Indian boarding schools constitutes one of the darkest chapters in the nation’s past, a story strewn with pain, moral atrocities, and the ghosts of children crying out for home.