Abstract

Excerpted From: Kristina McLaughlin, Establishing a “Duty to Not Destroy”: Using Fiduciary Duty to Hold Settler-Colonial States Responsible for Cultural and Linguistic Harms Committed Against Indigenous Students at Government-run Boarding Schools, 34 Minnesota Journal of International Law 299 (Spring, 2025) (230 Footnotes) (Full Document)

The United States is the last of the archetypal settler-colonial nations to address the atrocities committed against indigenous attendants of government-run boarding schools. In the other settler-colonial states (Canada, New Zealand, and Australia), plaintiffs have asserted violation of fiduciary duty claims to hold the government accountable for loss of cultural heritage, including linguistic harms. The U.S. shares common law and history with Canada, Australia, and New Zealand: all are former colonies of the British Empire and British common law guided the initial interactions and eventual early agreements between settlers and indigenous tribes. Over the last 100 years, investigations into cultural harms against indigenous populations in schools (Canada and Australia) and more generally (New Zealand) have given rise to lawsuits alleging cultural harms. Both potential plaintiffs and the U.S. government can learn from their international peers regarding what to expect for legal challenges following the conclusion of investigations underway in the United States.

In May 2022, the U.S. Department of the Interior published a report investigating the Federal Indian Boarding School Initiative to “examine the scope of the system, with a focus on the location of schools, burial sites, and identification of children who attended the schools.” The report found evidence for atrocities. In its conclusion, the report acknowledged the assimilation policies directed at children in the boarding schools “contributed to the loss” of “life,” “physical and mental health,” ““territories and wealth,” “Tribal and family relations,” “use of Tribal languages,” and “the erosion of Tribal religious and cultural practices.”

While the Department of the Interior's official report acknowledged the atrocities and trauma inflicted by the boarding schools, the DOI has not apologized for the program and its effects at this time. One possible reason is that the DOI has not concluded its investigation. In response to the publication of the DOI report, the National Endowment for the Humanities is sponsoring an oral histories project through the end of 2023 to record the experiences of those who attended such boarding schools. The information that comes out of the oral histories is expected to confirm and expand upon what the DOI's initial report found.

This is not the first time that the U.S. government has acknowledged the harm of the boarding schools. On the 175 anniversary of the creation of the Bureau of Indian Affairs, the then-Assistant Secretary, Kevin Gover, issued an apology in his official capacity. Gover directly acknowledged that the conduct of the schools brutalized the children in the boarding schools ““emotionally, psychologically, physically, and spiritually” and the resulting “trauma of shame, fear and anger has passed from one generation to the next, and manifests itself in the rampant alcoholism, drug abuse, and domestic violence that plague Indian Country.”

Even with this direct acknowledgment, there has been no recourse for victims of the Indian Boarding Schools in the United States. Options for survivors and descendants in the U.S. to seek justice for their lost language and cultural heritage are unclear. This note will analyze the legal arguments around breach of fiduciary duty to indigenous populations as a legal strategy to seek redress for cultural harm suffered at boarding schools. The first section will discuss the lack of remedy in international law; similar efforts by indigenous peoples to sue for cultural harms suffered as a breach of fiduciary duty in Canada, New Zealand, and Australia; and the trust doctrine in the U.S. The second section will discuss how fiduciary duty has been applied to cultural harms in Canada and New Zealand as well as what potential American plaintiffs could allege when filing similar suits in the U.S.

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The path forward is uncertain for survivors of American boarding schools who wish to sue the U.S. government for breach of fiduciary duty. Although there is the long-standing trust responsibility in the United States, the current court only recognizes limited duties under the trust responsibility. Should potential plaintiffs follow Canadian precedent by alleging that the U.S. government had a duty not to destroy their languages, they will likely struggle to find sufficient support for their claims in statutes, treaties, common law, or executive orders to establish a duty on the U.S. government. Even if they are able to establish that there was a fiduciary duty, and that duty was breached, the U.S. government will not be held accountable. Instead, only federal employees could be held liable. Furthermore, because of the government's long-standing policy in favor of assimilation, it is unclear whether preventing students from using their native languages in the boarding schools would be outside employees' scope of “express authority.” Though a court may find some statements of apology persuasive or compelling in a pleading, potential plaintiffs will be asserting a novel and complex claim with little certainly about the outcome. If they were to follow the path of New Zealand plaintiffs, survivors would need to look to the treaty which applies to their tribe and determine if a fiduciary duty exists based on the language of the treaty. It is far from certain that any of the treaties, whether through their English translation or as they were understood in the original native language, have sufficiently explicit duties to protect culture and language to satisfy the requirements under U.S. law to create a fiduciary duty. While claims for breach of fiduciary duty are plausible, they are unlikely to succeed under current American law and precedent.

J.D. Candidate, 2025, University of Minnesota Law School.