AustLII Home | Databases | WorldLII | Search | Feedback

University of Western Sydney Law Review

UWS Law Review (UWSLR)
You are here:  AustLII >> Databases >> University of Western Sydney Law Review >> 2004 >> [2004] UWSLawRw 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Buti, Antonio --- "The Removal Of Indigenous Children From Their Families" [2004] UWSLawRw 6; (2004) 8(1) University of Western Sydney Law Review 126


Antonio Buti[*]


Australia and the United States of America currently share many things in common, such as being part of the ‘Coalition of the Willing’ in Iraq and the Free Trade Agreement (FTA). They also share a history of colonialisation where the indigenous peoples of the US and Australia[1] were overcome by the political, military and economic might of the Europeans – in the main it was the British. A significant part of this colonialisation process was the policy of assimilating or attempting to assimilate the indigenous population into the dominant European socio-economic-political system. A major part of this assimilation process revolved around a policy of separating or removing indigenous children from their families to be raised in institutions or with non-indigenous families in order to facilitate their assimilation into white ways.

This article examines the US and Australia history in relation to removing indigenous children from their families. It also examines how the Governments of both countries have responded to this history. This brings into focus the issue of reparations. The second part of this article examines the issue of reparations in some detail. I commenced with a commentary on the development of the international law and politics of reparations. Then I note the demands and responses in the US and Australia to the issue of reparations in the context of the separation of indigenous children from their families. Then I critique the reparation responses by the Governments of the US and Australia.

Historical background

(a) US

In the early years of colonialism in the US, the Native Americans were in a position of power as the traders needed the assistance of the original inhabitants in order to ply their wares. Treaties were the basis of US relations with Native American peoples well into the 19th century. The US followed the practice of signing treaties until 1871, when Congress and President Ulysses S. Grant abolished the practice. By then over 350 treaties had been signed.[2]

In the later part of the 18th and early 19th centuries, the Native Americans became important political and military allies of the European powers in North America.[3] After the War of 1812, the indigenous populations of North America lost their relevance as military allies, and became, in the words of Miller, an impediment to European expansion and control to be cleared like pine forests.[4]

However, one should not be mistaken to think that up to 1812, the colonialists viewed the Native American as their equal – in many respects they had the opposite view. A number of massacres of the Native Americans took place.[5] The massacres did not go unnoticed.[6] Colonial governments came under pressure to stop the massacres. The initial response was to remove Native Americans to reserves.

To facilitate the removal of Native Americans to reserves, Congress passed the Indian Removal Act 1830, which empowered the President to move populations of Native Americans from the East Coast to ‘Indian Territory’, west of the Mississippi River. This was to be only the beginning of the forced migration of Native Americans westward as the ‘settlers’ required more land to accommodate their ever expanding communities and businesses.

The US Constitution mandated the federal government and thus Congress with responsibility over the indigenous population. However, the term Indians is only mentioned twice in the US Constitution. Article 1 s2 of the US Constitution states that some Indians may not be taxed, and s8 gives Congress the power to negotiate regarding commerce with foreign nations, among the several states, and with Indian tribes.[7]

Of course the federal government was not just satisfied to move the Native Americans to new areas not in demand by the ‘settlers’. The federal government also wanted to assimilate the Native American into mainstream society; then it would not need to concern itself any longer with the ‘Indian problem’. It is difficult to be precise in identifying the commencement date of this assimilation process. However, there is no doubt that it was operating as early as 1818 when Congress created the ‘Civilization Fund’ – an annuity of $10,000 to provide for the ‘moral education’ of children in frontier tribes and to be administered by the first Superintendent of Indian Affairs, Thomas L. McKenny.[8] However while Congress had provided some funds for the purpose of assimilation, it was severely inadequate. In practice the assimilation process was performed by various missionary societies. In effect, Native Americans were not ‘absorbed’ in colonial communities; they continued to be removed from their lands and away from the ‘settlers’.

In the year that President Ulysses S. Grant abolished the practice of entering into treaties with Native American tribes, that is 1871, the US Congress passed the Indian Appropriation Act 1871. Until this time the US government had treated the Native American peoples as separate nations but now they were considered ‘both sovereign people and wards of the government.’[9] This Act restricted the rights of most Native Americans to make contracts without the permission of the Secretary of the Interior and the Commissioner of Indian Affairs and they could not sue the Commissioner, or one of his officers, entitled Indian agents, without the Commissioner's express permission.[10] In effect, under this legislation, all Native Americans were made wards of the government.[11]

In 1887, Congress passed the General Allotment Act 1887, better known as the Dawes Act. This Act unilaterally gave the federal government control over Native American land tenure patterns and forcibly introduced European-styled individual ownership of land. Pursuant to this statute, Native Americans were allotted land differentially depending on whether they were deemed ‘full blood’ or ‘mixed blood’. The remaining treaty lands were then declared ‘surplus’ and opened to other uses.[12] But because the Act allowed the government to determine who was ‘Indian’, many Native Americans were denied access to land.[13]

(b) Australia

With British settlement of Australia, or more correctly New South Wales in 1788, traditional Aboriginal society was irrevocably changed. This change affected all aspects of traditional Aboriginal society including tribal life, family relationships, child rearing, and modes of work and collection of the necessities of life. Colonisation also brought with it a number of deaths to Aboriginal people through physical confrontation with the European settlers. Most deaths however, resulted from introduced diseases such as influenza, tuberculosis, pneumonia and venereal diseases.

In 1835, the British House of Commons appointed a select committee on Aborigines, which handed down its report in 1837.[14] The select committee was appointed to make recommendations on what measures should be taken in respect to the ‘Native Inhabitants’ of those countries with British settlements. Its aim was to treat them with justice, protect their rights and ‘to promote the spread of civilisation among them, and to lead them to the peaceable and voluntary reception of the Christian religion.’[15]

The first real 'protection' legislation in Australia was passed in Victoria in 1869.[16] The Aborigines Protection Act 1869 (Vic) created locally based guardians, and gave the Governor power to make regulations nominating where Aborigines could dwell. The Act also controlled Aboriginal employment and allowed the Governor to remove any children he deemed neglected or unprotected to specific institutions or industrial or reformatory schools. It has been claimed that protection Acts were aimed on the one hand at the prevention of the destruction of Aboriginal society, while on the other they were increasingly designed to protect 'the Europeans from the taint of the Aborigines.'[17]

This so-called protection priority took on greater potency in the last few decades of the nineteenth century in those parts of Australia, such as Western Australia, that were experiencing rapid economic growth. In many respects the ‘protection’ policy was driven by a desire to preserve the interest of the settlers, including pastoralists.[18] There was great interest in ensuring a ready supply of Aboriginal labour.

The early ‘protection’ statutes such as the Aborigines Protection Act 1869 (Vic) and the Aborigines Protection Act 1886 (WA) provided in certain prescribed conditions the power and the impetus for removing or separating Aboriginal children from their families. However, this was not sufficient for many in government and the public service who wanted to have unfettered power to remove Aboriginal children from their families.

The first statute that provided comprehensive legislative power to the State or the relevant Aboriginal Affairs Department or senior public servant to remove or separate Aboriginal children from their families was the Aboriginal Protection and Restriction of the Sale of Opium Act 1897 (Qld). The Act created the role of Protector, defined 'Aboriginal', and gave the relevant Minister power to remove, detain, or relocate Aboriginal people. The Act has been described as both humanitarian and racist, in that it sought to protect Aboriginal people from exploitation, but placed them all under official 'protection' whether they needed it or not.[19]

The Queensland Act was to provide the blueprint for legislation in many other jurisdictions in Australia. By 1911 all jurisdictions in Australia except Tasmania were to introduce legislation that was to lead to separate child welfare systems for Aboriginal children. These systems created schemes that allowed Aboriginal children to be more easily separated or removed from their families. Tasmania did not pass any such legislation because that State did not acknowledge any surviving Aboriginal population.[20]

While the legislation enacted varied from State to State and the Northern Territory[21] and the Australian Capital Territory,[22] in many respects the seminal statutes were modelled on the 1897 Queensland Act. Certainly, the Aborigines Act 1905 (WA) was closely modelled on the Queensland Act, which in turn was reproduced in the South Australian legislation of 1911.[23] So too, the Northern Territory Aboriginals Act 1910 (SA) more or less duplicated the Queensland and Western Australian legislation.[24] The statutes in Victoria[25] and New South Wales[26] were less connected to the Queensland and Western Australian legislation.


(a) The boarding schools

A central plank of the assimilation process was the use of the education system to ‘inculcate’ the Native American children into the European culture. In the later part of the ninetieth century a number of schools for Native American children were established.

The most significant advocate for the establishment of a separate school system for Native American children was Richard Henry Pratt, a captain during the Civil War. He strongly believed that it was imperative for the future of Native American children that they be removed from the influences of their parents and indigenous culture and transformed into ‘white’ children.’[27]

This idea has a very long history, especially with regard to the spread of Christianity. Wilmington states that religious conversion of indigenous peoples has been part of all British colonial efforts since the settlement of Virginia began in 1607.[28] By the end of the eightieth century in the US, Native American schooling had become an entrenched principle in European-Indian relations; however, it was often ‘little more than a means by which to supplant indigenous cultures’.[29]

The influence of Christian bodies was substantial in the US. Noriega claims that the US government came to rely on missionaries to deliver Native American education and that it was out of this practice that the US model of Native American education emerged.[30] Alongside this missionary practice sits the US Boarding School exercise.

By the late 1870s, there was a concentrated push towards boarding schools as opposed to day schools. These were seen as admittedly more expensive than day schools, but were considered more efficient at isolating Indian children from the ‘contaminating’ influences of their

own societies.[31] A further push called for an increased number of off-reservation boarding schools that had the advantages of almost complete isolation from tribal influences. In 1879, the Carlisle Indian School opened in Carlisle, Pennsylvania. The school was distant from any reservation, was situated in a disused army barracks, and was run by an army officer, Captain (later General) Richard Pratt.[32] The Carlisle school was run along military lines. The central idea behind this school and its system, according to Pratt, was to kill the Indian in the child while saving the person.[33] The military style of the school was based on a number of factors. First, given the size of the school and its requirements, military practice was considered to make organisational sense. More importantly, however, a military-style school was meant to impose a European sense of order and discipline upon the ‘wild’ Indian children who attended it.[34]

Great emphasis was placed on assimilating the Native American children into the ‘white’ culture. Among the measures undertaken were the wearing of uniforms, cutting of long hair, allocation of ‘Western’ names to the children and prohibition of native languages.[35]

The Carlisle system quickly spread throughout the country. By 1900 there were over 20 boarding schools in operation around the country and in 1904 enrolment at the Carlisle school alone had risen to 1,200 Indian children.[36] Native American children continued to be removed from their parents as the twentieth century progressed. But as noted below, the boarding schools came under increase criticism as the century progressed. This led to slowing down in intakes into boarding school but an increase in Native American children being sent to live with non-Native American families.

(b) Missions and state institutions

As in the US, assimilation was at the forefront of removal policy in Australia. In Australia often this assimilation policy was coated in language that aimed to completely ‘absorb’ Aborigines, particularly those of ‘lighter skinned’ into the dominant white European conference. At the 1937 Canberra conference of Commonwealth and State Aboriginal Affairs ministers, a conference dominated by Western Australia, Queensland and Northern Territory, a resolution was passed supporting the policy of the complete ‘absorption’ of the Aboriginal peoples of Australia into the European population:

DESTINY OF THE RACE. – That this Conference believes that the destiny of the natives of aboriginal origin, but not of the full-blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end.[37]

In Australia too there was a desire to bring Aboriginal peoples within the realm of western society. Thus, much of the education practice, and the way of life in missions and other institutions, were aimed at inculcating European beliefs in Aboriginal children. However the State showed little commitment to resourcing Aboriginal child education. In fact this went for Aboriginal affairs in general. With little political will for financing Aboriginal affairs, Australian governments were more than happy and willing to leave the task of educating Aboriginal children to the missionaries and their charitable supporters.

In general, the facilities and standard of education at the missions were very substandard and significantly inferior to the more centralised State school system. Unlike teachers in the state schools, teachers at the mission schools were not subject to examination by the relevant Department of Education inspectors. Indeed, State supervision of the missions for education and the general care of the children housed there was lacking. The teachers were more often than not at the mission because of their religious zeal and biblical knowledge not because of their teaching abilities. Education was focused on basic literacy and numeracy and practical tasks such as general domestic chores for the girls and gardening and farming for the boys, as well as religious education and moral training.[38] There was no room for education or development of the children’s aboriginal culture. The children were being ‘educated’ to be employable as farm hands and domestic servants. And of course, bible lessons and Christian religious education formed a very important part of the education process.

Treatment and Effects

(a) US

The standard of education afforded to ‘students’ of the US boarding schools left much to be desired. The situation is relation to the wellbeing of the children was no better. The most basic levels of health were often not available to indigenous children in mission, boarding, or residential schools.

The Problem of Indian Administration Report of 1928 (Meriam Report) reported that Native American infant mortality was twice the national average, and that tubercular deaths were seven times as prevalent in Indian society as the national average.[39] Adding to that, the treatment those children received resulted in an increased possibility of contagion spreading. Rather than being isolated, children with tuberculosis were often sent home from boarding schools to their reservations, where the disease could spread more easily.[40]

Tuberculosis was not the only widespread health problem facing Native American children. A 1902 US survey concluded that 30 percent of Native American children suffered from trachoma and of the 37 schools surveyed more than half the children suffered from the disease.[41] The Meriam Report noted that this disease, which ends in the blindness of the sufferer, was still widespread in the US.[42]

To varying degrees, the boarding school experience was traumatising for the children, who felt the pain of separation from their parents. Teachers marked the ‘remorseful feeling’ in the classroom and the ‘sad, homesick faces.’[43] Perhaps the most soul-destroying aspect of the government school system was the sense of alienation students experienced on their return to their families. After up to eight years away from family and friends, they would return ‘home’ from boarding school ‘articulate in the English language, wearing store bought clothes, and with their hair short and their emotionalism toned down;’ feeling like aliens in their own homes and unwanted in the wider European society.[44] There were also allegations of brutality and in some cases sexual abuse.

As noted above, not all Native American children who were separated from their families were sent to boarding schools. Many were sent to other government institutions and to foster families, but many of these children suffered similar effects as the boarding school children.

(b) Australia

The story is similar in Australia. Many Aborigines removed from their families complained of harsh conditions, denial of parental contact and cultural heritage, harsh punishment and physical and sexual abuse.[45] The following statement from an Aboriginal removed to a mission as a child is not atypical:

We were inculcated into a Christian religion and my Aboriginal culture or history was non-existent. That was completely irrelevant to our lifestyles at that stage. It was really an understatement to say that we were not taught anything about our Aboriginal culture or history. The fact is that our Aboriginality was never mentioned, it was never a consideration.[46]

And again:

When we had our periods we used rags that we had to wash out ourselves. We were never allowed to ask the housemother for sanitary clothing. We always had to ask the big red headed Dutchman, who had a vile temper and some awful strange behaviour. He loved nothing better than to watch us have a bath. He also enjoyed giving us floggings.[47]

An empirical study conducted by the Aboriginal Legal Service of Western Australian (ALSWA) gives further support to the sub-standard treatment and abuse many Aborigines placed in missions and other institutional care suffered. Out of a survey response of 483, of whom 411 spent some time in a mission, 81 percent experienced physical abuse and 13 percent experienced sexual abuse during their mission stay.[48]

Demands for reparations and the responses


The right to reparations for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems. In 1961, Justice Guha Roy of India wrote:

That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable.[49]

The obligation to provide reparations for human right abuses, especially gross violations of human rights, has long been recognised under international treaty and customary law, decisions of international bodies such as the United Nations Human Rights Committee and Inter-American Court of Human Rights, national law and practices and municipal courts and tribunals.[50] In 1989 the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities commissioned Professor Theo van Boven to undertake a study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.[51] A final report, including proposed basic principles and guidelines, was submitted in 1993.[52] A revised set of basic principles and guidelines was submitted in 1996.[53]

The van Boven Report examined relevant existing international human rights norms and decisions of international courts and other human rights organs. It concluded that every state ‘has a duty to make reparation in case of a breach of the obligation under international law to respect and to ensure respect for human rights and fundamental freedoms’.[54] Van Boven stated:

In accordance with international law, States have the duty to adopt special measures, where to permit expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.[55]

Van Boven synthesised the contents of reparations to restitution, compensation, rehabilitation and, satisfaction and guarantees of nonrepetition.[56] Restitution refers to measures such as restoration of liberty, family life, citizenship, return to one's place of residence and return of property. It seeks to re-establish the situation that existed prior to the violations of human rights and humanitarian law.[57] Compensation refers to monetary compensation for any economically assessable damage resulting from violations of human rights and humanitarian law.[58] Rehabilitation includes medical and psychological care as well as legal and social services.[59] Satisfaction and guarantees of non-repetition includes, inter alia, an apology (including public acknowledgment of the facts and acceptance of responsibility) and measures to prevent recurrences of the violations.[60]

Although a large body of international law relating to reparations for human rights abuses has developed since World War II, the law in this area has often not been adhered to. As van Boven stated:

It is clear from the present study that only scarce or marginal attention is given to the issue of redress and reparation to the victims... In spite of the existence of relevant international standards... the perspective of the victim is often overlooked. It appears that many authorities consider this perspective a complication, an inconvenience and a marginal phenomenon. Therefore, it cannot be stressed enough that more systematic attention has to be given, at national and international levels, to the implementation of the right to reparation for victims of gross violations of human rights.[61]

In the context of the removal of indigenous children from their families in the US and Australia, the basis of an obligation to provide reparations must come from some general and underlying principle and not from international human rights treaty law. This is because for nearly or most of the period that removal was practiced in any significant way, neither country was a signatory to the major relevant international human rights instruments such as the International Covenant of Civil and Political Rights or Convention on the Elimination of All Forms of Racial Discrimination.[62] It may be possible to argue that during the relevant period, international customary law prohibited the removal of children from family based on racial identity, denial of family contact and cultural heritage and physical and sexual abuse. Alternatively, they were still recognised as human rights by the international community.

Regardless of any legal duty to provide reparations to those Aborigines removed as children from their families, there is a moral duty. It is difficult not to refer to morality when discussing the issue of reparations for wrongdoings – for example, human rights law is arguably a legal recognition of moral rights and wrongs. Further the US and Australia are democracies governed by the rule of law and values of justice, morality and civility. Australian academic, Damian Grace writes that ‘[c]ivility begins with good manners and treating others – even strangers and opponents – with respect.’[63] Surely respect for Aborigines, by the governments of the US and Australia, demands acceptance of the wrongs that were inflicted on many in this cohort and provision for reparations - reparations to acknowledge the wrongs and reparation to help the healing and rehabilitation process.

Between 1900 and 1920 there was strong agitation for the assimilation process to be abandoned. There are a number of possible reasons for this including, as Adams has cited, a belief that Indians were incapable of accelerated assimilation, a belief that residential schools were ‘unjustifiably cruel to both parents and children,’ the belief that the boarding schools fostered a culture of dependency and a realisation that Indian culture was not universally useless as a means of educative growth.[64] The criticism of the boarding school system and the assimilation process and the agitation for change led to the commission of the previously mentioned Meriam Report, an independent investigation into the state of Indian affairs.

The Meriam Report was highly critical of the Native American educational system, offering a ‘seething indictment’ of the conditions observed in the various institutions.[65] The report suggested that emphasis should be placed on connecting the children with their families, not removing them from their families. By the 1930s ‘most of the boarding schools were closed,’ with the day schools that allowed the children to return home in the evening taking over.[66] It should also be noted that although boarding schools were on the decline by the 1930s, the removal of Native American children continued for a number of decades, more often than for non-Native American families.

The change in educative policy and the government’s general attitude to Native Americans was also reflected by legislative measures. For example, in 1924 Congress passed the Curtis Act 1924, which conferred US citizenship on all Native Americans. The Indian Reorganization Act 1934 which drove the ‘Indian New Deal,’ brought an end to the ‘allotment era’. The Act provided incentives for Native Americans to set up businesses and gave them greater say in the governing of the reserves.

However, any progressive changes that were implemented between the two world wars were undermined after World War Two, when a new policy of ‘termination’ was introduced. A 1944 House Select Committee sought a ‘final solution’ to the Indian ‘problem’ and proposed complete integration of Native Americans into European society. This was a return to ideas held previously[67] when ‘de-Indianisation’ was in fashion.[68]

The 1950s saw a shift to ‘termination’ in Indian affairs. In 1952, the Bureau of Indian Affairs submitted to Congress a list of certain Indian nations it considered were ‘ready to undergo...complete termination of all federal services’. Thus, the government aimed to completely remove itself from any responsibility it owed to those nations. The concept of termination seems best described, by Szasz, as an updated form of assimilation.[69] The Termination Act 1953 introduced, what Wunder calls, the ‘cancer of termination’, and, by 1958, 109 nations or part thereof had been terminated.[70]

But there was increasing criticism of the Native American child welfare system – in fact there was a crisis in the system. This crisis drew the attention of the nation’s policy makers and legislators for the need to do something to reduce the separation of Native American children from their families and communities, whether placed in foster care, adoptive homes or boarding schools.[71] This focus was given impetus by the 1960s civil rights movement, which ‘marked the beginning of a cultural and political renaissance for Native [Indian] people’.[72] Indian nations advocated for a policy shift toward self-determination. Native Americans ‘wanted to manage their own affairs, including the social welfare and educational programs that had for so long torn at their communities and cultural heritage’.[73]

President Johnson's ‘Message on Indian Affairs’, delivered in 1968, cited the need for increased Native American input into education and other areas of concern.[74] The 1969 Kennedy Report, which criticised the school system for failing to provide education to Native American children that equalled non-Native American schooling, found, in the words of Szasz, that federal bureau education was best described as ‘an archaic system of paternalism, while public education appeared as a force of persistent discrimination’.[75] The Indian Civil Rights Act 1969 at least in part negated the previous policy of termination, although the extent to which it did so has been questioned.

In 1970, in a message to the Congress on Indian Affairs, President Nixon decreed that the ‘right of self-determination of the Indian will be respected and their participation in planning their own destiny will actively be encouraged’.[76] Graham writes: ‘[f]ollowing this decree, Congress worked with tribes and Indian organizations to develop legislation, such as the Indian Child Welfare Act [ICWA] of 1978, designed to promote tribal sovereignty and reverse the effects of forced assimilation.’[77]

To give credence for the demand for change, the Association of American Indian Affairs (AAIA) compiled data on the incidences of Indian children removed from their families. Surveys of States with large Native American populations conducted by AAIA in 1969 and 1974 indicated ‘that approximately 25-35 percent of all Indian children’ were separated from their families and place in foster care, adoptive homes or institutions, including boarding schools.[78] The Bureau of Indian Affairs (BIA), in its 1971 school census, found 34,538 children lived in its boarding schools and institutional facilities.[79]

In 1972, the Indian Education Act 1972 introduced the concept of self-identification for Native Americans whereby those who defined themselves as such would be recognised by the government.[80] This Act attempted to remove the federal government from its central role in Native American education. It allowed state and local education agencies to contract for Native American education, although Native American tribes and bodies were to be given first preference.[81] This legislation has been described as ‘the only piece of equal educational opportunity legislation specifically focused on American Indians’.[82] The 1978 ICWA recognised the sovereign authority of Native American tribes with regard to child welfare issues, and provided an official acknowledgment that Native American children were not, as a matter of course, ‘better off’ being removed from their families and communities. Unfortunately, the standards contained within the legislation were not consistently enforced by the various courts that dealt with such issues.[83] The Tribally Controlled Community College Assistance Act 1978 provided federal support for Native American controlled educational facilities. This federal support aimed to assist the increasing numbers of Native American-controlled facilities.

The 1970s saw Congress investigate the ‘systematic’ separation of Native American children from their families. Congressional hearings revealed that ‘thousands of Indian children had been forcibly removed from their homes at an incredibly disproportionate rate to the non-Indian population, with many never seen again by their families’.[84]

In the Congressional hearings leading up to the 1978 ICWA, Chief Calvin Issac, member of the National Tribal Chairmen’s Association, testified that the Indian child removals or separations were ‘[o]ne of the most serious failings’ of the pre-ICWA period in which

Indian children are removed from the custody of their natural parents by non-tribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.[85]

There is little doubt that the seminal legislative response to the demands to reduce Native American child separations from family and to give the Native American more control over child welfare was the ICWA. The ICWA had as its purpose the protection of the best interests of Native American children and the promotion of the:

stability and security of Indian tribes and families by establishing minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions [including boarding schools] which will reflect the unique values of Indian culture and by providing for assistance to Indian tribes and organizations in the operation of child and family service programs.[86]

The statistics of high rates of Native American child removals to non-Native American environments motivated Congress to find:

(3)that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children ...
(4)that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administration and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.[87]

The ICWA set out to achieve a number of goals. These included the: reversal of separating Native American children from their families; recognition and respect of traditional familial and kinship structures and roles in the rearing of Native American children; and promotion of Indian self-determination and development of Native American child welfare programs, systems and services.

Pursuant to s. 1903 (4) of the ICWA, Native American tribes have special rights and protections in custody proceedings involving a child who is either:

(a)a member of an Indian tribe or
(b)is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. [88]

One academic commentator remarks: ‘[t]he Act effectively gives the tribes the right of first refusal in determining placement of children who, for whatever reasons, are not to remain with their Indian parent(s)’.[89] The ICWA provides: tribal jurisdiction over a child custody proceeding if certain conditions are present;[90] intervention rights to the child’s tribe in proceedings involving foster care or termination of parental rights;[91] notification to the tribe of involuntary proceedings in State courts involving an Native American child;[92] stringent requirements for establishing voluntary termination of parental rights;[93] and prescribed order of placement of Native American child adoptions, with first preference to the child’s extended family, followed by other members of the same tribe, then other Native American families, and lastly non-Native American families if good cause shown why should not be with an Native American family.[94]

The Reagan administration effectively gutted the Indian Education Act 1971 and reintroduced the measure of ‘Indian blood’ with regard to access to Native American Health Services. In 1990, the Bush administration introduced the ‘Certificate of Degree of Indian Blood’, which, as Jaimes points out, seems aimed at causing conflict within Native American society.[95]

It is interesting to note that even though the US Government acknowledges that assimilation policies, which advocated forced removal and maltreatment of Native American people, including the removal from family of their children, have had a detrimental affect on these people, there has not been an official apology made by the Government to the Native American people. In contrast, President Clinton officially apologised for the historical mistreatment of African-Americans.


In Australia the push for action or reparations commenced much later than in the US. It was until the 1990s that the demand for reparations commenced in earnest. In 1990 the Secretariat of the National Aboriginal and Islander Child Care (‘SNAICC’) resolved at its national conference in 1990 to demand a national inquiry into the removal issue.[96] On 4 August 1991, National Aboriginal and Islander Children’s Day, SNAICC in conjunction with high profile Aboriginal entertainers, Archie Roach and Ruby Hunter, publicly launched a demand for an inquiry.[97]

On 2 August 1995, the Commonwealth Attorney-General, Michael Lavarch, commissioned the Australian Human Rights and Equal Opportunity Commission to conduct a national inquiry into the separation of Aboriginal children from their families. Its task was to examine and report on the history and effects of Aboriginal child removals, how to improve service delivery to Aboriginal people, principles for awarding compensation and current Aboriginal child welfare. The National Inquiry report, Bringing then Home,[98] was tabled in Federal Parliament on 25 May 1997. It documents widespread and systematic racial discrimination and gross ill treatment of Aboriginal Australians, as lawmakers and administrators sought to resolve ‘the Aboriginal problem’.

In total, the report made 54 recommendations, covering all the components of reparations: acknowledgement of truth and an apology; guarantees of non-repetition of violations; rehabilitation; compensation; and restitution.[99] In relation to one of the more controversial recommendations, compensation, the report stated that part of the reason a ‘National Compensation Fund’ should be established[100] was because of the procedural, evidential and cost difficulties involved in litigation.[101] In contrast to the US, litigation specifically related to the removal of indigenous children from their families has taken place in Australia. However, there have as yet been no success stories.[102]

Unlike the Australian State and Territory Governments,[103] but like the US Government, the Australian Federal Government has been reticent in providing a formal apology to indigenous people. It was not until 26 August 1999 that Prime Minister John Howard proposed a motion to Parliament offering a statement of regret to Aboriginal people to reaffirm the Government’s commitment to reconciliation between Aboriginal and non-Aboriginal Australians.[104] While the speech acknowledged past mistreatment of Aborigines and regretted any resulting hurt and trauma, it failed to specifically acknowledge or apologise for damages suffered by those Aborigines removed from families to missions and other institutions. The speech said: ‘The mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history.’[105]

The motion expressed:

its deep and sincere regret that indigenous Australians suffered injustices under the practices of past generations, and for the hurt and trauma that many indigenous people continue to feel as a consequence of those practices...[106]

In a press release by Aboriginal and Torres Strait Islander Affairs Minister John Herron on 16 December 1997, about six months after the National Inquiry report’s tabling, the Government reiterated its opposition to monetary compensation. Instead the Government outlined a plan to provide $63 million over four years, primarily aimed at addressing the ‘family separation and its consequences’ – providing financial assistance for things such as preservation of records, the recording of oral stories, family support and parenting programs, language and cultural programs, family link-up services and counselling. [107]


In analysing the responses made to the demands for reparations, it is useful to use international law standards as a ‘yardstick’. Although, as stated above, many of the international treaty obligations were not operative during the historical period under examination, these international legal obligations nonetheless provide a criteria or standard by which to measure the reparation responses. Moreover, the international legal standards arguably provide an appropriate moral code for the awarding of reparations.

The responses by the US and Australian Governments are consistent with international legal standards in certain respects. Specifically, both Governments have recognised that wrongs have been committed and that resulting problems need to be address. The implementation of the Indian Education Act 1972 by Congress was a positive self-determination measure that reduced the likelihood of repeating the past human rights injustices. However, as noted above, the Reagan and Bush Snr administrations watered down the self-determination effects of the legislation.

Without doubt the most significant reparation measure undertaken by the US Government is the enactment of the ICWA. This Act complies with the reparation measure of avoiding a repetition of the human rights violation. Moreover, it explicitly and implicitly recognises the past wrongs in Native American child welfare.

The Australian Government has recognised its obligation to ‘acknowledge the wrongs of the past and [to] address the problems that now exist as a result of those wrongs’.[108] It has sought to discharge these obligations through a range of rehabilitative and restitutionary measures. Recognising the enduring ‘emotional and psychological damage’[109] inflicted upon both parent and child by the separation policy, the Australian Government’s initiative seeks to provide rehabilitation by offering funding for additional professional counselling services and an expansion of the existing network of regional counselling centres. Rehabilitation of those affected by the forcible removal will also be facilitated by the establishment of an oral history project. The project will encourage the reparative process by allowing the victims to tell their story, the simple act of which has been recognised as contributing to the healing process. Additionally, the oral history project advances the ‘satisfaction’ obligation of verification and disclosure of the facts – it will be a permanent record of this part of Australian history and it will pay tribute to the victims by acknowledging their pain and removing any sense of guilt.

The obligation to make proper restitution within the factual context being examined here and within the context of the nature of the breach, necessarily involves as one of its components the reunion of removed children with their parents and families. This was identified by the National Inquiry Report as being a matter of ‘most significant and urgent need’.[110] The Australian Government addressed this obligation by offering practical assistance for family reunion – the indexing and preservation of indigenous family records, and increased funding for nationwide ‘link-up’ services.

The major failings of the US and Australian Governments in performance of their reparation duties lies in the area of monetary compensation and apologising for the wrongs of systematically separating or removing indigenous children from their families. The obligation to pay compensation for breach of international human rights is established more firmly than any other component of reparation in international law.[111]

Australian academic and barrister Sarah Pritchard writes:

The provision of monetary compensation is largely a symbolic act because the loss, grief and trauma experienced by victims
of gross human rights violations can never be adequately compensated ... Nonetheless, for many victims compensation is of major significance. From the victims’ perspective, it has been suggested, monetary compensation ‘concretizes ... the confirmation of responsibility, wrongfulness, s/he is not guilty, and somebody cares about it.’ Thus, ‘[i]t’s not the money but what the money signifies – vindication.’ ... Importantly, as well, for many victims, monetary support can make a practical difference, can make the lives of communities and individuals easier.[112]

There are no signs that the current Bush administration or the US Congress or the Howard Government is inclined to revisit the compensation issue. Likewise, successive US administrations and the Howard Government have failed to apologise for the policy and practice of separating or removing indigenous children from their families. The significance of apologising for past human rights abuses should not be under-estimated. Harvard Law School academic Martha Minow writes:

By retelling the wrong and seeking acceptance, the apologizer assumes a position of vulnerability before not only the victims but also the larger community of literal or figurative witnesses ... Equally important is the adoption of a stance that grants power to the victims, power to accept, refuse, or ignore the apology.[113]

In its report on institutional child abuse, the Law Commission of Canada specifies the following as necessary elements of a meaningful apology: acknowledgement of the wrong done; accepting responsibility for the wrong done; the expression of sincere regret or remorse; assurance that the wrong will not recur; and, reparations through concrete measures.[114] An apology is necessary for the restoration of dignity for the victims and to aid their healing process. There is a need for the governments of the US and Australia to make apologies which truly and comprehensively acknowledge the wrongs committed and unequivocally accept that responsibility, express sincere sorrow, guarantee non-repetition of the wrong and offer acceptable reparations. Apart from a legislative response that goes some way to preventing a repetition of the past wrongs, the US Government has not done enough to meet its obligations to provide a meaningful apology and sufficient reparations.

As stated above, Prime Minister Howard’s 1999 parliamentary statement did not go far enough to satisfy the demands for a meaningful apology. It failed to specifically mention those removed or separated from family or utter the word ‘sorry’. The word ‘regret’ was used in a general context for past wrongs and suffering caused by government policies and practices. In other words, whilst the Commonwealth recognised the need to ‘acknowledge the wrongs of the past’, and provided an oral history project to record and preserve this history, the response did not express or appear to accept these ‘wrongs’ as human rights violations.[115] Nowhere in the response was the term ‘human rights’ used. The Government’s willingness to address thoroughly its responsibility for the human rights violations ‘perpetrated’ upon the ‘stolen generations’ and their families and communities is questionable.[116]


The history of removing Aboriginal children from their families in the US and Australia has been similar in policy and practice but longer in time in the former country. In both countries, the removal policy and practice had a pervasive effect on the removed or separated individuals, their families and communities. For many, the effects are still being played out today. With the maltreatment, abuse and neglect suffered by many of those removed, has come demands for reparations for the resulting damages. The demands for reparations in both countries are in general compatible with international human rights principles. Regardless of legal obligations, principles of civility and morality demand appropriate reparations. Both the US and Australia Governments have delivered limited reparations, but neither an ‘official’ national apology or monetary compensation have been forthcoming – another thing in common between the two countries.

[*] BPE (Hons), Dip Ed, MIR (UWA); LLB (Hons) (ANU); DPhil (Oxon); Senior Lecturer in Law, Associate Dean (Research), LLM Programme Chair, JLV/ Louis Johnson Memorial Trust Fellowship, Barrister and Solicitor of the Supreme Court of Western Australia and High Court of Australia. The author would like to acknowledge the assistance of Alan Charlton and Darryl Ryan in the preparation of this article. All opinions and errors are, of course, those of the author.

[1] In the US the indigenous population is commonly referred to as Native Americans and in Australia the indigenous population is commonly referred to as the Aboriginal people or Aborigines.

[2] J Wunder, Retained by the People, Oxford University Press, Oxford, 1994, 29.

[3] J Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, University of Toronto Press, Revised Ed., Toronto, 1994, 269-70.

[4] Ibid, 273.

[5] F P Prucha (ed), Americanizing the American Indians, Harvard University Press, Cambridge, 1973, 35.

[6] D W Adams, Education for Extinction, University Press of Kansas, Kansas, 1995, 16.

[7] Above n 2, 19-20.

[8] Above n 6, 174.

[9] D Wright, M Hurlinger and E England, The Politics of Second Generation Discrimination in American Indian Education, Bergin & Garvey, Westport, 1998, 7.

[10] Above n 2, 34.

[11] Above n 6, 7.

[12] R Robins, 'Self-determination and subordination: The past, present and future of American Indian government', in M Anette Jaimes (ed), The State of Native America: Genocide, Colonization, and Resistance, South End Press, Boston, 1992, 95.

[13] Ibid, 93.

[14] HC Select Committee on Aborigines (HC Paper, 1837, no 425).

[15] Ibid.

[16] But there was earlier legislation in Western Australia and South Australia that did concern itself to some degree with the ‘welfare’ of Aboriginal children: An Act to prevent the enticing away the Girls of the Aboriginal Race from School or from any Services in which they are employed 1844 (WA); and An Ordinance for the Protection, Maintenance and Upbringing of Orphan and other Destitute Children and Aborigines Act 1844 (SA).

[17] R Broome, Aboriginal Australians: Black Responses to White Dominance 1788-1994, Allen & Unwin, Sydney, 2nd ed, 1994, 161.

[18] N Green, The Forrest River Massacres, Fremantle Art Press, Fremantle, 1995; A Haebich, Broken Circles, Fremantle Art Press, Fremantle, 2000, 210.

[19] Above n 17, 96.

[20] Although the Tasmania legislature did enact the Cape Barren Island Reserve Act 1912 (Tas), which provided for the removal of Aboriginal families from mainland Tasmania to Cape Barren Island off the north coast of the Tasmanian mainland.

[21] Between 1863 and 1911, the Northern Territory was annexed to South Australia and after that the Commonwealth Parliament was responsible for Aboriginal Affairs in the Northern Territory. So in relation to Aboriginal affairs legislation, one needs to refer to South Australian legislation prior to 1895. The South Australian Parliament did however in 1910 enact legislation specifically dealing with the Northern Territory – Northern Territory Aboriginal Act 1910 (SA). Then in 1911 the Commonwealth Parliament enacted the Aboriginal Ordinance 1911 (Cth) to deal with Aboriginal affairs in the Northern Territory. The Commonwealth Parliament had constitutional power prior to 1967 to enact laws for Aborigines in the Northern Territory via the Territories Power of s 122 of the Australian Constitution.

[22] Until the Aborigines Welfare Act 1954 (Cth), Aborigines in the Australian Capital Territory were covered by the various Aboriginal specific statutes enacted by the legislature of New South Wales.

[23] Aborigines Act 1911 (SA)

[24] J Chesterman and B Galligan, Citizens Without Rights: Aborigines and Australian Citizenship, Cambridge University Press, Cambridge, 1997, 39-40.

[25] For Victoria, one probably needs to read the Aborigines Act 1910 (Vic) in conjunction with the earlier statutes – Aborigines Protection Act 1869 (Vic) and Aborigines Protection Act 1886 (Vic) to obtain a clearer through of the legislative scheme in place in that State.

[26] Aborigines Protection Act 1909 (NSW).

[27] Above n 5, 35.

[28] J Wilmington, '‘Writing on the Sand’: The First Missions to Aborigines in Eastern Australia', in T Swain and D Bird Rose (eds), Aboriginal Australians and Christian Missions: Ethnographic and Historical Studies, Australian Association for the Study of Religions, Adelaide, 1988, 77.

[29] J Noriega, 'American Indian Education in the United States: Indoctrination for Subordination to Colonialism' in above n 12, 380.

[30] Ibid, 377.

[31] Ibid, 380.

[32] Ibid, 381; above n 6, 47-8.

[33] Above n 6, 52.

[34] Ibid, 118-20.

[35] Above n 6, 102.

[36] D Camurat, ‘The Road to War: American Indian Affairs,’ American Indians in the Great War: Real and Imagined,

[37] Commonwealth of Australia, Aboriginal Welfare-Initial Conference of Commonwealth and State Aboriginal Authorities, AGPS, Canberra, 1937, 3.

[38] LR Marchant, Aboriginal Administration in Western Australia: 1886-1905, Australian Institute of Aboriginal Studies, Canberra, 1981, 57-59.

[39] Above n 2, 56.

[40] Ibid, 20.

[41] Above n 6, 132.

[42] M Szasz, Education and the American Indian: The Road to Self-Determination Since 1928, University of New Mexico Press, Alberquerque, 2nd ed, 1977, 20.

[43] Above n 6, 100, 136.

[44] P Farb, Man’s Rise to Civilization, E P Dutton & Co, New York 1968, 257-259.

[45] Aboriginal Legal Service of Western Australia (ALSWA), Telling Our Story, ALSWA, Perth, 1995.

[46] Ibid, 40.

[47] Ibid, 4.

[48] ALSWA, After the Removal, ALSWA. Perth, 1996, 44, 49-51.

[49] Justice Roy, ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’ (1961) 55 American Journal of International Law 863, 863.

[50] For a discussion and references on the sources and obligations under international law to provide reparations refer to DF Orentlicher, ‘Addressing Gross Human Rights Abuses: Punishment and Victim Compensation’ in L Henkin, and JL Hargrove, (eds), Human Rights: An Agenda for the Next Century, The American Society of International Law, Washington DC, 1994, 425-426;. HJ Steiner and P Alston, International Human Rights in Context: Law, Politics and Morals, Clarendon Press, Oxford, 1996, 1081-1109; and M Minow, Between Vengeance and Forgiveness, Beacon Press, Boston, 1998, 91-117.

[51] E/CN.4/Sub.2/1989/13.

[52] T van Boven, (Special Rapporteur of the United Nations), Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final Report, UN Doc. E/CN. 4/Sub.2/1993/8, 2 July 1993, 7 (hereafter the ‘van Boven Report’).

[53] T van Boven, T, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law prepared by Mr. Theo van Boven pursuant to Sub-Commission decision 1995/117, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996 (hereafter the ‘revised van Boven Principles’).

[54] Above n 52, 56.

[55] Ibid, 1.

[56] Ibid.

[57] Ibid, 4.

[58] Ibid.

[59] Ibid.

[60] Ibid, 5.

[61] Ibid, 53.

[62] The last instrument mentioned did not come into existence until the 1970s. There is the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, but I do not consider in this article the claim that the removal process was genocidal.

[63] D Grace ‘The question of an apology: reconciliation and civility’ [2001] AUJlHRights 4; (2001) 7 Australian Journal of Human Rights 77, 78.

[64] Above n 6, 308.

[65] Above n 6, 331.

[66] C J Marr, Assimilation Through Education,

[67] Above n 12, 95.

[68] D DeJong, Promises of the Past: A History of Indian Education in the United States, North American Press Golden, Colorado, 1993, 266.

[69] Above n 42, 4.

[70] Above n 2, 213.

[71] M J Dale, ‘State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test’ (1991/92) 27 Gonzaga Law Review 353, 353-355; W Lewis, ‘The Role of Domicile in Adopting Indian Children: Mississippi Band of Choctaw Indians v. Holyfield’ (1990) 4 Utah Law Review 899, 904-906; and S Watts, ‘Voluntary Adoptions Under the Indian Child Welfare Act of 1978: Balancing the Interests of Children, Families, and Tribes’ (1989) 63 Southern California Law Review 213, 214-215.

[72] L Graham, ‘‘The Past Never Vanishes’: A Contextual Critique of the Existing Indian Family Doctrine' (1998-99) 23 American Indian Law Review 1, 27.

[73] Ibid, 28.

[74] Above n 29, 386.

[75] Above n 42, 194-5.

[76] President R. M. Nixon, ‘Special Message to the congress on Indian Affairs’ 1970 Pub. Papers (8 July 1970) 564.

[77] Above n 73, 28. At the accompanying footnote (fn 97), Graham notes: ‘Other important legislation passed during this time included the Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified in scattered sections of 25 U.S.C., including 450a) and the American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, 92 Stat. 469 (codified in part at 42 U.S.C. 1996 (1994)).’

[78] Legislative History: Indian Child Welfare Act, P.L. 95-608, 7530-7531.

[79] Ibid.

[80] M Jaimes, 'Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in North America', in above n 12, 130-1.

[81] Above n 29, 199.

[82] Above n 9, 129.

[83] Above n 73, 16.

[84] P H Kunesh, ‘Transcending Frontiers: Indian Child Welfare in the United States’ (1996)

[16] Boston College Third World Law Journal 17, 24.

[85] Mississippi Band of Choctaw Indians v Holyfield, [1989] USSC 64; 490 U.S. 30 at 34-35 (quoting the Indian Child Welfare Act: Hearings on S. 1214 Before the House of Representatives Subcommittee on Indian Afairs and Public Lands, 95th Cong. 190, 193 (1978).

[86] 25 U.S.C. s 1902.

[87] Ibid, s 1901 (3)-(5).

[88] See C Metteer, ‘The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act’ (1997) 30 Loyola of Los Angeles Law Review 647, 648.

[89] Ibid.

[9025] U.S.C. s 1911(a), (b).

[91] Ibid, s 1911 (c).

[92] Ibid, s 1912(a), (f).

[93] Id, at s. 1913 (a).

[94] Id, at s. 1915 (a).

[95] Above n 48, 131-2.

[96] N D’Souza, ‘The Stolen Generation: From Removal to Reconciliation’[1998] UNSWLawJl 16; , (1998) 21(1) University of New South Wales Law Journal, 204 at 205.

[97] Ibid.

[98] HREOC, Bringing them Home, AGPS, Canberra, 1997.

[99] Ibid, 247-313.

[100] Ibid, recommendation 16, 310.

[101] Ibid, 305.

[102] For example, refer to Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; Williams The Minister, Aboriginal Land Rights Act 1983[No 2] (Trial) (1999) 25 FLR 86; Williams The Minister, Aboriginal Land Rights Act 1983[No 2] (Appeal) [2000] 81-578, 64,136; Cubillo v The Commonwealth (Trial) [1999] FCA 518; (1999) 163 ALR 395; Cubillo v The Commonwealth (Appeal) (2001) FCA 1213.

[103] South Australia: 28 May 1997; Western Australia: 28 May 1997; Queensland: 3 June 1997; ACT: 17 June 1997; New South Wales: 18 June 1997; Tasmania: 13 August 1997; and Victoria: 17 September 1997. The Northern Territory Government has not made a statement of apology. Most of the major churches have also issue statements of apology. Also a National Sorry Day organised by members of the community was held on 26 May 1998.

[104] Transcript of the Prime Minister, The Hon. John Howard MP Motion of Reconciliation 26 August, 1999 [Internet] URL <> 1.

[105] Ibid.

[106] Above n 104.

[107] Australia, Minister for Aboriginal and Torres Strait Islander Affairs Senator John Herron ‘Bringing Them Home – Commonwealth Initiatives’ Media Release (Canberra, 16 December 1997).

[108] Above n 98, 1.

[109] Ibid, 278-279.

[110] Ibid, 347.

[111] See for example, Article 10, 63(1), American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); Article 21(2), African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986; Article 9(5), International Covenant on Civil and Political Rights [ICCPR] G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Article 5(5), European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, Rome, 4.XI.1950; Article 14(1) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; Article 19, Declaration on the Protection of All Persons from Enforced Disappearance, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992); Article 15(2), 16(5), ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force Sept. 5, 1991; Articles 12-13, 19, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power G.A. 40/34, annex, 40 U.N. GAOR Supp. (No. 53) at 214, U.N. Doc. A/40/53 (1985); Velásquez Rodriguez Case, Compensatory Damages (Art. 63(1) American Convention on Human Rights), Judgment of July 21, 1989 Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990); Velásquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para 174-177; Factory at Chorzów (Germany-Poland), Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, 21; Factory at Chorzów (Germany-Poland), Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, 29; Reparation for Injuries Sufered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 184; see John Khemraadi Baboeram, André Kamperveen, Cornelis Harold Riedewald et al. v Suriname (1985) Communications Nos. 143/ 1983 and 148 to 154/1983, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990; Jean Miango Muiyo v Zaire (1987), Communication No. 194/1995, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990; and Antonio Vianna Acosta v Uruguay (1983) Communication No. 110/1981, reported in United Nations, Human Rights Committee, Selected Decisions of the Human Rights Committee, New York, United Nations, 1980.

[112] S Pritchard, ‘The Stolen Generations and Reparations’ (1997) 4 University of New South Wales Law Journal 259, 264.

[113] M Minow, Between Vengeance and Forgiveness, Beacon Press, Boston, 1998, 114-115.

[114] Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions, Law Commission of Canada, Ottawa, 2000, 83.

[115] Australia, Amnesty International ‘Silence on Human Rights: Government Responds to ‘Stolen Children’ Inquiry’ Report ASA 12 February 98, para 4; note significance of Corfu Channel Case (United Kingdom-Albania) [1949] I.C.J. Rep. 4.

[116] See generally Australia, Amnesty International ‘Silence on Human Rights: Government Responds to ‘Stolen Children’ Inquiry’ Report ASA 12 February 98, para 28-30; there is also no comment upon the Government’s duty to investigate and bring to justice those who perpetrated the breaches of such rights. On sanctions for perpetrators see John Khemraadi Baboeram, André Kamperveen, Cornelis Harold Riedewald et al. v Suriname (1985) Communications Nos. 143/1983 and 148 to 154/1983, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990; Joaquin David Herrera Rubio, José Herrera and Emma Rubio de Herrera v Colombia (1987) Communication No. 161/1983, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990; Jean Miango Muiyo v Zaire (1987), Communication No. 194/1995, reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990; Walter Lafuente Penarrieta, Miguel Rodriguez Candia, Oscar Ruiz Cáceres et al. v Bolivia (1987), Communication No. 176/1984), reported in United Nations, Human Rights Committee Selected decisions of the Human Rights Committee under the optional protocol, Vol. 2, Seventeenth to thirty-second sessions (October 1982-April 1988) New York, United Nations, 1990.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback