United States law permitted involuntary sterilization of Native American women through federal policies and regulations during the 1970s. Although the federal laws regarding sterilization were facially neutral, the administrative acts implemented by the government had disparate impacts on minority and socially disadvantaged communities, particularly Indigenous women. A close analysis of these laws and administrative funding reveals that the government ultimately enabled involuntary sterilization of Indigenous women. As a result, Native American victims and their respective tribes should be entitled to some form of legal remedy by the federal government.
Native Americans, in general, represented a unique class of victims among other disadvantaged minority groups who faced sterilization abuses because of their tribal relationship with the United States federal government. Denominated “domestic dependent nations” by Justice Marshall in Cherokee Nation v. Georgia, a complex relationship formed between the United States government and Native Americans over the nineteenth and twentieth centuries, particularly after Congress declared plenary authority over tribal nations and abrogated Native sovereignty. This complicated relationship put Native women at the mercy of federally run agencies, specifically the Indian Health Service (IHS), the Public Health Service (PHS), and ultimately the Department of Health, Education, and Welfare (HEW). As part of the overall growth and expansion of the administrative state, these government-funded agencies on tribal reservations made Native people’s reproductive practices the focus of United States policy and administration. Beginning in the 1930s and peaking in the 1970s, many sterilizations— both voluntary and involuntary—occurred within federal IHS government-established hospitals or medical care facilities that contracted with the IHS to provide medical care to Native Americans. The sterilizations were, in part, due to the federal government’s promotion of hospital births and its aim to cease traditional indigenous birth-related practices. In addition to the cultural violence perpetrated, the government often inflicted violence on individuals by committing these sterilizations without the patient’s full knowledge, understanding, or uncoerced consent.
The remainder of this Comment explores the historical and administrative landscape that made coercive sterilization practice legal. Part II discusses the significance of addressing the sterilization of Native American women and how this Comment contributes to the existing scholarship. Part III summarizes the origins of United States eugenics laws, foundational eugenics cases, and regulations passed during the 1970s as well as the national sterilization cases that challenged them. Part IV turns to the scope and effects of the practice of sterilizing Native American women as evidenced in the few cases brought by Native women, by the activism and resistance against sterilization, and in the investigations that confirmed the practice and governmental involvement. Part V explores the possible legal remedies— recognition and reparation—available to sterilized Native women and their tribes.
Genesis M. Agosto,
INVOLUNTARY STERILIZATION OF NATIVE AMERICAN WOMEN IN THE UNITED STATES: A LEGAL APPROACH,
100 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol100/iss4/8