By Michael Sullivan DeFine
University of Maine School of Law
Footnotes appear at the end of the text
The purpose of this article is to trace the historical influence of governmentally funded sterilization from the beginning of the eugenics movement in the 19th century to see how this effects Native American women today. This topic will investigate the social prejudices and rationalizations for sterilization of the “less-talented” members of society advocated by the most influential social and biological scientists in American history.
These “science”-based eugenic influences break through the lines of science into the world of politics, promulgating anti-humanistic views of poor women of color in the form of legislation fraught with bigotry and baseless generalizations. This political view flows through the judicial system, as courts apply eugenic philosophies in determining who should be sterilized and for what reasons.
Turning specifically to the sterilization of Native American women, this article concludes with a discussion of the federal relationship with American Indian tribes, personal accounts from Native American women who were sterilized and their attitudes toward family planning, state and federal policies regarding informed consent and sterilization, an examination of the contractual relationship between the Indian Health Service and private practices, the United States General Accounting Office investigation of Indian Health Service sterilization procedures, and the meaning behind the statistics of population growth.
II. History of Eugenics
A. Pre-Eugenic Thinking
In the early 19th century, before Darwinism entered the lexicon of science, racist as well as sexist attitudes led scientists to become preoccupied with ranking human beings according to purportedly neutral scientific criteria. (1) Some believed in monogenism, a notion that all humans descended from the common ancestor Eve, but that the races degenerated in various degrees from an original state of perfection. (2) This theory, therefore, assumed that the white race had degenerated the least, and people of color were developmentally further away from the original divine plan.
Anthropometry (skull measuring) was also a serious scientific endeavor. The physician Samuel George Morton gathered more than 1,000 skulls to prove that intelligence is related to brain size and that there are innate racial differences in mental capacities. (3) Morton’s studies on the sizing of human skulls were used throughout the 19th century as scientific proof of a racial hierarchy in intelligence. (4) After the Civil War, scientists were still engaged in anthropometry. In 1870, Dr. Sanford B. Hunt claimed that the average African American brain weighs five ounces less than the average white individual’s brain, and the average mulatto’s brain is smaller than the brain of an average African American. (5) From this, Hunt concluded intermarriage between the races would produce inferior offspring. (6) His studies played a role in justifying the need for segregated school systems. (7)
As Darwinism began to entrench itself into popular scientific thought, it brought with it distinct racist and sexist overtones. The writings of E.D. Cope popularized what was known as recapitulation, the notion that modern human beings pass through a succession of evolutionary stages, repeating the progression of the species. (8) Cope identified four groups that displayed characteristics evidencing lower evolutionary status: the non-white races, all women, southern European whites (Jewish people and Italians included), and the lower classes within the superior races (Cope was particularly contemptuous of “the lower classes of the Irish”). (9) The adults of inferior groups were considered throwbacks who remained in an arrested evolutionary stage, more like the children of superior white males. (10) Women’s essential nature was characterized as similar to what men exhibit at a younger age. America’s premier psychologist, G. Stanley Hall, interpreted the higher suicide rate in women as a sign of their stunted evolutionary development. (11)
B. The Early Eugenics Movement
The pre-eugenics evolutionary theories noted above germinated the seeds of the eugenics movement. The term eugenics, which means literally “wellborn”, originated in 1883 with Sir Francis Galton, a cousin of Charles Darwin. (12) Galton advocated the scientific regulation of human breeding to ensure the more talented (primarily those of the upper-class and the industrious members of the middle-class) have a better chance of predominating in the propagation of the species. (13) By the 1920’s, when eugenics became a required course in many universities, (14) a typical textbook published by Bobbs-Merrill stated:
For our own protection we must face the question of what types of races should be ruled out… many students of heredity feel that there is great hazard in the mongrelizing of distinctly unrelated races… However, it is certain that under existing social conditions in our own country only the most worthless and vicious of the white race will tend in any considerable way to mate with the negro and the result cannot but mean deterioration on the whole for either race. (15)
This academic agenda of fear found its way into the political ranks when Congress passed the Immigration Act of 1924, which limited immigration to two percent of those of the same national origin that lived in the United States in 1890. (16) This Act was passed by Congress in large measure because of information supplied by the intelligentsia of the eugenics movement, namely Carl Brigham. He interpreted army data on immigrant intelligence and concluded that as the proportion of those with “superior” Nordic blood decreased, and “inferior” Alpine and Mediterranean blood increased, the intelligence of the immigrants declined. (17) Other “scientific” studies characterized the inferior races as “human parasites”(18) and “filthy, un-American and often dangerous in their habits”. (19)
The eugenics movement promoted the elimination of so-called inferior immigrants from entering the United States and spreading their inferiority “upon the stock of the nation”. (20) The primary goal of the movement, however, was to promote the sterilization of the “unfit”. With success in influencing Congress established, Harry Laughlin, a eugenics movement supporter, drafted a model eugenics sterilization law that was adopted in various versions by many states in this country. (21) The laws were typically aimed at epileptics, the mentally impaired, alcoholics, drug addicts, and criminals. (22) Approximately 50,000 sterilizations were performed in the United States by the end of World War II. (23) This number pales in comparison, however, with the number of women sterilized in more recent years. (24)
C. Eugenics in the Modern Age
Since the 1970’s, sterilization has become the most common form of birth control for women over the age of twenty-five in the United States. (25) Between 1970 and 1980, sterilization rates tripled, and in 1987, twenty-four percent of the entire population of women of childbearing age were sterilized. Part of this increase in surgical procedure is due to the liberalization of indications for sterilization recommended by the American College of Obstetricians and Gynecologists. (26) More significantly, as in the past, societal prejudices and a class-based racist ideology determine the selection process, although on the surface women voluntarily consent to the procedure. (27) Sterilization might not be the choice of many women if they were better informed and able to receive higher quality medical care.
As of 1982, fifteen percent of white women had been sterilized, compared with twenty-four percent of African-American women, thirty-five percent of Puerto Rican women, and forty-two percent of Native American women. (28) In the early 1970’s, an estimated 100,000 to 150,000 low-income individuals were annually subjected to sterilization under federally funded programs. (29)
Turning now to the resultant effects on Native American women, a class traditionally oppressed by economic, social, and financial hardship, one can see just how influential the philosophies of the eugenics movement have been in recent years.
III. Native American Sterilization, 1972-1976
A. The Federal Relationship with American Indian Tribes
The federal trust relationship with American Indian tribes is based on numerous treaty rights and agreements that include availability of medical services and physicians for Indians. However, there are very few statements that mention medical services specifically; instead there is an implicit understanding of the trust responsibility that includes the health of the American Indians. (30) As stated in the American Indian Policy Review Commission’s report on Indian health, ” the federal responsibility to provide health services to Indians has its roots in the unique moral, historical, and treaty obligations of the federal government, no court has ever ruled on the precise nature of that legal basis nor defined the specific legal rights for Indians created by those obligations.” (31) The implied meaning of health care responsibilities is somewhat vague, but the treaties and agreements were supposedly intended to favor Indians.
In 1955, The Indian Health Service was transferred from the Bureau of Indian Affairs to the Public Health Service. (32) This move was made with the expectation that the Public Health Service could improve health care for Indians living on reservations. (33) Even after the transfer took place, however, the health needs for Indians were still not adequately met. (34) This was due to the ambiguous nature of the federal government’s responsibility to provide health care. (35) In turn, the Indian Health Service had no concrete goals or objectives and operated day to day with only a faint clue as how it should render services. (36)
Even today, an Indian client will be given services that may well vary each time that patient enters an Indian Health Service facility. “The specific services available to [the patient] will vary from day to day and year to year, depending on unpublished discretionary decisions made by Indian Health Service officials and commitments and conditions contained in often voluminous appropriation hearings.” (37) This quote suggests that the Indian Health Service system is ripe for mismanagement of policies, funding, and staff supervision. (38) It also comes as no surprise to find that the Indian Health Service has been the subject of a number of investigations. (39)
B. Personal Accounts from Sterilized Native American Women and Their Attitude Toward Family Planning
One of the people who initiated the government investigation into the Indian Health Service’s sterilization policy was Dr. Connie Uri, a Choctaw Indian Physician working at the Claremore, Oklahoma Indian Health Service facility. (40) Dr. Uri noticed in the hospital records that a large number of sterilization surgeries had been performed. This prompted her to conduct her own interviews with the women involved and she found that many had received the operation only a day or two after childbirth. (41) In the month of July, 1974 alone there were forty-eight sterilizations performed and several hundred had been conducted in the previous two years. (42) The hospital records showed that both tubal ligation and hysterectomies were used in sterilization. Dr. Uri commented that “in normal medical practice, hysterectomies are rare in women of child bearing age unless there is cancer or other medical problems”. (43)
Besides the questionable surgery techniques taking place, there was also the charge of harassment in obtaining consent forms. (44) In an incident of harassment at the Claremore facility, one woman was told by social workers and other hospital personnel that she was a bad mother, and they threatened to place her children in foster homes if she would not agree to the surgery. (45)
In one study conducted on the Navajo Reservation and sponsored by the Public Health Service, researchers reported:
From 1972 to 1978 we observe a 130 per cent increase in the number of induced abortions performed. During this time the ratio of abortions per 1,000 deliveries has increased from approximately 34 to 77 (an increase of 126 per cent). (46) While not exactly within the confines of sterilization, the numbers indicate that the family planning program on the Navajo Reservation was definitely acquiring federal funds to carry on such a massive project. (47)
The statistics concerning Navajo sterilization were also addressed by a Public Health Service sponsored study, which found that “between 1972 and 1978, the percentage of interval sterilization has more than doubled from 15.1 per cent in 1972 to 30.7 per cent in 1978.” (48)
Although the report itself was conducted in a clinical and methodical manner, the researchers did comment slightly about the relationship between patient and physician, stating that “[o]lder women who become pregnant may be much less concerned about reducing their childbearing and may do so primarily when they are influenced by health care providers.” (49) In light of previously mentioned tactics promoting the sterilization of Native American women, one can only speculate regarding the nature of the “advice” or “influence” provided by these health care providers.
Once the word of sterilization spread throughout Indian Country, some tribal leaders carried on their own investigations. Marie Sanchez, a tribal judge of the Northern Cheyenne Reservation, interviewed fifty women, twenty-six of whom reported that they were sterilized. (50) One doctor told several women that they each had enough children and it was time they stopped having children. (51) Others were even told that they could have children after the operation. (52)
The attitudes of some members of the health care profession regarding the appropriateness of the number of children these Native American women “should” bear underlines the differing value structure between “white” America and Native American culture. The idea of such population control measures leaves many Native Americans understandably concerned. They believe that the federal government has done enough throughout history to limit the number of Indians living on this continent, and the idea of limiting the number of Indian children is based on what whites feel is an appropriate amount. (53)
Other researchers have found these general feelings to be true, regarding the limitation of Indian family members. One group of researchers gathered data on urban and rural Omaha Indians in Nebraska to determine if either group had different opinions on family planning. The team found that “the family economic situation, the ability to care for the children now and later, family happiness, and the feeling that the couple had enough children were valid considerations in a decision to delay or prevent further pregnancies.” (54) The team also noted that the “freedom for the mother to work, and the belief that a small population was good for the country, were generally not sufficient cause [for birth control].” (55)
C. State and Federal Policies Regarding Informed Consent and Sterilization
Dr. Louis Hellman, the Deputy Assistant Secretary for Population Affairs in the Public Health Service, presented statistics confirming that 150,000 low income people were sterilized in the United States by means of federal grant money. (56) These funds allowed the states to be reimbursed for up to 90 percent of the cost of sterilizing indigent women. A report from the Department of Health, Education, and Welfare stated:
Voluntary sterilization is legal in all states. Although most states have no statute regulating voluntary sterilization, over half authorize the procedure either explicitly by statute, attorney general’s opinion, judicial decision, or policies of [the] Health and Welfare department or implicitly through consent requirements . . . . (57)
Since the states themselves are not following any set policies, it would be reasonable to assume that the Indian Health Service does not either. Thus, there is a valid suspicion regarding the effective management of resources and people at the Indian Health Service.
D. An Examination of the Contractual Relationship Between the Indian Health Service and Private Practices
Researchers on the Navajo Reservation observed that the trend toward increased female sterilizations had to do with the health care providers, who were found to be responsible for the huge increase (almost 300% since 1970) (58) of patients “agreeing” to surgery. The team further stated that the pattern of childbearing on the Navajo Reservation was very similar to those in developing countries. (59) The following statement further illustrates the paternalistic and authoritative attitude that many physicians have toward women: “persons in the lower educational classes rely more on such operations [hysterectomies]; they have been least likely to control their fertility in other ways, and doctors may finally suggest this method.” (60)
Contract Care entails formal agreements with private vendors and is used when the Indian Health Service cannot equip its staff or facilities for emergency or specialty care or if there is an overload of patients. (61) Contract physicians associated with the Indian Health Service are reimbursed for each sterilization. (62) The reimbursements that the physicians receive come from federal funds, but are not federally accountable: “thirty percent of the sterilizations were performed at ‘contract’ facilities. [Indian Health Service] officials in the Albuquerque and Aberdeen areas said they do not monitor the consent procedures in contract care, nor are doctors required to follow federal regulations.” (63)
Normally, agencies which receive funding from the federal government must follow federal guidelines. The Indian Health Service, however, shows a lack of concern and accountability with the patients they treat and the money they handle. (64)
E. The United States General Accounting Office Investigation of the Indian Health Service Sterilization Procedures and the Meaning Behind Statistics of Population Growth
Complaints of these unethical sterilization practices continued, but little was done until the matter was brought to the attention of Senator James Abourezk (D-SD). Finally, affirmative steps were taken – specifically the commissioning of the General Accounting Office – to investigate the affair and to determine if the complaints of Indian women were true – that they were undergoing sterilization as a means of birth control, without consent. (65) The problem with the investigation was that it was initially limited to only four area Indian Health Service hospitals (later twelve); therfore, the total number of Indian women sterilized remains unknown. (66) The General Accounting Office came up with a figure of 3,400 women who had been sterilized; but others speculate that at least that many had been sterilized each year from 1972 through 1976. (67)
The General Accounting Office confined its investigation to Indian Health Service records and failed to probe case histories, to observe patient-doctor relationships, or to interview women who had been sterilized. (68) This deplorable lack of thorough investigation only served as an attempt to placate the concerns of Indian people.
The General Accounting Office investigators concluded that Indian Health Service consent procedures lacked the basic elements of informed consent, particularly in informing a patient orally of the advantages and disadvantages of sterilization. (69) Furthermore, the consent form had only a summary of the oral presentation, and the form lacked the information usually located at the top of the page notifying the patient that no federal benefits would be taken away if she did not accept sterilization. (70) The General Accounting Office notified the Indian Health Service that it should implement better consent procedures. Some Indian Health Service Area Directors were pressured by local Indians and by Indian physicians and staff to suspend certain nurses and to move the hospital administrators to another post. Other than that, however, there was little else done by government officials. (71)
Outraged by the level of governmental inaction, Indian people accused the Indian Health Service of making genocide a part of its policy. For the Indian Health Service, this was a serious accusation, as the purpose of this agency was to somehow alleviate the terrible health conditions in Indian communities. The Indian Health Service defended itself by relying on the inaccurate sterilization figures provided by the General Accounting Office. (72) In reality, however, the accusation of genocide was not far off base. As Thomas Littlewood stated in his book on the politics of population control, “non-white Americans are not unaware of how the American Indian came to be called the vanishing American . . . [t]his country’s starkest example of genocide in practice.” (73)
From a statistical point of view, the reality of the devastation of Native American women victimized by sterilization can be observed through the comments of Senator Abourezk himself: “given the small American Indian population, the 3,400 Indian sterilization figure [out of 55,000 Indian women of childbearing age] would be compared to sterilizing 452,000 non-Indian women.” (74)
Science has provided a means of categorizing and victimizing those in society deemed unworthy of continued existence. Its influence in academic and political circles has created a pervasive social bigotry that rewards extermination over reform. The failure to embrace the racial and cultural diversity of this country has left a wake of destruction and oppression in minority populations. It is time for the pundits of social change to rearrange their thinking and give back to the people the power to choose what is right for themelves.
1 Beverly Horsburgh, Schr degreesodinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO LAW REVIEW 536 (1996).
2 Id. at 538
3 Id. at 539
5 Herbert Hovenkamp, Social Science and Segregation before Brown, 1985 Duke L.J. 624,625
7 Id. at 630-632 (citing Berea College v. Kentucky, 211 U.S. 45 (1908) (upholding a Kentucky statute prohibiting integrated schools)).
8 Beverly Horsburgh, Schr degreesodinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO LAW REVIEW 536 (1996) (citing Stephen J. Gould, The Mismeasure of Man (1981) at 114-115.
9 Id. at 115.
11 Id. at 118
12 Ruth Hubbard and Elijah Wald, Exploding the Gene Myth: How Genetic Information is Produced and Manipulated by Scientists, Physicians, Employers, Insurance Companies, Educators, and Law Enforcers (1993), at 14.
13 Beverly Horsburgh, Schr degreesodinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO LAW REVIEW 536 (1996) (citing Francis Galton, Hereditary Talent and Character, in Adam Miller, Professors of Hate, in The Bell Curve Debate: History, Documents, Opinions (Russell Jacoby and Naomi Glauberman eds., 1995) at 393, 396, 406-442.
14 Linda Gordon, Woman’s Body, Woman’s Right: A Societal History of Birth Control in America (rev. ed. 1990), at 276.
15 Id. at 277-278 (quoting Michael F. Guyer, Being Well-Born (1916), at 296-298).
16 The Immigration Act of 1924, ch.190, §11(a), 43 Stat. 153, 159, amended by The Immigration and Nationality Act, ch. 477, §201, 66 Stat. 175 (1952), amended by Pub. L. No. 89-236, §1, 79 Stat. 911 (1965).
17 Leon J. Kamin, The Pioneers of IQ Testing, in The Bell Curve Debate (1995), at 494.
18 Howard M. Sachar, A History of Jews in America (1992), at 321.
21 Adam Miller, Professors of Hate, in The Bell Curve Debate: History, Documents, Opinions (Russell Jacoby and Naomi Glauberman eds., 1995) at 172.
22 Ruth Hubbard and Elijah Wald, Exploding the Gene Myth: How Genetic Information is Produced and Manipulated by Scientists, Physicians, Employers, Insurance Companies, Educators, and Law Enforcers (1993), at 21.
23 Robert N. Proctor, Genomics and Eugenics: How Fair is the Comparison?, in Gene Mapping: Using Law and Ethics as Guides, at 61.
24 Beverly Horsburgh, Schr degreesodinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 CARDOZO LAW REVIEW 554 (1996).
25 Linda Gordon, Woman’s Body, Woman’s Right: A Societal History of Birth Control in America (rev. ed. 1990), at 437.
27 Id. at 432-433.
28 Charles Rutherford, Reproductive Freedoms and African American Women, 4 YALE J.L. & FEMINISM 255, 273-74 (1992).
29 Relf v. Weinberger, 372 F. Supp. 1196, 1199 (D.D.C. 1974).
30 Charles R. England, A Look at the Indian Health Service Policy of Sterilization, 1972-1976, at 1 (available on-line at http://www.dickshovel.com/IHSSterPol.html).
31 American Indian Journal of the Institute for the Development of Indian Law, Feb., 1977, at 22-23.
32 England, at 1.
37 American Indian Journal of the Institute for the Development of Indian Law, Feb., 1977, at 23.
38 England, at 1.
40 Id., at 2
42 Akwesasne Notes, Sterilization of Young Native Women Alleged at Indian Hospital (July, 1974), at 22.
44 England, at 2.
45 Akwesasne Notes, Sterilization of Young Native Women Alleged at Indian Hospital (July, 1974), at 22.
46 Helen Temkin-Greener, Surgical Fertility Regulation Among Women on the Navajo Indian Reservation, American Journal of Public Health, (April, 1981), at 405.
48 Id., at 406.
50 England, at 2.
51 Brint Dillingham, American Indian Women and I.H.S. Sterilization Practices, American Indian Journal (January, 1977), at 28.
53 England, at 2.
54 Margot Liberty, Rural and Urban Omaha Indian Fertility, Human Biology (February, 1976), at 63-64.
55 Id., at 64.
56 Gayle Mark Jarvis, The Theft of Life, Akwesasne Notes (1977), at 22.
57 U.S. Department of Health, Education, and Welfare, Indian Health Trends and Services [report] (GPO, 1978), at 89.
58 Gayle Mark Jarvis, The Theft of Life, Akwesasne Notes (1977), at 31.
59 Temkin-Greener, at 406.
60 Leslie A. Westoff and Charles F. Westoff, From Now to Zero, Little, Brown & Co. (1971), at 56.
61 U.S. Department of Health, Education, and Welfare, Family Planning, Contraception, Voluntary Sterilization and Abortion, (GPO, 1978), at 2.
62 Mark Miller, Native American Peoples on the Trail of Tears Once More, America (December 1978), at 424.
63 Killing Our Future: Sterilization and Experiments, Akwesasne Notes (Autumn, 1977), at 4.
64 England, at 4.
65 Dillingham, at 27.
66 Id., at 27-28.
67 England, at 4.
68 Jarvis, Akwesasne Notes (Autumn, 1977), at 30.
69 England, at 5.
70 Bill Wagner, Lo the Poor and Sterilized Indian, America (January 29, 1977), at 75.
71 Akwesasne Notes, Sterilization of Young Native Women Alleged at Indian Hospital (July, 1974), at 22.
72 Janet Karstan Larson, And Then There Were None: Is Federal Policy Endangering the American Indian Species?, Christian Century (January 26, 1977), at 63.
73 Thomas B. Littlewood, The Politics of Population Control, The University of Notre Dame Press (1977), at 82.
74 Wagner, at 75.