As I mentioned in the other thread, the concept of cultural genocide goes back to around the same time we were codifying international agreements on genocide. It was originally in the 1948 UN Genocide Convention, but was scrapped in the final draft. Whether a cultural genocide meets the UN definition of genocide, I think it is fair to say that most people view cultural genocide as a type of genocide, even if it may not hold up precisely to the UN definition. The forced homing of native american children in the U.S. and Canada in boarding schools to “anglicize” them after 1880 or so, would definitely meet the definition of cultural genocide set out by Raphael Lemkin who was one of the influential legal theorists who developed international thinking on genocide. Lemkin wrote a book called Axis Rule that specifically mentions “non-physical” forms of genocide. This was specifically meant to convey that while for example Turkish mass killing of Armenians and Nazi mass killing of Jews were clear physical genocides, genocide can take other forms as well even if there is not a systemized and deliberate killing machine involved.
I did mention however in the original thread that whether the Indian Boarding Schools would meet the UN definition of genocide, is more questionable. I do not know for sure if they would or would not, but I think the “contra” argument, that a defense attorney would raise if you tried to put those (now dead) people on trial in an international tribunal, would be fairly well crafted and have at least a decent chance of success in some cases, but probably less so in others–this is because the nature of the transfers to the boarding schools varied over time, as did the practices of those schools.
For example the Office of the U.N. Special Adviser on the Prevention of Genocide (OSAPG) has detailed its legal opinion that the transfer of children must include some element of direct force. This was not always present. For a number of years in the United States, the authorities could not outright transfer children by force against the wishes of their parents, but instead would use carrot and stick diplomacy where they would offer more or less food subsidies to Indian reservations based on the tribe agreeing to transfer children. In 1891 when the U.S. Government passed its compulsory attendance law, which fully empowered government agents to remove Indian children to boarding schools by force, this defense would not likely be upheld.
Another wrinkle is some of these schools, perhaps even all of them, would not meet the definition of “transfer” of children. Some of the schools were day schools, and the children were sent home at the end of the day. Such schools would not meet the definition of a forced transfer of children, but would instead be viewed as a form of compulsory education, which isn’t covered by the 1948 Genocide Convention.
Even the residential schools, at least in my research, ordinarily included breaks from the school in which the children were sent home. This would make it problematic to get a ruling that these schools represented the idea of a forcible transfer of children under the 1948 Genocide Convention. The transfer concept was envisioned more to cover scenarios in which a government took children away from a targeted ethnic group and never returned them, giving them as adoptees to other people in society and etc, to deny the targeted ethnic group the ability to have a future generation of itself.
A residential boarding school in which children were returned for holiday breaks, while a harsh form of compulsory education, likely would not be viewed as a forcible transfer under the 1948 Convention.
All that being said–mind that no one is talking of having an international tribunal for these instances. The strict legal definition in the 1948 UN Convention was not seen as the holistic definition of genocide, even by individuals like Lemkin who were instrumental in defining genocide and getting it codified. When something is codified into statute, it must have very specific meaning. That’s why there are things like the “colloquial” term “murder” but then there is the very specific statutory crime of murder, these two conceptions do not always overlap fully, but instead overlap some of the time and do not overlap other times. In any ordinary sense the cultural destruction of a people is viewed as a form of genocide.
In the case of the Native America of North America another issue also looms large–namely that even if you can quibble about the legal definition of genocide vis-a-vis the boarding schools, there are innumerable and likely many forgotten to history cases of clear, deliberate and physical genocide by white settlers and their governments of Native Americans. In that context it really matters very little how a UN tribunal would rule on this specific thing, if you were actually to constitute a retroactive, historical tribunal then much like the war crimes tribunals constituted against the Nazis, you wouldn’t waste time with the smaller stuff when you have endless proof of more unequivocal and easier to fit the law acts of genocide.