While Pope apologizes in Canada, U.S. reckons with legacy of federal Indian boarding schools

Children at Rehoboth Mission School, New Mexico
(from DOI report p. 39, credited: Hartog, C. (1910).
Rehoboth School [Photograph]. Indian mission sketches:
Descriptions and views of Navajo life, the Rehoboth Mission School
and the Stations Tohatchi and Zuni, 22. Gallup, N.M.: The Author.
Hathi Trust Digital Library)

The Pope's visit to Canada to ask forgiveness for the role of the Church has brought the tragedy of Indian boarding schools to light, but coverage has been thin on the U.S. legacy.

In the United States, Indian boarding schools were government policy and attempted a cultural genocide no less shamefully than the Church effort in Canada. This U.S. angle on the story hasn't been mentioned in my evening news the last few nights. But it was explicated by an Interior Department (DOI) report in May just this year and is being addressed in some media outlets (e.g., NPR).

The DOI report is just volume 1 in the ongoing investigation of the Federal Boarding School Initiative, "a comprehensive review of the troubled legacy of federal boarding school policies," launched in June 2021. A transmittal letter at the front of the report explained:

This report shows for the first time that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and 7 schools in Hawaii. This report identifies each of those schools by name and location, some of which operated across multiple sites.

This report confirms that the United States directly targeted American Indian, Alaska Native, and Native Hawaiian children in the pursuit of a policy of cultural assimilation that coincided with Indian territorial dispossession. It identifies the Federal Indian boarding schools that were used as a means for these ends, along with at least 53 burial sites for children across this system-with more site discoveries and data expected as we continue our research.

When I say "attempted cultural genocide," or "ethnocide," this isn't just me throwing around woke words. The DOI report detailed official policy dating to President Washington to "subdue[] the Indians" by assimilation, "helping the whites acquire desirable land." An 1803 memo by President Jefferson outlined a plan to relocate native Americans and push them into farming with the express aim that they would thereby fall into debt and have to cede their land. (And, I note, today still our corporate overlords are pushing all of us into asset ownership—homes, cars, cell phones—on the debt model rather than the capital model. You don't have to be native American for the strategy to make the rich richer and you poorer.)

Hundreds of thousands of children were taken from their families and sent to boarding schools often distant from their home communities. That generations of people were so traumatized explains a lot about the fragile social and economic state of reservation communities today.

In military school fashion, the children's every 24 hours in the boarding schools were regimented. Using quotes from contemporary accounts (notes and sources omitted here), the report recounted:

"The children are improved rather in their habits than in what they learn from books." For example, to teach them "obedience and cleanliness, and give[] them a better carriage," Department records detail examples of organizing Indian male children "into companies as soldiers, and the best material selected for sergeants and corporals." "They have been uniformed and drilled in many of the movements of army tactics."

The report explained the means and ends of the boarding schools with revealing perspective:

Systematic identity-alteration methodologies employed by Federal Indian boarding schools included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding ... Indian languages, ... cultural practices, and ... religions. "When first brought in they are a hard-looking set. Their long tangled hair is shorn close, and then they are stripped of their Indian garb thoroughly washed, and clad, in civilized clothing. The metamorphosis is wonderful, and the little savage seems quite proud of his appearance."

"No Indian is spoken[:]" "There is not an Indian pupil whose tuition and maintenance is paid for by the United States Government who is permitted to study any other language than our own vernacular—the language of the greatest, most powerful, and enterprising nationalities beneath the sun."

Then there was enforcement for violating the rules, including the prohibitions on language and religious practice. Whipping was the preferred punishment for attempted runaways.

Indian boarding school rules were often enforced through punishment, including corporal punishment, such as solitary confinement, "flogging, withholding food, ... whipping[,]" and "slapping, or cuffing." At times, rule enforcement was a group experience: "for the first offense, unless a serious one, a reprimand before the school is far better than a dozen whippings, because one can teach the whole school that the offender has done something that is wrong, and they all know it and will remember it, while it is humiliating to the offender and answers better than whipping."

Conditions for even compliant children were less than optimal. Citing prior DOI investigations in 1928 and 1969, the 2022 report stated:

The Department has acknowledged "frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate." Rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in Indian boarding schools are well-documented.

Moreover, the children's labor was used to operate the schools, for example, the children's clothes were made by female students as part of their vocational training.

Lest the severity of these conditions be confused with mere norms of less gentle times, we might consider that schools, even in the 19th century, rarely had their own graveyards. DOI found 53 burial sites at Indian boarding schools, at least six unmarked.

U.S. Indian boarding schools have been examined thoughtfully in media outlets: The Atlantic, National Geographic (limited free), NPR, N.Y. Times, and Time (paywall).

There are books, too, of course: Ward Churchill's well regarded Kill the Indian, Save the Man (2004); the first-person Pipestone (2010) by Adam Fortunate Eagle; and the documentary compilation Boarding School Seasons (2000) by Brenda J. Child.

There are online resource collections at The National Native American Boarding School Healing Coalition and the Library of Congress.

My favorite media treatment in this area is a 2015 Radiolab segment, rebroadcast in 2018, "Ghosts of Football Past." Follow it up with a compelling reflection by Professor Justin De Leon.

Oil, uranium motivated Trump to slash Bears Ears; litigation, land use questions now sit on Biden's desk

President Biden is likely to undo the Trump Administration's dramatic reduction of protected land in southern Utah, including the Bears Ears National Monument.  If he does, the restoration will end litigation over the permissibility of rescission under the Antiquities Act and extinguish ambitions of the natural resource extraction industry.  [Update, Oct. 7.]

Traveling in Utah in recent weeks (drought, torts), I spent time crossing the south of the state from the Navajo Nation in the east to the Dixie National Forest in the west.  In the Escalante region in between, a whopping 1.88 million acres of south-central Utah is set aside as protected land under the Antiquities Act of 1906, an enactment of the Teddy Roosevelt Administration and genesis of the American park system, as the Grand Staircase-Escalante National Monument (GSENM).

A famous feature of GSENM is Grosvenor Arch, named for Gilbert H. Grosvenor,
the first full-time editor of National Geographic.

GSENM (U.S. BLM)

Immediately east of GSENM, the narrow Glen Canyon National Recreation Area tracks the Colorado River from Canyonlands National Park to Lake Powell.  And just east of there, couched within an L of the north-south Glen Canyon and the east-west Navajo Nation is the 1.35 million acres that President Obama designated, or proclaimed, in December 2016, as Bears Ears National Monument.

You might have heard of Bears Ears, because it was at the heart of the controversy ignited when President Trump attempted to substantially rescind the Obama proclamation and vastly reduce the size of public lands in southern Utah.  By proclamation in December 2017, President Trump shrank the Bears Ears designation from 1.35 million acres to just under 230,000 acres, and he cut GSENM almost in half, from 1.88 million acres to just about one million acres (L.A. Times graphics).

Bears Ears NM (U.S. BLM) (red border)

The power of a President to undo a designation under the Antiquities Act is an open legal question.  In the 1970s, Congress undid a perceived overreach by the Carter Administration in protecting land in Alaska.  But the executive power to roll back designations is untested, and Trump's rollbacks were, like so many things about the Trump Administration, unprecedented.  Lawsuits followed from environmentalists and Native American tribes.

"Bears Ears" refers specifically to two buttes, and they are a universally and immediately recognizable landmark in southern Utah.  On a clear day, they can be seen from both Monument Valley Tribal Park in Arizona and Mesa Verde National Park in Colorado.  Driving the Trail of the Ancients from the Valley of the Gods, up the Moki Dugway from Mexican Hat, Utah, I recognized the Bears Ears right away when they popped up over the scrubby horizon.  They truly do give the unmistakable impression of first sighting a bear in the wilderness, ears poking up over shrubbery.

My first sighting of Bears Ears buttes

Bears Ears buttes in a National Park Service photograph

Bears Ears National Monument embraces the Trail of the Ancients and a vast range of sites that are archaeologically invaluable and culturally precious to multiple tribes, including the Navajo, Ute, Pueblo, Hopi, and Zuni.  Historic cliff dwellings, sacred burial grounds, petroglyphs, and pictographs abound in the region.  Headlong development plans and rampant looting of indigenous artifacts were key motivators of pleas for federal protection.  The buttes are at the center of it all geographically and symbolically, but it's the surrounding land that really matters.

Petroglyphs such as these at Capitol Reef National Park date between 300 and 1300.

So that was the frame in which I understood the controversy over Bears Ears before I went to Utah: a classic problem of conservationism versus economic development, collectivist versus objectivist land use, both sides with fair claims to the greater good.  The heuristic is a cost-benefit analysis, but different decision-makers variably assess intangibles such as environment, culture, and history.  And the whole calculation is awkwardly tinged with the shame of America's imperial legacy vis-à-vis indigenous peoples.

That framing is accurate—but incomplete.

There is an angle that I was missing, and it became apparent on the ground, literally.  My back-country drive was the tip-off.  The Moki Dugway is a spectacular unpaved mountain pass, not for the vertigo-inclined.  The pass was carved out by private enterprise specifically to transport uranium mined in Fry Canyon to a processing facility in Mexican Hat.  Bears Ears is not just about conventional land use.  It's about what lies beneath: coal, oil, natural gas, and uranium.  The Trump reductions to Bears Ears and GSENM were mapped specifically to kowtow to the extractive industries.

Moki Dugway

Panorama from the Moki Dugway, looking south toward Monument Valley

Valley of the Gods from the Moki Dugway

This is a FOIA story.  Extraction is rarely mentioned in news reports about Bears Ears.  But a media lawsuit under the Freedom of Information Act yielded some 5,000 pages of records from the Department of Interior that show, The New York Times headlined in 2018, that "oil was central."

Bears Ears proposed boundary revision,
attached to Hatch office email,
to "resolve all known mineral conflicts"

In March 2017, the office of Senator Orrin Hatch (R-Utah) transmitted to the Trump Interior Department maps of mineral deposits in the Bears Ears National Monument with email messages, such as, "Please see attached for a shapefile and pdf of a map depicting boundary change for the southeast portion of Bears Ears monument." As the Times reported, a map recommending monument reduction "was incorporated almost exactly into the much larger reductions President Trump announced in December, shrinking Bears Ears by 85 percent."

Publicly, Trump Interior Secretary Ryan Zinke downplayed the role of extraction in the decision-making, for example, once declaring, according to the Times, "We also have a pretty good idea of, certainly, the oil and gas potential—not much! .... So Bears Ears isn't really about oil and gas."

Meanwhile, the Times reported, "internal Interior Department emails and memos also show the central role that concerns over gaining access to coal reserves played in the decision by the Trump administration to shrink the size of the [GSENM] by about 47 percent ...."  According to the Times, "Mr. Zinke's staff developed a series of estimates on the value of coal that could potentially be mined from a section of Grand Staircase called the Kaiparowits plateau.  As a result of Mr. Trump's action, major parts of the area are no longer part of the national monument.

"'The Kaiparowits plateau, located within the monument, contains one of the largest coal deposits in the United States,' an Interior Department memo, issued in spring 2017, said.  About 11.36 billion tons are 'technologically recoverable,' it projected."

In contrast, the Times reported, 20,000 pages of Interior records accessed in the FOIA lawsuit "detail the yearslong effort during the Obama administration to create new monuments, including input from environmental groups, Indian tribes, state officials and members of Congress."

Another Hatch office email attachment:
USGS-mapped uranium deposits
in and around Bears Ears

Earlier, in January 2018, Times reporting based on public records obtained from the Utah Bureau of Land Management revealed the centrality of uranium extraction in public policy on Bears Ears.  As controversial uranium mining operations were set to resume near the Grand Canyon, the Times reported, and "even as Interior Secretary Ryan Zinke declared last month that 'there is no mine within Bears Ears,' there were more than 300 uranium mining claims inside the monument.

"The vast majority of those claims fall neatly outside the new boundaries of Bears Ears set by the administration. And ... about a third of the claims are linked to Energy Fuels, a Canadian uranium producer. Energy Fuels also owns the Grand Canyon mine, where groundwater has already flooded the main shaft.

"Energy Fuels, together with other mining groups, lobbied extensively for a reduction of Bears Ears, preparing maps that marked the areas it wanted removed from the monument and distributing them during a visit to the monument by Mr. Zinke in May."

Straight line of uranium "road scar" at Capitol Reef,
visible from upper left to lower right

Not just on the Moki Dugway, the legacy of uranium mining is evident on the landscape in southern Utah.  For example, in the stunning vista of Grand Overlook at Canyonlands National Park, some unusually straight lines in the earth stand out in contrast with the curving tracks along the hilly contours.  The straight lines, a ranger told me, are "road scars" from truck routes, transporting the yield of uranium mines before the national park was established in 1964. 

At Capitol Reef National Park, on the eastern edge of GSENM north of Glen Canyon, one can see the fence-wood-sealed holes of old uranium mines on hillsides and cliff faces, always tracking a pale yellow stratum in the rock.  According to a National Park Service signboard, "[t]he thin band of yellow-gray" is "a layer of ancient, river-deposited sandstone containing trace amounts of uranium....

"Exploration and milling of uranium was encouraged by the US Atomic Energy Commission in the 1950s during the Cold War.  Prospectors flocked to the Colorado Plateau.  Even protected National Park Service lands were opened to mining.  Despite strong opposition from park managers, companies were allowed to build roads, dig mines, and construct camps in previously undisturbed lands."

Fenced uranium mine openings in yellow stratum at Capitol Reef National Park

Part of NPS signboard at Capitol Reef National Park

I do not here want to ignore the public good that flows from natural resource extraction.  I drive a car and heat a home with fossil fuels.  The Hatch memos to the Interior Department said that state taxes and fees on natural resource extraction would be used to fund public schools, libraries, and infrastructure.  Extraction provides jobs and drives economic development, which betters social conditions.  And as the Capitol Reef signboard intimated, domestic uranium yield was, and still is, vital to the national defense and can be supportive, or in other hands disruptive, of global security.

I don't here subscribe mindlessly to collectivist dogma.  My complaint is against opacity and deception.  The electorate can calculate the public good only with a complete and accurate accounting of the variables.

Three federal lawsuits over the Bear Ears/GSENM reductions were consolidated in Hopi Tribe v. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Dec. 4, 2017) (Court Listener).  By executive order on Inauguration Day in January 2021, President Biden instructed the Interior Department to review the Trump proclamations on Bears Ears and GSENM, as well as a marine national monument off the New England seaboard.  In March, the court granted a stay in Hopi Tribe, waiting to see what the Biden Administration would do.

Earlier this month, the Interior Department delivered its report to the White House.  The report has not been made public, but media outlets, including the Times, reported that Interior Secretary Deb Haaland, member of the Laguna Pueblo and the nation's first Native American cabinet secretary, recommended restoration of the national monuments to their pre-Trump proportions.  In a joint status report filed with the Hopi Tribe court on June 3, the parties asked the court to extend the stay, pending the President's reaction to the report from Interior.

Your humble blogger at Cedar Break National Monument in the Dixie National Forest

 (All photos not otherwise attributed: by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

Immunity shields tweeting legislators from libel suits, Elizabeth Warren from high school plaintiffs

High schoolers from Kentucky will not get their day in court against Elizabeth Warren.

The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.

Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?

Remember when people used to stand really close together like that?

There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side.  For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.

Senator Elizabeth Warren (D-MA) and Representative Deb Haaland (D-NM) tweeted about the affair from the perspective that cast the students in the wrong.  Haaland wrote, "The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking."  And Warren: "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better."

The students sued the legislators for defamation, asserting that the darker interpretation of events was false.  On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.

As the court observed, the Speech and Debate Clause has no application on Twitter.  But a much simpler analysis pertained.  Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government.  And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.

The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020).  Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.

Terra Nullius: Named for legal doctrine, novel dives deeply into human identity

I'm not easily moved by fiction, so I don't make recommendations lightly.  And you need to read this book.

Terra Nullius by Claire G. Coleman (Amazon) has been a hit in Australia and thankfully was picked up for U.S. circulation by a small, Massachusetts-based publishing house, Small Beer Press.  The book has been shortlisted or nominated for a bunch of prestigious awards and won the Norma K. Hemming for exploration of themes of race in speculative fiction.  The book is a product of the Queensland "black&write!" indigenous writing fellowship.  Coleman identifies with the Noongar people of the southwestern coastal region of Australia.  A poet and writer, this is her debut novel, and she wrote it while exploring indigenous lands in a caravan.

The "speculative fiction" element of Terra Nullius is not immediately obvious in the telling of the story.  I won't spoil it here, and I urge you to avoid spoilers so that you can experience it yourself.  Even so, being married to a librarian, who recommended this book to me, I knew something of the novel's secret.  I was gripped early nonetheless, and the reveal was still richly enchanting.  For a while I had to ponder, why did Coleman tell the story this way?  But I got it, and the author interview in my Small Beer Press edition confirmed: Coleman's narrative delivers empathy for the indigenous experience in a way that I have never before witnessed.

There are countless parallels between Coleman's take on indigenous life and British colonization and the experiences of other marginalized groups, including Africans amid European colonization and First Nations in the United States.  The title, "terra nullius," refers to the Latin term and legal doctrine meaning "nobody's land."  Specifically the term was employed by the British to legally rationalize claim to Australia, as if the continent had been uninhabited.  The term turns up in American law, too, to justify claims to this continent and the displacement of native peoples.  Coleman states that she has not yet been to the United States, but would welcome the chance to compare notes on our reservations.  I would love to witness that conversation.  In ironic coincidence, I read Terra Nullius while exploring the reputed landing sites of Christopher Columbus on the Samaná Peninsula of la República Dominicana.  There are scarcely few more apt places on earth to consume this book.

While the focus might be on the indigenous perspective, this novel, in its sum, speaks even more ambitiously to the whole of our human experience.  It demands that we interrogate who we are as a species; that we ask whether confrontation and violence—might makes right—are intrinsic to our human identity, or a choice that we make, something we can change.  It comes clear that our survival may well depend on the answer.