Tuesday, November 11, 2014

ASLH Panel Report: Roundtable on Public Policy and Public History

[We are grateful to Victoria Saker Woeste, Research Professor, American Bar Foundation, for two marvelously complete reports of panels at the recently concluded annual meeting of the American Society for Legal History.  Here is her first.]

Roundtable on Legal Histories and Public Audiences:  Linking Legal History, Public Policy, and Public History. 

This roundtable met at the crack of dawn on Saturday morning and featured John E. Echohawk, executive director of the Native American Rights Fund; Patricia Nelson  Limerick, University of Colorado-Boulder/ Center of  the American West; Katrina Jagodinsky, University of Nebraska-Lincoln; and Victoria Saker Woeste, American Bar Foundation, who also served as moderator.

John Echohawk
led off with a discussion of his work on Native American Rights Fund litigation, which he founded in 1970 and of which he became executive director in 1978.  The legal history of indigenous people is long but largely unknown.  Serious study of Native American history and Indian law began in the 1960s, when the federal government offered law school scholarships at the University of New Mexico, where federal Indian law was taught, probably for the first time in the country.  John was one of the scholarship recipients.  Native tribes were sovereign, a fact recognized in the Constitution, and entered into treaties with the U.S., which proceeded to break provisions without consequence in the 19th and 20th centuries.  Federal policy, John declared, was to break treaties, send Indians to cities, and make them invisible. 

In the 1960s, Native Americans began to demand enforcement of these treaties and equal treatment under the law.  The Indian community recognized that knowledge of the legal system was essential to understanding and securing rights.  Following the model of the NAACP and ACLU, which had specific legal entities to fight their battles, the Native American Rights Fund obtained Ford Foundation money to hire lawyers that were made available to all tribes having treaty issues.  The NALF began winning in the courts as judges began to recognize the validity of treaty provisions and rights. These decisions recognized that tribes relate directly to the fed government and that states have no jurisdiction on tribal lands.  Naturally, the states began to object to the loss of authority over tribes, particularly in the area of water rights, in which Indian rights antedate state rights. 

John then asked:  what does this legal history mean?  Indians are no longer the vanishing Americans, but it is difficult to overcome that long history.  Often he gets this reaction:  "I thought all you people were dead."  Knowing tribal history helps people realize that Indians are alive and kicking, that they are an important part of the American system of government.  But it is essential to talk to the public, educate people about Indian legal history.  He is constantly engaged in educating everyone else about Indians' legal rights.

This is particularly important because people think that casinos make Indians rich!  This perception (which is inaccurate) makes his job a lot tougher  because it is now harder to raise money.  The truth is that casinos don't make most tribes rich.  Only about a dozen are doing well, out of 566 tribes nationwide.  It's also hard for federal agencies to work on Indian issues because gaming has hijacked the discussion, coloring every issue they deal with.

A more serious problem facing Indians seeking validation of their rights is the Supreme Court.  For a long time after President Nixon changed policy to give federal recognition to Indian self-determination, the Supreme Court was generally receptive to tribal claims.  That has changed with the rise of conservative justices  on the court (he didn't name names), whose open hostility has led the NALF to change strategy and avoid the Court as much as possible.  Indians need public support more than ever to keep their treaty-based sovereignty.

Patricia Nelson Limerick, who was also the speaker at Thursday's opening reception, talked about her work with Denver water management issues and Indian affairs.  Her most recent book, A Ditch in Time:  The City, the West, and Water (2012), has reached a broad public audience; she is often invited to give talks to non-academic readers.  Her Center for the American West has also enabled her to conduct outreach (like the NALF, she too has to spend time on  fundraising).  The Center's model is the scientific laboratory, which emphasizes teamwork, collaborative publishing, and grants.  The Denver water department wanted a history of the department to be written, but it was not to be a court history.  The department gave the Center money for graduate students whose work was essential to the book, but placed no conditions on the book's content (the book has a disclaimer to this effect).

As an illustration of the wide reach of the book, Patty discussed her keynote address at the September 2013 Rocky Mountain Waterworks Association and Wastewater Management meeting.  The next day the area was buried under an 18" rainstorm that caused catastrophic floods; none of it had been predicted by weather experts: "All of us are teetering on the edge of a future we never saw coming."  Patty thinks that now that she has earned the trust of these agencies, she can advise them now as more of an insider, which enables her to have a voice on conservation without their getting defensive.

She modestly pointed out that book clubs love the book, and she hopes that will help narrow the disconnect between consumption and production.  The chief irony of the past 100 years, she said, is "that people live in such comfort and complacency without thinking about where their heat and water come from."  That era may be winding down, and she's glad and wants to help usher it in.

As an example, she described what's happening with the Gross Reservoir.  The Denver Water Department is not going to build any new reservoirs, just increase the capacity of existing ones.  Neighbors of the Gross Reservoir oppose expansion even though it won't directly harm them.  She has little sympathy because they have long enjoyed the benefits of the "interdependent matrix of life," something about which she wrote scathingly in the book.  She stands by this critique, but now perhaps she might reconsider her tone. The neighbors have yet to ask her to come speak to them, which is unusual for her. 

This experience contrasts starkly with her engagements with Indian people and their issues. There she knows her audience and how she can be helpful.  For example, she spearheaded the successful move to rename Nichols Hall on the CU campus.  (Nichols was a participant in the Sand Creek massacre.)  She is now working on bringing tribes together in a consortium to share knowledge; she sees her role as translating scientific expertise on extractive industries and interpreting science to guide decision making and policy.  She wants to avoid a repeat of the historical rip-off of Native Americans' natural resources.

Katrina Jagodinsky differs greatly from John and Patty in that rather than waiting to be asked, she invites herself to these public audiences.  She is working on a book on six women from different tribes in Arizona and Washington.  In the course of her work she made persistent efforts to reach out to Indian tribes, tell them about her work, and share her findings.  She has even invited their input into her writing.  She has also contacted white settler-descendants of these six women.  She wants to discuss the range of responses she's encountered and ask whether the legal history she is uncovering can inform public policy.

The positive responses came from 2 tribes.  One was the Yavapai of Arizona.  She contacted tribal leaders and the staffs of tribal offices; she secured formal and informal venues to explain her work and goals.  She was then invited back to share drafts and receive feedback.  The Yavapai connected her with elders, too.  The other tribe that received her was the Sauk Suiattle.  She presented to tribal council, which was a public meeting. They invited her to stay for a week to meet with the family of their tribeswoman about whom she writes.  She made it clear that this is not oral history; she is not asking for recorded interview.  This may have encouraged them to work with her; they even incorporate her new findings into tribal records for future community reference.

Settler-descendant communities were located in San Juan Island and Puget Sound region.  She found them by accident, through word of mouth; they gave her copies of their family land records which were not in public archives.  They named a street after the Salish woman who once owned the land they now live on.  She was the first native woman in Washington State to file rape charges against an Anglo man. She thinks it's impressive that they still want to recognize the problematic parts of their history, that they welcome the uncomfortable topics.

Her work was less well received in the Akimel O'odham/Gila River Indian community.  She explained that she was studying Wana Walker who was kidnapped from the reservation at an early age and did not grow up with the tribe.  The tribal council said her research was not tribal history, which was disappointing; they also would not advocate for her work because they wanted a tribal historian to write the history.  Rather than being discouraged, Katrina sees rejection as a part of  Indian sovereignty.  It follows from their autonomy and must be respected.  She now understands that she is their audience; they needed someone to direct their legitimate complaints to.  Still, they didn't want to be affiliated with her work in any way.

The Prescott anglo community was split.  The research was in the Prescott Historical Society, which was happy for sources to be used for Yavapai history.  The society asked her to speak to a community group about Sen. Woolsey's mistress, who is one of her subjects. Woolsey is beloved by the anglo community, but Katrina does not share this view.  The anglos blog and present at local history meetings about the "star crossed romance" between Woolsey and Yaqui woman Lucia Martinez (whom they insist on calling Lucy Woolsey).  They refuse to acknowledge that Martinez was coerced into this relationship.  Normally, Katrina shares copies of her archival finds with the tribes, but this group won't acknowledge what these documents say.  She notes that she and they are "swimming in the same stream" but not helping each other.

This is unfortunate.  Martinez was the first Indian woman to file suit in Arizona's state courts.  Her great-great-granddaughter gave Katrina family photos to use in the book.  Martinez is important and significant and Katrina wishes the anglo descendants would understand the true nature of her life.  While the disagreement with the Prescott anglos has not affected her ability to do the work, it has been a trying experience.

Katrina's next project is a study of the use of the writ of habeas corpus by tribal members and non-Indians.  She continues to believe that it is beneficial to talk to people with long memories of ancestral experiences.  She plans to continue this sort of collaborative process in future, even though the history discipline does not generally expect or require collaboration between scholars and communities.  She sees rejection as a form of a public history dialogue, a great debate to have.  Finally, in terms of shaping public policy, she hopes that reclamation of lands belonging to ancestors can be assisted with her archival findings.  She sees her work as a form of advocacy in this area.

Victoria Saker Woeste talked about the "buzz-saw" of historical mythologies that she encountered when I presented my work on Henry Ford and Louis Marshall to audiences of lawyers, Holocaust Museum visitors, and synagogue book groups. I fully expected to confront the Ford mythology with general audiences, because every single biography ever written about Ford engages with those myths, sometimes embellishing them and sometimes deconstructing them.  But no one has ever really sought to detach Ford from them.  As a result the image of Ford as cultural hero, industrial king, and statesman still competes with the reality of Ford as bigot and hate speech publisher.  Ford mass marketed his cruel views in the hopes that millions of Americans would follow him.  To characterize him in this way without dwelling on the $5/day wage has been upsetting to some people. 

Cracking the Ford façade, as it turned out, proved to be much easier than revising the historical reputation of the lawyer Louis Marshall.  For one thing, I didn't realize that in critically assessing Marshall's role in ending the federal libel suit against Ford in 1927, I was assailing any pre-existing reputation at all.  An extensive community of Marshall partisans took exception to a critique I published in 2004, refused my request to participate in a symposium held to celebrate his 150th birthday, and published their defenses of Marshall without refuting the evidence I cited.  Having been rebuffed in my attempts to reach out to these individuals, I instead frame my public talks in a way that front-ends the controversy and emphasizes the sources that even now remain uncontradicted.  I learned from the experience that, as Katrina pointed out, even negative responses are part of the dialogue and part of the process of constructing history.

We then opened the floor to discussion.

First, Patty asked me where I might have found a moderator to broker between me and my audience?  She suggested that university-based historians can often act as conveners.

Carol Chomsky asked Patty to speak about differences among audiences and communities in doing this kind of work.  Patty replied that you have to establish your credibility with that audience, but then academics might think you've been captured, become an organ for that audience rather than being a disinterested academic.

Carol then asked John about how recognition of tribal sovereignty follows from doing the research; how do researchers do work in native communities?  He said the answer is in recognizing sovereignty, being transparent.  Tribes want to get the information out but they don't want to be misrepresented or have the story mistold. This is what it means to do research in tribal communities

Patty notes that she has been asked to represent "white liberals" (!) who often purport to correct her usage of "Indian" as if they know what the tribal usage actually is (or their preferences).  Non-Indians think Indians don't exploit nature or natural resources, and there are lots of these individuals in the academic world.

She also pointed out that her applied work began after she became a full professor:  "I know there are mutterings but it doesn't matter to me."  She tries not to react to preposterous remarks, avoids taking a narrow advocacy position.  She says it's not the worst thing in the world if academics get out a little bit more; she feels an honor and an obligation in taking academic findings to groups that can benefit from them.  But she does not feel obligated to be a messenger in other direction; she doesn't feel like she needs to enlighten academics.  Most of all, she fears for the untenured.

She then hastened to reassure Katrina, who she believes will be just fine because her work is so well documented.  Katrina even discussed these interactions during her job talk!  Happily, her department loves her work and understands when travel gets delayed due to tribal events.  Her colleagues treat her work as in the same budgetary category as an archival trip.

Ann Parsons said that her job includes "community engagement," evaluated by peer community members and she is encouraged to think about community impact-a good way to value this kind of work.  She said she was inspired by our panel because we listened to our sources. 

Patty said that when she sees a conventional historian working on a monograph, she knows that all the feed back the author will receive is 14 reviews, 5 of which won't be so good.  Then you have to start all over.  She called this "spiritual malnourishment."  Engagement makes you feel alive and mentally healthy! People her age get crabby (!).  She hopes for institutional change but it is slow in coming.

Keith Richotte noted that we study human beings and the choices they make; we also study ideas, heroes, myths-some of which can be particularly pernicious in Indian Studies.  He points out that the panel talked about our interests in our subjects, in adjusting our tone; but he's curious as to what other mechanisms we could use to bridge gap between our interest in human beings, fundraising, etc. and the idea of who these human beings are.

Patty responded that she thinks about her audience, how she can bring them along in her project.

I said that I thought I could make Marshall more admirable by rendering him more fully human (fallible).  Patty said any hero should struggle with such a Hobson's choice as the one Marshall faced (between doing nothing and doing something that may have been unethical but which he believed would benefit all American Jews).

Stuart Banner asked John if NARF can use or not use the work of historians in cases and whether there are ways in which historians' work could be more useful.  What books should be written to help NARF?  John replied that they need expert witnesses, historians to help with cases.  The Palm Springs Cocoachella Valley water rights belong to a tribe; a history of sustainable water use has to be generated to trace origins of rights.  That's the kind of historical work that is needed.  Walter Ecohawk's book The Ten Worst Cases in Indian Law is a useful book showing racist language and unjust outcomes-this educates the public.

Patty said that she had students work with Walter who really were formed by that experience even more than classroom learning.  She tries to bridge outreach with classroom activity.

I then asked how do you build credibility when you're not one of them?  (I mentioned that I'm not Jewish and wondered how that affected the audience that was hostile to my work.)  Patty says you have to be prepared to be on a period of probation; she suggested I try to have dinner with them, talk to them directly.  I agreed that would be helpful.

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