Lowenthal points out that history–even with our individual and collective interpretations of it–is more real than heritage. Heritage is our naming of selective movements and elements of the past which we collect in order to identify ourselves or justify our actions–sometimes our very existence. Of the two, heritage is more manipulable and commidifiable, less bound by consistency and actuality.
History, Lowenthal hints but does not forthrightly say, tries to explain the present through examination of the past, and is a community exploration and benefit; generally such examinations are without personal and financial gain. Heritage, on the contrary, is an obsession for profit–personal, career, financial gain–and all tied in with an effort to establish and maintain security. But then to be rich in heritage is to be secure. Lowenthal does not point out that history is likely to become more and more heritage as individuals seek personal more than community or national gain, when it is more important to establish real or fake roots than to be a selfless individual part of a growing nation. He also does not suggest that much of this wrong-headed drive comes from our wrong-headed education. Now we in education are far more interested in developing memory than imagination and thinking. Memory is safe, thinking is precarious. (Brown, R. Possessed by the Past. Journal of American Culture (Malden, MA). Volume: 19. Issue: 4. Winter 1996. Page number: 122+)
It seems to me that Indian Education for All (IEFA) is designed to promote heritage rather than history. The content that is to be taught is not specified, but who is authorized to specify it, tribal members, is. For many tribal members and educators, it’s where the money and the opportunity lie, at the moment. I’m not actually opposed to heritage. In fact, I’m an advocate for it. I think all cultures that survive focus on their heritage–teaching the past as much to reinforce and perpetuate cultural ideals as to present the past in all its incoherent and tawdry detail. But I do think what’s happening now in Montana education presents us with situations that we must think through carefully.
As part of a discussion of historical materials dealing with early Flathead Reservation history that might be used in the classroom, I and other students taking an online class focusing on IEFA, watched a lecture on tribal sovereignty by lawyer Dan Decker. His presentation was well-crafted and I found it accurate, though I hasten to add that I’m not a lawyer and certainly no expert on Indian law. I thought it was effective rhetoric given its purpose, which I understood to be making a case for the preservation and perhaps extension of tribal political power.
A person who approaches the vast and complex history of interactions between the federal government and Indian tribes with other purposes might pay more attention to details that Decker elides. For example, Decker quotes Chief Justice Marshall’s argument in Worcester 1832, that the Indian treaty, “in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads of Europe.” He does not quote Marshall’s suggestion a year earlier in the Cherokee Nation case that “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence.”
How are these statements to be reconciled? Such questions lie at the heart of historical inquiry. What precisely did happen, what were they thinking, and what are we to make of it? We pick and choose and come to our judgments based, in part, upon what we want and what we anticipate of the future. Arguments about the past are usually also arguments about the future. What is the proper relationship between the federal government and tribes? Answers will vary.
One education goal that has long seemed important to me is taking students to primary sources and giving them questions to try to answer that do not have clear or simple answers. It’s the best way I know of for them to learn how many judgments and interpretations it takes to construct that authoritative voice such as Decker uses, and such as history texts use. What happened in the past comes to seem inevitable, susceptible to one interpretation. I call it “the God voice.” One learns to read history more carefully, I think, by trying to write history from primary documents.
Much is made of the assertion that the relations between the federal government and the tribes were “government to government” and that they can best be understood by using the treaties between the federal government and the European states as the model.
Perhaps. But that is not the impression one is likely to get from reading the arguments that went on among participants in the federal government at the time of the Constitutional Convention in which the Constitution was drafted or in the situations that soon arose under the new government.
One issue that seemed at the center of their thinking was the relationship between the federal government and the state governments. The colonies had been making agreements with Indian tribes from the arrival of the Pilgrims in the early 17th Century, and a host of theories and principles were in play. Should the tribes be dealt with via martial force? Should they be negotiated with via commercial interests? What came to be understood as “the Indian problem” had been on people’s minds from the beginning.
In the late 18th century, one urgent concern among advocates for a strong central government was to deny states any treaty-making power. Putting an end to states dealing directly with tribes was perhaps the paramount concern to the extent Indian tribes entered their thoughts. James Madison was influential in those discussions. Madison thought “the negative on the laws of the States as essential to the efficacy & security of the Genl. Govt,” because the “necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest.” The Founders feared that if powerful states such as New York were allowed to treat with Indians directly, they would continue expanding their territory and wealth to the detriment of the union overall. Asserting federal supremacy over states when it came to tribes, then, was a more lively concern than was treating tribes the same as European states were treated. This was a critical reason treaties were adopted as the means of dealing with tribes.
Francis Paul Prucha in American Indian Treaties has discussed the extent to which arguments about how to negotiate with tribes grew out of arguments about how the new government itself was to function:
Was treaty making an executive function, a legislative function, or a joint function? The Convention opted for the third choice, and the Constitution in Article II provided: “He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”‘ But how this was to be carried out in practice was not clear from the Constitution itself. Two questions arose: How precisely did the Senate advise and consent in regard to treaties, and were agreements with Indian tribes to follow regular treaty procedures?
After the Constitution was enacted, the differences between tribes and European powers did become a subject of discussion. Specifically, there was concern about the idea of ratification of treaties. Since on the tribal side, those who signed treaties often had access to no formal systems of ratification in a manner similar to what happened in European states, this led to some on the U.S. side to wonder whether ratification was in fact appropriate for these documents.
This was linked to debates about the roles of the executive and the Senate. It was not clear in the Constitution what role each should play in the creation of treaties. Could the executive unilaterally draft and sign treaties, or did the Senate need to be involved in the negotiations? Once the treaties were signed, did the senate need to formally ratify them or were oral communications between the executive and senate committee members sufficient?
I am not suggesting at all that Decker’s conclusions about what, after all the intricate historical currents, tribal sovereignty came to mean are mistaken. On the contrary, I think he is correct. I am merely saying that the more historical detail one has the more complicated the situation becomes. I think the reality is very complicated, and if we hope to be wise I think we need to confront and think about those complexities. At least, that would be my educational goal.
So rather than disagreeing with Decker’s lecture, I am suggesting that his purposes might be different than those of a classroom teacher in a public school, and that such difference might affect how a teacher approaches and uses this document.
One teaching purpose that I endorse is that students should be assisted in thinking about these complex issues at the level of the principles that are involved. This might entail bringing to the fore the very issues that Decker tends to gloss over: What should be done about such consequences of tribal sovereignty as occurred over fishing rights, where one group (non tribal members) became subservient to a government in which they had no rights of representation? When, if ever, should Congress abrogate treaty rights that conflict with other Constitutional principles?
The more such conversations are grounded in historical facts and the best that has been thought and said in the past on the topics of rule of law and constitutional government, the more educative they are likely to be. If such discussions consist merely of putting students in small groups to express their feelings, one would expect little more than aggressive defenses of one’s interests, which is all we are left with if we do not stay committed to learning how to be governed by principles.