Removing Classrooms from the Battlefield: Pratt’s Dark Legacy and the Redemptive Promise of School Choice

Removing Classrooms from the Battlefield: Pratt’s Dark Legacy and the Redemptive Promise of School Choice[1]

                                                Daniel E. Witte, Esq., and Paul Mero[2]

Utah’s new school voucher law has meant many things to many people.  For the 43 percent of our Hispanic and African American public-school students who do not graduate with a diploma, the voucher law represented a sense of hope and opportunity.  For anti-voucher advocates who have a romanticized view of public schools, the voucher law is un-American and a threat to our democratic values.

At the heart of this romanticized view is a disturbing paternalism.  This sentiment, above all others, is emphasized more than any other in opposition to the law – every anti-voucher argument inevitably returns to an idealized view of the common good – and, not coincidently, it’s been a central historical theme in the relationships between the federal government and indigenous, immigrant and religious minority groups.

Utah’s new school voucher law, as it is written, is about one thing: helping low-income minority students failing in our public schools.  In their current socio-economic circumstances, and unlike struggling students from wealthier families, these students are forcibly segregated in their neighborhood schools and now, told by the keepers of the common good that their struggles do not warrant any intervention transcendent of the higher priority to maintain the seedbed of democracy, our public school system.

This debate today is but one of a long series of similar debates: not merely freedom versus slavery, but freedom versus slavery’s evil twin, paternalism.  To really grasp this profound reality, it is necessary to consider the political and legal history behind the education of demographic minorities in the United States.

Homebuilders, past and present, know that “mudsill” is a pounded earthen floor prevalent in most primitive homes.  In the mid to late 19th century the term mudsill was eventually ascribed derogatorily to poor people and a formal “mudsill theory” held that poorer classes, especially black slaves, were natural and essential to human progress.

The chief proponent of mudsill theory in the Civil War era was a South Carolina planter and United States Senator named James Henry Hammond.  In a speech delivered on the Senate floor in 1858, Senator Hammond explained,

In all social systems, there must be a class to do the menial duties, to perform the drudgery of life…Such a class you must have, or you would not have that other class that leads to progress, civilization, and refinement.  It constitutes the very mudsill of society and of political government; and you might as well attempt to build a house in the air, as to build either the one or the other, except on this mudsill.[3]

Hammond’s contemporary, and a popular pro-slavery advocate, George Fitzhugh added,

“The Negro is but a grown-up child and must be governed as a child….  The master occupies toward him the place of parent or guardian…. The Negro is improvident…. He would become an insufferable burden to society.  Society has the right to prevent this and can only do so by subjecting him to domestic slavery…. [T]hey would be far outstripped and outwitted in the chaos of free competition.”[4]

The paternalism of slavery is deftly described by one historian this way,

Masters hoped that if they articulated the rules clearly enough and enforced them reliably, slaves would accept the legitimacy of their masters’ authority… “You must convince them you are not a tyrant but act on the principle of justice,” [one southern planter] explained.  The plantation, in other words, must become a just and well-ordered world of familial devotion.

Nothing captured this ideal more precisely than the slave owners’ language of paternalism.  Slaves, essentially childlike, incapable of higher reasoning, and only haltingly responsive to moral tutelage, required the combination of kindness and discipline that only a father could provide.  Since no slave parent’s authority had any legal standing — slaves’ children literally belonged to someone else — paternal responsibility fell to the slaveholder…. But this paternalism characterized planters’ fantasies far better than it did their society, for forbearance and benevolence could exist only in the space created by terror.  At the core of paternalism, in other words, lay brutal coercion.[5]

Paternalism is as American as our public school system.  The coercive imposition of paternalism has become one of the great ironies of a free nation.  Perhaps no person exemplified this irony more than Union Army General Richard Henry Pratt.

It was against the backdrop of mudsill theory that Richard Henry Pratt emerged from the shadows of history to seize control of America’s educational destiny.   We are fortunate that General Pratt left behind a lengthy and detailed journal, now his formal autobiography appropriately titled Battlefield and Classroom, about the ideas and actions supporting his paternalistic quest to turn black slaves,[6] American Indians[7] and Puerto Ricans into “real Americans.”

Richard Henry Pratt’s military career began with the April 1861 bombardment of Fort Sumter during the Civil War.[8]  He fought as a Union soldier for four years in Kentucky, Tennessee, and Georgia, participating in some of the most vicious and bloody battles of the entire conflict.[9]  It was there that Pratt would develop an important network with influential military and political friends, including General William Tecumseh Sherman, who would prove essential to Pratt’s career ambitions throughout Pratt’s life.  General Sherman’s scorched-earth approach to defeating the Confederacy also appears to have exerted an important influence upon Pratt’s military and civic worldview.

After briefly leaving the military on May 29, 1865, Pratt re-enlisted and was appointed a Second Lieutenant[10] on March 7, 1867.[11]  He was assigned to command a newly organized “Negro” regiment consisting of African American enlisted men supervised by white officers.[12]  Of that time, Pratt later wrote:

As a Civil War cavalryman [over Negro soldiers] I marched over vast stretches of slavery’s domain, serving the four years in a war which led to broader Americanization, through participation in the duties of American citizenship, for the recent primitive Africans. . .. [M]y government used me in war to end a system which had forcibly transformed millions of primitive black people by transferring them from their torrid zone homes and life across a great ocean and compelling them to live with and make themselves individually useful in, our temperate national family and by abandoning their own meager languages and adopting the supremely prolific language, life, and purpose of America. . … [T]hrough forcing Negroes to live among us and become producers, slavery became a more humane and real civilizer, Americanizer, and promoter of usefulness for the Negro . . .. It is impossible that any man entertaining any national family can become acceptable therein unless made useful to it.[13]

Pratt believed that the same insights and managerial tactics also applied to other demographic minority groups, including Native Americans and Puerto Ricans.[14]

When the Civil War ended, General Sherman[15] and his network of career military officers turned their attention to subduing Indian Territory in the midwestern and western United States, as well as Texas.  In the Spring of 1867, Pratt was assigned to Fort Arbuckle in what is now Oklahoma.[16]  At that time, various Indian tribes were involved in an insurgency against the United State’s military’s effort to gain permanent and exclusive territorial control.  Pratt participated in eight years of battles and negotiations[17] involving various tribes, including the final conquest of Kiowas, Comanches, Cheyennes, and Arapahos.[18]

One of the primary grievances of the warring Indian tribes was the encroachment of white settlers and the resultant reduction of available land and resources.  In particular, the elimination of the buffalo herds caused Indian starvation.[19]  As the natural game was depleted and Indians were confined to territorial boundaries on reservations and elsewhere, Indian tribes were forced into reliance upon the federal government for food.[20] However, experience demonstrated that the federal government often sent insufficient or inadequate rations in violation of government obligations set forth under treaties the federal government itself has forced the Indians to sign.[21]  The Indian tribes complained that the white man was the first aggressor who had driven the Indians from their traditional lands, declared war on the Indians, and killed Indian women and children unnecessarily and indiscriminately.[22]  The Indians believed that their own brutal attacks against white settlements and supply convoys constituted a natural and justified tactic of self-defense and self-preservation.  As a result, the Indian Territory at that time was enmeshed in a vicious war on all sides, characterized by insurgency, terrorism, gruesome atrocities, sexual assault, kidnappings, dismemberment, and scorched earth tactics.[23]

Pratt was surprised to learn that the Cherokee Indians, who by then had been relocated to Oklahoma from Georgia as part of the “Trail of Tears” migration coercively supervised by the military in 1838,[24] were already quite “civilized” and had their own self-sufficient system for education:

I talked more with the Indian sergeant and his men of the [Indian] scouts and found that most of them had received English education in their home schools [[25]] conducted by their Cherokee tribal government.  They had manly bearing and fine physiques.  Their intelligence, civilization, and common sense was a revelation, because I concluded that as an army officer I was there [in Fort Gibson, Arkansas] to deal with atrocious aborigines.”[26]

Notwithstanding this discovery, Pratt decided that neither the Cherokee nor other Indians should be permitted to run their own schools or control the upbringing of their own children.[27] Throughout his career, Pratt would organize publicity campaigns and espouse policies based upon the premise that Indians could only become literate and civilized through removal of Indian children from their Indian parents and instruction in off-reservation boarding schools controlled by white federal government officials.  The objective was not simply (or perhaps even primarily) to educate Indian children, but to permanently control and transform indigenous societies in ways designed to suit Pratt’s political constituency.

Pratt was an informal student of organizational behavior and propaganda.  He attracted interest and support from military authorities by demonstrating an ability to organize units of Indian scouts from various tribes—including Cherokee, Choctaw, Osage, and Tonkawa—and using the units against other Indians in order to gather intelligence and develop effective tactical strategies.[28]

The federal military prevailed in the war.  The tribes were conquered and compelled–often by starvation, confinement, and threats—to sign treaties giving control of tribal education over to the federal government.[29]  Indians suspected of participating or supporting acts of violence were killed; the remainder were collected as prisoners of war and confined in frontier military forts and prisons.  The military decided to create a prison for the Indians thought to be the most violent, dangerous, or destabilizing actors in Fort Marion, Florida.[30]  Indeed, Ft. Marion had many similarities to the contemporary Guantanamo Bay military prison for suspected terrorists in Cuba: Ft. Marion was to indefinitely incarcerate, without trial,[31] despised prisoners of war who were in most cases believed to have committed atrocities against white civilians or to have killed United States military personnel.

In 1875, Pratt was assigned to oversee the transportation and ongoing incarceration of the Indian prisoners of war.[32]  The POWs were gathered at Fort Leavenworth, Kansas, branded, crowded into rail cars, and confined in irons.[33]  They were then shipped from Leavenworth, Kansas to St. Louis, Louisville, Nashville, Atlanta, Jacksonville, and finally, Ft. Marion, Florida.  During transport and while incarcerated at Ft. Marion, some Indians died from humidity, exposure, harsh treatment, and prolonged confinement.[34]

Pratt had a goal to “reform”[35] young Indian POWs and proved to be very adept at maintaining strict order, discipline, and security at Ft. Marion.  He forced the POWs to cut their hair and wear military clothes in the manner of a white man.[36]  Indians were punished, marched about, and forced to perform regular military drills.[37]  Indians were forced to clean, cook, present themselves for military inspections, and maintain a “spit-shine” military environment.[38]

Pratt realized he could control the Indians and change their culture more effectively by mixing different tribes to together and using Indians to guard, spy upon, and punish each other.[39]  He forced Indians to conduct court proceedings in prison and declare that fellow prisoners were guilty and worthy of banishment to the prison dungeon.[40]  He found that Indians would guard each other even more effectively than military security guards.[41]  Pratt later applied the divide-and-conquer strategy associated with mixing[42] tribes to maintain control and break down cultural resistance to his later governance of the Carlisle Indian School.[43]

At Pratt’s service was a Prussian immigrant, First Lieutenant Edmund Louis Gray Zalinsky, who later gained prominence as a inventor of military technology.[44]  Zalinsky hit upon the idea of using Indians for forced labor at minimal or non-existent wages, starting initially with the labor-intensive task of sinking wells.[45]  Indian POWs would also be used to perform earthworks excavation for the Smithsonian Institute,[46] cook baking goods and other foods,[47]  build log homes, manufacture canes, collect sea beans, and create tourist items for sale.[48]  Pratt seems to have initially viewed the work as an outlet for educating and benefitting Indian prisoners,[49] but the practice appears to have gradually degenerated into an enterprise designed to provide graft and political rewards for Pratt.[50]

Pratt also forced the Indians to attend and participate in church services, primarily services from the Massachusetts Puritan tradition.[51]  Among other things, the Indians were apparently compelled to recite passages from the New Testament in unison each Sunday.[52]  According to Pratt, the first lesson the Indians were taught was “to obey.”[53]  The Indians were to be culturally cleansed and become “leaders of their people in the path of civilization.”[54]  Pratt allowed selective access to the media in order to promote his ideas and show off Indians he considered to be civilizing through efforts at the prison.[55]

For the most part, the Indian POWs do not appear to have enjoyed their confinement or Pratt’s instruction.  Eventually the Indian POWs begged to do whatever white people told them to do, including adopting approved education, lifestyle, and family arrangements, if only they could be permitted to leave.[56]  Some Indians attempted to escape,[57] and other prisoners committed grisly suicides.[58]

Over Pratt’s objections, the POWs were eventually released in April 1878.[59]  Pratt then employed lobbying and private fundraising for POWs willing to remain for continued education on the East Coast.[60]  Like the federal government at the time, Pratt wanted Indians to settle into white patterns of farming and settlement.[61]  It also was eventually discovered that the Indians who were allowed to return to their tribes were often useful for persuading reservation Indians to assimilate white cultural and economic practices.[62]

Pratt’s role in history might have ended with the closure of Ft. Marion’s Indian incarceration program.  In a fateful twist, however, Pratt decided that the paradigm and tactics he had refined for adult military Indian POWs could be applied to accomplish the economic and cultural assimilation of non-criminal Indian children across the United States.  With the help of his old Civil War political network, including General William Sherman and General Philip Henry Sheridan, Pratt mounted a remarkably effective lobbying and publicity campaign to create a system of Indian schools based upon the Ft. Marion model for managing Indian POWs.[63]  Indeed, Pratt would spend the rest of his career lobbying over the course of decades for new federal Indian schools, more Indian schools, and more funding for Indian schools.

Pratt’s key strategic insight was that Indian children were the key to controlling the permanent future of Indian relations and the key to making primitive people “productive” to American society in the throes of the Industrial Revolution.  The industrial tycoons of the day (and the federal government) wanted to control natural resources, land, and railroad routes occupied by the Indians, and cheap labor was needed for factories and other industrial pursuits.  By removing children from tribal life and integrating public education into Indian treaties and land grant schemes, Pratt could meet all such needs simultaneously while also redistributing the wealth of various kinds to the Northeastern political and educational establishment.  Indians could serve as a captive market for teachers and materials produced from the Ivy League.

Pratt wrote to, and met with, key military and political allies.  He arranged for an August 1877 National Teacher’s Monthly article lauding the Ft. Marion prison education program.[64]  He lobbied the President[65] and the federal Indian Commissioner.  He secured the help of General John Eaton, United States Commissioner of Education, and also Julius H. Seelye, who was President of Amherst College and also a sitting congressman.[66] He lobbied New England churches, telling the clergy and congregations that Indians could become white in manner and lifestyle, and become useful farm labor.[67]  He arranged for a presentation for General Hancock at the St. Augustine prison designed to elicit support.[68]  He lobbied General Armstrong in New England to create civilian Indian schools.[69]

Pratt’s public message was that Indians could and should be civilized, civilized Indians could be an economic asset, and “creating opportunities for this is a reasonable duty of government.”[70]  He claimed that forcing Indians to interact with whites was essential in order for Indians to enjoy their rights under the Fourteenth Amendment and Declaration of Independence.[71]  He indicated that Indian education institutions should be located in the Northeast, far away from the homelands of most tribes, so that the economic and political benefits of the project would accrue to his own political constituency.[72]  Privately, he pointed out to military officials that Indian children in boarding schools would serve as useful hostages to ensure that tribal parents would always toe the line.[73]

Pratt explicitly discussed educating the Indian and Negro together so that they could both be civilized.[74]  He went to New York and New England on several occasions for political and fundraising trips, along with General Armstrong and several black and Indian students to put on display.[75]  Pratt wrote:

All immigrants . . . had a full fair chance to become assimilated with our people and our industries.  Why not the Indian?…. The fitness . . . [the Negro] had gained by the training he was given during slavery . . . made him individual, English speaking, and capable industrially. . .. Both the white man and the red man must learn the possibilities of usefulness the Indian could gain through seeing it demonstrated.[76]

Pratt’s pitch paid off.  A “plantation” was secured in connection with Hampton Normal and Agricultural Institute, a school for African Americans.[77]  General Sherman ordered that Pratt work with the Secretary of Interior to gather Indian children for placement at Hampton Normal and Agricultural Institute.[78]

Pratt then went to Bismarck, Dakota (now South Dakota), enlisting help from Congregationalist Reverend C.L. Hall to obtain children from three local tribes for the project.[79]  The children were to be gathered and transported by steamer ship.[80]  Pratt also made use of his Civil War military connections, including former Catholic chaplain he knew, and of local government Indian agents.[81]  He used Episcopal Church missionaries.[82]  Despite Indian skepticism that “[t]he white people are all thieves and liars,” Pratt managed to eventually collect his quota of children by persuading selected Indian parents that it was hopeless to resist white railroads, towns, and farms and that their children should learn to live like whites.[83]  Pratt then used German-immigrant military officers to impose Prussian discipline on the assembled Indian children.[84]

Pratt was also dispatched to Florida in June 1879 by the Commissioner of Indian Affairs to take census of the local Indians and their condition, and devise way to bring the uncooperative Indians under control.[85]  The Indians in that region, including the Seminoles, had a fiercely recalcitrant reputation that extended all the way back to wars against early Spanish explorers.  Pratt offered the Florida Indians in tools, food, and education of their children, but Pratt reported that the Indians refused and said they “did not want to hear my Washington talk.”[86]  Pratt left Florida empty-handed and declared the Seminoles “unsaved to American citizenship.”[87]

Hampton was, however, only an initial stop-gap demonstration project.  To really launch his vision nationwide, Pratt needed a new flagship institution associated wholly with his new concept.  Pratt’s break came in 1878 when he secured political support for a new school from General Carl Schurz, a German immigrant who fought in the Civil War and was subsequently appointed to Secretary of the Interior.[88]  With the help of Indian Commissioner Hayt and General Sherman, Pratt was able to persuade Secretary Schurtz to create a prototype Prussian-style military Indian boarding school in Carlisle, Pennsylvania, on the grounds of an old military base.[89]

Pratt recruited a New England school teacher who had helped him run the Ft. Marion Indian prison in Florida so that she could assist with oversight of Carlisle Indian School.[90]  He organized an Episcopal operation to oversee “delegation” of Indian students to Carlisle under “General Grant’s Peace Treaty.”[91]  He consulted with General Sherman about how Carlisle should be administered.[92]  He pioneered the tactic of using compulsory education to coerce mandatory medical examinations of children.[93]

At Carlisle, Pratt referred to himself as the “school father” of the children.[94]  He recruited handpicked Indian sympathizers (and later, Indian graduates of Carlisle) to deliver the following message to the Indian children:

Your parents have done something that is wonderful to send you here to be educated.  Now we look back; our old parents did not know anything; that time is all passed away.  I am a man, but I begin to see something that is better than the old men used to see.  We know it is good for you children to be here among the white people.  There is only one tribe that knows much; that is like the white people—that is the Cherokees.  They have men today equal to the Great Father [Pratt]; they are educated, they are wise.  We other Indians belonging to the different tribes are blind. . .. We who are grown will soon die off and leave you young people, but you will know something—how to work for yourselves. . .. We have the Great Spirit above looking down on us and we try to do right.[95]

The official “slogan” of Carlisle echoed this sentiment: “‘To civilize the Indian, get him into civilization.  To keep him civilized, let him stay.’”[96]  Or, as the sentiment was also commonly expressed, “kill the Indian, save the child.”[97]

Carlisle scrupulously utilized the Ft. Marion paradigm.  Indian students were groomed in a white manner, wore soldier uniforms, participated in mandatory drills, slept in military barracks, ate in a mess hall, and experienced punishments by lengthy confinements.[98]  Students were not permitted to leave Carlisle; student contact with their tribes and parents was carefully regulated.[99]

The curriculum was taught in English,[100] with discipline meted out for communication in an Indian language.[101]  The children were instructed in the Bible, Protestant Christian prayer, and Protestant Christian modes of worship.  Carlisle had two student newspapers called “the Red Man” and the “Indian Helper.”[102]  The Indian children also received an industrial education in carpentry, wagon and harness making, blacksmithing, boot and shoe making, tinware, and so on.[103]  Students were subcontracted out to local civilians for free or low-cost farm labor and domestic help.[104]

Once Carlisle was established, Pratt remained as an active commissioned military officer and school headmaster until his retirement in 1903.  For twenty-five years, Pratt aggressively lobbied for more government money, more political support, and more private donations.  Pratt believed that the Carlisle paradigm could be used across America and perhaps throughout the world[105] on demographic minorities of every kind.[106]  He successfully lobbied for the Carlisle blueprint to be replicated in other Indian boarding schools across the United States,[107] often using converted military facilities.[108]  He also demonstrated that Carlisle could be used not only for tribal Indians in the United States but also for Puerto Ricans in the aftermath of the Spanish-American War.[109]  Most importantly of all, the paternalistic spirit of Pratt’s model has been in play – even to this very day – in defense, at all costs, of the public school system.

Pratt’s own lobbying effort in the promotion of his cause was very sophisticated and, in a sense, very modern.  Pratt understood that government education policy and spending is shaped by carefully crafted public images and the personal cultivation of influential policymakers.  He staged a large and elaborate Carlisle parade presence in the 1892 Chicago World Columbian Quadri-Centennial and in New York parades, with hundreds of Indians marching in uniforms and bearing a banner that said, “Into Civilization and Citizenship.”[110]  Pratt promoted Carlisle with mass fundraising expeditions to Philadelphia, New York, and Brooklyn, where selected Indian boys and girls acted in skits and exhibits to simulate the Industrial skills they were learning at Carlisle.[111]

Pratt showed Congressmen and others the “before” and “after” photos of Carlisle Indian students, contrasting “uncivilized” traditional Indian attire and grooming with “civilized” Indians in approved Carlisle attire.[112]  He depicted himself as someone deeply concerned about the nutrition, health, clothing, and material comfort of Indian children, carefully omitting any public mention of the starvation, imprisonment, forced family separations, and other coercive tactics used to secure attendance of his Indian pupils.[113]

Carlisle was promoted through athletic contests played against Harvard, Yale, Pennsylvania, Cornell, and other academic institutions.[114]  Pratt also collected and disseminated testimonial letters from various whites indicating how excellently the Carlisle Indians had performed in compelled farm and domestic work.[115]

Pratt maintained a sophisticated ongoing outreach program to clergy and church congregations, raising contributions and strengthening political support for his cause.  Congregationalists, Episcopalians, Presbyterians, Methodists, Lutherans, and Baptists in New York, Boston, and New England seemed to receive special emphasis in terms of speeches,[116] meetings, and public presentation of academic papers.[117] Pratt told them that “education [of the Indian children in the Carlisle mold], and that alone, will solve the problem of the future preservation of the tribes from obliteration and the elevation of their people to the position of useful members of society.  To make them educated, Christianized citizens, will solve the Indian problem[.]”[118]  Pratt explicitly identified the Massachusetts Puritan tradition of law, religion, and education as the philosophical inspiration for his assimilation campaign.[119]  On some occasions, Pratt actually paraded hand-picked Carlisle students in front of congregations to demonstrate that Indians could display Anglo manners and dress.[120]  For the most part,[121] Pratt’s message was enthusiastically received.[122]

Pratt’s efforts with the clergy and public educators culminated in his triumph at the National Education Convention of 1899 in Los Angeles.  Pratt drafted asset of resolutions which were then sponsored by Dr. Merrill E. Gates and enthusiastically adopted by the entire Convention:

  1. RESOLVED, that the true object of the Indian schools and of Indian management is to accomplish the release of the Indian from the slavery of tribal life and to establish him in the self-supporting freedom of citizenship to take his place in the life of the nation, and that whatever in our present system hinders the attainment of this object should be changed.

    2. RESOLVED, that the public schools of the United States are fundamentally and supremely the Americanizers of all people within our limits and our duty to the Indian requires that all Indian school efforts should be directed toward getting the Indian youth into these schools.

    3. WHEREAS, local prejudice on the part of whites against the Indians in the vicinity of every tribe and reservation is such as to make attendance of the Indian youth in public schools there impracticable, and Whereas, there is no prejudice preventing the attendance of Indian youth in public schools from nonreservation schools as are remote from the tribes as possible, and it is hereby suggested that ten more such schools be tentatively established at once, with a distinct understanding that each such school shall carry 300 additional pupils placed out in public schools living in white families where the children shall give service in the home to pay for their keep.[123]

Over the course of Pratt’s career, what had been initially presented to Indians and the general public experienced dramatic mission creep.  Ostensibly “voluntary” school attendance became compulsory.[124]  Reservation Indian parents who objected to the federal government curriculum and refused to send their children to government schools were denied government food and supply rations so that they had to choose between starvation and compliance.[125]  If Indian parents actually did successfully request a return of their children, they had to find enough money to pay for the long return trip from Carlisle.[126]  If a tribe or faction of a tribe showed solidarity in resisting compulsory education, rations were cut off to the group and the resisting parents were imprisoned for “sedition” or other imagined offenses.[127]  Even the most resistant tribes eventually succumbed.[128]

Utah demographic minorities felt the heavy hand of Sherman and Pratt.  In 1863 the Navajo were forcibly gathered by Colonel “Kit” Carson and resettled to the Bosque Redondo Reserve on the banks of the Pecos River. Between 1863 and 1868, approximately 2,000 of the 9,000 Navajos died of disease, exposure, and starvation while confined under the supervision of military officers stationed at Fort Sumner, New Mexico. The Navajo were finally allowed to relocate to a more desirable Navajo Reservation on the condition that they sign the Navajo Treaty of 1868. Article VI of the Navajo Treaty included the following language:

In order to ensure the civilization of the Indians entering into this treaty, the necessity of education is admitted, especially of such of them as may be settled on said agricultural parts of this reservation, and they therefore pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school; and it is hereby made the duty of the agent for said Indians to see that this stipulation is strictly complied with; and the United States agrees that, for every thirty children between said ages who can be induced or compelled to attend school, a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher.

Negotiations for the Navajo Treaty of 1868 were led by “Peace Commissioner” Lieutenant General William T. Sherman.  The same template used for the Navajo Treaty of 1868 was used for other treaties such as the Fort Laramie Treaty of 1868 with the Sioux Nation.  Indeed, Article VI of the Navajo Treaty is virtually identical to Article VII of the Fort Laramie Treaty and provisions in many other Indian treaties.

Later, after the Carlisle School was established, Pratt confided to the Secretary of Interior: “I am most anxious to make a telling break on the Navajoes, and goad on the Presbyterians.  The Navajoes furnish the most promising field for educational and industrial training of any Indians we have . . .”[129]  In a letter to President Hayes, Pratt exulted:

I see that about sixty officers are detailed as staff and instructors at West Point, where there are scarcely more students than I shall have here [at Carlisle] when those arrive who the Department contemplates soon adding from the Utes and Navajoes.  There a Major General has charge with all this immense staff and corps of instructors to help.  The objective there is mostly like that at Carlisle, the Indian. . .. Civilization out of savagery!  Cleanliness out of filth!. . . and is forced to educate the courage of his own instructors to the work and see that all the interests of his government and the Indian as well are properly protected and served. . .. [Lt. Brown] can be detailed by your order to go after the Ute and Navajo youth . . .. He will do the country a hundred times more service here than he will with his regiment.  If I could advise in this matter, I would urge the immediate establishment of fifty more schools like this, and the detail of a hundred officers to manage them. . .. General Sherman himself, four years ago . . . endorsed my course at St. Augustine [Florida, where Pratt incarceration the Indian POWs].  This and that are one, only this has grown bigger.  Knowing as I do that I am supremely right, it would be wicked to falter . . .[130]

Pratt also assured Senator Dawes that “If a majority of the Senate and the House concur in the . . . Ute Bill . . . in reference to the education of Indian youth . . . the ‘beginning of the end’ of Indian troubles is reached.  Education and industrial training for Indian youth, for all Indian youth, will, in a very short period, end the Indian wars . . .”[131]

During this same general historical period, white members of the Church of Jesus Christ of Latter-Day Saints (commonly known as “Mormons”) were also regarded by the federal political establishment of the day as uncivilized and a strategic obstacle to desired economic development of the west.  In many ways, Mormons were treated as an uncivilized, un-American, non-Christian, large white tribe that required assimilation in the tradition of Andrew Jackson, William Sherman, and Richard Pratt.  Pratt’s sophisticated educational paradigm was adapted for application to Mormon society.  The details are too lengthy to discuss here but are set forth by the authors in a separate publication.[132]

At the end of his career, on June 30, 1904, Pratt was relieved of command of Carlisle, and he retired.[133]  Pratt was finally forced into retirement for three primary reasons.  First, Pratt’s educational scheme was designed to provide economic and political patronage to Pratt’s core supporters in the Northeastern United States.  Politicians representing states in other regions of the country began to fight for a bigger piece of the “Indian education” revenue stream, seeking to secure an economic windfall for local white contractors in their own jurisdictions.[134]  Second, the Bureau of Indian Affairs finally prevailed in a bureaucratic turf battle with Pratt and the federal military, arguing that Indian schools should conduct assimilation on the reservations under Bureau supervision rather than off-site under the control of the military.[135]  Third, Pratt’s movement became so strident, corrupt, and oppressive in its tactics–including use of previously-discussed starvation, child abduction, and economic patronage–that the ex-abolitionist human rights constituency and others began to complain and criticize Pratt.  Some members of Congress and the Executive Branch gradually began to believe that Pratt had gone too far, and that Pratt needed to be retired to make way for a re-tooled, re-marketed assimilation effort.[136]

On the historic marker now memorializing a cemetery at the old Carlisle school site, the Pennsylvania Historical and Museum Commission of 2003 printed these words,

This school was the model for a nationwide system of boarding schools intended to assimilate American Indians into mainstream culture.  Over 10,000 indigenous children attended the school between 1879 and 1918.  Despite idealistic beginnings, the school left a mixed and lasting legacy, creating opportunity for some students and conflicted identities for others.  In this cemetery are 186 graves of students who died while at Carlisle.

We must never forget that thousands of minority students died or suffered as a result of physical, psychological, and sexual abuse in government schools and institutions, as well as from accidents and exposure during escape attempts.[137]

Pratt’s dark legacy far outlived his death; it is difficult to understate the damage he has inflicted upon Utah on a continuous basis.  Most dramatically, Japanese Americans in Topaz, Utah, experienced a variation of his techniques during World War II.  Most Utahns today are likely unaware that California Attorney General Earl Warren campaigned for the internment because, in his own words, “The[] [Californians] brought the Japanese in . . . for farm labor” but the Japanese immigrants “were too smart, and they started owning the farms.”[138]  Elite Californian and national politicians were irritated by competition from successful Asian private schools and wanted to find a way to shut them down.[139]  When Franklin D. Roosevelt and Earl Warren[140] successfully put the internment system in motion, the system included the Alaskan Aleuts,[141] situated many of the internment camps on or near existing Indian Reservations, and was jointly administered by the War Relocation Authority and the Bureau of Indian Affairs.[142]  Coercive compulsory education, forced labor, and a regimented lifestyle were imposed.[143]

During the internment program, the bureaucratic battle between the military and the Bureau of Indian Affairs re-emerged, with the BIA advocating the creation of permanent Japanese-American reservations,[144] and the War Relocation Authority advocating a Pratt-style “scatter-and-assimilate” strategy under which internees would be scattered evenly throughout the entire nation to prevent coagulation of any ethnic Japanese communities.[145]  Incredibly, a loose version of the Pratt/Roosevelt paradigm has reincarnated yet again in the form of the National Service Corps (AmeriCorps).[146]  The Pratt philosophy continues to permeate government schools generally, particularly in minority neighborhoods.  In government education, bad ideas die hard.

General Pratt was a well-respected government servant.  He was considered to be a Christian man, a man possessing high moral integrity, and a man who believed deeply in the Americanizing value of the public school system.  He believed “that the public schools of the United States are fundamentally and supremely the Americanizers of all people,”[147] and he utilized a historical period of ethnic, racial, and religious turmoil to gain power.

At worst, General Pratt was a Machiavellian man with vile streaks of opportunism and sadism running through his character.  At best, General Pratt’s expressed intentions can be accepted at face value, and we can assume that he was a sincere, well-meaning, but misguided[148] individual who genuinely intended to serve as a compassionate and beneficent American patriot.  The second possibility is at least as frightening as the first.  Regardless of the actual subjective motives of Pratt or his paternalistic political constituency, however, we should never forget that Pratt’s crusade was a paternalistic terror in the lives of American minority communities.  He ripped families apart in the name of the common good.  His autobiography is filled with heart-wrenching story after heart-wrenching story of Indian families bereaved and broken-hearted over the cultural cleansing he subjected them to.  He used treaty law[149] created by unelected bureaucrats and unelected Indian “leaders” to sidestep Constitutional protections and deprive Indian parents of families of any meaningful representative input.[150]

Let us remember, Pratt’s image-conscious autobiography is filled with these stories – he saw nothing wrong and everything right in his paternalism.  For Pratt, his higher calling and his noble cause were to civilize savages – not because he hated them, but precisely because he professed to be expressing his love for them.[151]

For Utahns and education, the greatest political hazard is not sadistic hatred, but misguided paternalistic love.  The Deseret Morning News ran an opinion from Don Gale titled, “Utah’s proposed voucher law subverts our American values,” wherein Mr. Gale takes paternalism to disturbingly new lows.[152]  He writes, “The genius of America is not that our people are different but that our people are more like all other people than any nation’s people have ever been.”  In a most revealing statement (that would send reeling the man whose name this university bears[153]), Mr. Gale displays his ignorance of a truly pluralistic society as he adds, “You cannot develop goodness…if you separate yourself from others.”

Even at an institution of higher learning such as Brigham Young University, whose founding history of its people was written in the blood and persecution of gross paternalism in the face of federal persecutions, perverse assimilation into Americanization is too often defended and propogated.  Winn Egan, chairman of the Brigham Young University’s Department of Teacher Education spoke glowingly of the role of public education at a university Forum in 2002.  He said, “Public education is a moral enterprise. Learning that is not accompanied by the development of character, particularly democratic character, the capacity to cooperate with others different from ourselves in pursuing the public good, is incomplete, empty, and self-centered…At the heart of our democracy is the public school system.”

Then, in an eerie echo of Pratt’s pulpit-pounding expositions, Egan bears his testimony about public schooling as “providing young people with a profound hope in the future; with the trust and skills necessary to join with others, divergently different from themselves, in supporting our democracy; and with the dispositions necessary to become one from many – e Pluribus Unum.”  And, of course, he concludes “in the name of Jesus Christ.”[154]

With all due personal respect to such accomplished men and to others who hold to similar views, such sentiments are attitudes of arrogance (and delusion) that permeate the culture of public-school paternalism.  Many good citizens have been persuaded to violate the fundamental liberty interests of others, time and again, to defend the perceived honor of a coercive, restrictive, and often brutal educational philosophy.  Latter-Day Saints and other people of good conscience should not allow the trappings of our faith, pluralism, Biblical belief,[155] and patriotism to be used as cover for abusive ventures that dramatically undermine those very values.  Americans do share a profound common heritage that binds us together, but that commonality is our mutual belief in liberty and the ideals protected by the United States Constitution.

The United States Supreme Court has repeatedly and emphatically rejected Platonic assimilation and child-raising.  In the early part of the 20th century, the state of Oregon passed a law backed by the Ku Klux Klan that required all children to attend public schools.[156]  Not long after its passage, the Supreme Court ruled in the Pierce case (1925)[157] that “the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.  The child is not the mere creature of the state….”[158]

The same Court recently reiterated this liberty interest in the recent Troxel case (2000), with a majority (a plurality of O’Connor, Rehnquist, Ginsburg, and Breyer, along with a concurring Thomas) describing the interest as “fundamental.”[159]  In Utah, this same doctrine of “fundamental” parental liberty was upheld in a much earlier custody case called In re J.P. [160]  The author of this majority opinion is Justice Dallin H. Oaks.  In contrast to Professor Egan’s view that the state trumps parental rights (and by extension, educational freedom), Justice Oaks wrote:

Family autonomy helps to assure the diversity characteristic of a free society.  There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children.  Much of the rich variety in American culture has been transmitted from generation to generation by determined parents who were acting against the best interests of their children, as defined by official dogma.  Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the “best interest” of someone else’s child.[161]

Notwithstanding the contrary predilections of any local Utah judge, academic, or government official, parental liberty is a “fundamental” right protected by strict scrutiny under the United States Constitution, the Utah constitution, and Utah statutes.[162]  Compliance is not optional.[163]

In his concurrence with the landmark majority opinion of the United States Supreme Court that upheld the constitutionality of school vouchers, Justice Clarence Thomas wrote,

Frederick Douglass once said that “education…means emancipation.  It means light and liberty.  It means the uplifting of the soul of a man into the glorious light of truth, the light by which men can only be made free.”  Today many of our inner-city public schools deny emancipation to urban minority students…urban children have been forced into a system that continually fails them…Although one of the purposes of public schools was to promote democracy and more egalitarian culture, failing urban public schools disproportionately affect minority children most in need of educational opportunity.  At the time of Reconstruction, blacks considered public education “a matter of personal liberation and a necessary function of a free society.”  Today, however, the promise of public-school education has failed poor inner-city blacks…While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers, poor urban families just want the best education for their children….”[164]

Utah’s school choice renaissance, including the new school voucher law, clearly runs contrary to the “cognoscenti who oppose vouchers.” [165] But it runs true to the pluralistic American value of self-determination, of the sort of freedom, hope, and opportunity that have made America great.  There is no legal difference or government-funded distinction between paying for a student whose parents have chosen to have that student attend a private school and paying for a student whose parents have chosen for that student to attend a public school – both are subsidized, both are paid for, partially, with tax dollars.[166]

In conclusion, we must return to our opening observation: 43 percent of Hispanic and African American public-school students in Utah do not graduate with a diploma.  There is no indication that Utah’s Native Americans are doing well either, even after an exclusive century-long opportunity for the federal government to show that it really can effectively manage education and better the plight of Native Americans.  The new school voucher law is about these struggling students and remedying an ongoing civil rights problem with deep historical roots.[167]

The real “school choice” is about freedom.  It is about remedying longstanding, ongoing civil rights abuses.  It is about letting go of old racial, religious, and ethnic hatreds; abandoning coercive school-based social engineering of every kind; relinquishing a failed ideology;[168] and ultimately removing American classrooms from America’s battlefield.  It is about America finding its way to a new civic and intellectual enlightenment.  We still have before us an intellectual and legal challenge that rivals the European Renaissance, the European Reformation, the prohibition of African plantation slavery, or the collapse of the Berlin Wall.

All of us, whatever our heritage might be, can respect each other’s choices and build a new civic intellectual society based upon genuine academic freedom, self-determination, family empowerment, and human dignity.  By leaving the battlefield behind and striving for self-improvement instead of coercive social engineering of those different from ourselves, we can all, to quote an old Sioux Indian phrase, “live long and prosper.”[169]  This debate today is about giving hope and freedom to all students, especially those who struggle under the legacy of past civil rights abuses.  Indeed, that’s really what the debate has always been about.

[1]  A much-condensed presentation of this article was adapted and verbally presented by Paul Mero at Educational Choice: Emerging Legal and Policy Issues Conference, Brigham Young University, October 23, 2007 (“School Choice in Utah 2007: Legislation and Referendum”).  Among other things, Mr. Mero has researched and written about the relationship between American black slavery and education and the history of education in Utah.  See Paul T. Mero, et al., Vouchers, Vows, and Vexations: The Historic Dilemma over Utah’s Education Identity, 2007 Sutherland J. L. & P. Pol’y 1, (article that in part utilizes research compiled by Mr. Mero and in part research by Daniel E. Witte).

Details regarding Richard Henry Pratt herein are based upon research compiled by Daniel E. Witte.  Mr. Witte first researched the history of Pratt, Native American education, American education, and law from 1995-98 as part of his capstone graduate degree project at Brigham Young University.  He has continued his research since that time.  Portions of the project paper and research have been excerpted and published in: Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 250 n.217-18; Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 773, 773 n.145-47, 775 n.193, 791 n.215, 793 n.219;; and


[2]  Daniel E. Witte grew up on the Navajo Reservation in northern Arizona. In 1998 he received a JD/MOB from the J. Reuben Clark Law School and the Marriott School of Management. Dan has worked with the Utah Supreme Court, the U.S. Attorneys’ Office in the District of Utah, the Tenth and Seventh Federal Circuit Courts of Appeal, law firms in Korea and Puerto Rico, and Senator Robert Bennett (Senate Banking Committee) in Washington, D.C. He completed a federal circuit-court judicial clerkship, worked as a commercial litigator in Silicon Valley for Skadden Arps. Dan now works as legal counsel for a Utah insurance company as serves as Editor-in-Chief for the Sutherland Journal of Law & Public Policy.

Paul T. Mero is president of the Sutherland Institute, a conservative public policy think tank based in Salt Lake City, Utah.  Mr. Mero has written and lectured extensively on parental rights, educational freedom, and the relationship between the two.  He worked for Congressman William E. Dannemeyer (1987-1993) and Congressman Robert K. Dornan (1995-1998) where he served as his Chief of Staff.  He served as the executive director of The Howard Center for Family, Religion, & Society (1998-2000).  He is co-author (with Allan C. Carlson) of The Natural Family: A Manifesto, published by Spence Publishing in June 2007.

[3]  James Henry Hammond, Speech on Admission of Kansas, Address before the U.S. Senate (Mar. 4, 1858), in Cong. Globe, 35th Cong., No. Sess. 961-62; partially reprinted in Slavery Defended: The Views of the Old South, ed. Erik McKitrick (Englewood Cliffs, N.J.: Prentice Hall, 1963), pp. 121-25.

[4]   The Black America: A Documentary History, Third Edition, by Leslie H. Fishel, Jr. and Benjamin Quarles, Scott Foresman and Company, 1976; as cited in the Africans in America series, Part 4, Public Broadcasting System, “The Universal Law of Slavery” by George Fitzhugh, at, downloaded April 18, 2007.

[5]   Stephen Kantrowitz, Ben Tillman and the Reconstruction of White Supremacy, The University of North Carolina Press, 2000.

Many African Americans were denied any formal education during the slavery era.  When plantation slavery ended, African Americans were put into schools that were segregated and (even more importantly) under the control of people other than African American parents.  Later, when forced integration occurred, African Americans continued to be put in schools that were still not under the control of African American parents.  The key to suppressing African Americans has been denial of parents’ control over their own children’s educations, with segregation and forced integration serving as means to an end.  The lack of educational choice has at all times been based upon an implicit assumption that African Americans are incapable of making their own educational decisions and that they ought to stay in their assigned place.

[6]   In order to reflect the rhetorical flavor and terminology of the relevant historical period, this article uses the terms “Negro” and “Black” on some occasions to refer to African Americans.  In recounting some unpleasant historical events, images, ideas, and theories, the authors do not intend to communicate any personal disrespect of African Americans, any personal endorsement of historical abuses, or any personal endorsement of offensive racial terminology.

[7]   In order to reflect the rhetorical flavor and terminology of the relevant historical period, this article uses the terms “American Indian” and “Indian” on some occasions to refer to people often described by some academics today as “Native Americans” or “indigenous tribal populations of North America.”  In recounting some unpleasant historical events, images, ideas, and theories, and in attempting to accurately use tribal name terminology, the authors do not intend to communicate any personal disrespect of these tribes, any personal endorsement of historical abuses, or any personal endorsement of offensive racial terminology.

[8]  Richard H. Pratt, Battlefield and Classroom xviii (ed. Robert M. Utley, 2003) (hereinafter “Battlefield”).

[9]   Battlefield at xviii.

[10]   Pratt was promoted to First Lieutenant on July 31, 1867; Captain on February 17, 1883, Major on July 1, 1898; Lieutenant Colonel on February 2, 1901; Colonel on January 24, 1903; and, after retiring on February 17, 1903, to Brigadier General on April 23, 1904, pursuant to military law and procedure at the time.  Battlefield at xviii.

[11]   Battlefield at xviii.

[12]   Battlefield at xviii.

[13]   Battlefield at 312.  In the introduction to General Pratt’s autobiography, modern historian Robert Utley writes of Pratt’s efforts at Fort Marion that,

Pratt attempted to gain adoption and implementation of the personal philosophy he had evolved in his frontier years…In Pratt’s mind, the Negro furnished the example.  Slavery transplanted him from his native habitat and tribal affiliation into a new cultural environment, where he had to adopt a new language, new dress, and new customs.  As a result, in a span of several generations, he had been shorn of his primitivism and elevated to American citizenship.  Pratt believed profoundly that as the Negro had been civilized, so could the Indian be civilized.  The ideal, in short, was no less than the complete eradication of aboriginal culture and the complete assimilation of the Indian by the American people.

Battlefield at xxii.

[14]   E.g.  Battlefield at 175.  Sonia M. Rosa, “The Puerto Ricans at Carlisle Indian School,” Journal of Caribbean Amerindian History and Anthropology (online journal), available at:, date of access: October 11, 2007.   Some abolitionists saw parallels of a different kind and took up the Indian cause against Pratt after winning the campaign against black slavery. Battlefield at 154 n1.

[15]  Pratt’s friend and superior, Lieutenant General W.T. Sherman, applied the same no-holds-barred approach during the Indian Wars that he had earlier utilized to defeat the Confederacy.  Sherman famously ordered Atlanta burned to the ground after its civilian inhabitants had already surrendered.  General Sherman, unlike Pratt, felt “it is better the Indian race be obliterated.”   Battlefield at 15.

[16]  Battlefield at xix.

[17]  Negotiations typically involved military officers meeting with tribal leaders to arrange voluntary surrender and signature of treaty terms prepared by the military:

The conference opened with a speech from the Captain, the substance of which was the desire of the Great Father that we should live at peace with one another and that the Indians must begin to recognize the fact that we were to become one people and together develop and make use of this great country in the way the white men had found best to advance the prosperity, comfort, and develop the land of our great and good country which was big and rich enough to give all its people wealth and happiness; that there was no good reason why we should not live peacefully together.

Battlefield at 16.

[18]   Battlefield at xix.

[19]   Battlefield at 37, 63 n.5.

[20]   Battlefield at 37.

[21]   E.g., Battlefield at 37.

[22]  Battlefield at 16.  The federal government also had a policy of compelling polygamous Indians to disband their families and abandon their “extra” wives and children.  Id. at 90, 289.

[23]   E.g., Battlefield at 48-49.

[24]   President Andrew Jackson utilized the federal Indian Removal Act of 1830 and the 1835 Treaty of New Echota, in conjunction with federal soldiers, military installations, and state militia to remove the Cherokee from Georgia and re-settle the tribe in Oklahoma.  Randy Golden, Cherokee Removal Forts, .  Jackson’s initiative was successfully challenged before the United States Supreme Court, in Cherokee Nation v. State of Georgia, 30 U.S. (1831) and Worcester v. Georgia, 31 U.S. 515 (1832).  However, when the Indian Removal Act that Jackson signed into law was declared unconstitutional, President Jackson successfully defied the decision by refusing to order federal military forces to obey the law. “[Chief Justice] John Marshall has made his decision,” Jackson is claimed to have said, “now let him enforce it!” Stephen Bryer, Boston College Law School Commencement Remarks,

The language of the Treaty of New Echota helped ensure that after the relocation, the federal government would have control over Cherokee land, Cherokee socio-economic systems, and Cherokee education.  Specifically, Article X of the Treaty created an “orphans’ fund” for the “support and education of such orphan children” as well as a general “permanent school fund” for the “support of common schools . . . in the Indian country,” with the application of all funds to be controlled by the President and federal government.  However, the Treaty language suggested some degree of flexibility for the tribe to withdraw or to exercise discretion, a loophole that was not included in subsequent federal Indian treaties.

The Jacksonian Paradigm first innovated against the Cherokee would be tightened and refined by Captain Pratt and others associated with the post-Civil War network of General Sherman.

[25]   Although a precise count is probably impossible, most traditional tribal cultures appear to have used home education and apprenticeship to pass on knowledge to children.  Extended relatives and tribal leaders often provided support to parental efforts.  Introduction of mediating institutions designed to educate children in other ways and with entirely different organizational cultures was inherently antithetical to traditional tribal culture, quite apart from the nature of any curriculum content presented.

[26]  Battlefield at 4-5.

[27]   Pratt’s efforts were a departure from the early federal policy:

In the first few decades of United States history . . .. Congress restricted its activities in Indian affairs to treaty-making and enforcement; the only action in regard to Indian education was an appropriation in 1802 and again in 1819 to subsidize teachers and missionaries in establishing schools in Indian country, with the consent of the tribes.

Then, with the consolidation of power over the Eastern tribes and their forced removal, [] congressional Indian executive policy changed.  In a few years, beginning with the Indian Removal Act of 1830, [] the Congress and President Andrew Jackson strengthened federal power over internal tribal affairs and established and institutionalized a bureaucracy to enforce this policy.

Dean Chavers, Indian Education: Failure For The Future?, 2 Am. Indian L. Rev. 61, 67 (1974) (emphasis in original).

[28]   Battlefield at xix.

[29]  Pratt later recounted:

[E]ducation and training for the young is our only sure way to relieve Indian complications and burdens.  You will remember that in all the great treaties of 1868, with the Sioux, Cheyennes, Arapahoes, Kiowas, Comanches, Navajos, Shoshones, Bannocks, Pawnees, and other tribes, composing all our nomadic Indians east of the mountains, a special educational clause was inserted, promising educational advantage to every child between 6 and 16 years of age.

Battlefield at 246.

[30]  Fort Marion was originally built when the Spanish occupied Florida.  After the United States took possession from the Spanish, the Fort was used as a prison Indians involved in earlier military skirmishes in Florida and the Southeast United States.   Battlefield at 117.  The Fort was pressed into service again for the post-Civil War Indian War.  The Fort still stands today and has a moat, drawbridge, and a very large stone fort wall. Id. at 117.

[31]   Military commissions were used before executing or imprisoning some selected Indians.   Battlefield at 106 n.4.  However, confinements were of uncertain duration, id. at 122 and did not necessarily require a specific accusation of crime, id. at 139 (e.g., Number 10, “Star,” “no offense charged”).

[32]   Battlefield at xix.

[33]   Battlefield at 105 n.3, 109, 118, 181.

[34]   Battlefield at 118, 181.

 [35]   Battlefield at 107.

 [36]   Battlefield at 118, 163.

[37]   Battlefield at 124, 132, 174, 234, 299.

[38]  Battlefield at 147, 156, 163, 181.

[39]   Battlefield at 120, 125.

[40]  Battlefield at 174.

[41]  Battlefield at 163, 174.

[42]   Whether in prison or in a compulsory schoolhouse, the preeminent aim of forced integration in American education was not to foster intellectual understanding, diversity, or tolerance.  To the contrary, the aim was to foster suspicion, fear, rivalry, communication barriers, and cross-monitoring between prisoners or students of different backgrounds in order to undermine the potential for unified cultural or political resistance to the cultural cleansing tactics of the governing authorities.

Segregation, isolation, and forced integration were always complementary tools of social engineering, each more effective when selectively and synergistically used together with the other two in opportune ways.  Pratt understood that assimilation and control was much more difficult if, for example, a group of Apaches were incarcerated together and could supply each other with cultural and moral support.  It was far more effective to take a few Apaches and mix those isolated individuals with members of rival tribes, African Americans, and/or Puerto Ricans, in order to permanently deconstruct all such minorities simultaneously.

Because of the inherent restraint upon spatial liberty, the unavoidable interference with First Amendment rights of free exercise and free association, the inherent involuntary servitude, and other unavoidable problems, “[a non-criminal, non-combatant, non-threatening] captive audience represents an inherent deprivation of constitutional rights, regardless of what a master chooses to do with the captive audience once it has been constituted.”  Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 786 n.198.

[43]   Battlefield at 227.

[44]   Battlefield at 129.

[45]   Battlefield at 129.

[46]   Battlefield at 130.

[47]   Battlefield at 160, 174.

[48]  Battlefield at 174.

[49]  Pratt actually had a more humane attitude toward the POWs than most of the white Floridians in the surrounding community, who wanted the Indians to be perpetually confined and never permitted any excursions beyond the fort.  Battlefield at 135.  Many Indians were desperate to escape the monotonous confines of the fort and were willing to gain the opportunity on work detail.

[50]   Battlefield at 175.

[51]  Battlefield at 158-59, 163, 164.  To a lesser extent, Pratt apparently also recruited Baptist missionaries for the task with instruction of a more Puritan/Congregationalist variety was not available.  Id. at 48.

[52]   Battlefield at 181.

[53]   Battlefield at 163.

[54]   Battlefield at 164.

[55]   Battlefield at 155.

[56]   Battlefield at 122.

[57]   Battlefield at 147-48.

[58]   Some Indians hung or stabbed themselves to death.  Battlefield at 48, 109, 115.

[59]   Battlefield at 179, 191.

[60]   Battlefield at 179, 191.

[61]   Battlefield at 192-194.

[62]   Battlefield at 192 n.1.

[63]   Battlefield at 172-73.

[64]   Battlefield at 181.

[65]   Over the course of his career, Pratt would lobby several presidents and several administrations.  Here is a representative excerpt of his message:

There is no doubt in my mind but that during General Garfield’s administration a lifting up of the Indians can be accomplished that would, of itself, leave its mark on history so bright that the future could not erase it. . .. Now it seems to me a small matter for this great country of ours to reach out and gather all of these children into educational and training influences . . .. It will require vigorous and intelligent management, with possibly some pressure of force, but I am sure it is less of the latter than we bring to bear on our own children in some of our states.  Success depends upon completeness. . .. [W]e ought to give to every Indian boy and girl of suitable age the privileges of schools and training in civilized ways. . .. My plan would be to create an education department for the Indian service . . .. Properly fed, clothed, and well taught, and as much industrially as possible, would in four years send the children into a new life and destroy savagery from this country.  The Bill . . . to use vacant military posts and barracks would be a large means for a beginning.

Battlefield at 246-47.

[66]   Battlefield at 188.   Eaton and Seelye became important lifelong political allies of Pratt.

[67]   Battlefield at 194.

[68]   Battlefield at 188.

[69]   Battlefield at 195.

[70]  Battlefield at 95.

[71]  Battlefield at 7, 195.  Pratt was, of course, rationalizing a retreat from Reconstruction’s initial promises.  The Framers of the Reconstruction Amendments explicitly stated they intended to protect parental liberty and family autonomy. In the debate over the Thirteenth Amendment, Republican Senator James Harlan of Iowa noted:

Another incident [of slavery] is the abolition practically of the parental relation, robbing the offspring of the care and attention of his parents, severing a relation which is universally cited as the emblem of the relation sustained by the Creator to the human family. And yet, according to the matured judgment of these slave states, this guardianship of the parent over his own children must be abrogated to secure the perpetuity of slavery.

Cong. Globe, 38th Cong., 1st Sess. 1439 (1864). Republican Senator Henry Wilson of Massachusetts endorsed the same justification:

[W]hen this amendment to the Constitution shall be consummated . . . the sharp cry of the agonizing hearts of severed families will cease to vex the weary ear of the nation. . .. Then the sacred rights of nature, the hallowed family relation of husband and wife, parent, and child, will be protected by the guardian spirit of that law which make sacred alike the proud homes and lowly cabins of freedom[.]

Cong. Globe, 38th Cong., 1st Sess. 1424 (1864). See also, Cong. Globe, 38th Cong., 1st Sess. 193 (1865) (Republican Congressman John A. Kasson of Iowa states abolition would protect “the right of the father to his child–the parental relation”); Cong. Globe, 39th Cong., 1st Sess. 504 (1866) (Sen. Howard); Cong. Globe, 38th Cong., 1st Sess. 2990 (1864) (Sen. Ingersoll); id. at 2955 (Sen. Kellogg).

The Thirteenth Amendment, by its own terms, is self-enacting and enforceable against the behavior of individuals, local governments, state governments, the federal government, and all other institutions. It protects individuals from exploitation, confinement, child abduction, and the taking of labor without just compensation. The Thirteenth and Fourteenth Amendment reaffirm the principle that some individual liberties are beyond the legitimate interference of any government, including state government. The Thirteenth Amendment also protects the free market economy, by ensuring that economic behavior is driven by free will instead of government-coerced decision-making.

[72]  Battlefield at 221.

[73]   During the early phases of Pratt’s initiative, participation by children was voluntary according to parent choice.  Battlefield at 197.  But as the system entrenched, things changed, and coercion was used.  From the very beginning, it was secretly understood that Indian children on boarding schools would serve as hostages to monitor the rest of the tribes and keep such tribes under control.  Id. at 202, 227.

The concept was well summarized by Pratt’s friend, Jno. D. Miles, who wrote a letter fondly recalled by Pratt, as follows:

The [Arapahoe and Cheyenne] children must be taken from [their families in] the [Indian] camps if we expect them to advance from savage life. . .. Congress may go ahead from year to year and appropriate means to support the youth in [tribal] camp and they will still be the same dirty, ignorant, camp Indians; while if it would increase the appropriation just sufficient to cloth and support them in [Industrial] school, either at their reservations or at “Training Schools” similar to the Carlisle School, then we might expect a decided forward movement . . .. The child being in school the parents are much easier managed; are loyal to the government, to the Agent . . . and never dare, or desire, to commit a serious wrong. . .. This may look to you like compulsory education.  Well, if it is, is there any serious objection to such a course?  Was not the taking of thirty-three Cheyenne braves and chiefs from this reservation in chains in the spring of 1875 compulsory in the superlative degree?  Who is there today that would question the charity and justice of that measure?. . .

[B]y having their children in school the parent becomes personally interested in . . . the prosperity of the school.  This induces a desire to locate in the vicinity of the agency, and his habits are consequently localized.  This effect is still more apparent in the case of those who have children away—at Carlisle and other points in the States.  The parents of these children are as completely committed to the general welfare of the whole people of the United States as any other loyal citizen, and by this mixing and blending of common interests they will soon be prepared to enter into and take upon themselves the duties and responsibilities of common citizenship. . .. In the management of the school upon the reservation, the service of the police is called into requisition—looking up truants, absentees, etc., and in this way, the Indian police force becomes interested in the school and its progress.

Battlefield at 242-43 (emphasis in original).

[74]   Battlefield at 213-14.

[75]   Battlefield at 214-15.

[76]  Battlefield at 214.

[77]  Battlefield at 214.

[78]   Battlefield at 196.

[79]   Battlefield at 197.

[80]   Battlefield at 198, 201.

[81]   Battlefield at 198, 200.

[82]   Battlefield at 200, 202.

[83]  Battlefield at 222, 227.  Pratt also told the Indians that the education would result in economic and lifestyle benefits that in many cases never materialized.  E.g., id. at 222-23.

[84]   Battlefield at 200.

[85]   Battlefield at 205.

[86]   Battlefield at 209.  Florida Indians were not the only skeptical parents.  Pratt recounts elsewhere that an Indian Commissioner commented on a recruiting run that “Red Jacket, you are crowding me off the log.”  Red Jacket, an Indian, retorted “That is just what you are trying to do to me and my people.”  Id. at 195.

[87]   Battlefield at 212.

[88]  Battlefield at xxi, 215.

[89]  Battlefield at 215-216, 219, 288, 258.

[90]   Battlefield at 231.

[91]   Battlefield at 237.

[92]   Battlefield at 240.

[93]  Battlefield at 227.

[94]   Battlefield at 275.

[95]  Battlefield at 275, 278-79.

[96]  Battlefield at 283.

[97]  Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 250 n.218 (“‘kill the Indian and save the child’”).

[98]   Battlefield at 231, 234, 237.

[99]  As might be expected, Indian students frequently attempted to run away from Carlisle and other Indian boarding schools. Battlefield at 308-09.  When this occurred, truant officers and law enforcement hunted down the students much like escaped prison inmates, and the students were then punished.  E.g., Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 250 n.218.

[100]   Battlefield at 238.

[101]   Indian Boarding schools developed a tradition of punishing and humiliating expressions of Indian language, opinions, or behavior, including the use of soaping out mouths, beatings with belts and rubber hoses, corporal punishment, and dunce caps in front of the class.  See, e.g., Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 250 n.218; Melissa Annis, Note, Indian Education:  Bilingual Education–A Legal Right For Native Americans, 10 Am. Indian L. Rev. 333, 333–38, 340 (1982).

[102]   Battlefield at 297.

[103]   Battlefield at 248.  Indian girls focused more on domestic work such as ironing, laundering, cooking, etc.  Id. at 281.

[104]   Battlefield at 194.  As Pratt explained:

By the treaties we have now in force with the Sioux, Cheyennes, Arapahoes, Kiowas, Comanches, Pawnees, Navajoes, Utes, Shoshones, Bannocks, and some other tribes, they have a full and complete claim upon the government for educational privileges for all their children. . .. I believe that the system of removing them from their tribes and placing them under continuous training in the midst of civilization is far better than any other method. . .. [W]hile here [at Carlisle] or removed from their tribes and placed in midst of civilization, the teaching is practical, all surroundings help. . .. Boys esteemed too young to be put at trades frequent the shops, witness the productions of the older ones in harness making, tinware, boots and shoes, clothing, blacksmith, and wagon making . . .. The farmer makes him particularly useful in caring for the stock and doing chores . . . A girl that I had allowed to remain with a farmer . . . cries to go back to learn to milk cows and bake pies and cakes.  My purpose is during the coming summer vacation to plant out with farmers all the boys and girls we cannot use in the shops and upon our farm. . .. [I]f we could bring to bear such training as this upon all our Indian children . . . that savagery among the Indians in this country would be at an end.  This bringing their children east among the whites is to many of them now . . . an open door by which they can migrate into civilization . . .. [T]heir declarations that they ‘want to travel upon the white man’s road’ are at last accepted.

Battlefield at 258-59.

[105]  During Pratt’s era and afterwards the United States would pursue its manifest destiny to the Pacific coast, the current Mexican border, Puerto Rico, Cuba, the Philippines, Guam, Hawaii, and Alaska.  It appears that Pratt understood the potential application of his Carlisle techniques to native people in other new territories.  Unfortunately, variations of the approach advocated by Pratt were also used by the United States on Pacific Islanders, by Canadians on indigenous tribes, and by the Australians on Aborigines.  Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 793 n.219.

[106]  Pratt wrote:

To successfully accomplish the Americanization of the millions of immigrants we invite to citizenship in our national family, we give them individual welcome to citizenship and through compelling participation in our affairs absorb them. . .. It is self-evident that the greatest glory to government and highest beneficence to the Indian was to be achieved in at once transforming him into a capable, coordinated citizen . . .. When the Declaration of [Independence] announced, “We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness,” it meant nothing unless it included the native Indian even more than the foreign immigrant.  Inasmuch as all the Indian’s former vast game resources had been destroyed by our people, and his free roving life ended through our wresting from him his immense regions, his place and needs were preeminently a righteous burden on us, in which the integrity of enforcing our national principles was being tested. . .. [T]he Indian himself saw the inevitable and desired the change from aboriginal to civilized life . . .. to “get on the white man’s road.”

Battlefield at 268.  He also noted:

The [Indian and Immigrant] recipients must prove through apprenticeship and productivity in our great Americanizing workshop that they can fit in and become valuable as a very part of the general population.  In no other way . . . can we be released from the expense their inefficiency entails.

Battlefield at 271.

[107]   Between 1879 and 1900 the Bureau of Indian Affairs created twenty-four off-reservation schools roughly modeled after the Carlisle prototype.  By 1900 the Indian school system had taken shape of hierarchy.  Students progressed from reservation day schools to reservation boarding schools to Carlisle-style off-reservation schools.  By 1900 three quarters of all Indian children were enrolled in boarding school, with approximately a third of this number in off-reservation schools. Battlefield at xi.  Pratt advocated off-reservation schools for all Indians, but it is important to remember that even the on-reservation Indian schools were heavily influenced by the pedagogical approach developed at Carlisle.

[108]  Battlefield at 249, 258.

[109]   Sonia M. Rosa, “The Puerto Ricans at Carlisle Indian School,” Journal of Caribbean Amerindian History and Anthropology (online journal), available at:, date of access: October 11, 2007.

[110]  Battlefield at 294-95.

[111]  Battlefield at 322-23.  Indian children were awestruck by the large East Coast cities they toured.  Perhaps reflecting on the predicament of his own tribe, one Apache boy observed that “The United States can whip any nation in the world because it has New York to back it.”  Id. at 297.

[112]   Battlefield at 248.  Pratt assured Washington power brokers that “Isolated as these Indian youth are from the savage surroundings of their homes, they lose their tenacity to savage life, which is so much of an obstacle to Agency efforts[.]” Id. at 248.

[113]   Battlefield at 257.

[114]  Battlefield at 319.

[115]  Battlefield at 313.

[116]   Pratt described one of his public appearances as follows:

In 1883, on invitation of the authorities of the Baptist Church, I presented Carlisle before the World Convention on the fiftieth anniversary of the foreign missionary interests of that church in New York, using a number of students to show their qualities.  Dr. Morehouse, the secretary of the mission work of the church, who had invited me, introduced me to the vast audience, saying, “Captain Pratt is not a Baptist, but in Indian matters, he is a good enough Baptist for us to listen to.”  I began by saying: “In Indian civilization, I am a Baptist because I believe in immersing the Indians in our civilization and when we get them under holding them there until they are thoroughly soaked.”

Battlefield at 335; see also id. at xxiii.  Pratt’s approach was one of cutting off the influence of Indian parents by spatially and temporally removing children from parental influence.  Id.  Pratt understood that assimilation and cultural cleansing depends even more upon what a child is not being taught than what a child is being taught.  Routine presentation of cultural schooling designed to undermine parental influences is effective, but not as effective as cutting off traditional cultural oxygen altogether.  If a parent is allowed to remain involved with the child, the parent will likely retain a diluted influence with the child, or the child may even repudiate foreign educational precepts entirely because of the parent’s persuasive stature.

[117]   E.g., Battlefield at 283, 285, 329, 335.  Of course, at the time, clergy often doubled as the professional educator class, overseeing religious colleges such as Harvard and Yale.  The clergy provided various important venues for public academic speech, political speech, and religious speech.

[118]  Battlefield at 262.

[119]   Pratt enthusiastically noted the Massachusetts tradition of conditioning the enjoyment of legal and property rights upon compliance with the official religion, official educational pedagogy, and approved European cultural customs:

In 1633 Massachusetts enacted: “For the settling, the Indian title to lands in this jurisdiction is declared and ordered by this Court and authority thereof, that all the lands any of the Indians have in this jurisdiction have improved by subduing the same, they have a just right unto, according to that in Gen. I, 28, and Chapter IX, I, and Psalms CXV and 16, and for the civilizing and helping them forward to Christianity, if any of the Indians shall be brought to civility and shall come among the English and shall inhabit their plantations and shall there live civilly and orderly, that such Indians shall have allotments among the English, according to the custom of the English in like cases.”  (Laws of Massachusetts, Edition of 1672, p.74.)

This indicated the seed of the Declaration of Independence and the American Constitution and plainly invited the absorption of the Indians.

Battlefield at 272.  Pratt was promoting and refining a lucrative Massachusetts tradition:

A Massachusetts minister, John Eliot, established a school in 1632 where he instructed Indians in Christian ethics and various arts and crafts.  Thirty years later he succeeded in establishing fourteen towns of “praying Indians.”  John Sergent carried on this work in Stockbridge, Massachusetts, where he established a boarding school, a day school, and an “outing system.”  The Reverend Eleazer Wheelock’s philosophy was to remove Indian children from their natural environment and surround them with Puritan influences. [] The school he established to carry out his philosophy eventually became Dartmouth College.

Melissa Annis, Note, Indian Education:  Bilingual Education–A Legal Right For Native Americans, 10 Am. Indian L. Rev. 333, 333–38, 340 (1982).

[120]   E.g., Battlefield at 283.

[121]   Except for personal friends of Pratt, American Catholic reaction was mixed at best.  When Pratt retired, the Catholic Watchman editorialized: “Pratt, the irrepressible, has been suppressed at last.  He is an honest lunatic.”  Battlefield at xxv.

American Catholics during that era were experiencing their own persecution from Know-Nothings and the Ku Klux Klan.  The clash eventually wound up before the United States Supreme Court in Pierce v. Society of Sisters, 268 U.S. 510 (1925), involving a Klan-backed Oregon law mandating public school attendance and making all private, parochial, and home schools illegal.  David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” The American Historical Review, Vol. 74, No. 1, (Oct. 1968), pgs. 74-98.  The Court ruled that children are not a “creature of the state” and ruled in favor of the Catholics.  Id. at 534-35.

Pratt’s autobiography makes no mention of any conscientious effort to solicit support for his cause from the American Jewish community.

[122] E.g., Battlefield at 285 (Pratt quoting Reverend Henry Ward Beecher of Brooklyn: “The common schools are the stomachs of the country, in which all people that come to us are assimilated within a generation.  When a lion eats an ox, the lion does not become an ox, but the ox becomes lion.”);  335  (“Dr. Morehouse, the secretary of the mission work of the church, who had invited me, introduced me to the vast audience, saying, ‘Captain Pratt is not a Baptist, but in Indian matters he is a good enough Baptist for us to listen to.’”); 329 (money donated by Presbyterian minister).

[123]   Battlefield at 292.

[124]  Battlefield at 238.  Commissioner of Indian Affairs Thomas Jefferson Morgan explained the tactics for removing Indian children:

I would…use the Indian police if necessary. I would withhold…rations and supplies…and when every other means was exhausted…I would send a troop of United States soldiers, not to seize them, but simply to be present as an expression of the power of the government. Then I would say to these people, “Put your children in school;” and they would do it.

Alvin Josephy 500 Nations 432 (1994). Once the children were in federal schools and boarding schools, the minors were used as political hostages. Tribes and parents were reluctant to resist federal edicts when their isolated children were vulnerable to abuse and retaliation.

[125]   Battlefield at 63 n.5.  On March 2, 1895, Congress responded to the escalating human rights abuses of the federal executive branch by passing a “Consent of Parents to Send Child Out of State Act,” 28 Stat. 906, 98 Fed. Rep. 429 (March 2, 1895), which read in part:

That hereafter no Indian child shall be sent from any Indian reservation to a school beyond the State or Territory in which said reservation is situated without the voluntary consent of the father or mother of such child if either of them is living, and if neither of them is living without the voluntary consent of the next of kin of such child.

Such consent shall be made before the agent of the reservation, and he shall send to the Commissioner of Indian Affairs his certificate that such consent has been voluntarily given before such child shall be removed from such reservation.

And it shall be unlawful for any Indian agent or other employees of the Government to induce, or seek to induce, by withholding rations or by other improper means, the parents or next of kin of any Indian to consent to the removal of any Indian child beyond the limits of any reservation.

Unfortunately, the statute was rarely enforced.

[126]   Battlefield at 238.

[127]   For example, the Hopi Tribe in Arizona fiercely resisted compulsory education en mass and attempted to conceal their children.  Indian Agents initially attempted persuasion, then cut off government rations in the middle of a freezing winter, and then imprisoned nineteen Hopi men at the Alcatraz military prison for “sedition” from January 3 to August 7, 1895.   Hopi History: The Story of the Alcatraz Prisoners, Part I,  The Hopi men were treated to a Ft. Marion style experience, complete with forced labor involving sawing timber into lumber.   Hopi History: The Story of the Alcatraz Prisoners, Part I,   See also Brenda J. Child (Ojibwe), Boarding School Seasons: American Indian Families 1900-1940 13 (1998).

[128]  With regard to the notoriously uncooperative Seminoles and other Florida Indians who had earlier turned away Pratt, Pratt was eventually able to assure the Secretary of Interior: “I [now] find that there is a growing interest which will soon develop into an opportunity to get hold of these people through education of the children.”  Battlefield at 256.

[129]  Battlefield at 252.

[130]  Battlefield at 251.

[131] Battlefield at 252.  See also id. at 283, (“I would . . . demand that [the Bureau of Indian Affairs] Moses its [Navajo] charges into the promised land of our American citizenship.”).

[132]  Paul T. Mero, et al., Vouchers, Vows, and Vexations: The Historic Dilemma over Utah’s Education Identity, 2007 Sutherland J. L. & P. Pol’y 1,

[133]  Battlefield at 337.

[134]  Battlefield at xi, 291, 307.  After winning the Civil War and the Indian War, the triumphant Northeastern industrialists and educators reaped enormous rewards through systems of legal, educational, political, and natural resources control they subsequently exerted over the South and over the West.

[135]  E.g., Battlefield at 264 (Senator Dawes argues not all children can be educated off reservation). Pratt retorted:

[T]he end to be gained, however far away it may be, is the complete civilization of the Indian and his absorption into our national life, with all the rights and privileges guaranteed to every other individual, the Indian to lose his identity as such, to give up his tribal relations and to be made to feel that he is an American citizen. . .. [T]he sooner all tribal relations are broken up; the sooner the Indian loses all his Indian ways, even his language, the better it will be for him and for the government and the greater will be the economy to both.

Now, I do not believe that amongst his people an Indian can be made to feel all the advantages of civilized life . . .. To accomplish that, his removal and personal isolation is necessary. . .. If the proper system of education is adopted and it is made general, lands in severalty and citizenship will be a natural result, and the Indians themselves demanding it, and just this spirit which you propose, and which can be implanted in Indian children is a necessary part of this education.

Id. at 266.  Despite assurances to tribal parents that their children would return, Pratt complained that returning Carlisle graduates to their tribes would consign the youth to the “dark drawers” of Indian reservations.  Id. at 293; see also xxv.  Pratt argued that Indians on reservations were prisoners and that his own scheme would liberate them.  Id. at 33.

[136]   E.g., Battlefield at 287.  Unfortunately, the cultural genocide continued unabated for decades.  Indian families were denied educational choice.  Social workers and state officials would also subsequently abduct thousands of Indian children on the basis of fabricated consents or false accusations of neglect and adopted the children out to white families.   Congress eventually responded by enacting the Indian Child Welfare Act of 1978, which had some considerable flaws but did stem the massive torrent of abusive abduction through innovative statutory protection of parental rights.  E.g., 25 U.S.C. 1912 (high standard of proof required to terminate parental rights of Native Americans).

[137]  Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 250 n.218.

Curiously, some Utah parents, many of whom would justifiably go to great lengths to safeguard against exposure to pornographic images on the internet at home, seem curiously sanguine about the fact that the government junior high schools where they send their children are saturated by actual sexual activity between students and between students and teachers. Lisa Schencker, “Utah ranks 16th in the nation for teachers losing licenses for sexual misconduct,” Salt Lake Tribune, 10/21/2007,; Martha Irvine and Robert Tanner, “Sexual misconduct plagues US schools: Study finds more than 2,500 teachers punished in 5 years,” Salt Lake Tribune,   10/21/2007  In educational politics, perceptions of risk are often at odds with sound risk management principles.  Children in isolated, compulsory confinement of any kind are ripe targets for abuse.

[138]  G. Edward White, Earl Warren, A Public Life 68 (1982) (quoting from R. Daniels, Concentration Camps USA 6-9; Warren, Untitled Interview, ROHO, June 22, 1972, at 302-03).

[139]  The Supreme Court considered a challenge to the Roosevelt Administration’s order in Hirabayashi v. United States, 320 U.S. 81 (1943).  The Hirabayashi Court upheld the internment, accepting with approval the argument that the internment scheme was designed to dismantle the Japanese-Americans’ system of private “Japanese language schools.” The Court characterized the schools as a “source [] of irritation and . . . isolation” that prevented the “social intercourse” of Japanese-Americans and “prevented their assimilation as an integral part of the white population.” 96-98.

Franklin Roosevelt and Earl Warren used Hirabayashi to side-step Farrington v. Tokushige, 273 U.S. 284 (1927), an earlier opinion which protected private school choice for ethnic Chinese, Japanese, and Koreans (populations concentrated in Hawaii and the Pacific west coast states such as California).

Once forced into federalized education, Japanese Americans noticed increased social problems in their community such as increased rates of unwed pregnancy, alcohol abuse, and family disintegration. Paul Bailey, City In The Sun 172, 197 (1971).

[140]  Franklin and Warren’s internment initiative was opposed by conservative stalwarts J. Edgar Hoover and Senator Robert Taft, who said that national security did not require internment.  Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 791 n.215.

[141]   Philip Tajitsu Nash, Moving For Redress, 94 Yale L.J. 743, 743 n.33 (1985) (book review).

[142]   Paul Bailey, City In The Sun 62-62, 79-80, 107, 123 (1971)

[143]   Paul Bailey, City In The Sun  104 (1971); Allan R. Bosworth, America’s Concentration Camps 137, 145, 178-79 (1967).  The internment camp in Topaz, Utah, as well as other internment situated in other states and actually on or near existing Indian Reservations, all used educational and social-engineering tactics based upon the Indian Reservation practices and the tactics that Richard Henry Pratt had earlier developed.  Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 791 n.215.  One key difference, however, was that Japanese American youth were interned with their families and educated in schools located within the internment camps.

[144]  Paul Bailey, City In The Sun 122-23 (1971):

[John] Collier, as head of the Indian Bureau, the governmental agency operating Poston under contract from the WRA, had, in his speech, dwelt on the necessity for community stability, and the great and exciting plans ahead for Poston.  Irrigation and land development, vast in scope, was in store for Parker Valley.  The Valley was to be permanent new homeland for the Japanese Americans. . ..

But now, before them [only weeks later], was Dillon Myer, supreme head of WRA, preaching dispersal, admitting the failure of the relocation camps, and telling sad and confused internees that they must soon seek new homes among the cities and communities farther east.  None of the exciting plans for Poston, so long prated by management, were to become realities.  No cooperatives, no industry–nothing but fenced-in dry rot–while opposing government bureaucrats decided which path lay ahead for twenty thousand ethnic prisoners.

Some of the Japanese American internees were open about entertaining such a possibility.  See, e.g., Allan R. Bosworth, America’s Concentration Camps 163, 207 (1967):

Camp Topaz–“the Jewel of the Desert”–was fortunate in many ways…[The Japanese camp] leaders were determined to emulate the early Mormon pioneers in Utah by building Topaz into a community America could be proud of.

[145]  See, e.g., Allan R. Bosworth, America’s Concentration Camps 211 (1967):

In the summer of 1944, with the tide of war running full flood in the Pacific for America . . .. [President Roosevelt advocated] sending a large number of evacuees throughout the country–“one or two families to each county”–[which] was a rather cruel philosophy.  The people had been uprooted once, and this would have separated them from their friends and relatives.  “Nothing sudden and not in too great quantities,” Roosevelt said.  But the Evacuation had been sudden and in great quantities, indeed.

[146]   With national movements advocating such notions as AmeriCorps and mandatory “service learning,” it is clear that the federal education establishment is controlled by politicians who literally prefer to dust off Richard Henry Pratt’s old playbook down to the level of using old military basis and Native Americans as subjects for social experimentation.  This is discussed in detail in Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 B.Y.U. L. Rev. 741, 752-775, 773 n.145-47, 774 n.154, 775 n.193, 791 n.215, 793 n.219, 808.

[147]   Battlefield at 292.

[148]   In the eloquent words of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478-79, 485 (1928):

  • The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.
  • Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding…
  • Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commanded to the citizen. In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

[149]  Treaty law was selectively applied.  For example, Article IX of the Treaty of Guadalupe Hidalgo, signed by the United States and Mexico in 1848 to end the Mexican war, supposedly guaranteed that residents living in a territory instead of a state “shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.” The status quo situation enjoyed by Treaty territory residents under Mexico was to be “maintained,” and where relevant, expanded in any manner which might be required by the United States Constitution.  The Treaty guarantee encompassed all residents, including white immigrants to California and Texas, Mormon immigrants in Utah and surrounding states, ethnic Mexicans, members of local Native American tribes, and anyone who remained and became a United States citizen in territory that is now Texas, California, Arizona, Nevada, Colorado, New Mexico, Oklahoma, and Utah.

Once the territorial transfer took place, the rights recognized under Article IX were quickly violated on a severe and widespread basis. Native American tribes, particularly those in California, were exterminated, denied the full protections of citizenship, enslaved, or involuntarily relocated to Indian reservations. Many ethnic Mexicans lost their private property holdings to state residents and (especially) to the federal government, both of whom seized vast tracts of land without paying compensation. States were required to include anti-Catholic Blaine Amendments into their enabling acts as a condition for statehood.

Despite the fact that the Mormons had enlisted in the United States military during the Mexican American War and were protected by the Treaty of Guadaloupe Hidalgo, troops and federal officials were sent to occupy and suppress Mormon settlements in Utah after the War. In Mormon Church v. United States, 136 U.S. 1, 45, 49, 57-58, 64-65 (1890), the United States Supreme Court ruled that private property owned by the Church of Jesus Christ of Latter-Day Saints, including the Church’s tithe-funded system of religious school assets, could be forcibly “seized” by the federal government in its capacity of “parens patriae” (father of the nation), and appropriated “for the use and benefit of [government] common schools.”

Six years after Mormon Church, federal public-education proponents imposed a Utah State Enabling Act which required that the Utah Constitution (Article 10) give over 3.7 million acres of state property for a system of school trust lands. The trust land system, which bore some similarities to the land management imposed upon Indian Reservations, was government-controlled and designed to fund only the public-school students. A modified Blaine Amendment was also drafted for prerequisite inclusion in any Utah Constitution (it was included in Article 10). The cultural genocide and compulsory attendance facilitated by the Mormon Church opinion, in tandem with Plessy v. Ferguson, 163 U.S. 537 (1896), led to a deep-seated distrust between African Americans, Native Americans, Hispanics, Catholics, and Mormons on one hand, and government educators on the other.

[150]  Indeed, it should be remembered that the Cherokee assassinated three of the Cherokee men who signed the original Indian Removal Act in order to facilitate President Andrew Jackson’s approach, and many Indian treaties were signed by men not considered to be genuinely reflective of the desires of the tribe members being “represented.”

[151] The authors would like to clarify what they are not saying in this article.

The authors do not object to commerce, modernization, learning or promoting English literacy, developing a work ethic, occupational education, genuine religious conversion, integrated classrooms, voluntary cultural exchange programs, or voluntary placement of Indian children or other children for educational or cultural opportunities. But the Rule of Law and the constitutional right of a parent to direct the upbringing of a natural child must at all times be respected.  Moreover, parents and families should be empowered as the driving force behind development efforts, and they should enjoy self-determination in deciding how to deal with their own unique cultural, economic, educational, political, and religious circumstances.

Similarly, the authors do not mean to denigrate the true ideals, values, or historical role of America as a beacon for liberty throughout the world.  Like other societies, Americans have sometimes made grave mistakes and engaged in behavior that falls well short of the ideals we profess to believe.  America is not unique because it has perfect laws or pure leaders or a history free of mistakes and abuses.  Instead, America is unique because it has a constitutional system of representative government that allows its citizens to achieve gradual correction and improvement.  When America falls down, it also tends to fall forward by openly discussing important issues and finding a way to raise its standard when it picks itself up.  School choice fits within that historic pattern and presents an opportunity to move beyond the destructive educational abuses that have burdened its past.

The authors do not mean to suggest that punishing and reforming actual criminals is a legitimate objective.  In some respects, and particularly considering penological standards at the time, some aspects (by certainly not all) of Pratt’s efforts with Indian POWs can be said to reflect a creative, enlightened, benevolent, progressive, and efficient approach. However, imposing prison techniques on non-criminal, non-combatant Indian children from civilian Indian reservation families was entirely improper.

Finally, the authors do not intend to impart a categorical aspersion upon any particular religion, the military, any particular nationality, or people of goodwill from any background who may or may not disagree with us.  We do not intend to impugn the theology or world view of any particular religion or its adherents, and we do not suggest that the military lacks noble personnel or that the military has not played a vital and necessary role in defending constitutional liberty.

History is a messy business with difficult choices that leave few (if any) hands perfectly clean of mistakes.  We believe there are good people everywhere, sincere but misguided people everywhere, and Machiavellian people everywhere.  Our message is that everyone should learn from the lessons of history, apply those lessons towards self-improvement, and respect others by upholding their liberty. Our task is not to pass ultimate judgment upon previous generations, but to stand on their shoulders and consider where we are living nobly in our own time with the knowledge and resources we now enjoy.

[152]   Deseret News, October 20, 2007, at A11.

[153]   Discourse by President Brigham Young (Apr. 6, 1877), in 18 Journal of Discourses 353, 357 (1967)(“I am opposed to free education as much as I am opposed to taking away property from one man and giving it to another”); A Mormon Tramp, Salt Lake Tribune, Jan. 23, 1877, at 2 (Brigham Young declares he is “opposed to free schools, and to all legislation in favor of free schools”). See also Young in 16 Journal of Discourses 19-20 (1967).

[154]   M. Winston Egan, chair, Department of Teacher Education “The Public Schools, Social Capital, and Our Democracy,” Brigham Young University Forum speech, 23 July 2002.

[155]   The United States Constitution Parental Liberty Doctrine traces back to the English Common law tradition in favor of parental liberty.  Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 190-93.  In turn, the English Common law was culturally influenced by Biblical law and Biblical cultural precepts.   The Bible, when properly understood, served as the font for legal ideas in favor of parental liberty and in favor of gradually elevating human rights from the very oppressive social conditions that typically prevailed during the Biblical era.

In most ancient cultures, including Egypt under the Pharaohs, a nation’s ruler possessed virtually unlimited sovereign power. Slavery, infanticide, confinement, torture, and ethnic cleansing were assumed to be legitimate practices. E.g. Genesis 37:28; 39; Exodus 1:8-14, 16-18, 22; 2:11-12; 3:7; 5; 6:5, 9. As a result, all children were considered “creatures of the state,” who owed their primary loyalty to the ruler, absorbed sovereign dogma, and existed to fulfill the whims of the ruler.

This totalitarian tradition was evidently passed on by the various ancient nations, including Babylonia, Babylon, Assyria, Persia, Crete, Greece, and the Roman Empire. E.g., Daniel 1:1-5; Matthew 2:3, 4, 16. The approach was also celebrated in Plato’s Republic, which advocated infanticide, eugenics, compulsory education, and a government of Philosopher-Kings.

The Mosaic Law and its supporting Old Testament was the first influential legal code to seriously promote the limitation of sovereign power and the formal recognition of parental prerogative. The Old Testament inferred that rulers had an obligation to comply with external, immutable principles, including basic civil rights. The Bible set forth a code of family law, forbade rape, outlawed incest, and prohibited the killing of non-criminal civilians. E.g., Deuteronomy 5:17; 20:17; 22:25-27. In some portions of its narrative, the Old Testament also cast a distasteful light upon slavery, unjustified confinement, and ethnic cleansing. Exodus 5; Deuteronomy 5:6; Daniel 1:1-8; 3:9-22; 6:6-17.

Most radical of all for its time, Biblical Law decreed that a child’s first duty was to honor his or her own parents and that parents should exercise control over the upbringing and education of their own children. Deuteronomy 4:10; 5:16; 6:7; 1 Kings 3:16-28; Proverbs 1:8; 22:6; 19:15; Malachi 4:6. These and other factors later made Moses a symbolic icon for American abolitionists.

Key figures of the New Testament perpetuated many aspects of Old Testament culture beyond the confines of Palestine. Many early Christians continued to observe Old Testament customs concerning family life and education, particularly as such related to the precepts mentioned above. E.g., Ephesians 6:4.

Pratt’s interpretation of Christianity is certainly not the only plausible reading available.

[156]   David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” The American Historical Review, Vol. 74, No. 1, (Oct. 1968), pgs. 74-98.

[157]   Pierce v. Society of the Holy Names of Jesus and Mary, 268 U.S. 519 (1925).

[158]   Pierce v. Society of the Holy Names of Jesus and Mary, 268 U.S. 519, 534-35 (1925).

[159]  Troxel v. Granville, 530 U.S. 57, 65-66 (2000):

The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.  More than 75 years ago, in Meyer v. Nebraska we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.”  Two years later, in Pierce v. Society of Sisters we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control….”  We returned to the subject in Prince v. Massachusetts and again confirmed that there is a dimension to the right of parents to direct the upbringing of their children….

In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

A “fundamental” right is a constitutional law term of art.  “A measure which is found to adversely affect a ‘fundamental right’ will be subject to the strict scrutiny test.”  In re Valenti, 224 Cal. Rptr. 10, 12 (Cal. Ct. App. 1986) (citing Sail’er Inn Inc. v. Kirby, 485 P.2d 529 (Cal. 1971) (en banc).

[160]   In re J.P., Utah 648 P.2d 1364 (1982).

In Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, Witte noted that the state of the law in 1996 was such that it was correct to indicate in his footnote 38 and the surrounding text that “the case law language is so confused that it is susceptible to widely divergent interpretations [about whether the right to direct the upbringing of a child is a ‘fundamental’ federal constitutional right].” Witte called for “a decisive, comprehensive, well-reasoned, and articulate United States Supreme Court opinion respecting parental rights” in order “to remedy this current state of confusion.”

Four years later, the precise legal question finally found its way to the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000). As reflected in Justice Scalia’s dissent, Scalia and some of the other justices debated the comment’s propositions that 1) parental liberty was regarded to be an inherent fundamental right from the time of the Declaration of Independence onward, and 2) parental liberty was protected by, inter alia, the Ninth and Fourteenth Amendments (the Fourteenth Amendment has been interpreted to be both an original source of constitutional rights and a legal mechanism for incorporating other amendments to apply against the states).  Id. at 91-93.

A five-justice majority (Chief Justice Rehnquist and Justices O’Connor, Thomas, Ginsburg, and Breyer) acknowledged that the right to direct the upbringing of one’s child is not only a multi-faceted federal constitutional right protected by the Fourteenth Amendment but a “fundamental” right.  Id. at 65-66.  As Justice Thomas noted in his concurrence, “fundamental” rights are entitled to “strict scrutiny” deference under principles of traditional constitutional jurisprudence. Id. at 80.  In other words, Troxel adopted the precise legal paradigm advocated in Witte’s 1996 comment, and lower courts have (for the most part) subsequently acknowledged that parental liberty is constitutionally protected.

Witte’s comment predicted that some secular conservatives (those in the Robert Bork tradition) would eschew originalist analysis and attempt to deny any constitutional protection to parental liberty. Daniel E. Witte, Comment, People v. Bennett, Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 B.Y.U. L. Rev. 183, 208-09 n. 106-08.  Justice Scalia’s dissent also vindicated Witte’s observation in that regard.

Witte’s comment observed that there are several potentially overlapping sources of protection for parental liberty in addition to (or in conjunction with) the Ninth Amendment.   Id. at 193 n.23.   Justice Thomas seemed to agree. In his final, succinct, revised concurrence, Thomas sidestepped the Scalia’s broadside and instead cursorily mentioned the Due Process and Privileges and Immunities Clauses of the Fourteenth Amendment as two of the possible sources for parental rights. Id. at 80.

Troxel provided an adequate and clear answer about the practical test for constitutional protection of parental liberty. But because of the unusual and narrow majority on the Court that supported parental liberty, and the economic incentives to destroy parental liberty that are set forth in Witte’s comment, it is anticipated that protection of parental liberty will require ongoing vigilance. Opponents of parental liberty will continue to try to overturn or limit the holding in Troxel, just as they once used State v. Hoyt, 146 A. 170 (N.H. 1929) to disregard previous United States Supreme Court precedent in Meyer v. Nebraska, 262 U.S. 390, 401-02 (1923), and Pierce v. Society of Sisters, 268 U.S. 519, 534-35 (1925).  Hoyt plunged alternative education and home education into a long dark age of persecution that only began to lift after Wisconsin v. Yoder, 406 U.S. 205 (1972)(state-sponsored cultural genocide against Mennonites and interference with Mennonite parental liberty struck down as unconstitutional).

[161]   In re J.P., Utah 648 P.2d 1364, 1376 (1982).

[162]   Troxel v. Granville, 530 U.S. 57, 65-66, 80 (2000); In re J.P., 648 P.2d 1364, 1369-74 (Utah 1982) (“For example, in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982), the majority refers to the ‘fundamental liberty interest of natural parents in the care, custody, and management of their child ….’ The Court was unanimous on this point.”); U.C.A. 62A-4a-201 (1)(a-c) (“Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s children.”);  Doe v. Heck, 327 F.3d 492, 517-19 (7th Cir. 2003)(Troxel identifies “fundamental” right protected by “strict scrutiny” or at least “heightened” scrutiny); In re D.W., 827 N.E.2d 466, 481 (Ill. 2005)(Troxel identified “fundamental” right protected by “strict scrutiny”).

[163] Indeed, just as federal and state judicial nominees are routinely asked about whether they acknowledge a constitutional right of privacy, such nominees should also be asked whether they will respect the constitutional right of a parent to direct the upbringing of a child.

[164]  Zelman v. Simmons-Harris, 536 US 639,676, 681-82 (2002) (Thomas, J. concurring).  The current government education system was expressly designed to deconstruct minority cultures, maintain current social stratification, and power structures, and redistribute wealth away from the lower and middle economic classes to enrich the already rich.

[165]   The authors support school choice and acknowledge that there are many legislative schemes designed to bring it about.  Vouchers of various kinds are one option; tax credits or tax deductions are perhaps even more ideal when politically feasible because of the reduced danger of government monitoring, pre-conditions, and interference.

[166]  Daniel E. Witte, “Nothing in U.S. or Utah constitutions prohibits vouchers,” Salt Lake Tribune, September 30, 2007, at O1, O4 (explaining the application of Establishment Clause and similar state constitutional provisions to vouchers).

[167]   It also should be noted that legal assaults on civil rights tend to begin first with the targeting of unpopular or politically weak minority groups, often surreptitiously or under the pretext of some emergency.  Once a legal precedent is achieved with the minority victim as a foil, the precedent is then expanded to the general population.

For example, religious liberty has been attacked in the same way that parental liberty was attacked: by starting with the Indians.  In Employment Division v. Smith, 494 U.S. 872 (1990), opponents of strict scrutiny protection for First Amendment free exercise achieved a victory by carefully selecting an anomalous fact pattern involving Indian use of peyote.  It is fitting that when the Church of Jesus Christ of Latter-Day Saints subsequently took the rare step of joining a political coalition to expressly denounce and statutorily overturn the Supreme Court decision, In re J.P. author Dallin H. Oaks was chosen as the point man.    See The Religious Freedom Restoration Act, Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 30-31 (1993) (statement of Dallin H. Oaks) (Senate Hearing); Oral Statement of Elder Dallin H. Oaks, Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-Day Saints, Senate Committee on the Judiciary Hearings on S.2148, The Religious Liberty Protection Act of 1998,

[168]   As once noted by United States Supreme Court Justice Robert Jackson, a home-educated man who presided over the German war-crimes tribunal held after World War II:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. The ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast-failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 640-41 (1943).

[169]  Battlefield at 238.

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