Middle Ground Project, Lesson Plan for June 10, 2010, 1-5pm
Justice Gregory J. Hobbs, Jr. & Alison Flint
Our goal this afternoon is to explore how your experience as citizens of the Navajo Nation, the United States, and your state and as a teacher at your school are informed both by contemporary events and by the historic events culminating in the 1868 treaty, which launched the modern Navajo Nation as a sovereign civic body. In doing so, we will rely on excerpts from various documents, considering how the documents function as voices, as historical evidence, and as sources from which to form accounts of the past and present. As we explore these documents as voices, you will work to capture your own voice in a document that you create. This document will be in the form of a personal reportage, or, as Kathy Winograd describes it, a personal journey into new understanding:
Personal Reportage is distinct from objective journalism because how the “I” sees and interprets the world around it is as important as what is reported and becomes a part of what is reported. One way to work with students in Personal Reportage is to first have students journal “a priori” knowledge — what they know, remember, think, imagine before starting a course of study. Personal Reportage can then become their written account of their journey into new understanding.
Personal Reportage includes cultivating your need to know; researching books, magazines, videos, and the internet; living an experience by describing its interesting details; interviewing others for “the real stuff that otherwise might remain hidden”; using primary sources such as court opinions, diaries, letters, government and family records, and photographs; winnowing down the materials and words to get to those that are closest to your own heart; and using fact as metaphor in relating your story within history’s story. Brenda Miller & Suzanne Paola, Tell It Slant: Writing and Shaping Creative Nonfiction 161-80 (McGraw-Hill, 2004).
Pre-writing your personal reportage:
Start with a blank slate. What do you already know about the 1868 treaty and the events leading up to it? How does that knowledge affect who you are, as a citizen of the Navajo Nation, the United States, and your state, and as a teacher at your school? How have contemporary events impacted these various pieces of your identity? Write in any way that feels comfortable, even just brainstorming ideas and getting your initial thoughts on paper.
Timeline of events leading up to the 1868 Treaty:
Late 1500s: beginnings of Spanish conquest of the area including Navajo homeland
1821: Mexican independence from Spain
November 22, 1846: treaty between the Navajo and the United States
February 2, 1848: Treaty of Guadalupe Hidalgo, ending the Mexican-American War and ceding the area including Navajo homeland to the United States
May 20, 1848: treaty between the Navajo and the United States
September 9, 1849: first ratified treaty between the Navajo and the United States
1851: Fort Defiance built
July 18, 1855: treaty between the Navajo and the United States
December 25, 1858: treaty between the Navajo and the United States
April 30, 1860: Navajo attack on Fort Defiance
1861-1865: American Civil War
February 15, 1861: treaty between the Navajo and the United States
November 19, 1863: President Abraham Lincoln’s Gettysburg Address
July 20, 1867: Indian Peace Commission established
May 28-30, 1868: treaty negotiations at Fort Sumner
June 1, 1868: treaty between the Navajo Nation and the United States, establishing the Navajo reservation and launching the Navajo Nation as a unified, sovereign, civic body
Exploration of contemporary voices: The Navajo Supreme Court:
On June 2, the Navajo Nation Supreme Court released a decision invalidating Navajo Nation Council Resolutions CO-41-09, placing President Joe Shirley, Jr. on administrative leave, and CJA-08-10, purporting to prevent the courts from considering and applying Diné Fundamental Laws. The opinion describes Fundamental Law as follows:
Diné bi beenahaz’ áanii are the very foundational laws of Navajo culture. They are not man-made law, and may not be “enacted” by individuals or entities or the Navajo Nation Council, they may simply be acknowledged by our man-made laws. Our elders and medicine people are the keepers and teachers of Diné bi beenahaz’ áanii.
Shirley v. Navajo Nation Council, No. SC-CV-02-10, slip op. at 15 (Nav. Sup. Ct. June 2, 2010).
The opinion also addresses the origins of the Fundamental Law of separation of powers:
The laws, culture, and value system of the Navajo People have their genesis in the Journey of the Diné from time immemorial to the Emergence into this world. The People are taught early on about the role and responsibilities of a leader and how they are selected. . . . There is a well-known episode from our Emergence that tells us how a dispute came to be and how it was resolved. The episode began when a question arose as to who would be selected as leader. . . .
A group of People nominated the wolf Ma’iitsoh and they talked about his qualities, that he would protect the People so that we would come to no harm, and he had powerful words and connection to the Holy People. Another group nominated the bluebird Dólii, that he was compassionate and had qualities of nurturing, which the People need because that’s the way people grow. Yet another group nominated the mountain lion Náshdóitsoh because he was a hunter, so the People would never go hungry, so it was about survival. Finally, the last group nominated the hummingbird Dah yiitíhí, who was swift and would go from plant to plant bringing back pollen, and the pollen represents spirituality and reverence which the People need to have for one another.
The People couldn’t agree to choose one leader among those nominated, they each wanted the one each nominated. . . .
In spite of what each group had previously assumed was vital to sustain life, the People felt that Ma’iitsoh, Dólii, Náshdóitsoh and Dah yiitíhí, each brought back a crucial element for life, therefore all would be leaders and must work together to sustain life. The People decided to make all of them leaders. We re-tell this story to emphasize that, since beyond recorded time, the People have understood the separation of functions of leaders, and that in order to survive as a People, there must be collaboration and coming together both in the community and in the leadership chosen by the People to pool skills, resources and characteristics. . . .
With this episode, Fundamental Law was established that there should not be concentrated power. . . .
Id. at 21-23.
The Arizona Legislature:
Section 1. Title 15, chapter 1, article 1, Arizona Revised Statutes, is amended by adding sections 15-111 and 15-112, to read:
15-111. Declaration of policy
THE LEGISLATURE FINDS AND DECLARES THAT PUBLIC SCHOOL PUPILS SHOULD BE TAUGHT TO TREAT AND VALUE EACH OTHER AS INDIVIDUALS AND NOT BE TAUGHT TO RESENT OR HATE OTHER RACES OR CLASSES OF PEOPLE.
15-112. Prohibited courses and classes; enforcement
A. A SCHOOL DISTRICT OR CHARTER SCHOOL IN THIS STATE SHALL NOT INCLUDE IN ITS PROGRAM OF INSTRUCTION ANY COURSES OR CLASSES THAT INCLUDE ANY OF THE FOLLOWING:
1. PROMOTE THE OVERTHROW OF THE UNITED STATES GOVERNMENT.
2. PROMOTE RESENTMENT TOWARD A RACE OR CLASS OF PEOPLE.
3. ARE DESIGNED PRIMARILY FOR PUPILS OF A PARTICULAR ETHNIC GROUP.
4. ADVOCATE ETHNIC SOLIDARITY INSTEAD OF THE TREATMENT OF PUPILS AS INDIVIDUALS.
B. IF THE STATE BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION DETERMINES THAT A SCHOOL DISTRICT OR CHARTER SCHOOL IS IN VIOLATION OF SUBSECTION A, THE STATE BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION SHALL NOTIFY THE SCHOOL DISTRICT OR CHARTER SCHOOL THAT IT IS IN VIOLATION OF SUBSECTION A. IF THE STATE BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION DETERMINES THAT THE SCHOOL DISTRICT OR CHARTER SCHOOL HAS FAILED TO COMPLY WITH SUBSECTION A WITHIN SIXTY DAYS AFTER A NOTICE HAS BEEN ISSUED PURSUANT TO THIS SUBSECTION, THE STATE BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION MAY DIRECT THE DEPARTMENT OF EDUCATION TO WITHHOLD UP TO TEN PER CENT OF THE MONTHLY APPORTIONMENT OF STATE AID THAT WOULD OTHERWISE BE DUE THE SCHOOL DISTRICT OR CHARTER SCHOOL. THE DEPARTMENT OF EDUCATION SHALL ADJUST THE SCHOOL DISTRICT OR CHARTER SCHOOL'S APPORTIONMENT ACCORDINGLY. WHEN THE STATE BOARD OF EDUCATION OR THE SUPERINTENDENT OF PUBLIC INSTRUCTION DETERMINES THAT THE SCHOOL DISTRICT OR CHARTER SCHOOL IS IN COMPLIANCE WITH SUBSECTION A, THE DEPARTMENT OF EDUCATION SHALL RESTORE THE FULL AMOUNT OF STATE AID PAYMENTS TO THE SCHOOL DISTRICT OR CHARTER SCHOOL.
C. THE DEPARTMENT OF EDUCATION SHALL PAY FOR ALL EXPENSES OF A HEARING CONDUCTED PURSUANT TO THIS SECTION.
D. ACTIONS TAKEN UNDER THIS SECTION ARE SUBJECT TO APPEAL PURSUANT TO TITLE 41, CHAPTER 6, ARTICLE 10.
E. THIS SECTION SHALL NOT BE CONSTRUED TO RESTRICT OR PROHIBIT:
1. COURSES OR CLASSES FOR NATIVE AMERICAN PUPILS THAT ARE REQUIRED TO COMPLY WITH FEDERAL LAW.
2. THE GROUPING OF PUPILS ACCORDING TO ACADEMIC PERFORMANCE, INCLUDING CAPABILITY IN THE ENGLISH LANGUAGE, THAT MAY RESULT IN A DISPARATE IMPACT BY ETHNICITY.
3. COURSES OR CLASSES THAT INCLUDE THE HISTORY OF ANY ETHNIC GROUP AND THAT ARE OPEN TO ALL STUDENTS, UNLESS THE COURSE OR CLASS VIOLATES SUBSECTION A.
4. COURSES OR CLASSES THAT INCLUDE THE DISCUSSION OF CONTROVERSIAL ASPECTS OF HISTORY.
F. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT OR PROHIBIT THE INSTRUCTION OF THE HOLOCAUST, ANY OTHER INSTANCE OF GENOCIDE, OR THE HISTORICAL OPPRESSION OF A PARTICULAR GROUP OF PEOPLE BASED ON ETHNICITY, RACE, OR CLASS.
Historical voices & the art of persuasion:
Consider the following excerpts and how the historical voices captured in them advocated for a particular position. How did each of these voices contribute to the formation of the 1868 treaty, which launched the modern Navajo Nation as a sovereign civic body?
President Abraham Lincoln (Address at Gettysburg, Nov. 19, 1863): Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. . . .
It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.
Manuelito (quoted in Jennifer Nez Denetdale, Reclaiming Diné History: The Legacies of Navajo Chief Manuelito and Juanita (Tucson: University of Arizona Press, 2007): Just because they capture you and even take your life, it’s just you and not all your people who will suffer . . . . When you get captured, you just tell then, ‘Go ahead and kill me, and I will shed my blood on my own land, not some strange land. And my people will have the land even if I die.’
General Carleton (“Report of the Condition of the Navajo Prisoners of War at the B[o]sque Redondo, New Mexico” to Army Headquarters, March 12, 1864): Now, when they have surrendered and are at our mercy, they must be taken care of — must be fed, clothed and instructed. This admits neither of discussion nor delay. These six thousand mouths must eat, and these six thousand bodies must be clothed. When it is considered what a magnificent pastoral and mineral country they have surrendered — a country whose value can hardly be estimated — the mere pittance, in comparison, which must at once be given to support them sinks into insignificance as a price for their natural heritage. . . .
[H]aving sacrificed to us their beautiful country, their homes, the associations of their lives, the scenes rendered classic in their traditions, we will not dole out to them a miser’s pittance in return for what they know to be and what we know to be a princely realm.
Barboncito (Proceedings of Council, May 28, 1868, Fort Sumner, New Mexico): Our grandfathers had no idea of living in any other country except our own and I do not think it right for us to do so, as we were never taught to. When the Navajos were first created, 4 mountains and 4 rivers were pointed out to us, inside of which we should live, that was to be our country, and was given to us by the first woman of the Navajo tribe. It was told to us by our forefathers, that we were never to move east of the Rio Grande or west of the San Juan rivers and I think that our coming here has been the cause of so much death among us and our animals. . . .
If we are taken back to our own country we will call you our father and mother, if you should only tie a goat there we would all live off it, all of the same opinion. I am speaking for the whole tribe, for their animals from the horse to the dog, also the unborn. All that you have heard now is the truth and is the opinion of the whole tribe.
It appears to me that the General commands the whole thing as a god; I hope therefore he will do all he can for the Indians; this hope goes in at my feet and out at my mouth. I am speaking to you (General Sherman) now as if I was speaking to a spirit and I wish you to tell me when you are going to take us to our own country.
Consider the relative absence of Diné voices from the historical record until over a century after the Navajo-American War, the Long Walk, and the treaty of 1868. Compare the disparate poetic voices below to think about how the absence of Diné voices has been an impediment to history.
Territorial Governor of New Mexico Henry Connelly, Dec. 9 1863: The Navajoes are . . . waging a relentless warfare against our citizens . . . . By their hostile presence in th[is] region of country, from which they obtain but a precarious subsistence by robbery and depredations upon our citizens, an immense pastoral and mining population is excluded from its occupation . . . . Too long have they roamed lords of the soil over this extensive and valuable tract of country. . . . The white man has an urgent necessity for the lands which have heretofore been thus dedicated to the unprofitable use of the savages and the white man must see to it that the savages are displaced to make room for him.
“Johnny Navajo,” Rio Abajo Weekly Press, Dec. 8, 1863: Come dress your ranks my valiant First, and stand up in a
Kit Carson he is waiting to march against the foe,
This day we march to Moqui — o’er lofty hills of snow
To meet and crush the savage foe — bold Johnny Navajo.
Johnny Navajo—O Johnny Navajo.
We’ll first chastise, then civilize, bold Johnny
Luci Tapahonso, “In 1864” Sáanii Dahataał, The Women Are Singing: Poems and Stories 7-19 (Tucson: University of Arizona Press, 1993):
My aunt always started the story saying, "You are here
because of what happened to your great-grandmother long
They began rounding up the people in the fall.
Some were lured into surrendering by offers of food,
and livestock. So many of us were starving and suffering
that year because the bilagáana kept attacking us.
Kit Carson and his army had burned all the fields,
and they killed our sheep right in front of us.
We couldn’t believe it. I covered my face and cried.
All my life, we had sheep. They were like our family.
It was then I knew our lives were in great danger.
We were all so afraid of that man, Redshirt, and his army.
Some people hid in the foothills of the Chuska Mountains
and in Canyon de Chelly. Our family talked it over,
and we decided to go to this place. What would our lives
be like without sheep, crops, and land? At least, we
starve. . . .
We didn’t know how far it was or even where we were going.
All that was certain was that we were leaving Dinetah, our
home. . . .
There were many who died on the way to Hwééldi. All the way
we told each other, "We will be strong, as long as we are together."
I think that was what kept us alive. We believed in
and the old stories that the holy people had given us.
"This is why," she would say to us. "This is why we are
Because our grandparents prayed and grieved for us."
Howard W. Gorman, in Broderick H. Johnson, ed., Navajo Stories of the Long Walk Period (Navajo Community College, 1973): This story is about the long walk to Fort Sumner. There are two points of view regarding it – the White Man’s and the Navajo’s. Many books have been written and many references made to the Long Walk, but always from the White viewpoint; and they usually are distorted and not true. This book gives a Navajo viewpoint – as I learned it from my ancestors. . . .
There was one thing that isn’t mentioned in the White Man’s histories [of the Treaty of 1868]. A wooden post was put in the ground, and a billy goat was hit in the mid-section with a stick so that he struck the post repeatedly with his head and horns. I don’t know how long this continued. But, after a while, the brains of the goat came out, and that’s when they got through with him. Then the general turned to the Navajos and said, "Nowhere, at no time in the future, whatever you do, don’t break this treaty. If you get in trouble with Washington or the U.S. Government again and do the things you should not do, that is what is going to happen to you people." He meant what had happened to the billy goat.
Consider the differences between some of the key provisions of the 1849 and 1868 treaties. What accounts for these differences? How are treaties interpreted today and what accounts for those particular rules, or canons, of construction?
U.S. Supreme Court in Choctaw Nation v. United States, 318 U.S. 423 (1943): [T]reaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. . . . Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.
Shirley v. Navajo Nation Council, No. SC-CV-02-10, slip op. at 25-26 (Nav. Sup. Ct. June 2, 2010): Hazaad jidísin, words are sacred in Navajo thinking. . . . A leader must always speak the truth and has a responsibility to communicate it to the people . . . . If words are said, they are meant.
Provisions of the 1849 treaty: The said Indians do hereby acknowledge that, by virtue of [the Treaty of Guadalupe Hidalgo], . . . the said tribe was lawfully placed under the exclusive jurisdiction and protection of the Government of the said United States . . . .
That from and after the signing of this treaty, hostilities between the contracting parties shall cease, and perpetual peace and friendship shall exist . . . .
All American and Mexican captives, and all stolen property taken from Americans or Mexicans, or other persons or powers in amity with the United States, shall be delivered by the Navajo Indians to the aforesaid military authority . . . .
The people of the United States of American shall have free and safe passage through the territory of the aforesaid Indians . . . .
[T]his treaty is to receive a liberal construction, at all times and in all places, to the end that the said Navajo Indians shall not be held responsible for the conduct of others, and that the Government of the United States shall so legislate and act as to secure the permanent prosperity and happiness of said Indians.
Provisions of the 1868 treaty: From this day forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to keep it. . . .
[T]his reservation, shall be, and the same is hereby, set apart for the use and occupation of the Navajo tribe of Indians . . . .
In order to insure 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 the reservation, and they therefor pledge themselves to compel their children, male and female, between the ages of six and sixteen years, to attend school . . . .
In consideration of the advantages and benefits conferred by this treaty and the many pledges of friendship by the United States, the tribes who are parties to this agreement hereby stipulate that they will relinquish all right to occupy any territory outside their reservation, as herein defined . . . and they, the said Indians, further expressly agree: . . . They will not in future oppose the construction of railroads, wagon roads, mail stations, or other works of utility or necessity which may be ordered or permitted by the laws of the United States . . . .
Revisit your personal reportage:
How would you update your personal reportage based on the documents we have visited and discussed? How have the voices we explored contributed to your ideas about your role as citizens of the Navajo Nation, the United States, and your state, and as a teacher at your school? Describe your journey into this new understanding.