Removing Classrooms from the Battlefield: Liberty, Paternalism, and

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W ITTE .PP4 4/15/2008 7:39 PM 377 Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice 7 Daniel E. Witte and Paul T. Mero 7 7 I.

I NTRODUCTION Utah 9s new school voucher law has meant many things to many people. For the thirty-seven percent of our Hispanic and African- 7 Paul T. Mero has researched and written about the relationship between American black slavery and education and the history of education in Utah.

See generally P AUL T. M ERO , V OUCHERS , V OWS , AND V EXATIONS : T HE H ISTORIC D ILEMMA OVER U TAH 9 S E DUCATION I DENTITY (2007), http://www.sutherlandinstitute.org/uploads/vouchersvows.pdf (research by Mero and Witte). Details regarding Richard Henry Pratt herein are based upon research compiled by Daniel E.

Witte, some of which is published. See Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps), 1998 BYU L.

Rev. 741, 772 373 nn.145 347, 791 n.215, 793 n.219; Daniel E. Witte, Comment, People v.

Bennett , Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment , 1996 BYU L. Rev. 183, 250 nn.217 318; ... more. less.

Quaqua Society Inc., http://www.quaqua.org/history.htm (last visited Mar. 25, 2008) (providing a historical overview based on research compiled by Mr. Witte); Quaqua Society Inc., http://www.quaqua.org/list.htm (last visited Mar. 25, 2008) (providing links to Web sites about alternative education law and history). It is anticipated that material included in (and related to) this present preview Article will be more comprehensively discussed in a forthcoming book. 7 7 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. Attorney 9s 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 judicial clerkship with the Honorable Judge Alan E. Norris of the United States Circuit Court of Appeals for the Sixth Circuit, worked as a commercial litigator in Silicon Valley for Skadden Arps, and is now associate general counsel for an insurance company. 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 and educational freedom. He worked for Congressman William E. Dannemeyer (1987 3 1993) and was chief of staff for Congressman Robert K. Dornan (1995 31998). He served as the executive director of The Howard Center for Family, Religion, & Society (1998 32000). He is co-author (with Allan C. Carlson) of The Natural Family: A Manifesto (2007). W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 378 American public-school 1 students who do not graduate with a high- school diploma, Utah 9s voucher law represented a sense of hope and opportunity. 2 For opponents of educational choice, the voucher law is un-American and a threat to democratic values. This Article argues that opposition to vouchers is rooted in a disturbing paternalism. 3 This sentiment is emphasized more than any other in opposition to the law 4many anti-voucher arguments seem to gravitate to an idealized view of the common good 4and, not coincidently, it has been a central historical theme in the relationships between the federal government and indigenous, immigrant, and religious minority groups. To understand perhaps the most beneficial impact of the new school-voucher law is to first recognize the existence of the philosophy of paternalism underlying the establishment and maintenance of our public education system. Utah 9s new school voucher law, as it is written, is primarily 4 about helping low-income minority students and others who are 1. cPublic school d and cgovernment school d are used as interchangeable terms in this Article. Note, however, that many education choice advocates define the term cpublic school d to include both government schools and public accommodations for learning that are privately owned. 2 . See S UPERINTENDENT 9 S A NNUAL R EPORT : S ECTION II: H IGH S CHOOL C OMPLETION S TATUS 2006 , http://www.usoe.k12.ut.us/FINANCE/other/AnnualReport/ 06ar/Statistics/STUDENTS/High_School_Completion_Status06.xls (last visited Feb. 12, 2008). 3. As discussed in more detail herein, compulsory government education in the United States has its historical origins in political efforts to subdue various racial, ethnic, cultural, and religious demographic minority groups. Paternalism provided a common and ostensibly high- minded political ideology to justify discrimination, oppression, and exploitation against disparate minority groups (and, later, lower-income students from any demographic group). The paradigms developed in that context became the basis for modern government education. As overt racism and bigotry fell out of political fashion, the unsavory historical facts were quietly ignored, but the paternalistic philosophy was necessarily retained to justify ongoing use of the current educational system. This Article argues that vouchers and other educational choice programs are best understood as a civil rights remedy designed to directly address the profound ongoing harms caused by entrenched historical abuses perpetrated through the American education system. As with other areas of civil rights law, an understanding of current political and legal events in Utah cannot be properly understood apart from the historical context that shaped the existing Utah education system. Discussion of prospective educational solutions must be informed by a candid acknowledgement of the trajectory of past educational (and civil rights) mishaps. A debate over vouchers that merely dickers over the finer details of malleable statutory tax and revenue allocation provisions loses sight of the forest for the trees. 4. The Utah voucher law is a product of practical legislative politics as well as idealism. The Utah law is not a perfect avenue to educational choice; it is merely better than the abysmal status quo. The Utah law is only the best scheme capable of garnering a requisite number of W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 379 currently failing in our public schools. 5 In their current socio- economic circumstances, and unlike struggling students from wealthier families, these students are essentially segregated in their neighborhood schools and told by the keepers of the common good that their challenges do not warrant any intervention transcendent of the higher priority to maintain the alleged seedbed of democracy, our government public school system. Indeed, the socio- disadvantaged are told, the system was created for them 4not for the votes to pass, and many of its supporters understood that the best ought not to be the enemy of the good. Thus, the authors do not feel obliged to philosophically defend every politically pragmatic quirk the enacted statute may contain. This is particularly true with respect to the fund allocation pattern selected, the ineligibility of home educators, and the ineligibility of existing private school students. An optimal educational-choice program would afford simple, universal access to a family tax credit for 100% of the tax revenue that would otherwise be allocated to a public school on the basis of a weighted pupil unit. Universal access to educational choice is the only long-term way to remediate the wrongs of the past and prevent new patterns of abuse from emerging in the future; any arrangement short of full universal access is merely a laudable interim step in the progressive direction. To paraphrase Chief Justice John Roberts, the way to eliminate discrimination on the basis of demographic characteristics and income levels is to stop discriminating on the basis of demographic characteristics and income levels. See Parents Involved in Cmty. Sch. v. Seattle Sch.. Dist. No. 1, No. 05-908, slip op. at 40 341 (U.S. June 28, 2007) ( cThe way to stop discrimination on the basis of race is to stop discriminating on the basis of race. d). 5. Unfortunately, some Utah educators have gone to considerable effort to conceal the underperformance of Utah schools and of certain minority student populations. These efforts include the use of caveraging d and other statistical manipulations that violate the current federal No Child Left Behind law (NCLB). E.g. , Jennifer Toomer-Cook, Ed Board Won 9t Accept Test Averages , D ESERET M ORNING N EWS , Jan. 11, 2008, at A1 [hereinafter Ed Board ]; Jennifer Toomer-Cook, Utah Schools Warned On Test-Score Reports , D ESERET M ORNING N EWS , Jan. 7, 2008, at A1 [hereinafter Utah Schools Warned] . Granite School District, which is known to encompass a geographic area in Salt Lake County with a disproportionate number of minorities and low-income students relative to other school districts in the state, has been particularly aggressive about averaging. Id. ; see also U.S. C ENSUS B UREAU , C ENSUS 2000 D ATA FOR U TAH T ABLE 5: P OPULATION BY R ACE AND H ISPANIC OR L ATINO O RIGIN , FOR THE 15 L ARGEST C OUNTIES AND I NCORPORATED P LACES IN U TAH : 2000, http://www.census.gov/Press-Release/www/2001/tables/ut_tab_5.PDF (last visited Mar. 28, 2008) (providing the geographic distribution of demographic minority populations according to the most recent census). But even the imperfect data available suggests that demographic minorities are suffering even more than others from the current Utah education system. It is hardly a surprise, for example, that after seven years of failing to meet very modest minimum NCLB standards, the first mandatory NCLB closure announced in Utah was also one of the few schools with predominantly American Indian enrollment 4West Junior High School in Fort Duchesne. Julia Lyon, School 9s Out for Tribal Youth? , S ALT L AKE T RIB ., Dec. 18, 2007, at A1; Lezlee E. Whiting, Seeking A Turnaround: Ute Tribe Wants To Partner With Parents And School Board To Build Success , D ESERET M ORNING N EWS , Jan. 8, 2008, at C1. W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 380 rich and the influential who have far greater choices and opportunities 6 and who are able to leverage their successes to benefit their struggling children, but for disadvantaged people who could not succeed without the beneficent (if coercive) hand of government. If Utah 9s new school voucher law only does one thing 4eradicate the concept of public school paternalism 4it will have done more for the freedoms of all Utahns than any other single policy reform in the past century. But to appreciate the power of that statement, we must first uncover its historical narrative, and this narrative begins with the issue of black slavery. Part II discusses a few historical examples of coercion in our nation 9s history of minority education. Specifically, this section outlines General Richard Henry Pratt 9s astounding approach to educating minorities after the Civil War. Part III describes how current proponents of the government school system and opponents of education choice make arguments descended from those General Pratt espoused. This section concludes that Utahns and Americans should avoid this paternalistic approach to education by incorporating greater modes of parental choice in our education systems, such as school vouchers. Part IV offers a brief conclusion. II. G ENERAL P RATT , P ATERNALISM , AND H ISTORICAL C OERCION IN G OVERNMENT E DUCATION General Pratt 9s paternalistic approach to the education of minorities incorporated contemporary cultural influences and social class theory. Homebuilders, past and present, know that cmudsill d is a pounded earthen floor prevalent in most primitive homes. In the mid- to late-nineteenth century, the term mudsill was eventually ascribed derogatorily to poor people. A well-known cmudsill theory d 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 6. As documented elsewhere, the elite political and economic class of the United States tends to use private education for their own children while vociferously extolling the virtues of government public education for everyone else. Daniel E. Witte, Comment, People v. Bennett : Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment , 1996 BYU L. R EV . 183, 255 n.225. W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 381 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 mean duties, to perform the drudgery of life. . . . Such a class you must have, or you would not have that other class which leads progress, refinement, and civilization. It constitutes the very mud-sills 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 the mud-sills. 7 Hammond 9s contemporary, and a popular pro-slavery advocate, George Fitzhugh added, [T]he 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 [N]egro 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 or outwitted in the chaos of free competition. 8 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 9 authority . . . . cYou must convince them you are not a tyrant but act on the principle of justice, d [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 slaveowners 9 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 9s authority had any legal standing 4slaves 9 children literally belonged to someone else 4paternal responsibility fell to the slaveholder. But this paternalism characterized planters 9 fantasies far better than it did their society, for forbearance and benevolence could exist 7. C ONG . G LOBE , 35th Cong., 1st Sess. 962 (1858) (statement of Sen. Hammond). 8. George Fitzhugh, The Universal Law of Slavery , in T HE B LACK A MERICAN : A D OCUMENTARY H ISTORY 91, 91 (Leslie H. Fishel, Jr. & Benjamin Quarles eds., 3d ed. 1976). W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 382 only in the space created by terror. At the core of paternalism, in other words, lay brutal coercion. 9 Paternalism has enabled brutality against African-Americans, Native Americans, 10 and others by positing that government- facilitated violations of human (and constitutional) rights are necessary means to ostensibly beneficent ends. The coercive imposition of paternalism has become one of the great ironies of a free nation, and perhaps no person exemplified this irony in the arena of American education more than a seemingly obscure Union Army general named Richard Henry Pratt. It was against the backdrop of the mudsill theory that Richard Henry Pratt emerged from the shadows of history to seize control of America 9s educational destiny. 11 We are fortunate that General Pratt left behind a lengthy and detailed journal, now his formal autobiography appropriately titled Battlefield & Classroom , about the ideas and actions supporting his paternalistic quest to turn black slaves, American Indians, 12 and Puerto Ricans into creal Americans. d 9. S TEPHEN K ANTROWITZ , B EN T ILLMAN AND THE R ECONSTRUCTION OF W HITE S UPREMACY 14 315 (2000). 10. For Native Americans, paternalism tended to be rhetorically described as a necessarily imposed teacher-student relationship rather than a master-slave relationship. E.g. , Hollister v. United States, 145 F. 773, 776 (8th Cir. 1906) ( cIndians are yet the wards of the nation, in a condition of pupilage or dependency . . . . d) (quoting U.S. v. Rickert, 188 U.S. 432, 437 (1903)). 11. Richard Henry Pratt developed the practical political, legal, pedagogical, and economic paradigms now undergirding the entire American compulsory education system. As discussed in more detail throughout this Article, Pratt 9s scheme was first developed using Native Americans but was explicitly expanded to minority education generally and then 4in many respects 4to American education generically. Pratt 9s ideas were widely adopted and applied outside of Carlisle and programs directly implemented by Pratt. As discussed below, because Utah is home to numerous racial, ethnic, and religious minorities, Utah was directly targeted by Pratt and his contemporary allies and has suffered ongoing effects. Utah 9s general education system today cannot be accurately appreciated without a detailed understanding of Pratt 9s views and actions. 12. To reflect the rhetorical flavor and terminology of the relevant historical period, this Article uses the terms cNegro, d cBlack, d cAmerican Indian, d and cIndian d on some occasions to refer to people often described by some academics today as cAfrican-Americans, d cNative Americans, d or cindigenous tribal populations of North America. d The term cHispanic d is used with an acknowledgement that some academics advocate use of cLatino d instead. The term cwhite d is used to refer to persons (including Americans) who are predominantly descended from pre-Columbus Anglo or European racial ancestry and are readily associated in modern American public perception with a corresponding ctraditional d cwhite d European cultural heritage. In recounting some unpleasant historical events, images, ideas, theories, and quotations, and in attempting to accurately use terminology, the authors do not intend to communicate W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 383 Pratt 9s military career began with the April 1861 bombardment of Fort Sumter during the Civil War. 13 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. 14 It was there that Pratt developed an important network with influential military and political friends, including General William Tecumseh Sherman. After briefly leaving the military on May 29, 1865, Pratt re- enlisted and was appointed a second lieutenant 15 on March 7, 1867. 16 He was assigned to command a newly-organized cNegro d regiment consisting of African-American enlisted men supervised by white officers. 17 Of that time, Pratt later wrote: As a Civil War cavalryman [over Negro soldiers], I marched over vast stretches of slavery 9s 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 any personal disrespect of any tribes, peoples, or religions, any personal endorsement of historical abuses, any general disrespect for military service, any suggestion that general demographic categories should obscure the significance of more localized identities, or any personal endorsement of offensive racial terminology. 13. R ICHARD H ENRY P RATT , B ATTLEFIELD & C LASSROOM xviii (Robert M. Utley ed., 2003) [hereinafter B ATTLEFIELD ]. 14 . Id. 15. 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. Id. & n.3. 16 . Id. 17 . Id. at xix. W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 384 impossible that any man entering any national family can become acceptable therein unless made useful to it. 18 Pratt believed that the same insights and managerial tactics also applied to other demographic minority groups, including Native Americans and Puerto Ricans. 19 When the Civil War came to a close, General Sherman 20 and his network of career military officers turned their attention to subduing Indian Territory in the mid-western and western United States, as well as Texas. In spring of 1867, Pratt was assigned to Fort Arbuckle in what is now Oklahoma. 21 At that time, various Indian tribes were involved in an insurgency against the United States military 9s effort to gain permanent and exclusive territorial control. Pratt participated in eight years of battles and negotiations 22 involving various tribes, 18 . Id. at 311 312. In the introduction to General Pratt 9s autobiography, modern historian Robert Utley writes of Pratt 9s 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 9s 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. Id. at xxii. 19 . See, e.g. , id. at 175; Sonia M. Rosa, The Puerto Ricans at Carlisle Indian School , J. OF C ARIBBEAN A MERINDIAN H IST . & A NTHROPOLOGY , http://www.kacike.org/ SoniaRosa.html (last visited Mar. 25, 2008). Some abolitionists saw parallels of a different kind and took up the Indian cause after winning the campaign against black slavery. B ATTLEFIELD , supra note 13, at 154 n.1. 20. Pratt 9s 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. See D AVID N EVIN ET AL ., S HERMAN 9 S M ARCH : A TLANTA TO THE S EA 14 315, 44 346 (1986) (describing how Sherman pioneered ctotal warfare d scorched-earth tactics designed to psychologically discourage opponents and as part of the effort burned Atlanta after Confederate troops had already relinquished control of the city). General Sherman, unlike Pratt, felt cit is better the Indian race be obliterated. d B ATTLEFIELD , supra note 13, at 15. 21 . Id. at xix. 22. 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 W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 385 including the final conquest of the Kiowas, Comanches, Cheyennes, and Arapahos. 23 One of the primary grievances of the warring Indian tribes was encroachment of white settlers and the resultant reduction of available land and resources. In particular, the elimination of the buffalo herds caused Indian starvation. 24 As the natural game was depleted and Indians were confined to territorial boundaries on reservations and elsewhere, Indian tribes were forced to rely upon the federal government for food. 25 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 had forced the Indians to sign. 26 The Indian tribes complained that the white man was a 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. 27 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, Indian Territory at that time was enmeshed in a vicious war on all sides, characterized by insurgency, terrorism, gruesome atrocities, sexual assault, kidnappings, torture, involuntary servitude, dismemberment, and scorched-earth tactics. 28 Pratt was surprised to learn that the Cherokee Indians, who by then had been relocated to Oklahoma from Georgia as part of the cTrail of Tears d migration coercively supervised by the military in men had found best to advance the prosperity, comfort, and happiness of both the Indians and whites; that the Government was anxious to have the Indians adopt our ways of living and unite with us to use 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. Id. at 16. 23 . Id. at xix. 24 . Id. at 37, 63 n.5. 25 . Id. at 37. 26 . See, e.g. , id. 27 . Id. at 16. The federal government also had a policy of compelling polygamous Indians to disband their families and abandon their cextra d wives and children. Id. at 90, 289. 28 . See, e.g. , id. at 48 349. For a detailed and lengthy recitation of various atrocities seen by eyewitnesses, see generally P ETER C OZZENS , E YEWITNESSES TO THE I NDIAN W ARS , 1865 3 1890 (2005). W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 386 1838, 29 were already quite ccivilized d 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[ 30 ] conducted by their Cherokee tribal government. They had manly bearing and fine physiques. Their intelligence, civilization, and common sense was a revelation, because I had concluded that as an army officer I was [in Fort Gibson, Arkansas] to deal with atrocious aborigines . 31 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. 32 29. 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 , http://ngeorgia.com/history/cherokeeforts.html (last visited Mar. 25, 2008) (describing in part cThe Trail of Tears d). The Act of 1830 was successfully challenged before the United States Supreme Court, in Cherokee Nation v. State of Georgia , 30 U.S. 1 (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 ordering federal military forces to continue with his initiative notwithstanding the admonitions of the Supreme Court. c 8[Chief Justice] John Marshall has made his decision, 9 Jackson is claimed to have said, 8now let him enforce it! 9 d Stephen Breyer, Boston College Law School Commencement Remarks , http:// www.supremecourtus.gov/publicinfo/speeches/sp_05-23-03.html (last visited Mar. 25, 2008). Pratt would take the Jacksonian paradigm introduced against the Cherokee and refine it to a much greater level of sophistication. 30. Although a precise count is probably impossible, most traditional tribal cultures appear to have used home education and apprenticeship to pass 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. 31. B ATTLEFIELD , supra note 13, at 4 35. 32 . See, e.g. , id. at 312 313. An alternative approach could have entailed voluntary cooperation with Indian families to provide educational resources actually requested by them to meet their own defined needs. In re Lelah-Puc-Ka-Chee, 98 F. 429 (N.D. Iowa 1899) (Indian student released from Pratt-system school under Writ of Habeas Corpus); Daniel E. Witte, Habeas Corpus Protection of Parental Liberty, http://www.quaqua.org/hurd.htm (last visited Mar. 2005) (During Framer eras in 1789 and 1865 368, judicial vindication of parental rights under the Constitution was most often accomplished through a Writ of Habeas Corpus filed against the offending government entity, private entity, school, cleric, or other third-party interloper in order to assert all relevant constitutional, statutory, and common law parental prerogatives). W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 387 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. 33 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 9s political constituency. 34 The federal military prevailed in the war. The tribes were conquered and compelled 4often by starvation, confinement, and threats 4to sign treaties, giving control of tribal education over to the federal government. 35 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 in Fort Marion, Florida, for the Indians identified as the most violent, dangerous, or destabilizing actors. 36 Indeed, Fort Marion had many similarities to the contemporary Guantanamo Bay military prison for suspected terrorists in Cuba: Fort Marion was created to indefinitely incarcerate, without trial, 37 despised prisoners of war who in most cases were believed to have committed atrocities against white civilians or to have killed United States military personnel. 33 . See, e.g. , id. at 322 323 (describing the demonstrations conducted cto show the public what the [Carlisle] school was doing in all its branches d). 34 . See, e.g. , id. at 258, 268, 271, 335. 35. Pratt later recounted: [E]ducation and training for the young is our only sure way to relief from 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 advantages to every child between 6 and 16 years of age. Id. at 246. 36. Fort Marion was originally built when the Spanish occupied Florida. Id. at 117. After the United States took possession from the Spanish, the fort was used as a prison for Indians involved in earlier military skirmishes in Florida and the southeast United States. Id. The fort was pressed into service again for the post-Civil War Indian War. Id. The fort still stands today in St. Augustine and has a moat, a drawbridge, and a very large stone fort wall. Id. 37. Military commissions were used before executing or imprisoning some selected Indians. Id. 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. W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 388 In 1875, Pratt was assigned to oversee the transportation and ongoing incarceration of the Indian prisoners of war. 38 Some unruly prisoners were branded. 39 The POWs were gathered at Fort Leavenworth, Kansas, crowded into rail cars, and confined in iron shackles. 40 They were then shipped from Fort Leavenworth to St. Louis, Louisville, Nashville, Atlanta, Jacksonville, and finally, Fort Marion, Florida. During transport and subsequent incarceration at Fort Marion, some Indians died from humidity, exposure, harsh treatment, and prolonged confinement. 41 A visceral climate of racial animosity pervaded America 9s relationship with American Indians of that era, skewing nearly every aspect of federal Indian policy and reversing America 9s original tradition of educational choice. Pratt was America 9s point man to deal with those Indians considered to be the worst of the worst, resulting in a powerful and almost unlimited mandate for this previously obscure army officer. Pratt had a goal to creform d 42 young Indian POWs and proved to be very adept at maintaining strict order, discipline, and security at Fort Marion. He forced the POWs to cut their hair and wear military clothes in the manner of a white man. 43 Indians were punished, marched about, and forced to perform regular military drills. 44 They were forced to clean, cook, present themselves for military inspections, and maintain a cspit-shine d military environment. 45 Pratt realized he could control the Indians and change their culture more effectively by mixing different tribes together and using Indians to guard, scout out, and punish each other. 46 He forced 38 . Id. at xviii 3xix, 106 311 (recounting Pratt 9s requests for the transportation and incarceration detail after expressing frustration that the prisoners would not be punished in front of the native tribal populations, and military orders grant his request). 39 . Id. at 105 n.3 (describing an Indian prisoner who fled before being cironed d); see also C OZZENS , supra note 28, at V OL . 4, at 74 (detailing the United States military 9s use of branding with a hot iron as a tool for punishment and marking, including discipline for American soldiers who were involuntarily discharged for misconduct). 40. B ATTLEFIELD , supra note 13, at 105 n.3, 109, 118, 181. 41 . Id. at 118, 181. At various stages of confinement under Pratt, some Indians attempted to escape and others hung or stabbed themselves to death. Id. at 48, 109, 112 315, 147 348. 42 . Id. at 107. 43 . Id. at 118, 163. 44 . Id. at 124 325, 132, 174, 299. 45 . Id. at 147, 156, 163, 181. 46 . Id. at 119 320, 125, 163, 174, 227. W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 389 Indians to conduct court proceedings in prison and declare that fellow prisoners were guilty and deserving of banishment to the prison dungeon. 47 He found that Indians would guard each other quite effectively, reducing the need for white military security guards. 48 Pratt later applied the divide-and-conquer strategy associated with mixing tribes to maintain control and break down cultural resistance to his later governance of the Carlisle Indian School. 49 Pratt also forced the Indians to attend and participate in church services, primarily services from the Massachusetts Puritan tradition. 50 Among other things, the Indians were apparently compelled to read passages from the New Testament aloud in unison each Sunday. 51 According to H.B. Whipple, an ally quoted in Pratt 9s autobiography, the first lesson the Indians were taught was cto obey. d 52 The Indians were to be culturally cleansed and become cleaders of their people in the path of civilization. d 53 Pratt allowed selective access to the media in order to promote his ideas and show off Indians that he believed became more civilized through efforts at the prison. 54 Pratt 9s role in history might have ended with the closure of Fort Marion 9s Indian incarceration program. In a fateful twist, however, Pratt decided that the paradigm and tactics he had refined for adult military Indian POWs could accomplish the perpetual economic and cultural assimilation of non-criminal civilian Indian children across the United States. 55 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 perpetual system of Indian schools 47 . Id. at 174 375. 48 . Id. at 163, 174. 49 . Id. at 227. 50 . Id. at 158 359, 163 364. To a lesser extent, Pratt apparently also recruited Baptist missionaries for the task when instruction of a more Puritan/Congregationalist variety was not available. Id. at 48. 51 . Id. at 181. 52 . Id. at 163. 53 . Id. at 164. 54 . Id. at 203. 55 . E.g. , id. at 251 (explaining that the St. Augustine POW program and program to civilize Navajos with government schooling were cone d and were explicitly endorsed by General Sherman). W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 390 based upon the Fort Marion model for managing Indian POWs. 56 Indeed, Pratt would spend the rest of his career lobbying over the course of decades for new federal Indian schools, more funding for Indian schools, and educational subjugation of all tribes. Pratt 9s key strategic insight was that Indian children 57 were the key to controlling the permanent future of Indian relations and to making a so-called primitive people cproductive d to an American society in the throes of the Industrial Revolution. Pratt 9s concept was not implemented under a cloak of secrecy or in circumvention of countervailing humanitarian impulses harbored by the nascent educational establishment. To the contrary, Pratt wrote to, and met with, key military and political allies. He arranged for an August 1877 National Teacher 9s Monthly article lauding the Fort Marion prison education program. 58 He lobbied the President of the United States and the federal Indian Commissioner. He secured the help of General John Eaton, United States Commissioner of Education, and Julius H. Seelye, who was President of Amherst College and a sitting congressional representative. 59 He lobbied New England churches, telling the clergy and congregations that Indians could become white in manner and lifestyle, and become useful farm labor. 60 He arranged for a presentation for General Winfield Scott Hancock at the St. Augustine prison designed to elicit support. 61 He also lobbied 56 . Id. at 172 373. 57. Children have c 8no social awareness or political affinities 9 d necessitating extensive deconstruction, and thus are more ideal for a designed c 8transformation process. 9 d Witte, supra note 6, at 244 nn.208 309, 246 n.212 (citations omitted) (quoting Saddam Hussein, a studious practitioner of historic social engineering techniques). The transformational cleansing effect is particularly effective when, pursuant to Pratt 9s innovative approach as described in Part II of this Article, children are physically separated from their families for long periods of time, isolated from competing sources of information, cut off from native cultural influences, placed in a disorienting and blended demographic environment devoid of natural peer allies, controlled by a single regimented institution, and continuously subjected to a uniform, normative, repetitious pedagogical curriculum. Cf. id. Unless each component is implemented in a hermetic manner, the effectiveness and speed of the cultural cleansing effort will be reduced (but often profound) and the confounding impact of competing independent variables will be enhanced. 58 . Id. at 181. 59 . Id. at 187 388. Eaton and Seelye became important lifelong political allies of Pratt. Id. 60 . Id. at 193 394. 61 . Id. at 188. W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 391 General Samuel Chapman Armstrong in New England to create civilian Indian schools. 62 Pratt 9s public message was that Indians could and should be civilized, that civilized Indians could be an economic asset, and that c[c]reating opportunities for this is a reasonable duty of government. d 63 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. 64 He 62 . Id. at 195. 63 . Id. 64 . Id. at 7, 195. Pratt was, of course, rationalizing a retreat from Reconstruction 9s initial promises. The Framers of the Reconstruction Amendments explicitly stated that 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. C ONG . G LOBE , 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. C ONG . G LOBE , 38th Cong., 1st Sess. 1324 (1864). See also C ONG . G LOBE , 38th Cong., 2d Sess. 193 (1865) (statement of Senator John A. Kasson) (arguing that abolition would protect cthe right of father to his child 4the parental relation d); C ONG . G LOBE , 39th Cong., 1st Sess. 504 (1866) (statement of Sen. Howard) (including familial rights in the definition of the word cfreeman d); C ONG . G LOBE , 38th Cong., 1st Sess. 2990 (1864) (Statement of Sen. Ingersoll) (discussing the cright to the endearments and enjoyment of family ties d). The Thirteenth Amendment, by its own terms, is self-enacting and enforceable against the behavior of individuals, local governments, state governments, federal government, and all other institutions subject to the jurisdiction of the United States. U.S. C ONST . amend. XIII ( cNeither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. d). It protects law-abiding, non-combatant civilians from exploitation, confinement, child abduction, and the taking of labor without just compensation. See Daniel E. Witte, Comment, Getting a Grip on National Service: Key Organizational Features and Strategic Characteristics of the National Service Corps (AmeriCorps) , 1998 BYU L. R EV . 741, 784 391 (1998) (citations omitted). The Thirteenth and Fourteenth Amendments reaffirm the principle that some individual liberties sheltered by the cliberty d and substantive cdue process d clauses are beyond the legitimate interference of any government, including state government. U.S. C ONST . amend. XIII; U.S. C ONST . amend. XIV §1 ( cNo State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of the law. d); see W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 392 indicated that Indian education institutions should be located in the Northeast, far away from the homelands of most tribes, so that government and administrative officials could visit with greater ease. 65 This proximity may also have magnified political and economic benefits bestowed upon Pratt 9s own political constituency. 66 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. 67 also U.S. C ONST . art. I §9 ( cThe Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. d); U.S. C ONST . art. IV §2 ( cPrivileges and Immunities d); U.S. C ONST . amend. I ( cno law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, . . . or the right of the people peaceably to assemble d); U.S. C ONST . amend. III ( cNo Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. d); U.S. C ONST . amend. IV ( cThe right of the people to be secure in their persons, houses, papers, and effects, shall not be violated, and no Warrants shall issue, but upon probable cause, . . . and particularly describing . . . the persons or things to be seized. d); U.S. C ONST . amend. V ( cliberty d); U.S. C ONST . amend. IX ( cThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. d); U.S. C ONST . amend. X ( cpowers . . . reserved to . . . the people d). 65. B ATTLEFIELD , supra note 13, at 221. The long distance also presumably curtailed the number of visits from the parents of Indian students. 66. Eventually Pratt 9s scheme came to be challenged by white politicians representing states in other regions of the country besides the northeast, who began to demand a bigger piece of the cIndian education d revenue stream for their own local white contractors. Id. at xi, 291, 307. In addition, 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. Id. at xxv, 33, 266, 293. Captive audiences subjected to coercive government cassistance d programs generate lucrative revenue streams for third parties with the political connections to take advantage of the situation 4one reason why increased educational spending is an unlikely social cure. 67. During the early phases of Pratt 9s initiative, participation by children was voluntary according to parent choice. Id. at 197. But as the system entrenched, tactics changed and coercion was used. From the very beginning, it was secretly understood that Indian children in 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 9s 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 supply 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 clothe and support them in school (Industrial schools) and make it available while in attendance at school, either on their reservations or at cTraining Schools d 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 . . . W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 393 Pratt explicitly discussed educating the Indian and Negro together so that they could both be civilized. 68 He went to New York and New England on several occasions for political and fundraising trips, along with General Samuel Chapman Armstrong and several Black and Indian students to put on display. 69 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 the usefulness the Indian could gain through seeing it demonstrated. 70 Pratt 9s pitch paid off. He secured a location in connection with Hampton Normal and Agricultural Institute, a school for African- Americans. 71 General Sherman ordered that Pratt work with the Secretary of the Interior to gather Indian children for placement at Hampton. 72 Pratt then went to Bismarck, Dakota (now North Dakota) to enlist help from Congregationalist Reverend C.L. Hall to obtain 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 4at 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 4looking up truants, absentees, etc., and in this way the Indian police force becomes interested in the school and its progress. Id. at 242 343. 68 . Id. at 213 314. 69 . Id. at 214 315. 70 . Id. at 214. 71 . See id. 72 . Id. at 196. W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 394 children from three local tribes for the project. 73 The children were to be gathered and transported by steamer ship. 74 Pratt also made use of his Civil War military connections, including former Catholic chaplains he knew and local government Indian agents. 75 He even used Episcopal Church missionaries. 76 Despite Indian skepticism that c[t]he white people are all thieves and liars, d 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. 77 Pratt then used German-immigrant military officers to impose Prussian discipline on the assembled Indian children. 78 Hampton was, however, only an initial stopgap demonstration project. To launch his vision nationwide, Pratt needed a new flagship institution associated wholly with his paternalistic concept. Pratt 9s 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 subsequently became Secretary of the Interior. 79 With the help of Indian Commissioner Hayt and General Sherman, Pratt was able to persuade Secretary Schurz to create a prototype Prussian-style military Indian boarding school in Carlisle, Pennsylvania, on the grounds of an old military base. 80 Pratt recruited a New England schoolteacher who had helped him run the Fort Marion Indian prison. 81 He organized an Episcopal operation to oversee a cdelegation d of Indian students to Carlisle under cGeneral Grant 9s Peace Policy. d 82 Pratt consulted with General Sherman about how to administer Carlisle. 83 Pratt pioneered the tactic of using compulsory education to coerce mandatory medical examinations of children. 84 The official cslogan d of Carlisle 73 . Id. at 197. 74 . Id. at 198. 75 . Id. at 198 3200. 76 . Id. at 200, 202. 77 . Id. at 222. Pratt also told the Indians that the education would result in economic and lifestyle benefits that in many cases never materialized. See , e.g. , id. at 222 323. 78 . Id. at 200 n.8. 79 . Id. at xxi, 215 n.1. 80 . See id. at 215 316, 219, 288. 81 . Id. at 230 331. 82 . Id. at 237. 83 . Id. at 240. 84 . See id. at 225 327. W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 395 echoed this sentiment: c 8To civilize the Indian, get him into civilization. To keep him civilized, let him stay. 9 d 85 Or, as the sentiment was also commonly expressed, ckill the Indian and save the child. d 86 Carlisle scrupulously utilized the Fort 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 or severe confinements issued by courts-martial made up of their Indian peers. 87 Students were not permitted to leave Carlisle, and student contact with their tribes and parents was carefully regulated. 88 Once Carlisle was established, Pratt remained as an active commissioned military officer and school headmaster until his retirement in 1903. 89 For twenty-five years, Pratt aggressively lobbied for more government money, more political support, and more private donations. 90 Pratt believed that the Carlisle paradigm could be used across America and perhaps throughout the world 91 on demographic minorities of every kind. 92 He successfully lobbied 85 . Id. at 283. 86. Witte, supra note 6, at 250 n.218. 87. B ATTLEFIELD , supra note 13, at 231 332, 234, 237. 88. As might be expected, Indian students frequently attempted to run away from Carlisle and other Indian boarding schools. Id. at 308 309. When this occurred, truant officers and law enforcement hunted down the students much like escaped prison inmates and then punished them. See, e.g. , Witte, supra note 6, at 250 n.218. 89. B ATTLEFIELD , supra note 13, at 337. 90 . Id. at xxv 3xxvi. 91. During Pratt 9s 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 Canada on indigenous tribes, and by Australia on Aborigines. See Witte, supra note 64, at 793 n.219 (1998) (citations omitted) (pointing to Canadian and Australian actions); Rohan Sullivan, Australian Government to Say Sorry to Aborigines , S ALT L AKE T RIB ., Jan. 31, 2008, at A3 (describing Australian, Canadian, and United States use of boarding schools and forcible relocation of indigenous minority children into adoptive families). 92. Pratt wrote: To successfully accomplish the Americanization of the millions of immigrants we invite to membership 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, cWe hold these W ITTE .PP4 4/15/2008 7:39 PM B RIGHAM Y OUNG U NIVERSITY L AW R EVIEW [ 2008 396 for the Carlisle blueprint to be replicated in other Indian boarding schools across the United States, 93 often using converted military facilities. 94 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. 95 Most importantly, Pratt 9s model incorporated a paternalistic philosophical premise 4 which persists to this very day 96 4that defended compulsory government schooling at any cost. Pratt 9s tireless public relation efforts with American clergy and public educators culminated in his triumph at the 1899 National Education Convention in Los Angeles. Pratt drafted a set of resolutions that were then sponsored by Dr. Merrill E. Gates and enthusiastically adopted by the entire Convention: 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, d it meant nothing unless it included the native Indian even more than the foreign immigrant. Inasmuch as all the Indian 9s 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 cget on the white man 9s road[ . . . .] d B ATTLEFIELD , supra note 13, at 268 369. 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 they secure these benefits; in no other way can we be released from the expense their inefficiency entails. Id. at 271. 93 . Id. at xii. 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 on the shape of an institutional hierarchy. . . . [S]tudents 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. Id. Pratt advocated off-reservation schools for all Indians, but it is important to remember that Carlisle 9s penological pedagogy heavily influenced the on-reservation Indian schools. See, e.g. , Witte, supra note 6, at 250 n.218 (eyewitness accounts of students in on-reservation boarding schools, similar in nature to the scheme at Carlisle). 94 . See, e.g. , B ATTLEFIELD , supra note 13, at 258. 95 . See generally Rosa, supra note 19. 96 . See infra Part III. W ITTE .PP4 4/15/2008 7:39 PM 377 ] Removing Classrooms from the Battlefield 397 R ESOLVED , 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. . . . R ESOLVED , 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 effort should be directed toward getting the Indian youth into these schools. . . . W HEREAS , local prejudice on the part of the whites against the Indians in the vicinity of every tribe and reservation is such as to make attendance of Indian youth in the public schools there impracticable, and WHEREAS there is no prejudice preventing the attendance of Indian youth in public schools from such nonreservation schools as are remote from the tribes or reservations, therefore BE IT RESOLVED that it is the duty of the government to establish industrial schools in our well-populated districts as remote from the tribes as possible, and it is hereby suggested that ten more such schools be tentatively established at once, each with a capacity for carrying 300 at the school, 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. 97 Over the course of Pratt 9s career, the plan initially presented to Indians and the general public experienced dramatic mission creep as ostensibly cvoluntary d school attendance became compulsory. 98 97. B ATTLEFIELD , supra note 13, at 292. Carlisle students were compelled to perform one year of involuntary servitude as part of an couting d rotation into local white homes and local state government schools for whites. Daniel T. Chapman, The Great White Father 9s Little Red Indian School , A M . H ERITAGE M AG ., Dec. 1970, http://www.americanheritage.com/ articles/magazine/ah/1970/1/1970_1_48_print.shtml (last visited Mar. 25, 2008). The modern incarnation of the couting d concept is called cservice learning d and is advanced in connection with the cnational service d/AmeriCorps movement. Witte, supra note 64, at 743

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