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A Fresh Reckoning


A FEW YEARS BACK, I was casting about for an appealing subject on which to base a historical novel, a genre in which I had published three earlier works. In both my fictional writing and my books on  American social history, I had dwelled frequently on the law and its majesty along with its debasement by malpractice and misapplication. And so it occurred to me that a stirring narrative could he crafted dealing with the adventures of a fictional circuit-riding judge during the frontier days of the Old West, when life brimmed with peril and where the line between virtue and villainy at times grew indistinguishable.

Hoping to blend literary license with historical authenticity, I needed to discover at the outset whether legal documents have survived from that earlier time – in particular from the territorial era before states were carved front vast expanses of wilderness, where the law was largely an abstract premise, heeded fitfully and enforced haphazardly if at all. Research on an earlier book had taught me that Washington, before it was granted statehood in 1889, had been a U.S. territory for thirty-six years – long enough to have generated a considerable record of rough-and-ready jurisprudence, assuming the authorities had taken the trouble to preserve it. I phoned the state law library at the Temple of Justice, as Washingtonians, with admirable reverence, have named their Supreme Court building in Olympia, the state capital, and spoke with a pleasant and cooperative librarian.

“Oh, yes,” she said, “we have all the opinions of the court from the territorial period – and they’re all available online.” And she gave me the Web link.

I thanked her with anticipatory glee.






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“You might,” my librarian friend added a bit tentatively, “want to have a look at case number three in the first volume of the territorial reports.”

“Because . . . ?” I asked.

“It was the first capital case in the history of Washington Territory to be appealed to the Supreme Court – that was the direct predecessor of our present State Supreme Court.” The year, she said, was 1857.

“I see,” I said, not quite catching her drift. “And was there something special about the case that I ought to . . . ?”

“It dealt with a notorious murder conviction,” said the librarian. “And the decision was reviewed two years ago.”

“You mean – that would be, what – one hundred and forty-seven years later?”

“Yes,” she said and explained that a special tribunal had assembled, presided over by the current chief justice of the Supreme Court of the State of Washington, to reconsider the matter.

Recalling the law’s hoary precept that justice delayed is justice denied, I ventured, “Wasn’t that a little late in the game?”

She gave a pleasant laugh and urged me to check into the circumstances. And so I have.

What follows is not a historical novel but rather the story surrounding that case, Washington Territory v. Leschi, an Indian, an all but forgotten episode from our nation’s past, which occurred in a then remote but breathtakingly beautiful setting in the farthest northwest corner of the country. The very obscurity of these circumstances, I feel, invites cool reflection on the issue at its core instead of aversion from it as a too familiar and depressing eyesore on our shared cultural landscape. Call it a fresh reckoning.

I logged on to the site and read the court’s 1857 ruling. Its first few sentences betrayed a transparently racist tone suggesting that something less than a disinterested quality of justice was about to be rendered. Events over the three years preceding the court’s decision, my subsequent investigation led me to conclude, were shaped by a similarly phobic disposition among Washington Territory’s citizenry at large. Why this should have been so is a question, I believe, worthy of consideration even at this seemingly late date. For we are still a young nation, and despite all our feats, our united prospects are likely to turn on our ability to learn from how we have erred as well as succeeded.






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White Americans cannot deny their long history of abusive transactions with people of color. These offenses, it should be noted out of fairness, can be explained in part by the fact that no other sizable national state has ever been formed from the confluence of so many diverse ethnic streams. All our heterogeneous ferment no doubt made contentiousness inevitable. In retrospect, it is hardly surprising that whites would assert privileges of entitlement flowing from their fortunate economic status and social rank (also known as the accident of birth) and assign nonwhite minorities the status of a permanent servile class. And in accord with the precepts of Social Darwinism, this uncivil subjugation was facilely intellectualized as neither commendable nor reprehensible; it was merely human nature in the raw. Everywhere and always, the strong have dominated the weak, as with every species in the jungle and individuals within every social subset. No one said what emerged from the melting pot had to look, smell, or taste very good.

The authorA moral problem, however, intruded on this ready excuse for our racial perversion. The American colonies and the nation heir to them were conceived as a white enterprise, even if not certified as exclusively so. Yet on declaring its independence and designing its mechanics of governance, the United States proclaimed the equality of all mankind and sought to deploy political power in ways intended to check the tyranny of the mighty over the needy – a noble aspiration at sharp divergence from the habits of every previous society. Sadly, high-minded rhetoric was overmatched by self-interest and the sustained impulse to mastery by the ruling whites.

Lately, many – perhaps even most – white Americans, mindful of this thick catalogue of incivility, have been afflicted by an epidemic of something closely resembling a national guilty conscience over their past mistreatment of people of color. A cynic might dismiss this belated acknowledgment as timely in view of the swiftly rising proportion of nonwhites among the U.S. population and the corresponding surge in their social and economic power. The 2008 election of the country’s first African American president – an attainment unthinkable to the many who could remember when Jim Crow still stalked the land – is of course the most dramatic evidence of this swelling tide of racial tolerance, but it is by no means an isolated incident. Blacks have been advancing as never before in many pursuits, though not yet nearly in ratio to their numbers, and multitudes remain unredeemed.






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President Obama’s first appointment to the U.S. Supreme Court, a Hispanic woman, suggests that the nation has similarly started to recognize and make amends for its long denigration of Latinos, now the largest ethnic minority in the United States. True, the presence of millions of impoverished or struggling illegal migrants from Mexico has aroused resentment across America. And yet there has been no general outcry to round up and deport these aliens. Instead, there is a growing, though far from universal, appreciation that most of these border violators, like most before them who risked fleeing their homelands for haven here, have come to live free and to earn a decent livelihood and thus deserve to be dealt with humanely. Asian Americans, too, have been tipping the scales of social empowerment away from the formerly overwhelming white preponderance. Their numbers, like the soaring Hispanic presence, have been multiplied by refugees seeking asylum from political persecution and economic hardship in the teeming places of their birth. This burgeoning Asian community has demonstrated a remarkable degree of self-discipline and incentive to achieve wide material success. And its social and cultural distance from the American mainstream has begun to narrow in the younger generation as academic institutions and industry are welcoming, as never before, the highest achievers among them.

     Far less visible amid the nation’s surge of multiracial validation, and rarely granted more than lip service acknowledgment of their victimization throughout the peopling of the continent by settlers of European ancestry, has been the oldest and now the smallest racial minority in the United States – those of native blood, a classification finally accorded the dignity of full citizenship in 1924, who are the remnant of a so-called red race that migrated to this hemisphere from Asia and Oceana starting some 10,000 years ago. Their antiquity has hardly served to ensure their survival or enhance their status in the American social hierarchy.

For nearly 400 years the confrontation between the natives of North America and the arrivals from the Old World was marked by the newcomers’ conviction that they were entitled, by virtue of their cultural superiority, moral standards, and God’s grace, to displace the Stone Age inhabitants of the broad, bountiful continent and make it their own. Shoved to the fringes of the landscape, Native Americans were permitted to choose between slow extinction on bleak reservations or self-exile from Indian Country to uncongenial urban surroundings, where acculturation often proved traumatic. By the beginning of this century, more of the estimated 2.75 million people (roughly 1 percent of the national total) electing to identify themselves as Native Americans, which generally required possessing at least one quarter Indian blood, lived in cities and towns, not on or close to reservations.






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The drastic decline of the natives as a distinctive ethnic classification has become a sad, irksome chapter in our national narrative. Those remaining as members of the roughly 500 federally recognized tribes, communities, and bands have for several generations now been more pitied than scorned. The methodical removal of their once vast holdings, the rest of us lament when pestered about it, was the regrettable price that had to be paid if human evolution was to progress on this continent. At least we no longer deride tribal people as savages or make movies depicting them as good for little more than target practice by the U.S. cavalry. But far from viewing them as a national treasure with a culture worth preserving, Americans by and large tend to think of Indians as an exotic memento mori, anomalous curios, broken and unfixable. Only a recent and controversial exercise of massive affirmative action by the U.S. government, in the form of laws licensing gaming casinos in Indian Country, has begun to bring about promising change to parts of Native America.

Why, then, in owning up of late to the grievances of its other wronged racial minorities, has the nation registered such minimal awareness of its tribal people, such scant concern over their condition, and so little sorrow for their past degradation?

One reason for this dismissive attitude, I believe, is the failure by non-tribal people to appreciate the nature of the natives’ grievance and how to address it. The Indians do not clamor for the nation’s ear, demanding economic parity and the profits of free enterprise, because they are not animated by the American Dream of maximum personal self-aggrandizement. They are not worshippers at the shrine of rugged individualism. They are, through cultural conditioning that has endured for millennia, a communal and interdependent people; they need one another. And they are, for the most part, a more spiritual people than most who dwell in America, however godly the rest of us may profess ourselves, and they are, for the most part, less materialistic and mercenary. Liberty and prosperity for all, in their case, mean freedom from harassment by outsiders and a shared commonwealth of well being, not greater opportunity for the most aggressive among them to thrive while the rest are left to founder. The tribes are collectives, whose pursuit of happiness is a shared venture – a practice decidedly against the American grain.

In recent years, under the spell of an insistent, presumably soothing political correctness, we have shied from using the word “Indian,” a misnomer from the beginning, and taken to calling tribal people “Native Americans.” But “American” is, of course, a European derived word and concept; the natives here were not Americans but pre-Americans. Their ancestors preceded the white settlers by thousands of years, and they do not ask for or need to be granted social certification by races who have avidly muscled them out of the way.






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What the natives want, I believe, and what they have wanted from their first encounters with white intruders, is to abide, to be left to themselves, to remain on their home ground or a goodly portion thereof and to live (with a few bows to modernity such as electricity and sanitary waste disposal) much as they were accustomed to, in harmony with their natural surroundings and ancient beliefs. But the rest of us have ordained otherwise, telling Indians they don’t know what’s best for them and nudging them ever deeper into the shadows between their own values and pressing alien ones.

The Bitter Waters of Medicine Creek does not attempt an encyclopedic survey of the interaction between the red and white races on these shores, so calamitous to the former, so ignoble of the latter. It is meant to be not a compendium but an illustration. In focusing on the experience of a single small tribe, the book aspires to make a monumental tragedy more accessible and comprehensible; the smaller the scale, the keener our perception may become of an unfolding human drama.

To attempt a coherent narrative of this sort and bring the contending participants to life without heavy reliance on legend and hearsay is a challenge for the modern narrator, given the understandable reluctance of whites to record their transgressions with candor and the complete absence of written testimony on the natives’ side. With help from many others, I was able to assemble a sizable body of documentary sources. These include administrative, military, and court records of the federal government, official and private correspondence, family memoirs, Washington state archival materials, old newspaper files, books (many of them rare), oral recollections, and the collective Nisqually tribal memory. While even the most conscientious present day investigator of occurrences long ago in Indian Country – and I do not claim to be such – cannot  escape indulging in a good deal of speculation and surmise, I hope the result here is a substantially faithful recounting of what occurred. If so, perhaps it will encourage the reader to rethink the place we have assigned the natives in our minds as well as on the land we took from them for our own sake. The cost of contemplating history is often an uneasy conscience.