STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE

 The intense interest in the Supreme Court’s decision yesterday about so-called affirmative action absolutely begs the question: “Why do high school seniors and their parents compete so intensely over admission to certain schools? Is it really because they offer a vastly superior education? Or is it because they represent pathways to other kinds of success?

It isn’t even ironic that the backgrounds of the nine current Justices themselves offer a strong hint to the answer. Seven of them attended Ivy League undergraduate colleges. Eight of them attended either Harvard or Yale Law schools. There is no statistical universe in which roughly four thousand other undergraduate colleges are underrepresented to that extent. There is no statistical universe in which 198 other law schools are underrepresented to that extent. And this is not new, though it may be truer now than ever. Of 116 people who have served on the Court, 22 were Harvard alumni and 11 were Yale alumni.

No, this is a relational universe, not a statistical universe. It is not about the best or the brightest or even the most prepared. It used to be called an old boys’ network. It meant that people’s paths in life were prepared for them. It meant that - for example - people hiring new law school grads for prestigious and highly-compensated firms were more likely to choose alums from their own alma mater. It still means that admissions officers at elite colleges are more likely to admit the children of alums and faculty, what they call “legacies”.

High school seniors want to attend elite colleges because the name of that college attaches to them and enhances their chances of success later on. College seniors want to attend elite law schools for the same reason. And law students with certain ambitions compete for clerkships with judges because it brings them closer to becoming judges themselves. Again, let us return to the current nine Justices: Chief Justice John Roberts clerked for Chief Justice William Rehnquist; Justice Elena Sagan clerked for Justice Thurgood Marshall; Justice Amy Coney Barrett clerked for Justice Antonin Scalia; Justice Brett Kavanaugh clerked for Justice Anthony Kennedy; Justice Neil Gorsuch clerked for both Justices Anthony Kennedy and Byron White. Students at Yale Law have long known that cultivating close personal relationships with Professor Amy Chua (Harvard College, Harvard Law) and her husband Professor Joel Rubenfeld (Princeton College, Harvard Law) was a pathway to a Supreme Court clerkship. The Yale Daily News reported that those students were afraid to speak out against either of them on allegations of sexual harassment and inappropriate relations because of those coveted clerkships and the danger of retaliation.

Let’s look for a second at Justice Thomas, who felt the need to add a 57-page concurring decision to Chief Justice Roberts’s decision on the affirmative action case. And let’s look at President George HW Bush who nominated Thomas to the Court way back in 1991.

Clarence Thomas graduated Yale Law in 1974. He has complained repeatedly over the last fifty years that he was subsequently overlooked by the prestigious firms to whom he applied because they assumed he got his degree because of affirmative action. He says it “robbed my achievement of its true value,” and that interviewers "asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated”. The possibility that those interviewers were simply racist seems to have eluded him completely. He has been on the Supreme Court now for almost 32 years, by far longer than any of his colleagues and has avidly sought opportunities to declare what he calls “racial preferences” unconstitutional throughout that time. In his concurring decision yesterday he referred repeatedly (and triumphantly!) to a dissent he wrote twenty years ago as proof that he has been right all along. 

How, then, did he get to the Court? Thomas found a patron in Missouri Attorney General John Danforth, a fellow Yale alumnus. He served Danforth as assistant attorney general. When Danforth was elected to the US Senate, Thomas followed him to Washington as a legislative aide. Danforth championed him to positions in the US Department of Education, the EEOC, the Court of Appeals and finally the US Supreme Court. His long tenure on the Court is, in part, due to the fact that he is among the youngest Justices ever appointed, certainly the youngest in the last 150 years. When we look back earlier, to younger appointees, we find more about legacy. Bushrod Washington became a Justice in 1798 at the age of 36. Yes, he was the nephew and closest blood relation of George Washington. Even younger was Joseph Story who was 32 when he joined the Court in 1812. He actually taught law school while concurrently serving as a Justice. Where? You guessed it already: Harvard.

If we turn to President George H.W. Bush we find a legacy at Yale. He graduated in 1948, after serving in World War 2. His son, President George W. Bush graduated Yale in 1968. His granddaughter, Barbara, graduated Yale in 2004. I will have more to say about how they all “earned” this in a moment. First, though, let’s go in the other direction. George H.W. Bush’s dad, Prescott Bush graduated Yale in 1917. He was one of the the thieves who stole Geronimo’s skull from Fort Sill for a secret society at the college named Skull and Bones. Prescott Bush's grandfather, Reverend James Smith Bush, was also a Yale graduate, class of 1844. 

It isn’t necessary to look at the high school records of all these Bushes to determine whether this was a meritocracy. It isn’t necessary to look at the statistical likelihood that this was anything other than preference for the children of alums. Yale Professor Gaddis Smith, who worked on a history of the college wrote that James Rowland Angell, who was president of Yale from 1921 until 1937, “would say, very explicitly, that we must preserve Yale for the ‘old stock.’” Smith clarified this, writing, “The slogan of the first major fund-raising campaign for Yale, in 1926, was ‘Keep Yale Yale.’ The alumni knew exactly what it meant.” And this is hardly unique to Yale. Harvard President A. Lawrence Lowell (1909-1933) insisted on excluding Jews from Harvard in order to maintain admissions opportunities for Gentiles and perpetuate the “purity of the Brahmin race”, which is what they called New England’s white, Protestant upper class in those days.

I mean, we use the word “legacy” freely to describe a college applicant who is accepted because his family attended. But what does that word actually mean. The definition is simply money or property that is handed down by an ancestor. And what should be clear by now is that these are, indeed, legacies. Does Bushrod Washington get on the Supreme Court if his uncle is not George. Does George W. Bush become President if his dad is not George H.W.? Does he become Governor of Texas? Does he even get admitted at Yale?

In his concurring decision yesterday, Justice Thomas dismissed the idea that a racially diverse student body yields any educational benefit. He goes still further, claiming that Black students do better at HBCU’s. He claims that attendance at elite white schools stamps them “with a badge of inferiority. He cites data showing that HBCU’s do better at promoting Black scientists, physicians, and engineers. He fails to consider the possibility that racist white professors in those fields actively discourage their Black students. But he also fails to note that elite colleges still represent a pathway to elite positions in society, positions like chairs on the bench of the US Supreme Court.

Military Necessity

 Harris Neck, Georgia

Harris Neck is a unit in the National Wildlife Refuge system, a four square mile tract about thirty miles south of Savannah, Georgia. Until Emancipation it was a forced-labor camp where Black people were enslaved. In 1865 the title-holder deeded the entire tract to one of those formerly-enslaved people Robert Delegall. For the next seventy-seven years, he, his family, his neighbors, and their descendants lived there. They farmed and fished and they built operated processing plants for oysters and crabs. After the 1941 Japanese attack on Pearl Harbor, the US Army Air Corps was looking in the area to build an air strip and air gunnery range. The local white political establishment pointed them in the direction of Harris Neck. Seventy-five Black families were given eviction notices. Those Black landowners who received any compensation at all got 40% less than white owners, despite the fact that there were homes, barns, and other improvements on the Black-owned land and that there were none on white-owned land, with the exception of one white woman. The families were given two weeks to vacate and then their homes were bulldozed and burned (with the exception of that white woman's home.) The families were promised that they could return when the war ended.

World War 2 ended in 1945. In 1948 the military (now the US Air Force) turned the property over to the county, not to the owners, to operate as a civilian airport. That was never done, so the Federal Aviation Authority took ownership. In 1962 the FAA transferred the property to the US Fish and Wildlife Service to be operated as a refuge.

In the 1980's and again in the 2010's the landowners and their heirs launched campaigns to regain their ownership of the land. Their struggle continues and they are organized as the Harris Neck Land Trust.

Vieques

Vieques is a 90 square mile island about 8 miles east of the main island of Puerto Rico. After the US colonized Puerto Rico in 1898 it was primarily used for sugar plantations owned by outsiders. After the 1941 Japanese attack on Pearl Harbor the US Navy was looking to establish a bombing range to practice aerial and marine bombardment. Since most of the inhabitants were not landowners they were not compensated for being evicted from their homes.  For over sixty years - long after the end of World War 2 - it served as a gunnery range, with bombardment taking place roughly 180 days a year.

In the 1970's protesters began demanding that the Navy cease the peacetime warfare against the island and leave. They picked up in intensity in the 2000's. The Navy finally left in 2003 and the damaged and poisoned lands were turned over to the US Fish and Wildlife Service as the Vieques National Wildlife Refuge.

Kaho'olawe

Kaho'olawe is a 45 square mile island in the Hawaiian archipelago, located about 7 miles southwest of Maui. When the US annexed Hawaii in 1898 the island was sparsely populated, in part because it doesn't get much rain. Over the next forty years the environment was further degraded by intense livestock grazing. After the 1941 Japanese attack on Pearl Harbor the US Navy took the island to practice naval bombardment, aerial bombing. and beach landings. The damage was intense, but not all these bombs went off, and by 1948 Kaho'olawe was also covered with undetonated explosives. The island was subjected to similar assault for military training during the US wars in Korea and Vietnam. In the 1970's a Protect Kaho'olawe 'Ohana formed to sue the military to cease the peacetime warfare against the island and conduct environmental and cultural assessments. In 1976 protesters launched boats to land on Kaho'olawe, but they were turned back. Live fire finally ended in 1990 and ownership of the island was turned over to the state. Environmental restoration efforts continue, but they are difficult.

Military Necessity?

I will stop here to belabor a few points that may have appeared to you already.

1. The militarization of the United States that began with the Japanese attack on Pearl Harbor lasted long after World War 2. That was reflected in the insistence on keeping bombing ranges going as much as it was by the fact that the "defense" industry never returned to a peacetime status.
2. The government is certainly reluctant to cede land once it takes it. National Wildlife Refuges are a lot easier to establish on land that is already federal even though it may seem counterintuitive that bombing ranges are ecologically important.
3. It is a lot easier to take land from Black people, Puerto Ricans, and Hawaiians than it is from white people. In the case of Harris Neck all the evidence suggests that officials specifically pointed the Army to this Black-owned enclave in the Black-majority, but white-controlled, county.

Masafer Yatta

And then there is Israel. And then there is the Occupied West Bank, especially "Area C" which remains under the direct control of the Israeli military, not the Palestinian Authority. Masafer Yatta is an 11 square mile cluster of Palestinian and Bedouin villages about 12 miles south of Hebron. In 1981 then-Minister of Agriculture Ariel Sharon offered the tract to the military as Firing Zone 981. If an area is designated as a firing zone - similar to the gunnery zones, and aerial bombardment zones discussed above - elementary concern for public safety demands that it be evacuated. 

The people of Masafer Yatta have sued to prevent their eviction. But the Israeli courts have upheld it. They have also repeatedly allowed the demolition of structures built without permits, despite the evident fact that the Occupation authorities will not issue permits to Arabs. It is worth noting that, far from also clearing Israeli settlers from this region, their numbers are increasing. It is worth noting that those settlers, who pretend to be religious Jews, have repeatedly destroyed Palestinian olive groves. (The Torah explicitly forbids this, even against an enemy: 

When in your war against a city you have to besiege it a long time in order to capture it, you must not destroy its trees, wielding the ax against them. You may eat of them, but you must not cut them down. Are trees of the field human to withdraw before you into the besieged city? Deuteronomy 20:19) Two days ago, settlers who were protected by the army brought their sheep to graze on Palestinian crops in the "FiringZone."

But it is especially worth noting that here we have an actual reversal of cause and effect regarding " military necessity". It is not simply easier to seize the land of a subjected group than the land of a dominant group as in the US cases described above. It is not simply more likely that the army will protect Jews over Arabs in the heat of a conflict started by violent, extremist settlers. In the minutes of that 1981 meeting, Minister Sharon clearly states that his motive is not to create a training area, but rather to clear the area of Arabs. I should also mention that an astonishing 18% of the Occupied Territories have been designated as "firing zones." So for the government of Israel the category of "military necessity" is actually a barely-believable cover for ethnic cleansing.

Martin Buber's stories of the Hasidim; James Walker's stories of the Lakota

A friend reposted a meme on Facebook with this text:

A great Rabbi was once asked, “Why did God create atheists?”

The Rabbi said, “Atheists are the most important example for all who believe in God. When an atheist is moral, and good, and kind, and compassionate, it’s not because he believes God commanded him to be so, nor because he fears any kind of punishment for being bad. An atheist performs acts of righteousness because he knows it is right to do. And where is God in this? If He is in the atheist’s heart, or going him, it doesn’t matter. The atheist helps regardless. He helps because he believes there is nobody else, no power than can or will act without his own deeds.

So when someone is in need, in our times of crisis, you shouldn’t say, ‘I’ll pray for you,’ or ‘May God help you.’ Rather, in this moment, you should be as an atheist. Believe there is no God who can help, and say, ‘I will help you.’ In this way the atheist is closest to God, and so must we be as well.”

My first reaction to stories like this is to think about them and enjoy them. But my suspicion always kicks in quickly: What “great Rabbi”? In what historic period? What is the source of the story? On social media - as on the internet in general - these memes (by which I mean viral ideas, not just pictures with words) get circulated and echoed endlessly without much reason other than “That’s cool.” So I often find myself trying to track their provenance. This time that became more complicated than usual.

I located an April 2022 blog post from Irene North, a Nebraska writer and journalist. She wrote:

Here is something to think about on this Easter day.

In “Tales of Hasidim,” Martin Buber tells a story addressing why god created atheists. It is considered one of the more famous stories of Chassidic literature.

A Rabbi is teaching his student the Talmud and explains God created everything in this world to be appreciated, since everything is here to teach us a lesson.

The clever student asks “What lesson can we learn from atheists? Why did God create them?”

The Rabbi responds “God created atheists to teach us the most important lesson of them all – the lesson of true compassion. You see, when an atheist performs an act of charity, visits someone who is sick, helps someone who is in need, and cares for the world, he is not doing so because of some religious teaching. He does not believe that God commanded him to perform this act. In fact, he does not believe in God at all, so his acts are based on an inner sense of morality. And look at the kindness he can bestow upon others simply because he feels it to be right.”

“This means” the Rabbi continued “that when someone reaches out to you for help, you should never say ‘I pray that god will help you.’ instead for the moment, you should become an atheist, imagine that there is no God who can help, and say ‘I will help you.’”

This absolutely should have simplified my search immensely. Martin Buber was a twentieth century philosopher and writer on Hasidism. Presumably, all I needed to do was pull a keyword or two from this text and locate it in Buber’s 1946 collection of stories about the Hasidic rebbes. But just as the Facebook quote is worded differently than that blog post, (and, really, which came first?) that method assumes there is some similarity in Buber’s wording. Instead I eventually found this:

              When It Is Good to Deny the Existence of God

Rabbi Moshe Leib said: “There is no quality and there is no power of man that was created to no purpose. And even base and corrupt qualities can be uplifted to serve God. When, for example, haughty self-assurance is uplifted it changes into a high assurance in the ways of God. But to what end can the denial of God have been created? This too can be uplifted through deeds of charity. For if someone comes to you and asks your help, you shall not turn him off with pious words, saying: ‘Have faith and take your troubles to God!’ You shall act as if there were no God, as if there were only one person in all the world who could help this man—only yourself.” (p.383-4)

No atheist. No clever student. No righteousness. No deeds of compassion. It is a similar theme, though, and we do finally have a source. Reb Moshe Leib Erblich was the 18th century rabbi of Sasov, (now Sasiv about 45 miles east of Lviv in Ukraine). He was a student of  the famed Dov-Ber, the Maggid of Mezeritch. He founded the Sasover Dynasty of Hasidic rabbis of whom the next was his son, Reb Schmelke. He also taught the original Reb Menachem Mendel Hager, founder of the Kosov Dynasty of rabbis.

Knowing this source gives some context to what is already a good story about acting instead of just praying. Many of the stories about Reb Moshe Leib are about his endless - and unquestioning - generosity: ransoming debtors from imprisonment, giving his last pennies to unsavory people without judgement, standing bond for a totally unrepentant thief (and telling his students that the thief’s insistence on returning to crime reminded him that his own charity, too, must continue)… I could continue, but you could also read the book.

So now I had the actual story, right? Now told in the words of R. Moshe Leib, right? Well not exactly. Paul Mendes-Flohr, a biographer of Buber wrote in his introduction to Buber’s 1956 collection, The Tales of Rabbi Nachman:

The [original] texts transmitted to us are indeed confounded and corrupted; they cannot be taken as a verbatim record of the tales and legends related by the Hasidic masters. Current historical research and scholarly analysis of the Hasidic literature indicate that the masters, including Nachman of Bratzlav, delivered their sermons, which contained tales and legends, in Yiddish and principally during the seudah shlishit, the so-called “third meal” when toward the conclusion of the Sabbath, the Hasidim would gather at the master’s tisch (table) to “dine” and discuss Torah with him. Since the “meal” and the master’s accompanying sermon were largely during the Sabbath, writing was forbidden. Further, the masters certainly would then have transcribe the sermons they heard after the Sabbath, apparently rendering them, although usually delivered in Yiddish, immediately into Hebrew - a language they rarely knew as well as they knew Yiddish but which the found to be a vessel more appropriate to the dignity and the holiness of the words of their venerated masters.

And Professor Mendes-Flohr adds, “From the literary point of view, the result is a singularly infelicitous literature.” He explains that Buber thus decided not to translate the stories as recorded by the rabbis’ disciples, but rather to retell them. Mendes-Flohr quotes Buber himself from his 1918 essay “My Way to Hasidism:”

I noted that the purity did not allow itself to be preserved in translation, much less enhanced - I had to tell the stories that I had taken into myself, as a true painter takes into himself the lines of the models and achieves the genuine images out of the memory formed of them…I bore in my blood the spirit of those who created it, and out of my blood and spirit it has become new.

Wow! So whose stories are these? In his 1958 work, Hasidism and Modern Man, Buber reflected on these reconstructions (reimaginings?) that he created in the early 20th century, writing:

I did not yet know how to hold in check my inner inclination to transform poetically the narrative material. I did not, to be sure, bring in any alien motifs, still I did not listen attentively enough to the crude and ungainly but living for tone which could be heard from this material.

Sure, I am curious about the original of this story about Reb Moshe Leib, but not enough to travel to the Buber archive at the National Library of Israel in Jerusalem, nor to use my inadequate Hebrew to translate the scribes’ inadequate Hebrew. Buber’s translations into German would be even less useful to me. Nevertheless, this idea that Buber was an interpreter, rather than a translator, and that he was recovering something that he felt had been lost, triggered a whole set of associations for me. It reminded me of another early-twentieth-century project, the work of James R. Walker in “preserving” a culture he was sure was vanishing, the culture of the Lakota people.

Walker was the physician assigned by the Bureau of Indian Affairs to the Pine Ridge Reservation in South Dakota from 1896 to 1914. He became interested in the Oglala Lakota culture when he realized that traditional medicine men were doing a better job than he with treating routine illnesses and injuries. He asked that they teach him and documenting their culture became his avocation.

I wrote in the opening paragraph above that my suspicion always kicks in quickly. When I began looking at Walker’s life and work it set off so many alarms in my mind that I just had to keep investigating more and more closely. I touched on some of this five years ago in a blog post. I wrote:

My bullshit detector started jumping at James Walker's claim that he was "adopted" as a "Sioux medicine man" by a "secret society" of the last five traditional medicine men living and who spoke a private, hitherto unknown language. The meter jumped past ten with Walker's assertion that -- following the death of those informants -- he was now the last living Sioux medicine man. This is just the perfect white-boy fantasy. Not only can I, Mr. Caucasian, learn in a short time the knowledge that you spent a lifetime acquiring, but it is now my private and exclusive domain!

There was more, too. Walker’s principal Lakota informant was George Sword. Dartmouth Professor Elaine Jahner’s edition of Walker’s Lakota Myth cites a 1919 interview in which Walker says he was indebted to may Oglalas, but “most of all” to George Sword. Sword gave Walker an autobiographical statement and it is reproduced in Walker’s book,Lakota Belief and Ritual,edited (again) by Elaine Jahner, and by Raymond DeMallie.

I know the old customs of the Lakotas, and all their ceremonies, for I was a wicasa wakan (holy man, or shaman), and I have conducted all the ceremonies. I have conducted the Sun Dance, which is the greatest ceremony of the Lakotas. The scars on my body show that I have danced the Sun Dance, and no Lakota will dispute my word. I was also a pejuta wicasa (medicine man), and belonged with the Bear medicine people. The Bear medicine men have all the medicine ceremonies that other kinds of medicine men have and much more. So I can tell all the medicine ceremonies. I was a wakiconze (magistrate) and so I know all the customs of the camp and of the march. I was also a blota hunka (commander of war parties) and have led many war parties against the enemy, both of Indians and white men. The scars on my body show the wounds I have received in battle. So I know the ceremonies of war. I have been on the tribal chase of the buffalo, and know all the ceremonies of the chase. When I served the Lakota Wakan Tanka, I did so with all my power. When I went on the warpath I always did all the ceremonies monies to gain the favor of the Lakota Wakan Tanka. But when the Lakotas fought with the white soldiers, the white people always won the victory. I went to Washington and to other large cities, and that showed me that the white people dug in the ground and built houses that could not be moved. Then I knew that when they came they could not be driven away. For this reason I took a new name, the name of Sword, because the leaders of the white soldiers wore swords. I determined to adopt the customs of the white people, and to persuade my people to do so. I became the first leader of the U.S. Indian Police among the Oglalas, and was their captain until the Oglalas ceased to think of fighting the white people. Then I became a deacon in the Christian church, and am so now, and will be until my death. I cannot speak English, but I understand it so that I know when it is interpreted wrong.

 I quote it at length here, in part because it is traditional Lakota oratory: the speaker must first establish his bona fides and his authority to comment. But more important, I think it, too, is bullshit. The chronology doesn’t make sense to me. Again from that June 2018 blog post:

Sword was a bodyguard for the Pine Ridge agent at the age of 19! He took the name "Sword" to demonstrate his allegiance to the white authorities. He was captain of the Pine Ridge police and a lay catechist for the Episcopal Church. The timeline is really suspect. Did he do all this traditional work, the work of a mature adult, before the age of 20? Or did the reservation agents somehow not realize that their police chief was out leading illegal war parties and religious ceremonies when it was his job to suppress both?

In her 2016 book George Sword’s Warrior Narratives, the Oglala Lakota scholar and writer Delphine Redshirt quotes liberally from other autobiographical material that Sword provided to James Walker. He was born in the Winter When Eagle Crow was stabbed. (1847). He sought a vision - the adolescent rite of haŋbléčheya - in the Winter When Many Babies Died (1860) making him 13 years old, an appropriate time for that coming-of-age ritual. And he participated in the 1866 Fetterman Fight at Fort Phil Kearney in Wyoming when he was 19, what he calls When A Hundred White Men were killed. But he goes on to relate: 

I was wounded twice and nearly taken prisoner. Then I thought that the Great Spirit of the white men must be greater that the Great Spirit the Sun. Takuskanskan [in the orthography of the Lakota Language Consortium this is Tákuškaŋškaŋ, the Mover, the Creator] had never taught me to make cloth or things of the metal, and the white men knew how to do this. So I became a friend of the white people.

And Red Shirt quotes an 1891 Washington, D.C. assessment of Sword: “Not a Ghost Dancer. Friendly and loyal during the late troubles [by which they are referring to the massacre at Wounded Knee]. Not a participant in the troubles of 1876 and 1877.” Perhaps you will forgive my skepticism about Sword’s claims to have led war parties, and Sun Dances, and Bear Ceremonies. Perhaps you will forgive my concern that he was the most important informant for James Walker. But let me get back to Walker.

In 1938, Columbia Professor Franz Boas asked Ella Deloria to corroborate the material that James Walker assembled as “Lakota Myth.” Boas is considered to be the founder of modern cultural anthropology. Deloria was a Yankton Dakota who was brought up among Hunkpapa Lakota on the Standing Rock reservation in North Dakota where her father was an Episcopal priest. She met Boas while she was studying at Columbia’s Teachers College. He was excited about her fluency in the Dakota, Nakota, and Lakota languages and asked her to help him teach his linguistics students, which she enjoyed. When she graduated in 1915 she left New York City to teach physical education at the Haskell Indian School in Kansas, then a high school, now the Haskell Indian Nations University. In 1927, Boas reached out to her to return to linguistics work.

I wrote above that Boas wanted Deloria to corroborate Walker’s material and I mean that: not to vet it, to corroborate it. She was not able to. The Boas archives at the American Philosophical Society Library contain the correspondence between the two and it is revealing. In early spring of 1938 Deloria writes Boas to remind him about past compensation he still owes her and hinting about other job offers she has received. He wants to hear what she is finding out about Walker’s writing on “Sioux” myth.

Deloria replies on May 24: “I am working on notes from various old men who told me the oldest things they know anything about. Frankly it is not very promising in that it does not in any way bear out Walker.”

On May 26, Boas, not having received that letter yet, demands, “I should like to know what you are finding with regard to the mythological material.”

Then, on June 1, having now received her letter of May 24, Boas impatiently writes Deloria, “I do not know how serious an effort you have made to get the material I want… I confess I am not well satisfied with what you got for me during the last few months.” Which I have to read as a threat not to pay her for the work she has already completed for him!”

Deloria spends a month trying to find the confirmation that Walker’s material is accurate. She writes on June 28, “When I can not find any of it, what can I do? I could only keep trying at every chance I had; and that is what I did.” And still reminding Boas that she needs to be paid, “Of course I could not take long trips without much money.”

She also goes into some detail about just how skeptical her informants were about the authenticity of much of Walker’s book. When she shares the material with them they tell her: “That must be from another tribe,” “That may be from the Bible,” and, flatly, “That’s not Dakota.” There is laughter, too. Regarding one passage concerning a rattle, Deloria tells Boas, an old woman said it wasn’t a rattle but a bladder that was used to make the sound of defecation, in other words, a Lakota whoopie cushion. But she promises to continue seeking information for Boas from correspondents on other reservations.

There is no record in Boas’s papers of his response to this. We find an undated letter to him from Deloria, written sometime in the late fall. She opens by saying that the teaching jobs and other employment she was considering all fell through. Then she returns to his persistent demand that she find evidence for the authenticity of Walker’s material on Lakota myth: 

It is much to my regret that I never could find anyone who knew those stories by Walker. But I simply found no trace of those stories; only the characters, of course; those gods he tabulates; but no stories like those he had; not any mythology of the gods in council, etc. Nor that arrangement of superior and secondary gods, and all that four-four arrangement. That I was never able to find from anyone.

And the archive contains no evidence that Boas replied to this either. In January 1939, though, Deloria wrote again to let Boas know that she has found employment in Arizona, helping to conduct a survey of living conditions on the Navajo reservation for the Phelps-Stokes Fund. But it is clearly not the work she wants to be doing, the work for which she is singularly qualified, the work of documenting language and culture among her own people. Her next letter is from May 12, still from Arizona, to tell Boas that her correspondents are continuing to seek the corroboration he wants of Walker’s stories, the evidence that somebody else has heard them. She writes him that maybe they are fictionalized. One man heard them and said, “These sound like Makula’s work,” suggesting that, rather than traditional stories that had been passed through the generations, these were stories invented by Makula (also known as Left Heron) who was a tribal historian and another contributor to Dr. Walker’s notes.

I will comment in a moment on the significance of this suggestion. It is important to note, though, that Deloria immediately returned to her skepticism and the skepticism of her informants. I cannot fully imagine her frustration at finding Boas more inclined to believe the white man, Walker, who had to rely on a translator to speak to Lakota elders over her, a Dakota and a fluent Lakota speaker who had grown up among her Lakota cousins. But she bravely continues, writing,

One man said, “You’ll never find those stories in just that shape, if you should ask every single person on Pine Ridge….. if they were ever repeated in my time, I most certainly would have heard them, for listening to ohútaka  was my hobby from childhood.” [ohúŋkakaŋ in Lakota Language Consortium orthography, meaning a story of the very remote past]

And, speaking for herself, she adds:

It does not seem probable or possible that, if they were ever told about in the tribe, currently as are our Iktomi tales even yet, the should disappear so completely from the repertoires of all tribal story tellers, save one. That is still my opinion.

In her 1983 introduction to Lakota Myth, by James R. Walker, Elaine Jahner quotes Ella Deloria’s correspondence with Franz Boaz at great length. But she puts a particular weight on Deloria’s suggestion that, perhaps, the unfamiliarity of much of the material is a result of its having been turned from familiar fable into authored fiction by one of Walker’s Lakota informants. Jahner prefers George Sword as the author instead of Makula, but - more importantly - she describes the distinction between tribal story and fiction as a continuum, which allows her to give full credence to all Walker’s material despite Deloria’s skepticism. And that credence must be understood as professionally important to Professor Jahner because much of her own output was editing and publishing that material: both Lakota Myth and Lakota Belief and Ritual. (The latter co-edited with Raymond DeMallie.)

There is a different take on Deloria’s suggestion, one addressed by University of Texas Professor María Eugenia Cotera in her 2008 book Native Speakers: Ella Deloria, Zora Neale Hurston, Jovita González and the Poetics of Culture. Cotera goes back to a February 24, 1938 letter from Deloria to Boas. Deloria wrote, “Nobody has heard of the stories in Walker. I agree with you that Walker might have had one basis for them and it might have been the creation of one mind.” But that is definitely what Boas was looking for. He wanted a universally-known creation myth. Cotera describes Deloria’s suggestion that the Walker material was - instead - authored, as conciliatory, an attempt to reassure Boas that she is still looking into it, that she is still keeping an open mind about its authenticity. And that idea is supported in the letters by the endless requests by Deloria to actually be compensated for her work.* It is also supported by her personal need to do this work which she so obviously valued. So Cotera is more impressed than Jahner by Deloria’s skepticism.

But what about Walker himself? What did he say about his work? And here is where we (finally) return to Martin Buber’s Hasidic tales.

Walker felt that much of the material was corrupted by the intermediates who translated the material he gathered, even when it was already written, as in the case of George Sword who wrote in Lakota. In a 1910 letter to Clark Wissler at the American Museum of Natural History Walker complained:

I have had Clarence Three-stars translate each of the manuscripts by Sword, but his work is not at all satisfactory to me for he has given so liberal a translation that it has destroyed the ethnological value of the work. He first rewrote the work adding what he thought Sword had left out, and then he gave in his translation what he thought Sword should have said. Thus the original spirit and meaning was not only lost, but perverted. (Introduction to James R. Walker. Lakota Belief and Ritual, ed DeMallie and Jahner)

Sound familiar? Remember the Hasidim transcribing the rabbis’ sermons only later, after the Sabbath was over, and translating them from Yiddish into a coarse Hebrew?

And Walker was not only dissatisfied with the translation; he thought the Lakota language itself was inadequate for expressing complex ideas!  Here he is describing this wholly-imaginary inadequacy in a 1905 article:

Apparently the original Sioux language was composed entirely of words of a single syllable, and the vocabulary was very limited. Things, conditions, and actions, not named in the original language, were described by phrases composed of the original words. These phrases became agglutinated, and formed compound words, and the language as spoken at the present time is largely composed of these compound or phrase words. Because of the primitive ideas expressed by the elements of these compound words it is difficult to make an exact translation of them into English. (Walker, J. R. “Sioux Games. I.” The Journal of American Folklore, vol. 18, no. 71, 1905, p. 277)

And so Walker concluded that he was finally able to explain everything better than his Lakota informants themselves. He explained this astonishing thought in a 1912 letter to Wissler:

I have written this paper as if it were by one who believes and practices as did the old Oglalas because I can express the concepts this people better in this manner than if I were to give a description of their forms and ceremonies.

This is all to similar to Buber’s 1918 claim that he had taken the stories into himself: “I bore in my blood the spirit of those who created it, and out of my blood and spirit it has become new.”

Both Buber and Walker admit to feeling better able to discern the spirit of the material they studied than the people they got it from were. Both were concerned that the material itself was in danger of vanishing: Buber because he felt that twentieth-century Judaism was becoming overly rational and formulaic, losing its ecstatic and emotional component; Walker because he felt the Lakota themselves were a vanishing people. But I think there may be another important difference, and it is right there in Buber’s romantically-phrased claim “I bore in my blood the spirit of those who created it.” Buber is - before all and after all - himself a Jew. He may be contemptuous of the linguistic and literary skills of the scribes who preserved the sermons of their rebbes, but he admires the teachings of those rebbes themselves.

And Walker? I believe in his genuine interest in Lakota culture and thought. I believe in his genuine desire to get it right. But I also see his credulous need to believe that he could become the last Lakota medicine man; that he could do this in a few years instead of in a lifetime; that there was a society of medicine men with its own language, kept secret from all other Lakota; that he had been initiated into this society without speaking fluent Lakota at all, whether sacred or secular. This is all a bridge too far for me. It is, as I said above, the perfect white-boy fantasy.

And so I have to wonder whether, despite all Buber’s flaws - despite his failure to hold in check his inclination to transform his material poetically - he was finally successful because hew was Jewish. And I have to wonder whether despite all Walker’s efforts - despite his hard work and efforts to channel the spirits of bygone generations (and despite some 21st-century scholars’ investment in his material) -  he ultimately failed because he did not, in fact, carry the blood of those bygone generations.

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*It is definitely worth noting that while Boas was a strong supporter of his woman students, most notably Ruth Benedict, he seems not to have considered Ella Deloria as more than a talented field worker, perhaps too close to her subjects to be considered fully objective. He did not encourage or find funding for her to do PhD studies nor did he offer her a faculty position as he did for Benedict who was only two years older than Deloria. And Benedict was especially unsupportive of Deloria, reminding her that other researchers supported themselves in the field at their own expense. To which I must respond: Whiter researchers? Richer researchers?