Waging War with Words: Native Americans' Continuing Struggle Against the Suppression of Their Languages ALLISON M. DussIAs* This Article explores how U.S. law has adversely affected Native American languages, and how Native Americans have resisted explicit and implicit pressureaimed at eradicatingtheir languages.Professor Dussias also examines parallels between arguments made by federal government policy makers to support the suppression of Native American languages and arguments made by contemporary "English-only"proponentswho seek to make English the official language of the US. government. [A] part of the educationalprocess [for Indians] ought to be such an acquisition ofthe English language as will make it a naturaland easy medium of communication among themselves and between them and their white fellow- citizens. That means the immediate disuse ofthe Indian languagesand theirfinal oblivion. -Rev. JA.Lippincott, 18971 It is the policy ofthe United States to ...preserve, protect, and promote the rights andfreedom of Native Americans to use, practice, and develop Native American languages. -Native American LanguagesAct of 19902 We must have English as the official language. We are a great country.... [W]e are one Nation under God. We need to have English spread throughout the land. -Rep. John T Doolittle 19963 *Professor of Law, New England School of Law. J.D., University of Michigan, 1987; A.B., Georgetown University, 1984. 1 am grateful to the Board of Trustees and the Dean of New England School of Law for the summer research stipend that made this Article possible. I Rev. J.A. Lippincott, The Education of Indian Children into Citizenship-the Most Effective School, in Proceedings of the Board of Indian Commissioners at the Fifteenth Lake Mohonk Indian Conference, 5th Sess., Oct. 15, 1897, reprinted in 1897 BOARD OF INDIAN COMM'RS ANN. REP. 57,59. 2 Native American Languages Act of 1990,25 U.S.C. § 2903(1) (1994 & Supp. 1997). 3 142 CONG. REC. H9765 (daily ed. Aug. 1, 1996) (statement of Rep. Doolittle). OHIO STATELAWJOURNAL [Vol. 60:3 I. INTRODUCTION In 1995, the Office of Hawai'ian Affairs (OHA) filed suit against the Hawaii Department of Education, contending that the Department had failed to provide sufficient instruction in the Hawaiian language in the state's public schools. The OHA asserted that the Department had restricted Native Hawaiian students' right to express themselves in the Hawaiian language, thus violating the federal Native American Languages Act of 1990 (NALA).4 In 1996, the Hawaii Federal District Court rejected the OHA's claim, holding that Congress did not intend to create a direct private cause of action under NALA.5 Despite the government support for Native American languages that NALA indicated, the court treated the statute as no more than a statement of general government policy,6 rather than as a source of protection for Native American languages and those who speak them. By rejecting the OHA's claim under NALA, the district court denied Native Hawaiians and other Native Americans7 the ability to use NALA as a tool in their longstanding struggle to preserve their languages and protect them against continuing assimilationist pressures and hostility toward linguistic diversity in the United States. NALA was enacted in recognition of, and as a rejection of, past government policies that encouraged the eradication of Native American languages as part of the movement to assimilate Native Americans into "American" culture,8 and as an acknowledgment of the United States' responsibility to ensure the preservation of Native American languages because of their critical importance to the survival of Native Americans' cultural and political integrity.9 Although Office of Hawai'ian Affairs v. Department of 4 See Office of Hawai'ian Affairs v. Department of Educ., 951 F. Supp. 1484, 1493 (D. Haw. 1996). The OHA also alleged violations of the Hawaiian state constitution and a state statute, and of the First and Fourteenth Amendments to the U.S. Constitution. See id. at 1487. 5 See id. at 1494. The court also concluded that the plaintiff had no enforceable rights under 42 U.S.C. § 1983 (1994). See Office ofHawai'ianAffairs, 951 F. Supp. at 1498; see also infra notes 398-449 and accompanying text (discussing the court's decision in the case). 6 See Office ofHawai'ianAffairs, 951 F. Supp. at 1494. 7 The term "Native Americans" is used in this article to refer collectively to the groups commonly referred to as American Indians, Native Alaskans, and Native Hawaiians. The term "Indians" is used to refer to the indigenous peoples of the lower forty-eight states. Specific tribal identifications are given whenever possible, in recognition of the shortcomings of the foregoing terms. 8 See 25 U.S.C. §§ 2901, 2901(5) (1994) ('CThe Congress finds that... there is a lack of clear, comprehensive, and consistent Federal policy on treatment of Native American languages which has often resulted in acts of suppression and extermination of Native American languages and cultures."); see also infra notes 223-38 (discussing the findings section of NALA). 9 See 25 U.S.C. §§ 2901, 2901(1), 2901(5) ('The Congress finds that... the status of the 1999] WAGING WAR WI= WORDS Education1° is the only reported decision considering the availability of a private cause of action under NALA,11 if other courts follow the Hawaii district court's lead, and the support for Native American languages suggested by NALA is never translated into concerted efforts to undo the damage caused by past government assaults on these languages, NALA may well turn out to be as ineffective in protecting Native Americans' right to preserve their languages as another much-hailed federal statute, the American Indian Religious Freedom Act, has been in protecting Native Americans' right to practice their traditional religions.12 This Article analyzes the continuing struggle of Native Americans to preserve and revitalize their native languages, against the backdrop of concerted government efforts, beginning in earnest in the nineteenth century, to eradicate allegedly inferior Native American languages. The writings of government officials, missionaries, and educators reveal their determination to eradicate Native American languages and replace them with English, which they regarded as a unifying force and as a critical element in the efforts to "civilize" and assimilate Native Americans. They aimed, in effect, to "kill the Indian" with words-English words-rather than seeking the actual physical death of Native Americans. Although these writers focused their attention on Native American cultures and languages of Native Americans is unique and the United States has the responsibility to act... to ensure the survival of these unique cultures and languages ....[L]anguages ...are critical to the survival of cultural and political integrity of any people....'). 10 951 F. Supp. 1484 (D. Haw. 1996). 11 See id. at 1493 (noting that the availability of a private cause of action under NALA was an issue of first impression). Searches of Westlaw and LEXIS failed to turn up any other cases addressing the issue. Search of LEXIS, MEGA Library (Oct. 24, 1999); search of Westlaw, ALLCASES Database (Oct. 24, 1999). 12 The American Indian Religious Freedom Act of 1978 (AIRFA) provides as follows: [lit shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. 42 U.S.C. § 1996 (1994). In Lyng v. Northwest Indian Cenetery ProtectiveAss'n, the Supreme Court treated AIRFA as merely a statement of general policy, and held that it did not "create a cause of action or any judicially enforceable individual rights." 485 U.S. 439, 455 (1988). For further discussion of Lyng, see Allison M. Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 STAN. L. REV. 773, 828-31 (1997); see also infra notes 451-57 and accompanying text (discussing Lyng). OHIO STATELAWJOURNAL [Vol. 60:3 languages, much of their rhetoric is echoed today in the arguments of the supporters of the "English-only" movement and others, in Congress and elsewhere, who demonstrate hostility toward all languages other than English and toward all linguistic diversity in the United States. Although NALA seemed to indicate a substantial change in government policy toward Native American languages, the lack of enthusiasm for establishing extensive programs to preserve and revitalize Native American languages and the repeated introduction of English-only bills in Congress suggest that the war that was waged against Native American languages beginning in the nineteenth century has never really ended-its tactics have just changed. Part I of this Article analyzes the history of the efforts of federal government policy makers and their allies to eradicate Native American languages and to require Native Americans to speak English as part of the assimilation process, and examines Native American resistance to these efforts. Part II discusses the federal government's treatment of Native American languages in the twentieth century. The government recognized Native American languages as having some value during World