Thirty Years Later: The Hootch Case

Thirty Years Later: The Molly Hootch Case

Stephen E. Cotton

Attorney, Andover, Massachusetts

Speech to University of Alaska Symposium, February 27, 2004

When Diane invited me to speak here, I was immediately reminded of a story the former President of the University of Massachusetts tells. He was sitting in his living room when his teen-aged daughter poked her head in and asks, "Where's Mom?"

He replies, "She's out shopping. Something I can help with?"

"Just wanted to ask her a question," says the daughter.

"Well," says Dad, "Maybe I can answer it."

"No thanks, Dad," says his daughter. "I really didn't want to know that much about it."

When Diane invited me, I was almost as crestfallen as that young lady's father. I thought to myself, "You want me to talk about the Hootch case, but we've only got two days?"

And that was before she told me there would be other speakers!

I represented the plaintiffs in this case - the kids in the villages - for ten years: from 1973, the year after Chris filed the lawsuit (and the same year he left Legal Services) through 1983, by which time the consent decree was almost fully implemented. A lot happened in that time, and I can only touch on some of it.

So what you're going to get from me is a highly selective blend of history, law and advocacy. I'd like to help set the stage for your discussion of today’s educational challenges by inviting you to relive with me, for just a few minutes, that critical turning point in the history of rural education.

History

Chris filed the lawsuit in 1972. He got help from lawyers at the Center for Law & Education at Harvard University. That was a national legal services back-up center, funded by the same Federal program which funded Alaska Legal Services, precisely for the purposes of helping local legal services lawyers like Chris with lawsuits involving educational issues.

Early in 1973, Chris had asked the Superior Court in Anchorage to rule on the State Constitutional claim he has told you about. That motion was denied in October of 1973, just after I started at the Center for Law & Ed and began working on the case.

In January, 1974, the Superior Court threw out the State Constitutional claim altogether, and in February, 1974, Chris took the lead in appealing the lower court's decision to the State Supreme Court.

Meanwhile, my focus was on the alternative claim that was part of the original suit: the claim that the State of Alaska was discriminating against Native kids in rural villages by failing to provide them with local high schools.

So the case was following two separate tracks: Chris, even though he had left Alaska Legal Services, was spearheading the appeal to the Supreme Court, and I was working on the discrimination claim. My local co-counsel for many years, I want to add, was Bruce Twomley who was then at Alaska Legal Services - a great lawyer, and a wonderful friend, who unfortunately was not able to join us today.

My work involved research into the history of Alaska Native education. It involved taking sworn testimony from State education officials (including Marshall, who in my 30 years of practicing law was and remains my favorite defendant). It involved sifting through thousands of pages of official documents in various State offices.

And most importantly, it involved going to the villages to meet with parents, kids, boarding school graduates and dropouts, teachers and principals throughout the State.

Before settlement negotiations began in 1975, I had visited folks in more than 40 villages in every corner of the State, talking with hundreds of people and - more to the point - listening to them. And by the time I wound up my work on the case, I had been to something like 65 villages - many of them 3, or 4, or 5 times, sleeping on the school floor on in people's homes, listening to them for hours at a time in village meetings or over the kitchen table.

So what did we find out?

First, as we had claimed, there was overwhelming evidence that Alaska was in flagrant violation of the Equal Protection Clauses of both the 14th Amendment to the United States Constitution and Article I, Section 1, of the Alaska Constitution. Both of these clauses required the State to give equal treatment to Native kids and non-Native kids, and when it came to the provision of local high schools, the State just had not done so.

That violation had deep historical roots, going back to the early 1900s and even before. Alaska had a segregated school system in the early 1900s, just like in the Deep South of the Lower 48. There were segregated schools in Juneau, Douglas, and Sitka. In 1929-30, there were segregated schools in Bethel, Nome, Egegik, Chitina, Ft. Yukon and a dozen other communities. Whites in one school, Natives in other, right in the same small village.

Going back to that era, Congress put its stamp of approval on the dual school system: under Federal law, the Territory was responsible for white schools, while the Federal Government would run the schools for Eskimos and Indians.

Each system ran its own elementary schools - separate, and not necessarily equal - but while the Territory generally extended its schools to teach high school students, the Feds took a different approach: the so-called intellectually advanced Native kids were plucked from their villages and sent to boarding schools for a vocational education. In the beginning, they were sent to the lower 48. But that was a disaster for the kids. So in 1925 the Feds established 3 boarding schools in Alaska. Then, in 1947, after World War II, the Naval Air station at Sitka was decommissioned, and converted into the Mt. Edgecumbe boarding school. When Edgecumbe became overcrowded, hundreds of kids were sent out of State, just like in the 1920's, to go to high school in places like Chemawa, Oregon, and Chilocco, Oklahoma.

But while Native kids, if they wanted to go to high school, were bounced around the State or the rest of the country, white kids were treated differently. They got to go to high school where they lived. In 1958-59, just to give you a snapshot, there were 34 public high schools in Alaska. Only 6 were more than 50% Native. All the rest were predominantly white.

When Alaska became a State, the vestiges of the dual system lived on. The Federal Government still operated dozens of elementary schools, and didn't have much interest in building local high schools. And the State, which operated all of the predominantly white schools as well as some of the schools in Native communities, had a policy of not building high schools in the so-called BIA villages - that is, the dozens of Native villages where the Bureau of Indian Affairs ran the elementary schools.

And the State didn't just inherit a discriminatory system. The State actively discriminated when it came to providing - or not providing - high schools in the communities where it ran the educational show. And that was happening right into the 1970s.

The State constructed a new high school for 23 kids, grades 9-12, in Thorne Bay, in Southeast, complete with a gym, a chemistry lab, a workshop, a home economics room, and classrooms - at a time when there were 48 Native villages with larger high-school aged populations and no local high school.

The State provided local high school instruction for 8 kids in Whittier, 5 kids in Gustavus, 5 in Port Alice, 1 or 2 in Paxson, but not in the dozens of Native villages with equal or greater numbers of high school aged kids. Barrow didn't get a 4-year high school until 1974-75, when the enrollment was 161.

This kind of unequal treatment was actively going on even while we gathered evidence. In the highway community of Anderson Village, where most of the kids were white, they were bussed every day to and from school in Nenana, where most of the kids were Native. We found letters in the State's files from white parents, complaining about the long bus ride - and about sending their kids to school with Native youngsters. So what did the State do? It immediately started phasing in a high school program in Anderson village, starting with just 8 students in 1971-72, and rising to 52 students in 1974-75, when a new school was finished.

At that point, there were at least 5 Native communities with larger high school aged populations. If those kids wanted to go to high school, they couldn't get home for months. But the State built a new high school for the white kids of Anderson Village, so that they'd be home in time for dinner.

The cumulative effects of this unequal treatment were stark. As of 1976, when the Consent Decree was signed, there were 2,663 Native kids of high school age in 126 villages which had an elementary school but no high school. There were only 120 non-Native kids, statewide, in a similar situation - and almost all of them were in logging camps in Southeast.

That meant that 95% of what the Department of Education classified as "unhoused" children - that is, high school aged, with a local elementary school but no high school - were Native. Only 5% were non-Native.

Put another way, while the State had managed to provide local high schools for 6300 Native kids statewide, it had failed to do so for 2700 others, leaving close to one-third of Native high-school aged kids without local high schools to go to. But with 28,000 non-Native high schoolers in the State, only 120 - less than one half of one per cent - did not have a local high school to attend.

That all adds up to discrimination. It was constitutionally forbidden. And it was just plain wrong. Under a large number of United States Supreme Court decisions, the State's legal obligation was to eliminate every last vestige - that is, every trace - of the dual school system, every lingering effect of unequal treatment. In short, to provide local high schools.

That was the heart of our case. And on evidence no more powerful than what we were gathering, courts elsewhere in the country had virtually taken over entire school systems to ensure the eradication of discriminatory treatment.

What we also found was heart-wrenching evidence of just how bad the State's boarding home and dormitory programs were for the majority of students. I'm not blind to the success stories from Mt. Edgecumbe, Chemawa, and some of the other programs; I'll leave those to others, for one reason: I represented people in the villages, and during the period of my travels to those villages, not once did anyone at the village level express concern about preserving a boarding program. The concern they had was getting a local high school

At the time the Consent Decree was signed, there were 32 boarding programs operating, with a total of 850 students, and there was one dorm in Bethel, with 175 students. But there had been more.

The State, since 1966, had focused its energy on getting hundreds of kids back from Oregon and Oklahoma to educate them in Alaska. This was seen as a big step forward, the State shouldering its responsibility for Native education. At least, that was the view in Juneau, Anchorage, and Falls Church, Virginia. Say that again? Falls Church, Virginia?

Yes, because that's where the consultants came from: Training Corporation of America (TCA). Their report to the State declared that "the ideal high school must have at least 500 students." TCA recommended setting up six boarding schools with dormitories for 650 students. And TCA was frighteningly candid about the real objective: the elimination of Native villages. That's right: the recent statement I saw in the paper the other day by a local State Senator has a long and discredited history.

TCA said that a regional high school would "act as a magnet to which natives are drawn." "[M]ovement to the larger centers of population is one essential ingredient in the adjustment and acculturization of the Alaskan native," said TCA. And TCA approvingly declared, "Residence in urban areas appears to accelerate the breakdown of old village patterns, patterns which may retard the development of rural folk into a disciplined and reliable workforce."

Now these are the experts, right? After all, they're from Outside, and right near our nation's capital - so they could see for themselves, for example, how the movement of African-Americans from the rural South to urban areas like Detroit, Chicago, and Washington, D.C. had solved all the economic and social problems of African-Americans in the United States. To be blunt, their theory was nonsense.

But if you are in the Alaska Department of Education, on the receiving end of this arrogant and racist report, what do you do with it? Apparently, you start implementing it.

The State opened Boarding schools in Nome (1966), followed by the Kodiak boarding school in 1967, and the $8-million Bethel boarding school in 1972. But even before finishing the Bethel school, the State had abandoned its plan for the remaining three schools recommended by TCA. The regional schools were instant disasters.

I didn't document the disaster - Judith Kleinfeld did. Her 1973 study, A Long Way From Home, should be an inspiration to any of the students, educators or researchers in this room who want to know whether the research you do can affect public policy. Because Judy's work did.

She looked at the dropout rates - 42% in a single year in the Bethel dorm, 65% over 2 years in the Anchorage Boarding Home program. She looked at the dismal academic performance these schools inspired. And, with a consulting psychiatrist, Dr. Joseph Bloom, she examined the social and emotional problems the students experienced. Some of Kleinfeld's findings are quoted word for word in the settlement of this case. In the end, State had no choice but to agree that she was right.

Her research was a starting place, but I heard the stories directly from the mouths of so many, many kids and parents in the villages. The wrenching experience of going so far from home and family. The pressure to drink. The loneliness. Boarding home parents who themselves drank, who abused students, who treated them like servants. The lost opportunity to speak their own language, to learn traditional skills, just to be at home.

Entire villages echoed with the silence of a whole generation of teenagers gone, for 9 months out of the year.

It was a rotten system. And a lot of policy-makers in Juneau and Anchorage just didn't get it.

Why not? To a very large extent, up and down the political power structure of the State, including the educational establishment, no one ever bothered to ask people in the villages, systematically and sympathetically, what they wanted for their communities, for themselves and for their kids.

Those who asked didn't listen. Those who listened didn't care. Those who cared failed to act.

I'll just give you one outrageous example. I took the deposition of a State official in Anchorage who worked for the State-Operated School System (may it rest in peace). That was the agency in charge of public education in the Unorganized Borough from 1971 to 1975.

This fellow's job was to "train" advisory school boards in the villages. And, under pressure from the Hootch lawsuit, he was also the one who "handled" (I guess that's the right word for filing something away and ignoring it) any requests from villages to establish a local high school.

I was pressing him on why, even when he went out to villages, he hadn't seemed to pick up on their desire for a local high school, and he was giving all sorts of evasive responses. Then we took a break, and he sort of sidled up to me and said, "Steve, you don't understand what it's like. When you visit an Eskimo village, you talk for awhile, and no one from the village says anything. Then someone grunts, and that's the decision." Discrimination was not just an artifact of Alaskan history; it was an ongoing problem that infected decision-making even as the lawsuit was going forward.

And it was reflected in policies that continued on their disastrous course. True, slowly by ones and twos, new village schools were being built. But while Bruce and I were taking depositions, the State was hell-bent on pursuing one more scheme that our clients in the villages told us was just as hare-brained as earlier boarding programs.

This plan was to have so called "area schools" serving several villages. The plan, developed without any input from villages, involved building dormitories in one village (in at least one case, the only wet village in the area), and then taking kids from surrounding villages and having them live in the dormitories. In 1975, when negotiations began, the State was pushing very hard on this idea. So we went out to every village and talked with parents and students. No one in the villages thought that it was wise to put every one of their teenagers from the surrounding villages into just one village, leaving the kids without parental supervision. Parents envisioned big trouble in the host village, and a lot of unsupervised and dangerous attempts by homesick kids to get home. So people in the villages were adamant in their opposition to this plan, and after a lot of table-thumping and stormy negotiations, the State finally abandoned it.

The Settlement

Let me talk just a bit about the negotiations and the settlement.

The Alaska Supreme Court handed down its decision, dismissing that first claim about schools being "open" to all, in May, 1975. But the Court very pointedly gave a green light for us to proceed with the claim of racial discrimination. And we were already neck-deep in evidence to prove that claim, and we were continuing to gather more.

In August, 1975, the State's lawyers asked us whether we might be willing to settle the case and they proposed spending $20 million on new high school construction. The negotiations began.

Years later, long after the settlement was in effect, we were handed a memorandum that the Attorney General had sent to the Governor recommending that he authorize the start of settlement negotiations. It seemed clear from that memorandum that the Attorney General was concerned about losing. And, as courts throughout the country had shown, once a school system loses a discrimination case on this scale, it was often a judge that, in effect, ended up running the system. The State did not want that to happen.

These were difficult negotiations. They were hard-fought. There were angry sessions, one or the other side would occasionally walk out of the room and suspend the talks. And at times, we had to go back out to villages to ask specific questions, because the State kept proposing alternatives to local schools. Would village parents agree to daily transportation by airplanes? What about daily transportation by hovercraft? And on and on. The decisions on such questions were made by the villages, and we fought like hell on their behalf.

One whole set of battles arose when the State created the 21 new Regional Education Attendance Areas, which, after a transitional year, took over from the State-Operated School System in 1976 - just when a settlement, if we could get to one, would take effect.

The Bush Caucus, Native leaders, the State Board of Education, and Marshall Lind were all pushing to create the REAAs and to maximize their power. A settlement of the Hootch case would vastly expand the budgets, the staffs, and the responsibilities of the REAAs (which the REAAs and their supporters all favored), but there was one nettlesome problem they saw with the settlement. The lawyers for the plaintiffs – Bruce and myself - wouldn't agree to the State's plan to let the REAAs decide which villages would get schools. Nor did the State want to require the REAAs, by enforceable regulations, to pay attention to villages in planning what would be taught in the new schools.

We wouldn't budge. And for one simple reason: People in the villages were sick and tired of having someone else deciding for them where their kids would go to high school. For once, they wanted to make that decision on their own, at the village level. And instead of someone else imposing a curriculum of "acculturation," they wanted the school system to at least sit down and talk to them about some of the things that should be taught in school.

Within the villages, there was a lot of mistrust of the new REAAs, and no sentiment at all for trusting them to make the right decision for each and every village about whether to have a high school.

That was a hard-fought issue in the negotiations, but in the end the State acceded to what our clients wanted. In each and every village, the decision as to whether to have a local high school would be made by the village, and no one else. And, for three-year period after a new high school was established, the REAA would have to go through a process of planning and evaluation involving the village advisory school board.

The Settlement Agreement was signed in September, 1976. The name of the case changed. It was no longer, officially at least, the Molly Hootch case. Molly's village had gotten a high school, and the original plaintiffs were no longer of high school age. So a new list of plaintiffs from 6 villages was substituted, with Anna Tobeluk's name at the top of the list. She lived in the village of Nunapitchuk, and her high school career had ended after the 9th grade, because that was all the BIA chose to offer in her village.

And while we were retooling the list of plaintiffs, we had to make a change on the list of defendants, since the State-Operated School System no longer existed. Someone's name had to go on top of the new list of defendants, and since I was doing the drafting, I thought I'd let Marshall have the honor. So the case was officially renamed Tobeluk v. Lind.

The Settlement contained two parts. The first was a Statement of Agreed Facts, which set forth in more detail the history of discrimination I have outlined to you. We insisted that the State agree on these facts for a number of reasons - first and foremost among them being that, in the event of any backtracking, the court would see the strong legal argument for enforcing a far-reaching remedy.

The second part was the consent decree, which incorporated regulations that the State would have to enforce. The decree gave each and every one of the 126 villages the right to decide on whether or not to have a high school, and it spelled out the physical features of the new schools. It set out a process for determining the amounts to be budgeted for construction. And - after a modification we insisted on in 1981 - it set out a very detailed three-year process for village involvement in planning and evaluation of the curriculum in each of the new high schools.

The decree took effect immediately. Of course, there were no new facilities, and the money for them was a year or two away. But it did require that high schools had to be provided "as soon as practicable" in any village which wanted them and could find the space for classes.

Now a lot of officials were just clueless about what to expect. Marshall's #2 in the Department of Education told me he thought fewer than half the consent decree villages would opt for a local high school. Other school administrators told me they had expected only a handful of villages in their districts would want local high schools.

That very fall - basically, overnight, since the decree was signed in September - 42 new high school programs opened in rural Alaska. Let me say that again. 126 villages were covered, and one-third of them - forty-two - somehow found space somewhere in the village to start some kind of program. Once the State was legally prohibited from just getting in the way, the floodgates opened.

One of those start-up programs was in Nunapitchuk. Anna Tobeluk was back in school. I visited her and her classmates that winter, and they were attending classes in an unheated clinic building, wearing parkas and mittens, and proud to show off what they were doing in class. Three years later - by which time 66 new high schools had opened - she graduated from Nunapitchuk High School. There's a wonderful picture of her, smiling and holding her diploma, that was published in Alaska Native News. Anna died later in a tragic boating accident, and the high school was renamed for her - Anna Tobeluk Memorial High School.

In the end, 105 villages got local programs, and 1 went for daily transportation. 91 of the 105 local programs went through the 12th grade. Three villages became ineligible because of declining enrollments. A total of 16 villages chose not to have local high school programs (although six later changed their minds and had programs). The largest village electing not to have a program was St. George, on the Pribilofs, which elected to board kids at St. Paul (a consent decree village which did want a local program).

In all, 92 villages had new facilities constructed, at a total cost of $137 million.

The last major school to be built was on Little Diomede, which I had visited a couple of times during the course of the litigation. That school, for between 20 and 30 students, cost $4.2 million - making it the most expensive consent decree school, and I assume the most expensive school per capita anywhere in the United States.

But if every there was a community which has a claim to preserving its culture, its identity, and its location, surely it is Diomede, where humans crossing the land bridge to this hemisphere may first have set foot some 11,000 years ago.

And it was fitting, too, that the last Tobeluk site is a community where, looking across the International Date Line, the view is always of tomorrow.

Because that, after all, is what this case was about.