FORGOTTEN FEDERAL-MISSIONARY PARTNERSHIPS: NEW LIGHT ON THE ESTABLISHMENT CLAUSE.

• Author: Chapman, Nathan S.

INTRODUCTION 679 I. THE WASHINGTON POLICY: "THE INSTRUMENTS TO WORK ON THE INDIANS" 684 A. The Colonial and Revolutionary Legacy 684 B. The Constitutional Framework 688 C. The Washington Administration 688 1. The Washington-Knox Framework 688 2. Reverend Samuel Kirkland 690 3. Reverend John Heckenwelder 695 D. The Jefferson Administration 696 1. Gideon Blackburn and the Cherokees 697 2. The Kaskaskia Treaty 698 E. The Madison and Monroe Administrations 699 II. THE CIVILIZATION FUND ACT OF 1819 701 A. Legislative History 702 B. The Act and Regulations 704 C. Early Implementation 706 1. Reverend Jedidiah Morse's Report 706 2. Early Expenditures and Political Challenges 706 3. Administering Religion 710 D. Removal, Reliance, and the End of the Program 711 E. Postscript on President Grant's "Peace Policy" and Anti-Sectarianism 713 III. THE WIDESPREAD ASSUMPTION OF THE PARTNERSHIPS' CONSTITUTIONALITY 715 A. The Attempt to Repeal the Civilization Act 715 B. Richard Mentor Johnson Embraces the Program 716 C. Jefferson and Madison Critique the Civilization Program 717 D. An Intriguing Challenge in Congress 719 IV. A SHORT HISTORY OF RELIGIOUS DISESTABLISHMENT 720 V. THE MISSIONARY PARTNERSHIPS AS GOVERNMENTAL SUPPORT FOR EDUCATION 724 A. "Indian Affairs" Exceptionalism 725 B. A Pre-Secular Paradigm of Social Progress 728 1. Christianity and American Republicanism 729 2. Natural Versus Revealed Religion 730 3. Civilization and "Savages" 731 VI. LESSONS FOR THE HISTORY OF DISESTABLISHMENT 733 A. The Scope of Objections to Governmental Funding of Religious Instruction 733 B. Do the Partnerships Support "Nonpreferentialism"? 736 C. Voluntariness 738 VII. TRANSLATION 739 A. Uncontested Practice and Constitutional Construction 740 B. Contemporary Doctrine 743 1. The Principal Doctrine 743 2. The Direct/Indirect and Religious/Secular Distinctions 743 3. Taxpayer Standing 745 4. Funding Foreign Religious Education 746 CONCLUSION: OF POLITICS, EDUCATION, AND SOCIAL PROORESS 746 [Samuel Worcester] entered the aforesaid Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States.... (1) INTRODUCTION

Generations of constitutional scholars have studied Worcester v. Georgians a landmark decision about the relative power of the federal and state governments over relations with the Native American nations. (2) But they have largely overlooked the federal-missionary partnership that gave rise to the case: Worcester was a clergy member authorized by the federal government to educate Cherokee students within the state of Georgia. (3) This oversight is somewhat understandable--the partnerships were a relatively small component of federal-Native American relations during the early republic. Moreover, at the time, they raised no constitutional objections. Yet for this reason they present a puzzle for the history of the separation of church and state: Why did a federal program that paid ministers to educate Native American students raise no objections from officials such as James Madison and Thomas Jefferson, officials who had objected so vehemently to a Virginia bill to fund churches and clergy salaries, and who had insisted on a strict application of the federal Establishment Clause? (4)

The answer, this Article argues, is that Americans throughout the late eighteenth and nineteenth centuries understood education to entail at least a modicum of religious instruction. (5) They tacitly distinguished between the governmental funding of such education and the funding of churches for purposes of separation of church and state. (6) This account dramatically revises the standard narrative of religious disestablishment that the Supreme Court has relied upon in school funding cases since Everson v. Board of Education (1947), (7) a narrative repeated yet again by the dissenting Justices last term in Espinoza v. Montana Department of Revenue (8) In response, the Court merely ventured that "[i]t is far from clear" that the objections to "special support for certain churches and clergy" "extend [ed] to programs that provide equal support to all private primary and secondary schools." (9) The Court could have gone further: virtually every federal official in the early republic, including James Madison and Thomas Jefferson, used federal funds to directly support schools run by religious groups.

This Article provides the first thorough analysis of the federal-missionary partnerships in their political, religious, and constitutional contexts, from the Revolution through the antebellum period. Originally, the partnerships were ad hoc. Presidents paid a trusted clergy member to serve as an exofficio agent, spy, mediator, or educator. The partnerships turned into a full-blown federal program, however, with the Civilization Fund Act of 1819, which allocated $10,000 per year to fund instructors of "good moral character" to "introducfe] among [the Native Americans] the habits and arts of civilization." (10) For the next fifty years, virtually all of the recipients of these funds were Christian denominations or missionaries ordained by them. (11) To varying degrees, the missionaries instructed the students in Christian morality and doctrine. With one possible exception, no one contested the program's constitutionality. (12) Among the officers who actively participated, and raised no objections, were Thomas Jefferson, James Madison, and Richard Mentor Johnson--a "who's who" of the disestablishment vanguard. (13)

So far, only a handful of scholars have studied the government-missionary partnerships. (14) Historians of federal-Native American relations have largely ignored the disestablishment questions they raise. (15) Constitutional scholars, for their part, have drawn opposite inferences from the partnerships. (16) Douglas Laycock, for instance, has argued that the partnerships "suggest [ ]...that the Founders were not concerned about money that went to churches in pursuit of secular goals." (17) By contrast, Donald Drakeman, in the most thorough constitutional analysis of the partnerships to date, has argued that, if the partnerships do not violate the Establishment Clause, "it is hard to imagine what could possibly link church and state closely enough" to do so. (18) Yet no one has studied the details of the partnerships within their social, political, and constitutional setting, nor grappled with the question they raise about the development of nonestablishment norms: How could so many officials have objected to using tax dollars to fund churches and clergy without raising a constitutional eyebrow over the federal-missionary partnerships?

This Article attempts to answer this question by evaluating original historical research about the partnerships in light of scholarship on the history of federal-Native American relations, disestablishment, political theology, secularization, Christianity and race, and legal borderlands. While U.S. officials likely assumed the constitutionality of the government-missionary partnerships for overlapping reasons, including untheorized assumptions about the territorial and personal limits of the Establishment Clause, the historical evidence most directly supports the conclusion that elite white Americans shared a "social imaginary"--or social paradigm--of "civilization" that merged education, republicanism, and Christianity. (19) The vast majority of formal elementary education during the early republic entailed basic instruction in Christian morality, if not Christian doctrine. In this respect, the federal partnerships were no different than schools funded by states, local governments, and the District of Columbia. (20)

The Article's main contribution is to the historical development of nonestablishment norms. A number of judges and scholars have suggested that religious assessments--taxes for churches and clergy--are the paradigmatic example of what the Framers and ratifying public understood the Establishment Clause to forbid. (21) By implication the Constitution forbids a broad range of "support [for] an institution which teaches the tenets and faith of any church." (22) Since Everson, then, the Court has proceeded from this premise; the only question has been how broadly to define that range. (23) The federal government's direct support for mission schools suggests that U.S. officials, from the Founding through the antebellum period, operated with a relatively narrow conception of the anti-assessment principle, limited to government-forced tithes (regular payments for the operation of parish churches). Madison's well-known objections to the Virginia assessments were rhetorically broad--more than capacious enough to justify strict separation. (24) Yet apparently few officials, including Madison, believed that nonestablishment entirely foreclosed financial support for religious instruction that was incidental to a general education. (25)

The Article also wrestles with this history's implications for American constitutionalism today. Any line from the federal-missionary partnerships to contemporary doctrine must be qualified and tentative. The partnerships were a tool of the federal government's policy of assimilating Native Americans into white American political culture. (26) Though carried out against a backdrop of "violent expropriation of the western borderlands from Indians," (27) white officials, missionaries, and some Native American leaders believed the mission schools were a benevolent (and relatively inexpensive) alternative to war. (28) As a formal matter, the schools were voluntary, (29) just as the tribes were, as a matter of law and theory, independent (yet uniquely "dependent") nations capable of exercising sovereign authority to enter into treaties with the United States. (30) Even at the time, however, astute observers recognized the Native nations' independence was all...