Returning from the Oklahoma Sovereignty Symposium 5

I have been traveling allot the last few weeks.  One of the places that I have been, and which I am returning is the Oklahoma Sovereignty Symposium in Oklahoma City, OK.  This is my first year going and it was well worth the drive.  I was blown away by the Parade of Nations, in which the tribal nations of Oklahoma entered the arena.  I was captivated by the conversations and found myself wishing I had more to contribute.  But on a certain level that seems to be appropriate when we are talking about Native Americans and the law doesn’t it. Our narrative history (I am Choctaw) chants a song that is only heard by some, but when heard is a testament to our life, our struggles and our status as a people.

This years theme was “as long as the grass grows.”  How fitting a phrase for Indian law itself.  As long as the grass grows beneath our feet, Indian law will continue to whisper the remnants of our past.

While I was sitting in the panels and listening to the rich dialogues that of themselves gave birth to the peoples and their stories, I began to think about what types of texts might fit in a law and literature course.

Of course Nathaniel Hawthorne wrote about Indians: we have talked about Roger Malvin’s Burial and Lovewell’s fight in the French and Indian War here; however, Indians in Hawthorne’s tales are mostly in the background — setting for the action of the european settlers. This is in contrast to his contemporary James Fenimore Cooper who romanticized the American Indian (Last of the Mohicans remains a favorite (book and movie).

Another book that looks at the Indian as confronted with modernity, is Sundown, by John Joseph.

A modern piece of literature that struggles with identity, family, and modernity is The Bean Trees by Barbrara Kingsolver.   I keep meaning to read her follow up to that book Pigs in Heaven, though perhaps this summer. Animal Dreams is also a good read.

Perhaps though the best book is Robert William’s The American Indian in Western Legal Thought. William’s historical and cultural sensativity make this volume a must for anyone contemplating Indian Law.

What other works by or about Native Americans should be included in a Law and Literature Course?

Video and Song: Ghost Dance by Robbie Robertson

Nathaniel Hawthorne’s Roger Malvin’s Burial and the Question of Conduct 2

Nathaniel Hawthorne’s short story Roger Malvin’s Burial (1832) is set following Lovewell’s fight in the French and Indian Wars. Besides Roger Malvin’s Burial, Lovewell’s fight has been mentioned in a ballad of Lovewell’s fight, which was written anonymously after the 1725 fight as well as the painting Chamberlain and Paugus at Lovewell’s Fight, 1725.


Roger Malvin’s Burial is a story about conduct and the guilt that flows from one’s conduct. It follows two soldiers returning from Lovewell’s fight, both wounded. At a certain point, one soldier, Roger Malvin, decides that he cannot go further. He pleads with his companion Reuben Bourne to leave him and return to the settlement. After telling Roger Malvin that he would not leave him, Reuben finally agrees. Before leaving on his own, Roger asks Reuben to promise one thing — return to bury him.

When Reuben Bourne makes it back to the settlement, his wounds have overcome him, leaving him unconscious for several days. When he does recover, Reuben is treated as a brave man and Reuben is not given to tell Roger’s daughter Dorcas that he left Roger to die in the woods alone. Reuben ultimately marries Dorcas and accedes to Roger Malvin’s farm. They also have a child named Cyrus. And Reuben never returns to bury Roger Malvin. Over the next several years things fell apart for Reuben. The farm fails, his community begins to question his integrity, and eventually Reuben, Dorcas, and Cyrus leave the community.

Cyrus is, by all accounts the embodiment of Cyrus of Persia, both in his ethic and his treatment of others. Recall that Cyrus of Persia in the Biblical text is responsible for rebuilding the Jewish Temple in Jerusalem (Book of Ezra and Nehemiah). He is hailed by the Prophet Isaiah as “the Lord’s anointed,” despite the fact that he himself is not an Israelite. (Isaiah 45:1-8) Reuben on the other hand in the biblical account is filled with complexity and contradiction. He is intimate with his mother Rachel’s handmaid (like his father before him), leading early biblical scholars to suggest that Reuben engaged in incest (Genesis 35:22). Reuben is also the model of indecision, who at first saves Joseph’s life, but then merely comes up an alternative to death by throwing Joseph into a well and selling Joseph into slavery. (Genesis 37:21 et seq.). Later, when famine strikes Israel, its Reuben that recognizes the connection between the action of the brother’s and the state of the land (Genesis 42:22). In short, like the Biblical Reuben, Hawthorne’s Reuben was a deeply conflicted character who recognized his faults without being entirely clear about how to resolve them.

As Reuben and Cyrus are hunting for food, in the same woods where Roger Malvin died (Hawthorne loves irony), Reuben shoots his musket at a deer. He then discovers that he has actually shot and killed Cyrus, on the very spot where Roger Malvin was left unburied to die (Hawthorne really loves irony)! Several questions arise in reading Roger Malvin’s Burial in the context of the law — principally, should Reuben have left Roger Malvin? Whatever our answer, as the story goes forward we get a picture that Reuben would not be held out of esteem by the community even by leaving Roger Malvin. Nevertheless, Reuben can’t bring himself to tell the truth about leaving Roger Malvin alone to die.

When I have taught torts, I always end the class with this story — largely because this story encapsulates the tension between rights and wrongs as decided by communities versus rights and wrongs as individualized. Torts as a legal matter only enforces those wrongs which we jointly recognize as being remedied by force of law. Yet, its the individual wrong that causes the most lasting consequences — often the inverse of our social legal recognitions. In Roger Malvin’s Burial, the consequence is guilt — and the expiation of that guilt is itself something that one normally feels guilt over — the killing of one’s own son.

There is much more to Roger Malvin’s Burial, including the confusion of Indian and Puritan symbols between Roger Malvin and Rueben Bourne, and Hawthorne as historian presenting his own unique view of New England.