Many Nations under Many Gods: Public Land Management and American Indian Sacred Sites

ISBN-13: 9780806161723

Media Type: Hardcover(New Edition)

Publisher: University of Oklahoma Press

Publication Date: 11-22-2018

Pages: 272

Product Dimensions: 6.00(w) x 9.10(h) x 1.10(d)

Todd Allin Morman is an attorney at the Office of Reservation Attorney for the Lummi Nation, working in the child welfare section. He holds both a Ph.D. from the University of Missouri and a J.D. from the University of Montana.

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CHAPTER 1

PROTECTION OF AMERICAN INDIAN RELIGIOUS FREEDOM AND SACRED SITES

A Recent Development in the United States

Indigenous struggles for freedom and self-determination cannot be forced to conform to the more familiar civil rights struggle within the existing legal framework. Some, with reference to the civil rights model of achieving freedom and self-determination, might mistakenly suggest that indigenous peoples are seeking special rights under the existing legal paradigm. The current approach starts from the position that aspirations for freedom, self-determination, and happiness are universal human pursuits. The complex historical details of this ongoing human struggle result in each people taking a unique path to achieve these universal aspirations. While there may be similarities in these historical trajectories to some extent, the conditions indigenous peoples face are so historically different that simply applying conventional legal notions of a civil rights struggle will necessarily fail to account for the systematic denial of the fundamental humanity of indigenous peoples for all of U.S. history. As will become clear as we examine some of these complex histories, in regard to religious freedom, sacred sites, and sovereignty, solutions to ongoing complexities must acknowledge that Indian peoples must determine how their societies relate to other peoples, rather than having formal relationships largely determined by outside forces and societies, as remains the case to this day.

The history of American Indians is generally broken into six broad periods directly linked to the changing Indian policies of non-Indian governments. The policies of each period impacted practical expressions of Indian national sovereignty and religious freedom. The current U.S. government and its predecessor governments altered policies as society changed and developed. Scholarship on these changing policies and on Indian history has changed over time as Western civilization has made progress in accepting cultural diversity. There are more than thirty thousand books on American Indians, and Indian scholarship has been largely the province of anthropologists. Non-Indians have produced more than 90 percent of the literature on American Indians.

The major eras of policy and history of American Indians are (1) the international relations phase; (2) the domestic dependent nation phase; (3) allotment and assimilation; (4) the Indian Reorganization Act or "Indian New Deal"; (5) termination; and (6) sovereignty and government-to-government relations. While certain policy changes came with distinctive historical actions, such as the Indian Reorganization Act, the transition between other periods was more gradual. Similarly, the scholarship has a large amount of overlap from one era of historical approach to another. It should be noted that a great deal of history addresses the era before transatlantic contact became regularized, and while its study is a growing field, this period is generally not considered part of American Indian legal history. In a sense, it would perhaps be better to say there are six periods in which non-Indian governments have been trying to conceptualize indigenous people as existing within the Anglo-American legal system.

INTERNATIONAL RELATIONS

The initial interactions between European settlers and the indigenous population of North America were those governed by international relations and international law, from the perspective of the non-Indians. Beginning in the seventeenth century, various settler and European governments entered into trade treaties as well as military alliances with various Indian nations, within a context of international law. For example, the first British settlers at Plymouth survived the early years only because of their military alliance with the Wampanoag Nation. The Seven Years' War saw both the French and the British heavily relying upon allied Indian nations for their military operations in the North American theater. Some of the tensions between American colonists and their home government in London can be traced back to British military commanders' observations that Indian military forces aided the war effort against the French much more effectively than the colonial militias.

During its war for independence, in the late eighteenth century, the United States engaged in the European practice of treaty making and forging military alliances with Indian nations. Before heading to France to secure European allies, Benjamin Franklin visited the Iroquois League in hopes of securing a military alliance with some or all of the member nations of this regional power. This practice continued through the young nation's formative years. The foreign relations, or international law, era is considered to have lasted until 1830. The later part of this period is marked by expansion through war on the part of the U.S. government, supplemented by treaties for land cessions, trade agreements, and military alliances.

DOMESTIC DEPENDENT NATIONS

The case of Cherokee Nation v. Georgia (1831) marked the transition from international law to the period of domestic dependent nations, as defined by the Supreme Court of the United States. One of the "civilized" Indian peoples that had largely adapted to living near expanding non-Indian populations, the Cherokee Nation, found itself besieged by the State of Georgia. The Cherokee Nation had developed a written language, a written constitution, a European electoral style of government, and a national newspaper in the Cherokee and English languages. Cherokees modeled their lives after their European neighbors and accepted a reduced land base to live on in exchange for the false promise that they would be left in peace. In the decade before Cherokee Nation v. Georgia, the Cherokee Nation achieved greater material success than many of its non-Indian neighbors. When gold was discovered in Cherokee national territory, the State of Georgia stepped up its aggression against the Cherokee Nation as part of its continuing attempts to dispossess the Cherokees of their lands. The Cherokee Nation responded by bringing an original action before the United States Supreme Court as a foreign nation.

Chief Justice John Marshall found himself in a difficult situation. If the Supreme Court accepted jurisdiction of this case between a foreign government and a state, and ruled against Georgia's aggression, as the legal standards of civilized peoples would require, the authority of the court would be jeopardized. The hostile chief executive, Andrew Jackson, would likely seek to undermine or render impotent any ruling against Georgia's aggression. Rather than face the potential of a decision that might be ignored by the federal executive, Marshall described the Cherokee Nation as a "domestic dependent nation," thus denying the court jurisdiction, as the action was not between a foreign nation and a state.

Marshall, while denying Indian nations status as foreign nations, used the Doctrine of Discovery to establish, under U.S. law, the unenforced right of Indian nations to occupy, as domestic dependent nations, the land Indians believed had been theirs since the beginning of time. The aggression of the State of Georgia and the executive branch could not be checked by the limited legal rights of land occupation that Marshall had tried to protect for indigenous populations. The period of domestic dependent nations was marked by forced removal and relocation of Indians, including the Cherokee "Trail of Tears."

Together with Johnson v. M'Intosh, an 1823 land title precedent that the later cases relied upon, Cherokee Nation v. Georgia and Worcester v. Georgia created the theoretical foundations for situating indigenous peoples in the legal system of the United States. The three cases are known today as the Marshall Trilogy. Operating under a modified form of the Doctrine of Christian Discovery, Johnson established the legal notion that simply discovering indigenous peoples granted ownership to the discovering Christian European power of the underlying title to the lands Indian peoples lived on. This gave the discovering power the exclusive right to buy or take by "just war" lands the indigenous peoples continued to have the legal right to occupy. As Indian nations did not own the lands they occupied and could sell their land rights only to the discovering power or its successor in law (as the United States was to Great Britain after independence and to France after the Louisiana Purchase), Indian nations were not fully sovereign foreign nations but domestic dependent nations, with the United States standing as their guardian (in theory but rarely in practice), as Marshall determined in Cherokee Nation. In Worcester, Marshall affirmed the supremacy of the U.S. government in Indian relations and the states' powerlessness over Indians and the internal affairs of sovereign Indian nations. This was the established legal theory, even if historical practice did not necessarily conform to it.

In that era, the Alabama Supreme Court challenged federal supremacy in Indian affairs and exemplified the aggressive support of some state governments for forcibly removing Indian populations. In addition to Georgia, other states enacted similar repressive measures violating Indian sovereignty; Alabama took measures as draconian as those taken by Georgia in its assault on Indian rights and sovereignty. The courts in southern states engaged in legal arguments that twisted or ignored precedent and adopted positions on the history of treaty making and conquest that were unsupported by the historical record. Legal scholar Tim Alan Garrison has concluded that the southern judiciary abetted the illegal and unjust assault on indigenous rights by providing legal cover that filled the vacuum left by the non-enforcement of Worcester.

The era of domestic dependent nations involved a long period of transition. For the initial decades of this period, the Indian nations of the Southwest were not under any claim of jurisdiction by the United States, still being part of the Spanish, French, or Mexican claims to European dominion, depending on the year. The treaty-making process remained in place until 1871. Over this period the U.S. government pressured Indian nations to remove from the East and cede land, and it used negotiation or force to reduce indigenous landholdings to smaller and smaller reservations. Making attempts to limit the indigenous population to reserves in less violent ways, the federal government moved the Indian Office from the Department of War to the Department of the Interior in 1849. By the late nineteenth century, the U.S. government was using Indian reservations — which many in the non-Indian population initially intended as places for indigenous peoples to retain self-government — as tools for the destruction of Indian cultures, religious freedom, and self-governance.

ALLOTMENT AND FORCED ASSIMILATION

As the domestic dependent nation period was coming to a close and the U.S. government was about to embark on a more aggressive set of policies designed to wipe out indigenous governments, religions, and cultures, the first books by non-Indians seeking to reform Indian policy appeared. There is a long history of non-Indian objections to official U.S. Indian policies, and the last decades of the nineteenth century saw the first publication of more widely read dissenting opinions. In 1881 Helen Hunt published her descriptive exposé A Century of Dishonor: A Sketch of the United States Government's Dealings with Some Indian Tribes, one of several books from this era exposing the poverty and disease on reservations.

The assault against indigenous culture and sovereignty began one of its more aggressive phases with the allotment policy. In 1887 the U.S. Congress passed the Dawes Act, which called for transforming economic life on reservations by extinguishing traditional indigenous property-management methods and instituting European-style private property through individual ownership of allotments. Each head of an indigenous household was to receive 160 acres of land and was expected to become a farmer. "Surplus" land was to be made available for use by the non-Indian population. In the period of allotment, land held by the indigenous population shrunk from 138 million acres to 48 million acres, with 20 million acres of the land retained being semiarid or desert. The allotment process was piecemeal and rolling, hitting different reservations and different parts of reservations at different times. Some reservations avoided allotment altogether. Thus a complex legacy of landownership and checker-boarded Indian lands remains to this day. (With checker-boarding, plots of land alternate between Indian and non-Indian ownership, with Indian ownership further complicated by differences in communal, family, and individual ownership.)

During the era of allotment and assimilation, Indian reservations were ruled by Indian agents of the federal government. As part of the policy of the destruction of indigenous religion and culture, the federal government supported Christian missionary boarding schools that were intended to prevent the transmission of indigenous religion and culture to the next generation. It was during this period that resistance to these repressive policies grew among both indigenous and non-Indian people. Non-Indians who hoped to secure constitutional protections for Indian religious freedom worked to get the 1924 Citizenship Act passed. This act conferred upon American Indians U.S. citizenship, whether they wanted it or not. Though initiated by those seeking to promote Indian religious freedom, the act has been viewed by some as another avenue with which to force the indigenous population to abandon it culture in favor of that of the European immigrant population.

Opinions differ as to what ultimately drove the policies of allotment and assimilation. Some have focused on the role of ethnocentric social scientists in shaping public and congressional opinion by presenting the indigenous population as lacking the mental capacity to duplicate white culture, and therefore needing neither land nor education. Others believe that economic considerations, rather than intellectual forces, drove Congress to loosen restrictions on the alienation of allotted lands. This view finds that rather than being guided by moralistic administrators, the Indian bureaucracy conducted its policies in compliance with the economic interests of the settler population over the interests of the indigenous population it was purportedly serving. In any event, the shift in rationalization for white supremacy from cultural concerns to racial concerns had the ironic consequence of a loosening of educational standards and reducing the dedication of the federal government to forced assimilation. This change in rationalization for white supremacy provided indigenous culture some breathing room to survive.

THE INDIAN NEW DEAL

The year 1934 marked the next major shift in federal Indian policy with passage of the Indian Reorganization Act (IRA), or Indian New Deal. Championed by John Collier, a cultural pluralist named commissioner for Indian affairs, the IRA was an attempt to reverse the policy of governmental, religious, and cultural destruction of indigenous societies. The IRA promoted the adoption of Indian governments modeled on European American political forms. Collier ended Bureau of Indian Affairs (BIA) policies that criminalized indigenous cultural practices and instituted a revolving development fund to promote economic growth on reservations. Allotment, while already largely abandoned due to indigenous resistance, was repudiated as a policy.

Indian reactions to the IRA's process of creating European-style governments were as varied as the conditions of Indian peoples. Many indigenous groups on the brink of social destruction, such as the Washoes, were able to restructure and revive under IRA governments. The Blackfeet Nation, whose traditional form of government had disintegrated, was already operating with the Blackfeet Tribal Business Council, which lobbied on behalf of Blackfeet people, and this de facto government simply became the legal Blackfeet government. Other Indian nations with surviving traditional governments, such as the Hopis, found the IRA government to be in direct competition with their traditional forms of organization, so adoption of IRA governments caused new political divisions within Indian societies. The Navajo Nation most famously is a rare instance of successful resistance to the imposition of an alien government on an indigenous nation.

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Table of Contents

Preface,
Introduction,
1. Protection of American Indian Religious Freedom and Sacred Sites: A Recent,
Development in the United States,
2. The Arizona Snowbowl Resort and the Hopis,
3. Cave Rock and the Washoe Tribe of Nevada and California,
4. Badger-Two Medicine and the Blackfeet Nation,
5. Four Nations and Five Controversies in Indian Religious Freedom,
6. Improving Protection of Indian Sacred Sites and Reconceiving Indian,
Sovereignty,
Conclusions,
Notes,
Bibliography,
Index,