Native American sacred sites cases present us with two competing rights – one party’s religious freedom is in tension with the property rights of another. The way these cases are argued, one party seems to ask to suspend the other’s property rights in order to protect religion. Framing the issue as a competition between rights means the right of property is bound to win, because in liberal discourse property is the paradigmatic right and land is the paradigmatic property. While it seems as if religion transcends property relations, that it is the one thing that is excluded from it, in such cases religion – understood as one right among many – does not challenge the logic of property; rather, it lies comfortably in the sphere that this logic allocates it. Understanding sacred sites cases in this way sets two (ostensibly) mutually exclusive conceptions of land against each other: either land is sacred or it is property (and hence secular).
I want to convince you that this binary logic is false. Through an analysis of one sacred land case, I demonstrate that land can play different roles simultaneously and that a multilayered understanding of land is possible and leads to a more just treatment of this land and its inhabitants. The sacred land that I offer as an example is a sacred area of the Six Rivers National Forest in northern California known as the High Country. If you visit the High Country, you will see Redwoods and Douglas Fir trees as old as 1500 years. Those trees are many, and they are huge, and spending time amongst them is nothing short of a spiritual experience. Even I – an urban soul – turned into a nature lover when I visited these trees.
What would you say if someone proposed to cut down these trees? More and more people are afraid of the consequences of our irresponsible attitude toward nature. Will our grandchildren have enough clean air to continue living on this planet? Will our children? Will we? More and more of the children’s books I read with my six-year old daughter propose planting a new tree for every tree we cut down.
In the 1980s, the Yurok, Karuk, and Tolowa nations of northwest California argued against a proposed development plan by the U.S. Forest Service that intended to cut 733 million board feet of these trees over eighty years. But their argument may surprise you: instead of offering an environmental argument, they claimed that cutting down the trees will irreparably hurt their communities’ spiritual lives. Is this an important cause? Is it a reasonable one? How important can a spiritual life be in comparison with clean air? And on the other hand, how can we justify a protection of spiritual life in opposition with the development of an industry that provides so many jobs in the area, including jobs for the members of those unemployment-struck Indigenous communities?
The deliberation in court centered around the nature of the land on which the trees where growing: on the one hand, the Yurok, Karuk, and Tolowa traditional home, considered as sacred, and on the other hand, public property. But what does “public property” mean? Who is the public whose opinion about the fate of these trees should be considered?
To explore these questions, I read the 1988 U.S. Supreme Court case Lyng v. Northwest Indian Cemetery Protective Association. At the heart of the case was a dispute between the federal government and the Yurok, Karuk, and Tolowa nations over a 6-mile segment of a road that the forest service had intended to construct in order to support its plan to develop the High Country and cut down all the trees mentioned above. The road is popularly known as the G-O Road because it connects the towns Gasquet and Orleans in northwest California. The Supreme Court denied the nations’ right to freely exercise their religion in the High Country for the sake of protecting government property rights. While the case has been argued, decided, and studied as one about the free exercise of religion, the underlying issue of Indigenous sovereignty has not been explored. If we do not think of Lyng through the lens of sovereignty, it would be difficult to explain how it came to be that a dispute over a 6-mile segment of a road reached all the way to the Supreme Court. It would also be difficult to explain why the nations lost the case.
I argue that Lyng is a case about sovereignty because the question at its heart is the following: who is the sovereign who can (and should) decide the fate of the High Country? Implied here is a more general question about the meaning of land. The court is charged with the task of interpreting land, and the interpretation it chooses would determine the fate of the High Country. We can assume that those who have different relationships with the place are likely to have different opinions on how the High Country should be treated – thinking of land in terms of kinship (as “Mother Earth”) calls for a different treatment of it than thinking of it in terms of ownership or sacredness.
At least five ways to understand land are offered to us in the Lyng case and its aftermath. The Yurok and Karuk witnesses in the trial relate to the High Country as their home and their kin, but they are heard by the forest service and by the court as relating to this area as sacred; the forest service and the court also tell a story about land as property – something that can be owned and whose resources can be used by the owner. Environmentalists who were involved in the case as plaintiffs see the High Country (perhaps only strategically) as wilderness, and eventually, congress protected it from development as such. This protection invokes the theopolitical aspects of the concept of wilderness, which I explore below.
In 1984, while the Lyng case was still pending, Congress passed the California Wilderness Act, exempting much of the High Country from logging. In 1990, Congress passed the Smith River National Recreation Area Act, exempting the area from the road construction. The High Country remains, to this day, “undeveloped,” and it is still used by local Indigenous communities for religious ceremonies and medicine making purposes. All this is despite the Supreme Court decision in favor of developing the area, protecting government property rights rather than Indigenous free exercise rights.
Justice Sandra Day O’Connor, in her majority opinion in Lyng, admits that: “It is undisputed that the Indian respondents’ beliefs are sincere and that the Government’s proposed actions will have severe adverse effects on the practice of their religion” (447). Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on Indigenous religious practice: “Whatever rights the Indians may have to the use of the area […] those rights do not divest the Government of its right to use what is, after all, itsland” (453). But while neither the government nor the court ever doubted the religiosity of the nations’ relationship to the High Country, a study, known as the Theodoratus Report, that had comprised the central evidence in the case asserts otherwise:
Because of the particular nature of the Indian perceptual experience, as opposed to the particular nature of the predominant non-Indian, Western perceptual experience, any division into “religious” or “sacred” is in reality an exercise which forces Indian concepts into non-Indian categories, and distorts the original conceptualization in the process (44)
So the categories of “sacred” and “secular” are distorted in the Lyngcase, and the same conflation of these categories is apparent in the ultimate protection of the High Country from development in the California Wilderness Act. What does it mean to protect this area as wilderness? While wilderness is an important American idea with spiritual significance, it also brings to mind the doctrine of terra nullius and the doctrine of Christian discovery, two doctrines that have justified the conquest of many lands in North America and elsewhere. By designating an area as wilderness, we define it as pristine – one that has not been touched by human beings – thus erasing Indigenous existence in – and impact on – the area before its “discovery” by Europe. As the Wilderness Act of 1964 declares, lands designated as wilderness are
an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; […] and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.
However, when we listen to what Yurok and Karuk members have said in response to the Forest Service’s development plan in the High Country, we can see that the designation of the area as wilderness does not necessarily respond to their concerns. Take, for example, this testimony by a Karuk member, explaining what the problem is with developing the area and making it accessible both to the logging industry and to tourists:
These areas need to be there when a new Indian person gets the ‘calling’ to become a medicine person. Suppose the ‘calling’ is received and the person arrives to find an army of tourists to take pictures and make tape recordings of a real live medicine person in the process of training. Also the trees are gone, the whole area logged off. The solitude and atmosphere for meditation is totally lost. How will that person train properly? … The culture has been torn apart by progress and now people are asking for the pieces to be torn in smaller pieces. (Theodoratus Report, 75)
While I acknowledge that the protection of the area from development is a positive outcome, indeed, a much better outcome than the Supreme Court decision against protecting this area, I am interested in exploring and critiquing the discursive implications of designating this area as wilderness, given the history of this idea and its role in dispossessing Indigenous communities.
Scholars have asked how wilderness preservation is related to pressing environmental issues, such as pollution, toxic wastes, public health, energy shortages, climate change, and environmental justice. And given all these environmental issues, they ask if wilderness areas can really be protected. My concerns here are different: I am interested in the relationship between wilderness preservation and Indigenous sovereignty, and between these two concepts (wilderness and sovereignty) and property. Wilderness areas are considered federal lands, which makes them government property, as we see in O’Connor’s majority opinion in Lyng. But doesn’t wilderness define that which cannot be owned?
Finally, I want to think about wilderness both as a spiritual and a secularized legal concept in Western traditions. On the one hand, wilderness is central in the Hebrew Bible. For example, most of the Pentateuch takes place in the desert, where the Israelites wander for forty years before reaching (and conquering) the Promised Land. These stories, that are highly influential in American political thought in particular, and in settler colonial thought more generally, portray wilderness as sacred and development as secular, or even sinful (Moses’ successful attempt to produce water from a rock in the Book of Numbers is punished harshly; because of Moses’ attempt to “develop” the wilderness, he is banned from entering the Promised Land). On the other hand, when we read Lyngand its aftermath, we can see the protection of the High Country as wilderness as a secular alternative to its protection as sacred. It is worth, then, to ask about the colonial implications of the spiritual power assigned to wilderness and its secularization. And instead of turning to American political thinkers who usually come to mind when we think of wilderness – Thoreau, Muir, Nash – I’d like to end this essay with the words of Yurok Chief Judge Abby Abinanti, in an open letter to Justice O’Connor after the Lyng decision:
I hope heaven has no harvestable timber; or, if it does, I hope your people never have the ingenuity to find heaven and sail there. (I know how important that place is to many of you.) Because if you can get there, and if there is any economic benefit to be had, heaven will surely be harvested, mined, developed, parceled out or otherwise required to yield a profit.
This paper was first presented at a workshop entitled “Material Secularisms” at the University of Pennsylvania. I thank the organizers and participants at the workshop for their insightful comments.
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