There’s a good deal of discussion around Washington DC these days – particularly in the Departments of the Interior and Agriculture, with encouragement from the White House – about “Indian Sacred Sites.” It’s pretty widely recognized that President Clinton’s 1996 Executive Order 13007 on the subject hasn’t accomplished much, so several gaggles of government lawyers and subject matter specialists, together with political appointees who may be either, both, or neither, are pondering what might be done to make it work. After, in some cases, extensive and ponderously documented rounds of “listening sessions” with the tribes. Is there anything more childish, demeaning, and flatly insulting than a government-sponsored “listening session?” But I digress.
Executive Order 13007 was issued in the wake of, and in response to, the Supreme Court’s deeply unfortunate decision in Lyng v. Northwest Indian Cemetery Protective Association (1) . This decision was rendered on a case involving a proposed Forest Service road through what the Karuk, Yurok, Hoopa and Tolowa Tribes of northern California refer to in English simply and respectfully as “the high country” – a craggy ridge on the top of the North Coast Range where tribal people go to gather and make medicine and to communicate with the spirit world. The Supremes found, in essence, that blasting the road through the area would not violate the Free Exercise Clause of the First Amendment to the Constitution – it would not “prohibit” the tribes from practicing their religion. They’d just have to dodge the trucks.
Unable to get Congress to do anything (even back then!) about what the Supremes had decreed, the tribes turned to the White House; President Clinton listened, and Executive Order 13007 was the result. Its laudable intent was to require federal agencies like the Forest Service and Bureau of Land Management to do what they could, within the framework of law and policy, to protect the physical integrity of places that tribes regard as spiritually significant, and to guarantee – again within reason – that tribal religious practitioners could gain access to and use such places. But it employed some unfortunate words, some of whose interpretation produced some unfortunate definitions, that have complicated efforts to implement it. I think that those involved in re-thinking “sacred sites” management today would be well advised to ponder these words and definitions, because without somehow resolving their inherent contradictions, there is little hope for achieving the executive order’s purposes.
Though the executive order contains a number of problematical terms, the three that are perhaps most troubling make up its title. Taking the last first: what is a “site?”
“Site” is not always very meaningful as a division of tribal geography. Tribes usually occupied and used fairly large territories with somewhat vaguely defined boundaries; tribal territories could and did often overlap. Within these territories there were – and are – some fairly well-defined geographic features (River valley X; mountain Y), and many others that were not so well defined. Most land was not formally owned by individuals, so there was little or no need for the strict demarcation of boundaries. As a result, even an obvious landscape element like a mountain might have ambiguous boundaries. It’s obvious where the top of Mt. Everest is, but where are its feet?
In this sort of environment, with this sort of spatial ambiguity, what constitutes a “site?” Is a mountain a “site?” A river valley? Or does it have to be something smaller, with clearer boundaries? If so, how small does it have to be, and how clearly defined must its boundaries be? Given that tribes did not usually assign tightly defined boundaries, what is the basis for defining them?
In Section 1(b)(iii), the drafters of the executive order told us that to be a “site” a place must be “specific,” “discrete,” and “narrowly delineated.” “Specific” makes sense: a given site must be this site, and not confused with that site. But what does “discrete” mean? Dictionary.com says the word means “apart or detached from others, separate, distinct.” But this is exactly what many places viewed by tribes as “sacred” are not. The site known as Panther Meadows in northern California, for instance – well known as a place of spiritual power among the Wintu and other local tribes, is on – and therefore clearly not separate, distinct, or detached from – Mt. Shasta, which is also (with very ambiguous boundaries) regarded as a spiritual place. This sort of thing is quite common, and is hardly unique to Indian tribes. Consider the Sea of Galilee, for instance – surely a “sacred site” for Christians, but containing within it the shoreline where the loaves and fishes were multiplied, the rock outcrop on which Jesus told Peter he would be the rock on which his church would be built, the water on which Jesus walked, and so on. If we were applying the executive order in Israel, would we say that the Sea of Galilee is not a Christian sacred site because it is so indiscrete as to contain all those other sites? “Narrowly delineated” raises even more questions. Delineated by whom, on what basis, according to whose criteria?
Presumably the drafters of the executive order were trying to keep tribes from identifying the whole world, or the whole of XYZ National Park or National Forest, as a sacred site, but in pursuing this objective they effectively required that tribes abandon their own ways of viewing the landscape in favor of a Euroamerican system of metes and bounds. How does this square with the principle of respecting tribal religions that surely underlies and justifies the executive order?
Dictionary.com gives us several pertinent definitions for the word “sacred:”
• devoted or dedicated to a deity or to some religious purpose; consecrated;
• entitled to veneration or religious respect by association with divinity or divine things; holy;
• pertaining to or connected with religion ( opposed to secular or profane), and
• regarded with reverence.
Some 35 years ago I had a brief but spirited debate with my good friend Fr. Francis Hezel, SJ about whether I was right to refer to Mt. Tonaachaw, on Wene Island in Chuuk, as “sacred.” Sure, Fran said, it’s where in Chuukese tradition the semi-supernatural culture-bearer Sowukachaw came in the form of a frigate bird and set up his meetinghouse; sure it’s a major landmark in the supernatural geographic lore of the islands; sure it’s metaphorically referred to as the supernatural octopus kuus, out of whose ear swim equally supernatural barracuda to protect the islands, but it’s not sacred as the term is defined in western theology. As discussed in my 2006 book Places That Count (2) , I dismissed Fran’s argument as Jesuitical hairsplitting until the statements and actions of the people living around the mountain showed me I was wrong. They respected the mountain, yes; they didn’t want other people messing with it, yes, but they were prepared – no doubt after engaging in the proper rituals – to let it be messed with for a price. Why? Because in their cultural traditions, there are ways to compensate for just about anything. So even by Dictionary.com’s rather broadminded definition, Fran was right; it’s hard to see the mountain as “consecrated,” or “devoted or dedicated to a deity” (even if Sowukachaw is deified). And while it’s certainly “connected with religion,” is that really “as opposed to” the secular or profane? This is the crux of the matter, I think. A lot of places that indigenous people regard as spiritually powerful, and entitled to respect and care on that basis, are nevertheless places where “secular” or “profane” activities go on with impunity. But to complicate things further, these “profane” activities – say, fishing, picking berries, or cutting trees – are not always or even often strictly profane; they often can be carried out only by particular kinds of people, at specific times of the day or year or cycle of the moon, accompanied by appropriate prayers or other rituals. So where do we draw the line between the “sacred” and the “profane?” And just as in forcing indigenous people to squeeze their special places into our definition of “site,” is government not forcing such people to violate the tenets of their own religions in order to receive the benefit of protection for such places? Even by the crabbed definition imposed on its language by the 9th Circuit Court of Appeals (3), is this not a violation of the Religious Freedom Restoration Act (RFRA)(4)?
Finally, there is the first word in the title: “Indian.” Setting aside the distaste for this term that arises periodically on historical and geographic ground, is it entirely fair to apply the Executive Order’s direction only to places valued only by those groups of American citizens that fall into the Order’s definition of “Indian Tribe?” That definition – in concert with those found in many other U.S. laws and regulations – is “an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law No. 103-454, 108 Stat. 4791.” There are good, practical reasons for that definition in other contexts – notably those involving the governance of reservations and the administration of tribal trust assets. But when it becomes the basis by which the legitimacy of a group’s assertion of a place’s spiritual significance is judged, does the Executive Order not impermissibly entangle the Secretary of the Interior in religious matters? Does it not have the Secretary, in effect, establishing which tribal religious will and will not be accorded respect? Is this quite consistent with the Establishment Clause?
Having pondered these questions ever since Executive Order 13007 was issued, I’ve sadly come to the conclusion that for all its good intentions, the Order is not worth keeping; it ought to be scrapped in favor of something else.
What else? Well, at the time of the Lyng decision, we didn’t have RFRA. Now we do, and it strikes me that a liberal reading of its prohibition on the government’s imposition of burdens on anyone’s religious practice without a compelling government interest would achieve the purposes of Executive Order 13007 without creating the complications that have kept the Order from being effective. As I’ve discussed elsewhere(5), the 10th Circuit has adopted such a reading, while the 9th Circuit has imposed a ridiculously restrictive one. It might be a lot more productive for the administration to look at ways to resolve this contradiction than to fiddle further with the deeply flawed Executive Order 13007.
(1) Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
(2) King 2006: Places That Count: Traditional Cultural Properties in Cultural Resource Management. Altamira Press: p. 7
(3) In Navajo Nation et al v. United States Forest Service, 535 F 3d 1058 (9th Cir. 2008).
(4) 42 U.S.C. §2000bb (2006)
(5) King: What Burdens Religion? Musings on Two Recent Cases Interpreting the Religious Freedom Restoration Act. 2010; Great Plains Natural Resources Journal 13:1-11