This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.
In this contribution, Michalyn Steele (Brigham Young University) addresses issues surrounding the cultural property of Indigenous peoples:
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In an increasingly mobile, global society, the significance of place as integral to cultural and spiritual identity can be elusive. While there are a wide variety of beliefs and practices among Indigenous peoples, many Indigenous peoples conceive of themselves as people of a particular place. Especially for the Indigenous peoples of North America, their origin stories and creation cosmologies tie their identity, their purpose, and their worship inextricably to those places of sacred origin and obligation. In this conception, land is not fungible and sacred practices are not transferrable to new locations when peoples are displaced. Depriving Indigenous people of meaningful access to these sites or despoiling the sacred character of these sites irreparably compromises their ability to practice their religion. The failure to appreciate the sacred character of Indigenous sacred sites or the callous calculation that reduces these sites to their economic exploitability does existential damage to the religious liberty of the Indigenous people.
Take, for just one example, the Lakota peoples and Paha Sapa, the area around the Black Hills that the Lakota hold most sacred as “the heart of everything that is” and the womb of Mother Earth. The discovery of gold by settlers despoiled the Lakota people of their legal interests in Paha Sapa in violation of their treaties with the federal government. They were cut off from their sacred sites and thereby deprived of access to crucial religious rituals. In 1980, the United States Supreme Court found that the Black Hills had been taken from the Lakota people by coercion and deception, and the tribes were awarded significant money damages. However, the Lakota people, among the poorest communities in the United States, have refused the money, maintaining that Paha Sapa was never for sale. They never wanted the money, they wanted access to their sacred sites.
As with the Lakota, the all-too-common shared histories of Indigenous peoples involve violence to Indigenous identity, cultural cohesion, and religious liberty. In the United States, the 574 federally-recognized tribes and many other tribes lost to the modern era or still seeking recognition, share variations on the theme of a history of cultural, political, geographic, and religious displacement. The driving forces of this historical assault were the twin animating principles behind Manifest Destiny: the inexhaustible appetite for the lands and resources of the tribes by would-be settlers with their certainty of a divinely-sanctioned superior right to those resources, and an abiding conviction in the supremacy of non-Indian religion and culture. These principles led the United States to embrace the coordinated policies of forced allotment and assimilation to clear title to Indigenous land holdings for settlement and to induce tribal peoples to abandon their lands, language, identities, and religion.
President Theodore Roosevelt said the allotment policy was to act as a “great pulverizing engine” to break up the tribal land mass. Similarly, the United States implemented a policy to strip tribal children of their language and religion by placing them in boarding schools, where they were educated as domestic servants and forbidden from speaking their Indigenous languages or participating in their traditional religious rites. Their hair was cut and their clothing taken. Many children went years without seeing their parents and many experienced devastating isolation upon an attempt to return to their homes and territories.
As a result of this cultural-religious violence, many Indigenous communities now must rely on the permission of private landowners or governmental agencies to access sacred sites lost during this process. President Clinton’s 1996 Executive Order 13,007 directed governmental agencies to seek to accommodate religious use and access for tribes. But the effort has met with mixed success at best. Congress passed an unenforceable bill, a mere sense of the Congress resolution, that Indigenous sacred sites should be protected and preserved. The Supreme Court has wrestled with fitting the requirements of the First Amendment’s religious liberty protections to the site-specific requirements of Indigenous religious practice. Even the Religious Freedom Restoration Act, designed in part to compel the federal government to justify its substantial burdens on religious exercise, has been a mostly impotent tool in crafting protection and access to Indigenous sacred sites.
In sum, the legal protections and political will to provide meaningful access and protection to Indigenous sacred sites in the United States has been ineffectual. Until people of good faith and good will join together to seek accountability for prioritizing Indigenous access to sacred sites, the violence to Indigenous religion continues.