Leon Scioscia:
Good afternoon.

Group:
Good afternoon.

Leon Scioscia:
My name is Leon Scioscia and I am the Special Assistant to the Law Librarian of Congress.  The Law Librarian Dr. Rubens Medina is here with us today.  Thank you, Dr. Medina, for being here.  

On behalf of the Law Library and the Office of Workforce Diversity, I'm pleased to welcome all of you today to the fourth and final program in our month-long celebration for Native-American Heritage month, and what a month it's been.  We began with our own Center For The Book, co-sponsoring a kickoff lecture with President of the ALA, Dr. Loriene Roy .  We followed that up with Representative Tom Cole from Oklahoma giving a stirring lecture, presentation, a keynote address.  Then we partnered with the LOC's American Folklife Center, the national Museum of American Indian, and the Kennedy Center's Millennium Stage in presenting Dallas Chief Eagle and Jasmine Pickner over in the Coolidge Auditorium.  And today we conclude with a dynamite panel presentation on the theme of Indian religious freedom: to litigate or legislate.  But before we begin the discussion, which is being filmed today for later presentation on the Web, I want to give a couple of words of thanks. 

First, the programs this month would not have been possible without the hard work of the committee members, especially co-chair Dorothy Coley, without her constant dedication and hard work since, I think, August of this year.  I want to thank them and I want them to stand and be recognized for their contributions, so please stand. 

[ applause ] 

And second, I want to give a particular thank you to Alisa Carrel, also a committee member, for her contribution in designing this poster over here and all of the flyers for the different events.  Dorothy and I and the committee would like her to have that poster at the conclusion of this program as a token for all of her hard work.  So thank you, Alisa.  

Now as we move on to this program, I'm sure all of you have already discovered the program on your chair, it provides you with a bio of all of the panelists.  On behalf of the Library of Congress, I'm honored to have such a notable panel here today.  And if I took the time to read the bios of all of the panelists up here, then I think we'd be at the end of the program at 1:00 today, so please spend time to read the bios.  

And before I ask our moderator, Lou Fisher and his guests, who are here, starting with Suzan Shown Harjo and Dean Suagee.

Dean Suagee:
Suagee.

Leon Scioscia:
Suagee.  Thank you, Dean.  To begin the program, please join me in welcoming our distinguished guests with a round of applause. 

[ applause ]

Louis Fisher:
I'm going to take about one minute to say for those of you who legitimately wonder why I'm here.  I'm probably in the Library of Congress the only one who's published an article in the "American Indian Law Review."  And the second reason I'm here is to learn from our guests.  And what I've asked them to do is to tell us how they go about pursuing the rights of Native Americans.  Is it better to go to court, is it better to go to the legislative branch, is it better to go to executive agency?  Because I think a lot of it's brought up in [ unintelligible ] say if you have a - if you've been wronged, you go to court.  Well, you might get wronged again.  

You might be better off going to a legislative branch.  And that's the other issue.  A lot of people say, "Oh, legislative branch, they decide by majority vote what right opportunity would a minority have?" Well, legislatures do very very well, both state level and federal level in addressing the rights of Native Americans.  So I've asked Dean Suagee to go first just to map out his strategy on what looks like the best relief and then we'll turn to other panelists.  So Dean Suagee.

Dean Suagee:
Thank you.  And I first want to say it's an honor to be here.  It's an honor to have the opportunity to do this kind of work.  And I've been doing some of this kind of work for about 30 years now.  

Let me start out by taking note of that question, to litigate or legislate.  You know, it's a mixed bag.  I'm going to give you some perspective on it. I think my personal preference is generally to use the administrative process as much as you can.  It would be wonderful.  The law as it is on the books is not all that we would like it to be. I would like to see Congress pass a law providing better protection for American-Indian, Alaska-Native tribal sacred places and religious practices.  There is a regulatory framework in place that sometimes works and sometimes doesn't and sometimes after the administrative process plays out, it ends up in court.  

We've had two recent decisions out of the Ninth Circuit involving Indian religious freedom.  Let me briefly mention those.  I'm not going to give you the case captions.  I just want to -- They're commonly referred to the San Francisco Peaks Case and the Cave Rocks Case.  

San Francisco Peaks is a collection of mountains in northern Arizona regarded as sacred by most of the tribes in northern Arizona.  There were four tribes that were plaintiffs in the lawsuit; the four tribes being the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, and the Walapai Tribe.  And I have represented the Walapai Tribe in a variety of context, mostly dealing with cultural resources over the last nine or 10 years and I had some involvement in that case.  

The other case referred to is Cave Rock, which arose in the vicinity of Lake Tahoe and the Aboriginal Territory of the Washoe Tribes of California and Nevada.  Cave Rock is a sacred place to the Washoe Tribe.  And in that case, while I was not directly involved in that, one of the lawyers in our firm, I should acknowledge the firm that I'm associated with is Hobbs, Straus, and Walker, one of the lawyers in our firm, Tim Seward, was in-house general counsel for the Washoe Tribe and spent a number of years helping the tribe through the administrative process in that case.  

The two differences here -- I mean, the administrative process that we have for protecting tribal sacred places is admittedly kind of a round hole and square peg problem.  It's basically the national Historic Preservation Act with some overlay of other federal statutes and executive orders.  The national Historic Preservation Act, the triggering mechanism from that is Section 106, which requires any federal agency to identify historic properties that may be affected by a proposed federal undertaking and then try to mitigate adverse effects on those properties.  In the 1992 amendments of the National Historic Preservation Act, there's a specific statutory mandate for federal agencies to engage any Indian tribe that regards historic properties holding religious and cultural significance in that Section 106 process.  And there's a history that goes back beyond, well before that of treating tribal sacred places as potentially eligible for the national register.  

One category is commonly referred to as traditional cultural properties.  That's not the only category, but properties that are important for the ongoing identity of a living community may be eligible for the national register as traditional cultural properties.  And many tribal sacred places have been determined to be traditional cultural properties or in the lingo of historic preservation as TCPs.  Both Cave Rock and San Francisco Peaks were determined to be traditional cultural properties.  

In the Cave Rocks Case, the tribe worked - and both of these properties are located on Forest Service lands, national -- federal lands administered by the Forest Service.  In the Cave Rocks Case, the tribe worked with the Forest Service in identifying and evaluating the significance of the property to the tribe and the Forest Service devised a management strategy, management plan for accommodating Indian religious use of the rock, religious practices on the rock, which included a mandatory ban on rock climbing using equipment that's pounded into the rocks.  That was seen as fundamentally offensive and inconsistent with the Indian religious values of the rock.  In that case, the federal agency accommodated the tribe's religious beliefs after using the administrative process, including the National Environmental Policy, concluding with the environmental impact statement.  

That case was litigated by a group that supports rock climbers and came to court in the context of a challenge based on the establishment clause of the First Amendment of the Constitution.  And in that case, the Ninth Circuit -- both the District Court and the Ninth Circuit held that there was a reasonable accommodation that did not violate the establishment clause.  

In the San Francisco Peaks Case, that's a case that involved the proposed expansion of a ski area on the Peaks.  An existing ski area, which was subject of a lawsuit 25 years ago when a previous expansion was allowed by the Forest Service.  This case, in this case, the Forest Service acknowledged that the property is sacred to tribes in northern Arizona.  They had determined that the whole mountain is a traditional cultural property and had at least purported to engage in consultation with the tribes to determine more of the specifics of why it's sacred and what could be done to accommodate their interest in it.  

Most of the mountain is designated wilderness area.  The special use permit area, for the ski area, is a relatively small part of the mountain.  But before the Forest Service had completed the process of consultation with the tribes to evaluate the mountain for its religious and cultural significance, the Forest Service approved this plan to expand the ski area.  The ski area -- then the plan to expand the ski area includes the use of treated waste water to make artificial snow, which was regarded by all of the tribes as inconsistent with their religious beliefs and practices.  

I had the -- Part of my involvement in this case was helping a Walapai religious practitioner prepare a declaration as part of the administrative procedure, as part of the administrative appeal.  And it occurs to me that most people, when they think about Indian religious freedom and tribal sacred places, may have some conception of it, but I don't think most people have much of a grasp on any of the details. And so I thought I would read, like one paragraph or two from this declaration of Frank Mapatis [ spelled phonetically ], a Walapai practitioner of herbal medicine and spiritualist.  

It says, "I gather medicine plants on the San Francisco Peaks and use these herbs in healing ceremonies within the Walapai tribal community.  I also provide herbs to other tribal spiritualists for their use in healing ceremonies.  While I visit the Peaks in a physical sense, very many people in our tribal community benefit in some way from the medicine plants that I gather there.  Gathering medicine plants is a religious activity.  In addition to plants, I collect water from springs on the Peaks and use this water for ceremonial and medicinal purposes within our tribal community.  Some of the tribal healing ceremonies require the use of sacred water that has been collected from springs on the Peaks."  

I could go into more detail, but that's the beginning of it.  The notion that you put treated wastewater on the Peaks.  The Peaks are volcanic rocks.  The hydrology is not well understood.  He is concerned and the other tribes are concerned that wastewater contains both pollutants, you know, various kinds of contaminants and since some of the wastewater comes from hospitals, there is some association with death.  And the concern is that the medicine plants and the sacred water will no longer be usable in traditional ceremonies, so that's the burden on religion.  

Now this case came up in the context of Religious Freedom Restoration Act.  There are other issues, but that was the main holding, the Religious Freedom Restoration Act, which is sort of a statutory counterpart to the Free Exercise Clause of the First Amendment.  

I think -- let me stop there because we want to have dialogue among the panelists and I can go into more detail on the cases, if there's an interest in it.  Where that case stands is the District Court ruled against the tribes, the Ninth Circuit in a panel decision reversed and held that the Forest Service action is a violation of the Religious Freedom Restoration Act.  And the Ninth Circuit recently granted rehearing en banc and the case is scheduled for argument two weeks from now in Pasadena, California.  I hope that's a good enough --

Let me summarize by saying sometimes the administrative process works, sometimes it doesn't.  The law could be better.  The whole situation would be better if the broader American public had more of a grasp on any religious practices and worldview and respect for the natural world, thank you.

Suzan Shown Harjo:
We've been joined by Kevin Gover, the brand-spanking new director of the National Museum of the American Indian.  I'm Suzan Shown Harjo and I'm the President of the Morning Star Institute, I'm Cheyenne and Hudolgee Muscogee.  And I've had the privilege of developing a lot of the laws that are being referred to today.  

And in one instance, the American Indian Religious Freedom Act, I got to write most of that, lobby it through, and then run around and join the Carter Administration and implement it as the coordinator of the 50 plus agency review, and that was mandated by the American Indian Religious Freedom Act.  And that's when I learned about the unreasonableness of federal laws on federal agencies.  I was really privileged to do that work and to do the follow-on work that was required after that policy to develop the Repatriation Laws of 1989 and '90.  

What we don't have is a cause of action for the defense of our sacred places against damage and destruction and desecration.  What I fear is that by using all sorts of different laws that don't quite fit our situations, that we will get to the end of a process and someone will challenge the very basis of that law's application to our circumstances.  

That's what happened with the American Indian Religious Freedom Act in a way, although the Religious Freedom Act was scuttled immediately as far as a cause of action for sacred places goes on the floor of the House of Representatives when Representative Thomas Foley, who was the Chairman of the Agriculture Committee, was stumping for the Forest Service in what later became the Supreme Court case that undid the Religious Freedom Act as a cause of action definitively: The G-O Road case.  

So it pitted a logging road against a northern California Indian sacred place, a worship site, a ceremonial site.  And Thomas Foley went to Moe Udall, who was the manager of the bill, the chief sponsor and champion of the Religious Freedom Act and said that he would oppose the Religious Freedom Act's passage, which was to be brought up by unanimous consent, on the unanimous consent calendar -- so it only took one person to object.  And he told Moe Udall that he would oppose it unless Udall made it definitive that there was no cause of action for sacred places.  And so Udall -- and that was the day before the vote.  

Udall came to some of us and said, "Here's what's going on.  What do you want to do?"  And it was a heavy blow and we determined that, as Udall put it, "Something beats nothing every day of the week."  And so we went forward with a policy statement on sacred places knowing that chaos might ensue and we did warn all the lawyers who litigated after that and reminded them that Udall had gone to the floor and said, "This law has no teeth," which pretty much closes the door on it being a cause of action to defend sacred places.  

So while we have gotten follow-on legislation, as I said for repatriation, we've recovered lots of sacred places.  We've protected lots of sacred places by return, by using environmental laws, by using historic protection laws, by administrative conveyance.  We still have no follow-on legislation or no follow-on law or no cause of action to specifically protect Native-American sacred places.  And that's pretty much because the Supreme Court said if we do this, then the world view of Native people is so expansive that there would go the neighborhood, which is probably a standard in test that Native-Americans should have applied about 400 years ago [ laughs ] and unfortunately did not.  We were welcoming and fed them, so happy Thanksgiving season all [ laughs ].

My friend, the late Vine Deloria, Jr., said, "When you go to court, Indians lose every time."  And when I first heard him say that, I thought, well, that's not true, we have all sorts of victories.  And he went on to explain, "No, the best we can achieve is the status quo."  So when we have an Indian legal decision that we cheer about, that we say, "Great, this is wonderful."  The Bolt decision, for example, on treaty rights, what we should really be saying is, "Great huzzah [ spelled phonetically ], we didn't lose anything completely." [ Laughs ] 

So the history of religious freedom has been terrible in America for Native Americans.  Indian religions were specifically banned and interfered with.  And the practice of Indian religions was outlawed and criminalized under U.S. Civilization Regulations.  You've never heard of these?  Most Native people have never heard of them and they were only in existence for 50 years.  Fifty years, a generational kind of religious suppression that outlawed the sun dance and all other so-called ceremonies, outlawed the practices of a medicine man, anything that was pagan, anything that was heathen, anything that was, and hold onto your hats, folks, for an offense, anti-progressive in nature.  I defy you [ Laughs ] to define or to exhibit anti-progressive behavior.  That's what a lot of our people were killed for and imprisoned and starved for.  From the 1880s until the 1930s.  Why should the United states take legislative action, administrative action, legal action to do anything they can to make up for that, because they did so much bad in the past that they have an affirmative obligation to do good in the present time.  

I'll reserve the rest of my remarks for our group discussion.

Leon Scioscia:
Kevin Gover, we've been -- the panelists have been taking some time to make introductory remarks on the advantages of either going to court or going to legislative bodies or going to agencies, so we look forward to your remarks.

Kevin Gover: 
Well, being a lawyer, I am pretty literal about these things and by nature I'm something of an incrementalist.  So as I look back on the entire range of the issues that Dean and Suzan have been talking about, my answer is absolutely, we should legislate for a couple of reasons.  

First, because one, we seem to have federal courts right now, but I think this has always been true and I shouldn't single them out, that really lack the ability to sensitize themselves and understand the kinds of things that Dean and Suzan are talking about; about the Native world view, about how Native religious practice is going to look very very different from those to which, Justices of the Supreme Court, for example, are accustomed.  And it seems to me that that ability to empathize or to put yourself in another person's place is critical to anyone who is reviewing this sort of religious freedom issue.  

Second, as Suzan was pointing out, the laws tend to be very general and so NEPA and ARPA and the NHPA are not really drawn with Indian religion in general in mind, but certainly as to any specific situation that comes before an agency, or before a court, the statute really isn't, it was never intended necessarily to address that and therefore, almost always is a poor fit.  For example, I can think of a couple of dilemmas that are fairly common.  

I've worked for a tribe that was opposing the expansion of a ski basin, this one in New Mexico, as opposed to Arizona.  And we immediately ran into a dilemma in trying to address the impacts on their religious practices that the expansion of the ski basin would bring about.  And that was that they were forbidden by their own beliefs from revealing to anyone the exact nature of the practices they were undertaking in this area.  That's a heck of a dilemma when you, if you want to litigate.  And so it just seems to me that the legislative process is actually more flexible and more able to respond to fairly extraordinary circumstances like those in that particular case or the circumstances at the San Juan Peaks.  

And so I do think it's better that the Congress address these things and that the administrative agencies take a look at them.  Now we've seen, I should point out as Suzan was saying that, you know, a hundred years ago the law on this issue was just flatly, aggressively, grossly un-Constitutional.  The very idea that a federal agency, the agency I used to run, the Bureau of Indian Affairs, was to literally crush the beliefs of Indian people, was to prohibit them, was to prevent them, I mean, eradicate them from human history.  What seemed to fly right in the face of the First Amendment.  How could that be?  How could this possibly be that government would be permitted such a thing?  

And suffice it to say that American Indian, the law regarding American Indians is a study in legal exceptionalism, meaning the rules that ordinarily apply in every other circumstance do not necessarily apply when it comes to the field of federal Indian law. And scholars are funny; they all think that they're the ones that discovered this phenomenon.  But any layperson could read it and go, what? [ Laughs ] That's outrageous, but we scholars have to come up with new ideas to get tenure or something. [ Laughter ] 

And so, as I say, that's really my answer.  Now the good news, of course, is that, and I make this point quite often, that in this 100 years, policy has in many ways completely reversed itself in some very significant ways.  The policy in 1900 was to eradicate Indian religion, Indian culture, Indian language, Indian tribes, quite literally was to eradicate them.  They were unashamed and aggressive in saying, "That is our policy."  And here we are a hundred years later; the policy makers of 100 years ago would be astonished and probably aghast to see that not only have Indians not disappeared, but that many Indian languages remain in use.  Many Indian religious practices have survived this really aggressive onslaught.  

And now the law has begun to support the rights of Indians to the free exercise of religion.  The law has a way to go because, as I say, it's -- these practices remain unknown to most people.  The basic core religious philosophy of many tribes concerning the relationship between human beings and nature is not one that is in the mainstream in this country.  And so it's no surprise that its laws would be struggling, which is how to address that.  

So with that I'd just as soon begin the conversation.

Leon Scioscia: 
Good.  Thank you so much.  We'll take some questions from the audience, but first I wanted to have the panelists, if they heard some comments by their colleagues they'd like to respond to first, and if you'd like to, these little things in front of you are for the camera; they don't project your voice.  So if you want to make some comments now, just talk and then we'll get some questions from the audience.  Dean, any thoughts by you?

Dean Suagee: 
I just wanted to read a couple sentences from the Ninth Circuit decision in the San Francisco Peaks Case.  You know, to get a sense of the differences in worldviews.  The court finally came around to saying, "The record establishes the religious importance of the Peaks to the appellant tribes who live around it.  From time immemorial, they've relied on the Peaks.  The Forest Service and the Snowbowl now propose to put treated sewage effluent on the Peaks.  To get some sense of equivalence, it may be used to imagine the effect on Christian beliefs and practices and the imposition that Christians would experience if the government were to require that baptisms be carried out with reclaimed water."  I yield the floor. [ Laughter ]

Suzan Shown Harjo:
In 1979, I convened a meeting between the Forest Service representatives working on San Francisco Peaks and Hopi elders who wanted development there to cease.  And the entire meeting consisted of the Hopis talking about worldview, philosophy, religion, ways of life and the Forest Service representatives trying to find out how much territory we're talking about.  

And finally it came down to this, one Forest Serviceman said, "You say your gods walk around on San Francisco Peaks.  Do they walk around on the top or do they move down a little farther?  Are they in the middle of the mountains?  Are they only on one mountain?"  So this is how it was going and the Hopi elders were, even the ones who understood English and spoke it fluently, were looking at each other and finally came what was the end of the meeting question, which was, "Okay, how big are your gods' feet?"

[ laughter ]

That's my contribution.

Dean Suagee:
I have one other comment that's on my list of points here that I want to make sure I get in because we're going to venture off into lots of interesting directions, I'm sure.  But I wanted to connect a couple of dots.  

In the last couple of years, one of the contexts in which I've had some dealings with federal agency actions affecting traditional cultural properties and tribal sacred places has been in the actions of the Bureau of Land Management approving leases for oil and gas extraction.  And this is something that's going on all over the West.  The connection, the dots that I want to connect are with the looming, bigger issue of global warming and climate change.  

Global warming and climate change are going to severely disrupt ecosystems all over the world.  A lot of those ecosystems have biological communities where there are sacred plants, sacred animals.  There are going to be massive disruptions of tribal religious practices that flow from global warming down the road a decade or two from now.  Those impacts are already being experienced in the rapid expansion of the approval of oil and gas leasing.  Oil and gas leasing is a part of the problem.  And that problem comes back to us as we get in our cars every day.  So those are the two dots that I wanted to connect.

Leon Scioscia: 
Kevin, any thoughts?

Kevin Gover: 
Many. [ Laughter ] We should -- none to add at the moment.

Leon  Scioscia : 
Okay.  Questions from the audience?  Please.

Female speaker: 
As treaties were negotiated with Indians, were there any Indian tribes who brought up religious sites or preservation of them or access to them or was that a part of the discussion at all?

Suzan Shown Harjo: 
Religion was so basic and fundamental and atmospheric and contextual that for the most part people didn't discuss it.  It was assumed that it would not, that no one would try to interfere with the Native people being the Native people.  There was a misunderstanding about the word, "civilization." For the most part, Native people thought, well, the non-Native people thought that this meant that the Indians would learn English and become Christians.  And the Indians thought, "Oh, good they're going to give us their doctors to cure the disease they've brought with them to make us sick."  

So there was a big misunderstanding about civilization and most of the treaties were about territory.  In some of the treaties, there are explicit gathering rights, for example, but even when people talk about fishing rights or hunting rights, they're talking about religion.  When you talk about land, you're talking about religion.  When you talk about gathering, you're talking about not just the ability to go out and shoot a deer or get a salmon or pick a berry; you're talking about the song that is the first salmon song that goes before the fishing season; or the song that prepares the land, the prayers that prepare the land asking for the buffalo to allow themselves to be taken or for the huckleberries to return, for picking the, for stripping the bark that becomes the basket that will hold a particular kind of plant.  All of these things are life ways, they're just A BCs and they're the things that you have to do.  

So no, none of those things were explicit, but they've been interpreted as being inclusive of religion.  In the fishing rights decisions, for example the Supreme Court has upheld the Indian religious right to fish.  There are three categories: ceremonial, economic, and subsistence; so food, religion, and money.  All of those categories are specifically upheld so Indian religions are recognized by the courts under the canon of construction that treaties are to be interpreted in the way that the Indians meant them at the time, so part of that was religion.  Perhaps the lawyers would like to add more to that.

Kevin Gover:
Just two thoughts; first, I agree that it went without saying.  Remember that the original treaties were for huge amounts of territory and it was understood that that was where the Indians lived and they did what Indians do and so it didn't have to be said.  And second that even if it had been said, as I think I suggested earlier, the Supreme Court has said that Congress has an un-reviewable authority to abrogate Indian treaties.  And I think it would have been found, for example in the early 1900s, that it had exercised that authority through the enactment of various laws meant to "civilize the Indians." 

Suzan Shown Harjo: 
And the Indian Civilization Regulations, for example had nothing to do with law.  I mean they did not originate with a law.  The Secretary of Interior who was in the business of confiscating Indian sacred places for the public good, the public lands, and confining Indian people to certain territory so they wouldn't interfere with that removal of land, the stealing of land was done without law at all.  It was just done by executive fiat through the Civilization Regulations, zero law was involved.  

So the lengths that people were willing to go to strip Indians of, to break Indian spirit.  It wasn't just to break Indians' backs; it was to break the Indian spirit so the Indian person would relinquish attachment one way or the other to land, to religion, to parents, to language.  That's why the Indian kids were taken so far away from their parents, from the Dakotas, from Indian territory, to Pennsylvania, to Virginia, to be anglicized and Christianized and never returned.  And used as slave labor in the summers for the local gentry.  That was all part of breaking the spirit of the Indian people.


Dean Suagee: 
It might be noted that the Indian Civilization Regulations that Suzan talks about occurred for the most part during the era of federal Indian policy known as the Allotment Era.  And, I mean there was some law dealing with taking Indian land, getting land away from, out of tribal possession and that is, not just sacred lands, but land.  Indian tribes lost about two-thirds of their land during the Allotment Era from 1887-1934.  I think I've characterized that era of federal policy as cultural genocide.  I think it meets the criteria of cultural genocide.  That was federal policy that was in place.  The regulations went beyond that.  Outlawing Indian religion went beyond what the law said, but they were consistent with what the law said.

Leon Scioscia: 
Please, Edith.

Edith: 
How come there were no lawsuits before there, no petitions were brought to the Supreme Court to review the rights of Indians by those Civilization Rules were enacted.  Did that ever come before the Supreme Court at that time or did it ever occur to them to claim their First Amendment rights?

Suzan Shown Harjo: 
Well Indians couldn't get into court for a long time.  And once they could get in, and the United States kept saying that the Indians weren't people so they had no rights.  And finally, there was the use of the Fourteenth Amendment by a man and his group, a Ponca named Standing Bear, so they were able to win a lawsuit over the vigorous objections of the United States.  And that was about whether or not a person could be removed or confined without his consent and the answer was, "No.  You have to have the consent of the person to be removed or confined."  And the United States said, "Well, an Indian is not a person."  And the Court said, bless him, Mr. Dundy, Judge Dundy said, "Yes, the Indian is a person."  

How wonderful.  I mean, but that was an extraordinary thing.  Now keep in mind, too, that the Indians were not citizens so First Amendment was not seen to apply because they weren't citizens and because they weren't persons.  After 1924, the Indians were citizens and the civilization rigs just sort of drifted along until the 1930s, until they were finally removed by the Roosevelt New Deal for Indians.  

Dean Suagee: 
It should be noted that during that era, tribes did sue over the federal government taking their land.  And that's one of the cases that Kevin refers to is Lone Wolf vs. Hitchcock in 1903 in which the court said, "Congress can break a treaty with the tribe and can take his land."

Kevin Gozer:
And finally the issue of some of the civilization rigs, included in the civilization rigs were provisions that established criminal offenses on reservations, established Indian police forces that were really run by the Bureau of Indian Affairs, or the Office of Indian Affairs at that time, and Indian courts.  None of which were authorized by Congress and yet the federal courts did uphold them, never made it to the Supreme Court, but there's little doubt what the outcome would have been if they had.  And they said, "This is all in the nature of carrying out, or an exercise of the Secretary superintending control of Indian affairs," which if you look at every Executive Department, you will find a general statute that says the Secretary of Transportation shall have general supervisory authority over the transportation, blah, blah, blah.  

Well, in the case of Indian Affairs, they took that to enormous extremes, saying that that general superintending power gave the Secretary the authority to enact, in this case, the law and order regulations.  Now, understand what I'm saying here.  Conduct by an Indian that had not been prohibited by any legislature became a criminal offense by the word of the Secretary and subjected Indians to deprivations of liberty and property.  That's an extraordinary thing in our legal system and yet it was upheld with only minimal comment by the federal courts going, "Well, they're Indians," in essence.  And so that's what they were up against.

Leon Scioscia: 
Roger?

Roger: 
You write the course of the regulations and there's no specific authorizing statute; however, Congress in those years, [ unintelligible ] legislation of the Appropriation Act.  

Dean Suagee: 
Yes.

Roger: 
And year by year by year they appropriate money specifically for the so-called Indian Courts, Indian Police.  So Congress, through appropriations, theoretically knew something about what was going on with the suppression of Indian religion. Given that, can you comment on what Congress didn't do in the way of, for instance, providing a basis for a person [ unintelligible ] in other words, how would legislation litigate verses legislate option have worked at that point?

Suzan Shown Harjo: 
Damn the appropriations writer. 

[ Laughter ] 

More damage has been done to Native people through the appropriations writers than through direct legislation.  The Civilization Fund started in the very first part of the 1800s; 1800, they began.  And the Civilization Fund was for the missionizing to Indian people.  And what happened over time is that the franchises were given, like McDonald's franchises, to various Christian religions, to go out and proselytize to Native people.  Now the Quakers and the Mennonites got the Cheyenne, so we were perfectly happy.  We had a tradition of silence. 

[ Laughter ] 

So we sat and looked at each other for a long time and we'd shake hands and meet another day.  So things worked out fairly well.  We weren't being thrown under the water or anything like that.  There weren't objectionable practices or things that we really didn't, that were incompatible.  So they would say, "Peace."  And we had peace chiefs and we understood that.  Some Christian proselytizing was brutal and involved more than preaching at.  

So the Civilization Funds were used for conversion, now that's not right.  Were used for some good and true purposes for teaching, for sharing the arts of English, of language.  I have to say that there weren't many Shakespeares who went out into the frontier and met with the Indians.  There wasn't a lot of poetry transmitted.  

This was not a positive kind of education.  Everywhere you hear about the first thing that happened was the Indian's hair would be cut, not just in boarding school, but under these gatherings that took place under the Civilization Regulations.  So the Indian's hair would be cut, which was really violative of personhood, and of religious tradition, of culture, of style for the people of womanhood of manhood.  And then the people would be beat up for speaking their language.  My dad spoke one language when he went to federal Indian boarding school and that was the Muscogee Indian language, and he was nine years old.  And he would stand in the lunch line and say, [ speaking Muscogee ] "Let's go eat, boy," and he'd be beat up for that.  I asked Dad, "What do you mean beat up?  What were you beat with?"  And he said, "Well, you know boards; one by twos or two by twos."  Well that's a bat.  Think how tall a nine-year-old boy is, that's a bat.  And that's in my lifetime that -- My dad is one generation ago and that's what happened to him as a result of the Civilization Regulations.  

Now he told a reporter from The Washington Post that he remembered, he had never heard of Civilization Regulations and I hadn't discussed it with him.  So the reporter talked to him about it and he said, "Well, I kind of know when that happened."  And he named the time, "About 1935, '36 because we stopped getting hit by boards and we started getting hit by leather straps and that was a great day."

Leon Scioscia: 
A question in -- go ahead, please.

Female speaker: 
[ unintelligible ] Before you came in to talked about part of the problem with issues about sacred lands is lack of education [ unintelligible ].  And then you comment about the legal case in New Mexico where there's that catch-22, you can't talk about define, ask people to reveal things [ unintelligible ] My question is going into the [ unintelligible ] if you've thought about this very important issue and how to present it and [ unintelligible ] in some ways the issues are similar to in the legal case.  How can you educate and present this issue without revealing?

Kevin Gozer: 
Well, I think that the point of the museum really is to do that, you know to try writ large to educate the world about the Indian worldview, if you will.  And that's dangerous because there is no Indian worldview; there are a whole bunch of them.  But there is some themes that we can find.  And if we can present those effectively, then when say a student or a D.C. person, who has gone to the museum three or four times in their life, suddenly ends up working on the Hill.  If we do it right, then that person, when they hear about an issue like this will say, "Well, I know why that is.  And I understand."  And there's a, "I don't need to know the specifics in order to appreciate that this expansion of a ski basin is going to violate this tribe's sense of, is going to violate this tribe's religious sensibilities."  

So yes, we'll think about that all the time; just how to best educate the public about the Indian, you know, the worldview of different Indian tribes.  We will not make a specific effort; I think to talk about specific issues of this type, at least in the exhibitions.  Now certainly in our programming, a program like this would be entirely appropriate, in deed a series of programs just on the San Francisco Peaks would be appropriate just to try to explain to people, here's what's going on out there and here's why the tribes are objecting.  

You know, it's too easy for Indians to be, you know, we're called anti-science, anti-progress, all of these different things and it's not that at all, we're pro-something else. [ Laughs ] And so, but the world has long-defined Indians in other terms, in European terms and a museum really is about us making an effort to define ourselves in our own terms and saying, "We're not anti anything, this is what we are." To the extent that conflicts with what you are, well, let's talk about that and figure it out.  So that's my answer.

Dean Suagee:
The difficulty of being specific and understanding the religious significance of a place, tribal religions tend to be, you know, based in specific places.  It's one of, makes me think of one of the ways in which, what I referred to as the round peg, square hole problem of historic preservation, you know sometimes actually works to the benefit of protecting sacred places; it has that potential is that you learn how to use historic preservation.  You explain why some place is important in the nation's history, it's important in the history of a particular tribe.  You don't have to explain why it's important for religious purposes.  

That gets you to the point where you can consider, you know setting aside larger areas, you know whole areas, protecting them from extractive development or from destructive development and allow for other kinds of land uses that are compatible with -- And then you can get to specific, possible specific conflicts about how you accommodate religious practices within this area and maybe keep people out at certain times.  But using historic preservation gives you this opportunity to keep the places from being destroyed or damaged and it also gives you that potential of using place-based historic preservation to educate the public.

Leon Scioscia: 
Time for one more question in the back.

Female speaker:
How come [ unintelligible ] how equivalent are [ unintelligible ] religious [ unintelligible ] And I'm wondering in some of the cases that we've talked about, it's where there's only a small percentage of the tribe that's bringing the suit.  It actually, practically is a [ unintelligible ] number of that religion.  Does that affect the outcome of these cases at all?

Suzan Shown Harjo: 
There are only certain families that were able to carry on traditional religions everywhere for every Native nation; it was not the entire tribe.  Most of the Native people were Christianized or were anti-religionized; were disaffected from any religion when they had their own religions wrenched away from them, or they were wrenched away from the religions.  A lot of the religions were driven underground and never reemerged because there simply weren't any people to practice them.  And then a lot of the focal points, and there are many, of religious ceremonies were taken away because all these, the material culture was confiscated during these 50 years of the Civilization Regulations.  

And while the people were being imprisoned and all of this, the buffalos fell, or the shield, or whatever was the object of a particular, or one of the objects of a particular ceremony or the clothing, all of that was being confiscated.  And graves were being robbed and the like so what came into the modern time was, if at all, were just a very few families and often times not even the entire family that practiced a certain religion.  What was destroyed was the balance of summer/winter clans, the polar opposites, the gender balance, all sorts of women's societies, women's ceremonies took a, there was a heavy loss of women's ceremonies.  

So what you have in the modern time is cultural reclamation occurring and just a few people who are trying to piece it all back together or go forward with what we know.  Now people remember were paid in food and horses and favors for ratting on the people who were practicing their religions.  And that derision of the traditional Native person, in part still continues today, even though we have had about 20 years of better times for those of us who are traditional Native practitioners.  We used to be criminalized by barbed wire and no trespassing signs and that's still the case around some of our sacred places and we still can't get to them. And one of the heavy tolls in modern times of the removal policies is that we have to go long distances to get our medicine plants, or try to replicate the conditions for medicine plants in the new places where we are as opposed to the places hundreds of miles away and generations back.  So it's a real struggle today.  

When I was pressing for the National Museum of the American Indian, I was the lead spokesperson for that, for Indian country during the '80s and for repatriation laws, many of the people within my own organization, the National Congress of the American Indian were saying, "We've had enough of Suzan and her cultural crap."  And that was in 1989 as we were on the edge of getting, I mean months away from getting national law and repatriation and the National Museum of the American Indian.  So you can imagine what our ancestors had to face.  

So it's a miracle of survivance with the individuals and now with societies within nations that we have structure and we have some liberties remaining around religion.  What we need to do though on the unfinished agenda is to continue removing those federal barriers that stand in the way of the free exercise of religion; and that's what federal agencies can do.  That's the importance of this kind of gathering.  Federal agencies really can convey land, they can protect land, and do so within the mission of their agencies, and just remove those barriers that stand in the way of the free exercise of our religion, even if it's only a minority of a minority of a minority. 

Kevin Gozer:
Let me just mention one other thing that, although many many Indians, perhaps most, would say that they're Christian, that does not keep them from still practicing traditional ways as well.  It's very common.  The most obvious examples are the Indian Pueblos in New Mexico, which are, I mean, there's a Catholic church on every reservation, and they would describe themselves as being practicing Catholics in at least some senses, but still maintain their traditional religious practices.  

So you can be both.  For example one of my favorite things is, I'm part Comanche and the Old Mission Church there, it's Baptist, has been in my family for quite a long time and they'll sing Christian hymns in Comanche. [ Laughter ] And there's only one place you can hear that and it's really, I mean it's very fulfilling.  And so, you know, modern Indians have spiritual experiences in a variety of contexts and with a number of different tribes.  And so these religions are vibrant.  

And just to answer your original question, I don't think the courts have yet taken a look at, said something like, "Well, there are only 25 of these Indians and so why should we respect that?" But you can tell they're thinking it by the way they basically, what, diminish, I guess the significance.  In the G-O Road Case, I mean, Justice O'Connor said, "We accept that this will destroy this religion."  I mean it was a most extraordinary thing and then said, basically, oh well.  I don't know how else to say it.  I think that's a fair characterization.

Suzan Shown Harjo: 
Yes, absolutely.

Leon Scioscia: 
We have to stop, arbitrarily stop this panel. 

[ laughter ] 

But one minute after the panel, we continue the discussion and concerns and very privileged to have three individuals who have devoted their lives and skills and talents and wish you would join me in expressing your appreciation.  Thank you very much.  

[ applause ] 

[ music playing ]

[ end of transcript ]