Environmentalism, Sacred Native Land, and the Failure of the First Amendment

by Kenny Richards

American Indians have had serious trouble winning religious freedom cases in the high courts of this country.  Felix Cohen, a legal scholar who set much of the groundwork for practicing federal Indian law, once remarked that we should watch closely what happens in the federal courts when American Indians are involved, as these cases often act as canaries in the coal mine.  If what Cohen warns is true, then these canaries fell to the bottom of their cages a long time ago.  The persistent failure of the American government to protect the right to the free exercise of religion for American Indians suggests that this government is enforcing a particular and biased conception of religion.  In landmark cases such as Employment Division v. Smith, Lyng v. Northwest Indian Cemetery Protective Association, and Navajo Nation v. United States Forest Service, the United States court system has repeatedly shown its aversion to protecting the religious rights of American Indians. 

          

In response to this pattern in high court decisions, different tribal entities have begun arguing for environmental conservation as a way to protect their sacred places from destructive forms of development.  Across the United States, various forms of destructive development, from open-pit mining to energy production are currently threatening the existence and perpetuity of many American Indian sacred places. The shift in legal argumentation from religious freedom into environmental arguments for the protection of American Indian sacred places offers an important opportunity for many to see how, exactly, the court’s interpretation of the First Amendment is failing to protect American Indian religious traditions.  

This past winter, the Snowbowl Ski Resort in Arizona began making snow from recycled human wastewater to spray on their ski runs in the San Francisco Peaks.  This forested and ecologically rich mountain range is a sacred place for many of the Indigenous peoples of the American Southwest.  Klee Benally is a member of the Navajo Nation and an Indigenous and environmental rights activist.  Benally has been working for the protection of the San Francisco Peaks for many years now. As reported by media outlets such as Indian Country Today and The Navajo-Hopi Observer, this past December, Benally participated in a public protest in Flagstaff Arizona where, with a group of other Indian peoples, he argued that snow production violated their human rights, namely their right to the freedom of religion. Benally told Indian Country Today, “what needs to happen is the government needs to afford the same rights to Native Americans that everybody else in this country enjoys.” Not long afterwards, Benally marched with more than a dozen people down to the local U.S. Forest Service headquarters in Cococino National Forest and hand delivered letters of protest addressing the recent promise by the U.S. Department of Agriculture to help protect American sacred places.  With the flair of an activist, Benally poured a 5-gallon bucket of treated sewage effluent, the same water to be used on the mountain for snow-production, in the center of the main entrance to the park headquarters.  The Forest Service promptly called in a Hazardous Materials Response Team, or “HAZMAT” to clean and neutralize this hazardous spill.  Benally was then arrested and now faces a maximum possible sentence of $20,000 in fines and 2 years imprisonment.  In a written statement responding to his arrest, as published in the Navajo-Hopi Observer, Benally wrote, “The irony is that the USFS has authorized to spill more than 1.5 million gallons of treated sewage effluent per day onto a rare and pristine alpine habitat, yet they feel it’s appropriate to call hazmat when a pail of this same wastewater is allegedly poured onto their polished tile floors?  I hold the USFS liable for the environmental poisoning that is set to occur on the peaks right now.”

Step back four years: in 2008, after years of litigation, appeals, district, and federal court decisions the 9th Circuit Court of Appeals ruled that the production of artificial snow on the San Francisco Peaks did not violate the right to the free exercise of religion for several thousand Indian people. The Indian plaintiffs in this argued that the use of treated sewage effluent for snow production at a skiing resort on Mt. Humphrey’s would desecrate one of their sacred mountains, thus destroying their ability to practice their traditional religions. 

After the 9^th Circuit decided the case, Indian peoples continued to protest snow production, alleging human rights infringements in terms of both Indigenous rights and U.S. constitutional rights.  All the while, the Snowbowl Ski Resort continued to put pipes in the ground and make preparations for snow production from recycled sewage effluent.  Since their First Amendment case failed, several groups, including the Hopi Tribe and the Save the Peaks Coalition (an environmentally focused group), have brought lawsuits arguing that the production of snow from treated wastewater will violate certain environmental laws. 

This turn to environmental law for the protection of American Indian sacred places in Arizona is not a singular phenomenon.  Disputes over uranium mining on Mount Taylor in New Mexico, Copper mining from the Pebble Mine in Alaska, and the proper management of the Ka’u Forest Reserve in Hawai’i are all examples of sacred places that are being fought over in environmental terms. Tisa Wenger, a historian of American religions, argues that many American Indians adopted the Euro-American concept of religion as a means of responding to and resisting colonial force.  Not surprisingly, in light of the almost complete failure of American Indian religious freedom cases brought before the U.S. government there is emerging a new adaptation as a way to protect Indigenous ways of life and landscapes. 

Congress and the judiciary must come to terms with their own coercive history and to the limited and unjust definitions of religion that they enforce. The American Indian turn to environmental law in religious freedom cases speaks loudly to the failure of the U.S. government and the First Amendment as protectors of equal rights.   It is high time for the courts, and perhaps Congress, to reassess their definition of religion to include the Indigenous peoples who have not historically fallen under the protection of the First Amendment. 

    

Reflections from the California (Bay Area) Archives

By Tisa Wenger

This academic year I’ve been enjoying the enormous privilege of a sabbatical, and I’ve been hard at work on the research for a book that I’m describing as a cultural history of religious freedom discourse in the twentieth-century United States. In other words I am interested in anybody, anywhere in the country, who was invoking the ideal of religious freedom. The goal is to explore the changing meanings of "religious freedom" across the century, and the cultural and political work that this ideal has performed.

This is anything but a small topic, and at various times I’ve felt overwhelmed at the scope of the research involved. When I spent a week at the American Jewish Archives in Cincinnati, and described my project to an archivist there, he looked at me like I was quite possibly insane, and said, “Just about everything in our collections would be relevant to you.” Well, yes. One of my methods for locating relevant primary sources was to do keyword searches in Archive Grid and Archive Finder for phrases like “religious freedom” or “religious liberty” and just see what turned up. After almost a week of this I had around forty piles of printed-out finding aids organized by state, and I planned research trips based on which piles were a) the biggest, and b) would provide me with materials representing a wide diversity of religious groups, political perspectives, and geographic regions. To the dismay of my family, who had the crazy idea that they might see more of me than usual during my sabbatical, I’ve ended up doing research this year at archives in Indiana, Maryland, New York, Ohio, Massachusetts, Wisconsin, California, Illinois, Tennessee, and of course (since I live here) Connecticut.

Now I admit that this is not exactly a “religion in the American west” topic. But since I’m the person writing this book, westerners and the west will be well represented in it. And since my trip to California was just at the end of May, I thought I’d share with you just a few of my reflections on the sources I managed to gather in a day at the Hoover Institution (Stanford), four mornings at the Graduate Theological Union library (Berkeley), three afternoons at the Bancroft (Berkeley), and one afternoon at the California Historical Society (San Francisco).

One important thread involved new religious movements and the “cult” scare of the 1970s, especially as it played out in California. The GTU has an excellent “vertical files” collection on new religious movements, which includes extensive materials from and about the Church of Scientology and the Unification Church (Moonies). Not surprisingly, given the animus directed against them, both of these groups developed very sophisticated public relations campaigns that appealed, among other things, to the constitutional principle of religious freedom. As their opponents sought in various ways to define their activities outside the bounds of what could be protected under the First Amendment, they worked to place themselves squarely within the protected category of “religion.”

While none of that was a surprise, I did find some unexpected (at least to me) intersections between the NRMs and the other sorts of groups I was pursuing. For example, at the GTU I was also exploring the papers of Richard Boeke, a Unitarian minister in Berkeley during the 1970s and 1980s who was instrumental in reviving the North American chapter of the International Association of Religious Freedom (IARF). This is an organization of Unitarians and other religious liberals, originally founded in Boston in the early twentieth century, which has given me rich insights into how religious freedom appears from the very liberal end of the religious spectrum, Christian and otherwise.

Boeke also ended up being active, along with religious studies scholar J. Gordon Melton and many others, in a group called the Alliance for the Preservation of Religious Liberties (APRL), which was based in Los Angeles but had a very active Northern California chapter. APRL’s primary goal was to combat the persecution of new religious movements, and dedicated much of its energies to public relations against “deprogrammers” hired by some families to get their young adult children away from the “cults.” They also fought legislation that was proposed in California and many other states to specifically legalize deprogramming—some deprogrammers were being convicted under kidnapping laws—when the person targeted was involved in a group that allegedly used “brainwashing” and other coercive tactics. The national APRL president, Dr. Ross Bartlett, was a Baptist minister from Los Angeles whose contributions to APRL newsletters quite clearly reflected the Cold War context of these events. America must allow religious liberty for all, he wrote, and not just for the popular or well-established religions, because to do otherwise would make the United States like the totalitarian and anti-religious Soviet Union. (On the other side of the debate, anti-cult activists represented the Scientologists, etc., as “totalitarians” who forced a conformity of belief—thus violating the religious freedom of their members—and threatened the foundations of a free society.)

The Jonestown tragedy of 1978 inspired a rash of anti-cult publicity (as well as legislation), and occasioned much soul-searching on the part of many of those who had been defending the rights of new religious movements. Even within APRL, the limits of religious freedom were always complex and very much contested. The organization included some Scientologists and Moonies as members—after all they had a stake in the cause—and so regularly faced accusations that it was simply a “front group” for these movements. In the early 1980s, Bartlett visited chapters across the country to ensure this was not the case. After investigating the affiliations of all local APRL leaders, he ultimately forced a “purge” of several regional chapters in order to ensure the national credibility of the organization. Around the same time the IARF sponsored a symposium on “The Limits of Tolerance,” asking under what conditions “tolerance” and inclusivity might become counterproductive and actually undermine the liberal values they wanted to advance. Some of the correspondence around that symposium revealed that part of the impetus for the event was a petition from the Church of Scientology to become a member group of IARF—a request that was promptly denied. Scientology, tainted as it was with a reputation for fraud and coercion, clearly did not fit the IARF’s parameters for an ally in the cause of religious freedom. Even the ACLU (I spent my time at the California Historical Society with the Northern California ACLU papers) went through some soul-searching after Jonestown, as several chapter leaders questioned the wisdom of their support for the People’s Temple during its San Francisco years. And they extended these doubts to the broader question of religious freedom, asking whether and when they should be more selective in advocating for “freedom” for groups that may prove undesirable in various ways.

At the Bancroft I spent much of my time with the “People for the American Way Collection of Conservative Political Ephemera, 1980-2004.” You would be amazed (or maybe you wouldn’t) how many right-wing organizations over the past three decades have employed the words “religious freedom” or “religious liberty” in their names and statements of purpose. This focus on religious liberty sometimes made for strange bedfellows: in the early 1980s, when a number of luminaries from the emerging Christian right went to Washington, D.C. for a march for religious liberty, some were surprised to discover that the march had been mostly organized by the Unification Church—part of a campaign to have its leader, the Reverend Moon, released from prison (he had been convicted of various financial improprieties). While some who had come for the march disavowed any connection with the Moonies, others heartily embraced the cause of Rev. Moon as a legitimate religious freedom issue.

More broadly, the People for the American Way collection helped me understand how the religious right managed to seize ownership of “religious freedom” in American public discourse in the 1980s and into the present. At mid-century a majority of religious freedom talk had come from the coalition of civil libertarians, Jewish organizations, and mainline/liberal Protestants who advocated for the separation of church and state as the primary guarantor of this liberty—an agenda reflected in the Supreme Court’s adjudication of First Amendment cases in that period. (Not at all concealed in much of this advocacy, especially around public-parochial school questions, was a deep and abiding suspicion of Roman Catholicism as a major threat to American liberties.) But in the conservative upswing that began in the 1970s, evangelical leaders asserted a fundamental conflict between religious freedom and the separation of church and state, pushing for things like prayer in the public schools as an issue of religious freedom.

Although there were many factors that played a part in that shift—the cultural and political dynamics of the ongoing Cold War prominent among them—I have started to see the “cult” scare of those decades as one contributing factor. On one hand, the events of Jonestown and the cult controversies contributed to doubts among liberal groups like the ACLU and the IARF about the limits and the utility of religious freedom talk. And on the other, despite the doubts of some evangelical leaders, the Washington march organized by the Moonies contributed to the surge of the new right-wing discourse of religious freedom.

So that sums up some of my more interesting finds in the Bay Area archives. Again, not entirely about the west, but the distinctive religious dynamics of California are essential to these insights. And I’d love to hear thoughts on this work from any readers of this blog.

Religion in the News

by Brandi Denison

This past week, several incidents occurring west of the Mississippi have called attention to the way in which the religious diversity of the American West leads can lead to friction.

First, in Roosevelt, Utah, a small town in eastern Utah, police officers used pepper spray against an "unruly" crowd at a high school football game. The Washington Post reported that a group of Polynesian men had come to the came to support a relative, who was playing for Union High School. Union had lost the game, but to rally the team's spirits, the relatives decided to perform the Haka, a traditional Maori dance that has been appropriated by sports teams as a pre-game ritual. You can see a video of the All-Blacks (New Zealand's soccer team) perform it here. Police reported that they did not know the Haka would be performed and were alarmed by the aggressive dance.

This space is no stranger to governmental crackdowns on indigenous dance practices. Roosevelt borders the Ouray-Uintah Ute reservation--a space where, in the early twentieth century, authorities attempted to quell the Sun Dance and other traditional practices.

Second, earlier this month, the Seattle division of Hertz, the car rental company, fired 26 Somali Muslims for failing to clock out during prayers. The Washington Post reported that 34 workers were suspended for not clocking out during breaks, which the company contends includes prayers. Eight employees were reinstated once they agreed to sign out. The union which represents the drivers, Teamsters Local 117, contends that the most recent contact states that workers would not need to clock out for prayers. Seventy percent of the Hertz employees the union represents are Muslim, making this contract dispute significant. Hertz argues that their policy is not discriminatory, but instead, making sure that all their employees are treated fairly. 

This isn't the full story, though. You might think this all sounds familiar. That's because in 2009, non-Muslim Hertz employees in Atlanta sued the company for not requiring Muslim employees to clock out during prayers. Like the Seattle case, the non-Muslim employees in Atlanta were concerned about fairness. Muslim employees, the lawsuit contended, had up to three 15-minute paid breaks a day.

Are these two cases simply about maintaining order and fairness? Or are there elements of racial and religious discrimination in each? What do you think?

Environmentalism vs. Indian Religious Freedom

by Tisa Wenger

Yet again, legislation aimed at protecting the environment ends up doing violence to Native American cultural and religious traditions. As reported in Indybay’s online newsletter earlier this week, tribal leaders in California are protesting a new law banning fishing and harvesting activities—including their traditional practices—in special marine protected areas along the state’s north central coast. Above all this is an issue of environmental justice. Environmentalist goals needs to be pursued in ways that allow indigenous cultures to flourish—especially when the cultures in question have historically maintained sustainable practices.

This story is also important for understanding the dilemmas of Native American religious freedom, as well as the intertwined histories of land and religion in the region—two important topics for the study of religion in the American west, as Quincy Newell reminded us in her post just a few days ago. The Indybay piece reports:

Members of the Kashia Pomo Tribe and other tribes are now banned from their traditional seaweed, abalone and mussel harvesting grounds by the creation of a massive new no-take marine reserve off Stewarts Point in Sonoma County.

The reserve is the largest in a network of 21 marine protected areas (MPAs) that took effect on May 1 along California's north central coast under Governor Arnold Schwarzenegger’s Marine Life Protection Act (MLPA) Initiative.

To mark the final day before the unprecedented closure, tribal leaders held a historic ceremony to bless an area where the Kashia Tribe of Pomo Indians has gathered seaweed, mussel, abalone, clams and fish for centuries. Stewarts Point, called “Danaka” by the tribe, is sacred to the tribe since it is regarded in their creation story as the place where the tribe first stepped on land, according to Eric Wilder, former chair of the Kashia Pomo.

Like Wilder, other Pomo tribal leaders quoted in the article emphasize the religious quality of their relationship with the site. Their story illustrates the disjuncture between indigenous traditions on the one hand, and the concept of religion as framed in American law and governmental practice on the other. As Tribal Elder Violet Chappell put it, “I don’t think the Fish and Game would be allowed to close down a Catholic Church, would they?” Although some exceptions have been painstakingly created, the system is simply not set up to work for land-based traditions. Come to think of it, maybe mainstream America’s lack of any real connection between land and religion is what got us into this environmental mess in the first place.

Mojave Cross Stolen

by Brandi Denison

A few weeks ago, the Supreme Court heard a case about a cross that stood in the Mojave Desert--not about the constitutionality of a religious symbol on public land, but about the legality of the transfer of land in order to allow keep such religious symbols. The Court ruled that this transfer was constitutional AND that religious symbols on public land do not violate the establishment clause. Here NPR's story here.

Today, the cross was stolen.

Reflections on Multiplicity, Freedom, and Transnationalism

by Tisa Wenger

In teaching a course titled “Religion in the American West” this semester, I must confess to an occasional frustration with the limitations of this rubric. Some days I’m not even sure why I’ve chosen to configure a course in this way. The western half of the United States (if we can even agree that this is what we’re studying) is just too much, too big, to identify consistent themes that might distinguish its religious history from that of the rest of the country. Rather than constituting one region, it encompasses multiple regions, each with multiplicities of its own. And then it occurs to me that this is precisely the point. We are not engaged in a quest for some unique quality that would separate the West from the rest of the country, or from its multiple borderlands. Rather, as Brandi Denison’s inaugural blog entry also suggested, focusing on the multiplicity of Western narratives may bring new insights and new questions to national, hemispheric, and transnational histories.

For example, I’m thinking a lot these days about the topic of religious freedom in American history. My project is not limited to the West, but my concern with the West significantly transforms the shape of this work. As the United States expanded westward, how did concepts of liberty and the ideal of the free conscience shape Protestant visions of their own role in what seemed to them a divinely ordained drama? When and where did Anglo-Protestant conceptions of “freedom” tend to exclude and/or discipline other modes of religiosity? How did the peoples they encountered—Indians, Catholics, Mormons, Hispanos, Asian immigrants, and others—understand and make use of the religious freedom ideal, and how did it transform them? Were the dynamics of religious freedom different in the West, where in most areas the “mainline” Protestant denominations never established any controlling presence and competed with multiple forms of religious commitment?

Another question I’m pondering involves the relationship between religion in the American West and (buzzword alert!) more global or transnational approaches to religious history. Laurie Maffly-Kipp’s classic essay “Eastward Ho!” (in Thomas Tweed, ed., Retelling U.S. Religious History) reminded us well over a decade ago that a “Pacific Rim” perspective on U.S. religious history would require us to think multidirectionally and even globally about human migration into and across the Americas. This seminar and this blog, I hope, will help all of us to take up Laurie’s challenge and to expand our field of vision so that we’re not only orienting ourselves regionally within the U.S.—but that the American West might also open up new ways of seeing transnational religious networks and movements.

For anyone who happens to find this blog without already knowing about our seminar and/or website, please check out our home site: “Religion in the American West Seminar.” We welcome your comments and suggestions.