Song of Water

Officials from the local electric utility also recognised the immense power of these waters, but what they heard was the sound of money: hydropower to be harnessed and converted into billions of dollars. Their engineers designed a dam that would swallow the falls behind a 4-mile reservoir, and the Federal Energy Regulatory Commission was ready to rubber stamp the construction permit when a group of traditional medicine people and the Native American Rights Fund filed a motion to stop it. For the tribes, the hydropower plan was an existential matter of life and death. Allowing destruction of the area would break their covenant with the Creator to guard the land, and without the sacred songs of Kootenai Falls, they would cease to exist as a people.

The conflict ended up in court around the same time that several other Native Nations across the country had brought similar cases seeking protection of their sacred sites under the constitutional guarantee to freedom of religion. Five hundred years after contact between the European and Native Nations in the Americas, these cases highlighted the continuing clash between starkly opposing worldviews on what is considered sacred, and what is not. The lawsuits spiralled all the way up to the US Supreme Court, where the Justices themselves bitterly disputed the concept of land and its web of life as something sacred.

Testimonies given by traditional medicine people in these sacred site cases pointed out that climate change is not the problem, but a symptom of the problem; that species extinction is not the problem, but a symptom of the problem; that in fact all the environmental problems that now threaten the human species are only symptoms of the underlying problem. In half a dozen different court cases across the country, traditional people testified time and again that the air, the water and the land are sacred elements at the core of their religions that must not be desecrated, while the government and business interests made the case that these life-supporting systems can be closed down when there’s a financial incentive to do so. One of these perspectives was responsible for maintaining the basic ecological integrity of the continent for 20,000 years. The other has placed the planet’s life systems into a death spiral the likes of which have not been seen since the extinction of the dinosaurs 60 million years ago. The First Amendment court cases involving sacred sites crystallised this clash of perspectives and revealed the problem underlying the symptoms of environmental destruction.

Until 1924, the spiritual traditions of the Native Nations were illegal. Ceremonies went underground because medicine people could be jailed for performing them. Formal recognition didn’t come until 1978 with passage of the American Indian Religious Freedom Act (AIRFA) which states that ‘it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise traditional religions […] Including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.’ Yet soon after AIRFA passed through Congress, the government challenged whether the Act had the power to stop destruction of sacred sites by various moneymaking schemes.

The first case was brought by a descendant of Sequoyah, the Cherokee genius who single-handedly created a syllabary for his language in 1809. Sequoyah was born in an area of the Little Tennessee River Valley that holds Cherokee sacred sites, graves and the ancestral capital of their nation known as Chota. The Smithsonian Institution called the valley ‘undoubtedly the most interesting archaeological section in the entire Appalachian district.’ Fishermen recognised the river as the best trout fishing water east of the Mississippi. Biologists knew it as home to the snail-darter, a nearly extinct fish species. Farmers knew the valley as high-producing, top grade farmland. All of these resources and human rights were threatened by the Tennessee Valley Authority’s (TVA) plan to build the Tellico Dam and submerge 16,000 acres of land.

A cost-benefit analysis showed that the dam would lose a million dollars a year, but an alliance of land speculators, local politicians, and pork-barrel Congressional committees attached a secretive rider to an appropriations bill that illegally circumvented the analysis and the Endangered Species Act. As a last ditch effort to save the Cherokee homelands, Mr Sequoyah and two Bands of the Cherokee Nation brought a suit in federal court to block construction of the dam. Their lawyers stated that ‘the flooding of the river valley would, in an immense and immeasurable way, infringe upon the basic right to practice the ancient Cherokee religion.’ An affidavit from the Cherokee medicine people stated that the river and adjoining river valley were ‘not merely the symbol of something sacred, or merely a place to bring forth memories of past persons or events. It is itself sacred, itself the source of sacred power.’

For the TVA, there was nothing sacred about the 38,000 acres it had acquired by displacing 700 farms in the area. Lawyers for the Authority claimed that Cherokee property rights had been expunged by 125 years of non-possession; they didn’t mention that this ‘non-possession’ was in truth an illegal dispossession that started when gold was discovered there in 1828. President Andrew Jackson defied the Supreme Court to ensure access to the gold, and he ordered the military to forcibly remove the Cherokee from their land, sending them on the infamous death march known as the Trail of Tears. Of the 16,000 people who were forced at gunpoint from their homes, 4,000 would be murdered or die from starvation and frostbite on the 1,000-mile walk westward. A few Cherokee escaped and remained as fugitives in the valley. Many others who survived the trek to Oklahoma would return on pilgrimages to perform their spiritual observances below the radar of the local authorities.

Despite the compelling history and threat to religious freedom posed by the dam, Judge Robert Taylor agreed with the TVA, and dismissed the Cherokee complaint because ‘plaintiffs claim no legal property interest in the land in question.’ Instead of recognising their position as religious claimants with constitutionally-protected rights, the court resigned the Cherokee to the role of trespassers on their own ancient sacred sites. It didn’t matter that they predated the United States with a highly developed society by several thousand years. The current deed to the land was all that mattered. Lawyer Brian Brown wrote that ‘the Cherokee had proven that the dam would halt their ceremonies, obliterate the physical vestiges of their history and culture, and destroy the sacred reality at the heart of Cherokee religion, but the TVA asserted that the Constitution afforded no protection for religious belief and practice regarding lands unless the plaintiffs owned the property.’ The Cherokee appealed the decision, but the TVA had responded quickly to Judge Taylor’s decision, and by the time the Appeals Court issued its opinion, the River Valley had disappeared beneath the waters of a completed Tellico dam.

The public controversy over Tellico marked a crucial turning point in American attitudes toward dam building in general. Up until that moment, new dams had represented economic progress and technological prowess. It took a breach of the Constitution, a violation of the Endangered Species Act, the submergence of Chota and defacement of Cherokee sacred lands to permanently end the era of dam building in the United States. The process is now in full reverse, with 72 dams being removed in 2016 alone. Many rivers are slowly being restored, and some of the fish and wildlife are returning. There are currently no plans to take down the Tellico dam, but its removal and the return of the sacred Cherokee homeland would be a first step toward reparations for one of the worst crimes in American history.
‘Before any resolution to American history can occur, a reconciliation must be affected between the spiritual owner of the land – the American Indian – and the political owner of the land – the American white man,’ Sioux Professor Vine Deloria wrote. ‘Guilt and accusations cannot continue to revolve in a vacuum without some effort at resolution.’

After the Sequoyah decision, three other First Amendment legal challenges were brought in rapid succession to halt government actions against sacred lands:

In Badoni v. Higginson, the Navajo sought to save the soaring stone arch known as Rainbow Bridge from flooding due to construction of the Glen Canyon dam.

In Wilson v. Block, the Hopi and Navajo joined forces in an effort to prevent desecration of their revered San Francisco Peaks by the expansion of a ski resort.

In Frank Fools Crow v. Tony Gullet, spiritual leaders from the Lakota and Tsistsistas petitioned the courts to protect their ancient prayer site, Bear Butte, from defacement by tourist facilities.

Plaintiffs in each of these cases testified to ‘the spiritual character of all beings within the community of life, and evoked patterns of thought, language, and behavior that give striking witness to a perception of the natural world as sacred,’ Brown said. Time after time, tribal members testified that their worldview recognises the Earth as a numinous presence upon which the fate of the human species depends. On the other side, government lawyers relied on the dominant paradigm of Earth as a soulless material resource, disconnected from the fate of the human species. In the end, none of the courts were willing to protect the religious traditions of the people whose lands they occupied.

The final legal standoff unfolded amidst the ancient redwood forests of the Pacific Northwest, which many consider the crown jewel of North American ecosystems. Even for unbelievers, the overwhelming scale and beauty of 2,000 year-old trees towering 350 feet overhead silences mental chatter and raises the volume on the ineffable. The local Yurok, Karok, Tolowa and Hupa peoples possess a distinct cosmology and an entire way of life centred on listening to that voice. While much of their spiritual life-way remains mystical and secret, they have publicly revealed that their dances, ceremonies and prayers are directed toward maintaining the stability of the Earth and the renewal of all life. A recent scientific study confirmed what these people have long known – redwood forests exert a strong stabilising effect on the climate because they store at least three times more carbon above ground than any other type of forest.

Like the Cherokees before them, tribes of the Northwest faced genocide when gold was discovered in the pristine streams that lace through the ancient forests. Their homelands were invaded by 100,000 desperate gold miners in the 1850s who brazenly claimed over one million acres of tribal lands through coercion, massacres, kidnapping, mass enslavements and legalised ‘Indian hunts.’ When the army finally intervened and removed all of the area’s tribes to small reservations, several dozen people managed to flee and return to their original territories along the Klamath River where they faithfully continued their religious observances to keep the world in balance.

‘We pray for the health and well being of all things, we sing, we dance, we heal the community to heal the land, we heal the land to heal the community. All of the community. Everything. Together,’ said Dr Cutch Risling Baldy, Yurok/Karuk/Hupa, and Assistant Professor at Humbolt State University.

The murderous frenzy of the gold rush ran its course by 1855, but then a second gold rush began when the colonists started cutting down the majestic trees. Public subsidies for roads and infrastructure quickly turned Northern California into the lumber capital of the world, and an environmental catastrophe where 96% of irreplaceable old growth forests were clear-cut and reduced to scarred, barren hillsides. Without the extensive root network holding the earth in place, erosion reached up to 22 tons of soil per acre per year, suffocating rivers and streams that are a critical spawning ground for the Pacific salmon and steelhead trout.

One of the final sections slated for logging was known as the ‘High Country’ because its rocky peaks rise up to 7,000 feet. Since time out of mind, tribal members have gone there to pray and seek guidance, especially the medicine people who lead ceremonies. Even approaching the high country is itself considered a religious act. Any would-be pilgrim must undertake a ten-day purification period and receive a vision indicating that the forces present within the forest sanction the visit. The tribes hoped that AIRFA would protect the priceless ecosystem and irreplaceable old growth trees, but with a stumpage value of $50 billion, the odds were stacked against them.

The Forest Service fulfilled its initial responsibilities to AIRFA by commissioning a report on the impact of road building in the High Country. The resulting ‘Theodoratus Report’ presented interviews with 166 tribal representatives who all warned against using the word sacred to refer to specific locales, but rather to understand that the High Country is considered to be sacred in its totality. ‘Although specific religious sites are identified within this region, the entirety of the region possesses a generalized sanctity which is necessary for the proper use of the specific sacred sites.’ The Report criticised the ignorance of the Forest Service regarding the area’s basic physical features, history and religious significance. It verified the High Country as the seat for ‘one of the great flowerings of Native American culture anywhere in the United States, and of signal importance to national culture.’ In a point crucial to the legal argument, the report said a ‘mental shift’ was required from thinking of the sacred sites as simply the locations for prayers and rituals, to that of a holy reality that gives meaning to those activities. It concluded that the Forest Service proposal would violate AIRFA because ‘the intrusions would be destructive of the very core of Northwest religious beliefs and practices.’

Despite outcries from fishermen, scientists, and grassroots environmental groups, the Forest Service decided to defy the report it had commissioned by pressing forward with the plan to build a logging road directly through the most important sacred sites in the High Country. The tribes tried every avenue to stop the plan for the Gasquet-Orleans road, known as the “G-O” road. After every potential remedy proved fruitless, they filed suit against the government. The Forest Service pointed to the precedent of earlier court rulings and claimed that since the land belonged to the government, it had the right to extract whatever resources they wanted from the land. The very inconvenient history of how the Forest Service had come to own that land was once again swept under the rug.

Judge Stanley Weigel of the Northern District Court of California issued his decision in May of 1983. He found that the Forest Service road would violate the tribes’ constitutionally guaranteed right to freedom of religion. Weigel characterized the Forest Service plan as a desecration of revered land, stating that its solitude, quiet and pristine environment to be crucial to ‘emotional and spiritual exchange with the Creator.’ He ordered that the Forest Service permanently stop construction of the road and any timber harvesting in the High Country. The decision marked the first time that a court had sided with a Native Nation against the government to protect sacred lands. ‘For the Yurok, Karuk, and Tolowa peoples, the High Country constitutes the center of the spiritual world,’ his opinion states, ‘it is also a priceless historical heritage for the entire nation.’

The Forest Service appealed the decision to the Ninth Circuit Court, which upheld Judge Weigel’s ruling. These two landmark victories should have allowed all the Native Nations to begin protecting the heart of their traditional cultures with the force of law. But the victories posed a high-stakes threat to the Forest Service position as landlord over millions of acres of land that had been taken from the tribes and held under its jurisdiction. Richard Lyng, Supervisor of the Forest Service, petitioned the US Supreme Court to hear the case. Lyng vs. Northwest Indian Cemetery Protective Association was the first time that the highest court in the land would hear an argument about the holiness of the American landscape itself.

Following a long history of precedents, the Supreme Court has set up a process that has to be followed before it will take the extraordinary measure of permitting a violation of the free exercise of religion. First, the Court must determine that a governmental action would interfere with the belief or practice of religion. If so, then the government has to prove a compelling state interest of the highest order that cannot be satisfied by any other means. In the Lyng case, the Court threw out its own rulebook and refused to adhere to the two-step process in what Justice William Brennan called an ‘indefensible abdication’ of judicial responsibility.

In the end, the Court voted 3 to 5 to reverse both of the lower court rulings and permit the government to proceed with its ‘development’ plan. Justice Brennan wrote that the case ‘represents yet another stress point in the longstanding conflict between two disparate cultures – the dominant western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred.’ Justice Sandra Day O’Connor defended the dominant paradigm of land as property by stating in her majority report that even though the Forest Service might ‘virtually destroy the Indians’ ability to practice their religion,’ they deserved no constitutional protection. ‘Whatever rights the Indians may have to use the area,’ she wrote, ‘those rights do not divest the government of its right to use what is, after all, its land.’ Justice Brennan pointed out that the ruling was ‘cruelly surreal’ in that ‘the only religious freedom it granted would be to protect the belief that their religion will be destroyed. In marked contrast to traditional western religions, the belief systems of Native Americans do not rely on doctrines, creeds, or dogmas. The site specific nature of Indian religious practice derives from the Native American perspective that the land itself is a sacred, living being, with specific sites possessing different spiritual properties and significance.’

Facing destruction of their culture, and in their view, the destabilisation of planet Earth, the tribes made a last ditch effort by petitioning the Organization of American States to investigate the logging plan as a violation of human rights. The US government may have been wishing to avoid international embarrassment when it placed the High Country under strict protection as part of the Smith River National Recreation. The G-O road was never built, and the High Country stands as a preserved oasis amidst clear-cut forests, where World Renewal ceremonies continue to this day.

The Kootenai case was resolved in an entirely different way. The tribe had a charismatic spokesman in medicine man Pat Lefthand, who thought that Kootenai Falls could speak for itself. He invited the judge to accompany him on a personal encounter with the site, and as the two men walked beside the river, Pat recounted his tribe’s history and described some of their spiritual practices. Then he suggested that the judge sit on one of the rocks below the falls and contemplate the beauty that surrounded him. The lawyer Steve Moore, who represented the tribe along with Walter Echohawk, said that ‘there’s an irrefutable presumption that a license will be granted by the Federal Energy Regulatory Commission. In the past 40 years, only three applications out of thousands have been denied.’ Yet in that moment of listening to the waters that had inspired countless generations of traditional people, the judge had a change of heart. Upon returning to the courtroom, he refused to grant the utility’s permit to build the dam.

When Europeans landed in the Americas, they hauled along their baggage of holy books, supernatural ideas, and the sacred concept of private property. They were met by people who embraced their ecosystems as manifestations of the divine that were far beyond human ownership. Vine Deloria writes that ‘industrial civilization might succeed in making the Earth uninhabitable for humans because we have downgraded the real world in favor of a supernatural world.’ It has taken a few centuries, but scientists and traditional medicine people now find themselves on the same page, with both groups agreeing on the primacy of the real, observable world of air, water and land. At the same time, voices reasserting the sanctity of the natural world have begun to re-emerge from the traditions of Judaism, Christianity and Islam. The priest and scholar Thomas Berry writes that we need ‘a conversion experience deep in the psychic structure of the human. An experience wherein human consciousness awakens to the grandeur and sacred quality of the Earth process.’

Whether the US constitution is capable of protecting ancient religions that guard the land remains an open question. The answer may emerge if Americans in the mainstream culture can begin relating to the spirit of their particular places, as opposed to bringing foreign spiritual practices to those places. The traditional life-ways of the Native Nations based on observations of natural phenomena have persisted throughout centuries of oppression, and remain to this day as guideposts for our imperilled civilization. At this late hour, as wildfires ravage the west, floods inundate the south and east coasts, and heat waves stifle the cities, the people and the courts would do well to listen to them.