By Charlene Eigen-Vasquez, Founder and Chairwoman of the Confederation of Ohlone People
Indigenous Peoples Day 2021, tribute created by members of the Confederation of Ohlone People. Photo courtesy of Charlene Eigen-Vasquez.
Over the course of history, by far the least amount of success for Native Americans has been in the protection of sacred sites for the preservation of culture and religion. Sacred sites are an integral part of religious practices going back to antiquity. Nevertheless, federal agencies have the power to destroy known sacred lands, resulting in the inability of Native people to practice their religion. Some of the most devastating contemporary impacts on sacred sites include the practice of fracking, mineral extraction, relaxed environmental impact studies, and urban sprawl. For Native Americans, the destruction of a sacred site is considered a “cataclysmic event” as the destruction of a sacred site can never be recovered. The preservation of sacred sites is so crucial to the preservation of Native peoples’ culture (including the ability to maintain religion) that international, state and non-governmental entities have increasingly become aware of the significance of the matter. Some consider the legal recognition of the right to protect a sacred site as being related to identity and self-determination for Native people.
To further understand the issue, it is critical to connect a trail of policies and court cases that correlate to racial persecution, as it is related to religious freedom. One of the very first policies to directly restrict Native American religious practices was the Dawes Act of 1887. The Dawes Act allowed the President of the United States to divide Native American land into allotments and restrict the movement of people. For a people with a “specific place,” a spiritual and cultural lifeline, the Dawes Act was a direct prohibition on the traditional practice of Native ceremony. The freedom of movement, access to specific places, and prayer are inseparable when it comes to spiritual health and cultural sustainability.
Emiliana Palafox, Indigenous Peoples Day 2021 tribute to Ohlone Elders. Photo by Charlene Eigen-Vasquez
Through the Removal Act of 1830, the United States used treaties as a way to further document a tribe’s agreement to be removed from their traditional homeland. Now, relocation was often forced upon Natives in exchange for their lives. For example, once the Treaty of the Cherokee was signed, they were then ordered to march to Oklahoma - this treacherous march is known as the “Trail of Tears.” By the end of President Andrew Jackson’s term in 1837, Jackson had signed almost 70 treaties resulting in the forced migration of over 50,000 Native Americans from their homeland. This approach would free 25 million acres of land for the benefit of White settlements and the expansion of slavery.
By 1870 the government turned to the Catholic Mission System. Not only was the government interested in the acquisition of Native land, the government was insistent upon ridding Natives of their “heathen” ceremonial practices. According to “Grant’s Peace Policy,” jurisdiction of tribal land would go to existing Christian missionaries who had an established relationship with Native Americans. The federal government recognizing the Catholic church’s efforts to assimilate Native Americans appointed the first Commissioner of the Bureau of Catholic Indian Missions. This era created the infamous “Indian boarding schools,” significant to the destruction of Native American religion.
By the time the Spanish Mission System began the process of colonization in the southwest territory of the U.S., the Missions purported to be an institution that attempted to instill Spanish social order and culture in native communities. The establishment of the first missions took place between 1573 and the 1760’s in the territory designated as “New Spain” which included what is now: Alabama, Arizona, California, Florida, Georgia, Louisiana, New Mexico, North Carolina, South Carolina, Texas, and Virginia. While the intent may have been to secularize Native Americans and the local residents, the church underestimated the task. Prior to Grant’s Peace Policy, “Mission Indians” were exploited for labor and economic purposes. This colonization of Native Americans by the Missions was a traumatic shock to Native American pre-colonial existence.
In 1934 the U.S. federal government recognized some Native American tribes as independent political entities by adopting the Indian Reorganization Act of 1934 (“IRA”). In 1943, the U.S. Senate conducted a survey to determine whether their land allocation plan was working. They discovered “horrific” conditions tied to extreme poverty. This survey expedited assimilation efforts and eradicated Indian tribal status in North America through the adoption of an official “Termination Policy.” In 1953 an increased effort to terminate tribal status was adopted under “House Concurrent Resolution 108.” This resolution would abolish federal supervision over tribes and impose state and local law on those previously bound by sovereign tribal law and policing. Thus began the era of termination policies where the federal recognition of tribes would be revoked and with this one swoop of the pen, Natives lost legal protections to traditional land, the right to maintain their culture and language, and above all the ability to practice ancient religious practices would be terminated.
Emiliana Palafox, Ohone youth visiting her great-great Ohlone grandmother, Morgan Hill, CA 2020. Photo by Charlene Eigen-Vasquez
While some tribes were able to quickly regain their sovereign status as a federally recognized tribe, other tribes have yet to see any success. As a result of the termination era, between 1953 and 1964, 109 tribes were terminated; consequently over 12,000 members of those tribes lost legal affiliation. In addition, Native Americans witnessed the sale of nearly 2,500,000 acres of reservation land. It was not bad enough that Natives were forcibly removed to remote territories, reservations shrank as land was unilaterally removed from protected status and sold to non-Indians. In 2005 the Federal Government recognized 561 tribes. These tribes only accounted for 44% of all Native people in the U.S. According to the Bureau of Indian Affairs, as of July 1, 2007 there were 4.5 million American Indians and Alaska Natives in the U.S, but not all Natives benefit from “federal recognition” status. In essence, over 2,521,901 Native Americans are still without federal recognition. This means, over 2.5 million Natives are without access to legal protections and economic benefits that would help sustain their history, culture and religion.
Hurdles to become re-recognized after being categorized as “terminated” are overwhelming. Over 100 tribes who were once recognized by the government through treaties, do not have the necessary resources required to prove their identity as original descendants of a Native American tribe. The process can require that tribes hire research consultants (often professors), attorneys and historians to gather evidence required by the U.S. Bureau of Indian Affairs. These expenses are often prohibitive. Even when tribes secure sponsorship to help cover the complicated data gathering process, the tribe always risks the devastation of denial. Some tribes have waited for over 30 years for an application decision. As time passes, tribal historians and elders continue to pass on. As a result, innocent error and inconsistencies will diminish the credibility of an application resulting in denial. As of 1997 there were nearly 250 non-recognized tribes and approximately 150 of these tribes were in the process of petitioning for federal recognition. As of 2017, no tribe had been granted federal recognition since 2010.
Federal recognition for Native Americans today is critical because this recognition’s primary benefit is the ability to qualify for federal protections and expanded powers through tribal sovereignty. Only this can give tribes the necessary legal authority to protect sacred sites, maintain cultural traditions and access natural resources that are an integral part of Native American religion. According to lawmakers, when a tribe is denied federal recognition, the legal status of a tribe is considered the extermination of a population, with no hope of future recognition. Based upon how the law is currently applied, there exists a double standard. While it is the prerogative of U.S. citizens to self-identify their race, Native Americans are the only racial group that are burdened by the government to prove their rightful heritage.
While the argument in this article is for a broad spectrum of protections linked to religious freedom that include Native Americans not currently recognized by the federal government, it is important to look at First Amendment Freedom of Religion claims filed by prisoners to demonstrate how our judicial system has acknowledged all aspects of fundamental religious practices. One could argue that for courts and policy makers to feign a lack of understanding for the foundational elements of Native American religion is inexcusable. The fact is that in our current prison system, Native Americans have won the right to have a “medicine man” available to conduct sweat lodge ceremonies and provide counseling.
According to Louis Holscher, while incarceration requires that prisoners surrender many rights and privileges, inmates must be afforded a reasonable opportunity to practice their religion under the First Amendment. This fundamental right to the freedom of religion is not limited to Native Americans with or without federal recognition status. For example, in Randall Trapp, et al. v. Commissioner DuBois, et al. plaintiffs residing in a Massachusetts prison filed a suit alleging an “ongoing pattern of discrimination.” By willfully and maliciously imposing burdensome regulations on Native Americans, administrators fundamentally deny an identified population the opportunity to practice their faith. In order to prove a violation of [the] right to the free exercise of religion, plaintiffs must prove that the activity interfered with by the State is motivated by and rooted in a legitimate and sincerely held religious belief. The next issue goes to who has the power to define a “sincerely held religious belief.”
Justina Palafox, Ohlone parent, creating necklaces and other items for her children to wear during ceremony. Photo by Emiliana Palafox.
For those who would admit to some basic understanding regarding Native American religious practices, it is important to reiterate and emphasize the relationship between religious doctrine, the environment, culture, language and ancestry. According to traditional Native American belief, each of these segments of life is not merely connected, they must coexist and rely upon one another. When one aspect of life is harmed, the result is harm to all of the remaining aspects of Spirituality. To that end, one of the biggest disconnects between the law and Native thought is in a system that compartmentalizes each aspect of sacred life and then goes down a path of deconstructing and redefining truths, long held to be sacred by Native people.
One could argue that while specific religious practices vary from tribe to tribe, extensive documentation and observation of a single race results in the ability to identify common elements of religion across all tribes. These elements are required in order to sustain basic religious practices. Establishing a system that would deny a particular segment of the Native American population the opportunity to practice religion, according to traditionally accepted practices, can only be construed as racial prejudice and a violation of the First Amendment.
Mission San Juan Bautista 2020. Photo by Peter Eigen.
There are two common aspects of religious practice and they are inseparable components of Native American religious practice. The first aspect of religion is the need to access specific ceremonial items in order to maintain religious practices. The second aspect is the need to sustain and protect a relationship with a particular physical site, also commonly referred to as a sacred site.
First, the incorporation of cultural objects and the maintenance of specific lifestyles are common across religions in general. Christian religions may consider a Holy Bible and incense to be sacred items. People of the Muslim faith would consider the Quran and the Ka'aba, a sacred shrine in Mecca to be essential to their faith. In the case of Native Americans essential shared elements of a ceremony might include: headbands, sweat lodges, medicine bags and bundles, ceremonial pipes and bags, sage and sweet grass, tobacco ties, eagle feathers, sacred cedar, or designated culture bearers. Common lifestyle practices include the wearing of a headband, or crown as demonstrated by practitioners of the Hawaiian religion. Other lifestyle practices include hair length and the acquisition of tattoos with religious significance.
Next, a primary difference between mainstream religion and Native American religion is related to sacred sites. In general, mainstream religions in the U.S. consider churches, temples and other enclosed structures to represent their holy site. Alternatively, Native religions often rely on very specific outdoor locations. Such locations are not based upon a specified “type of environment” but instead tied to a particular geographic ceremonial site that has been used by a tribe prior to colonial contact. For example, in the case of Bear Butte, multiple tribes and the government recognized the location as a traditional sacred site used for ceremony. Another major difference between mainstream religious belief and Native American belief is that Native Americans “view religion as synonymous with culture, politics, and social life, and the spiritual is not necessarily separated from the secular.” Based upon these understandings Congress created a number of rules that, if enforced, could provide the legal protections Native people desire.
The Religious Freedom Restoration Act (RFRA) was enacted in 1993 in response to a series of claims of violation to the Free Exercise Clause of the First Amendment, which excluded whole categories of governmental action from strict scrutiny analysis. The intent was to prevent the government from imposing a substantial burden on a person's exercise of religion unless it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” RFRA is only triggered when the government forces individuals to choose between an act contrary to their religious belief and the threat of civil or criminal sanctions. This conflict is far too common for Native Americans simply trying to uphold well-established religious tenets.
Charlene Eigen-Vasquez during Wetlands restoration project in Watsonville, CA in 2021. Photo by Peter Eigen
For example, in the case of the San Francisco Peaks of Arizona, the Navajo claimed that the government’s proposal to cover the mountain top with reclaimed wastewater was an infringement of the RFRA. The San Francisco Peaks are considered a set of sacred mountains. According to ancient teachings, children learn that “the world was covered in a great flood and a young girl was placed on a log to survive this great deluge. She landed on Wi' Hakinbacha (the Peaks) alone and went to the mountain's springs to bathe. As she washed, the spring's sacred water impregnated her and she gave life to twin warrior gods, from whom the Hualapai people are the descendants. When one of the twins became ill, the other began to collect herbs, plants, and other natural materials from the mountain to apply to his brother. The sacred materials, from this living being, healed the brother of his illness.”
It is essential to understand such beliefs because for Native Americans, such stories are an integral part of religious life. Knowing such stories helps outsiders understand the motivation for saving sacred sites. Nevertheless, such background is generally ignored as lawmakers move forward, ignoring evidence that would demonstrate the impact of decisions. In this case, the Ninth Circuit surmised that the appropriate analysis considers whether a government is preventing a plaintiff from engaging in religious conduct or having a religious experience. Here the tribe lost and the dissent argued that by desecrating a sacred mountain, known to be significant for water elements, the holding could be comparable to the government justifying the use of treated sewage water during Christian baptismal.
Finally, with the understanding that one of the major obstacles to freedom of religion protections for Native Americans is federal recognition status, it is time to consider partial recognition. Because establishing the bar for a group trying to acquire federal recognition is so high, limited benefits of federal Native status would be available to individuals who could demonstrate Native American descendancy. Such legal status would help to preserve cultural and religious rights by designating much desired religious and cultural benefits currently enjoyed by Natives formerly recognized by the federal government. Such recognition would allow tribes the opportunity to revitalize important aspects of their identity and create new relationships with regional historical and environmental partners for the purpose of restoring and protecting religious practices. This would be a compromise between Natives and those who do not fully understand the necessary elements of Native religion. Such a compromise would be temporary with a long-term goal of restoring justice by negotiating legally enforceable legislation that would for once protect sacred sites and religious practices for Native Americans.
Charlene Eigen-Vasquez is Founder & Chairwoman of The Confederation of Ohlone People. Born and raised in San Jose, California, she is an outdoor enthusiast, environmentalist, activist and textile artist.
For more information on The Confederation of Ohlone People, visit www.confederationofohlone.org.
Seismic Sisters thanks Charlene Eigen-Vasquez for contributing this commentary as a special Guest Columnist in our October 2021 edition of The Jolt newsletter. This column has been edited for length.