Indigenous Peoples and Human Rights

February 10, 2018

Hopi Vernon Masayesva -- 'Protect Indian Religious Rights under First Amendment'

Hopi Vernon Masayesva -- Protection of Indian Religious Rights Must Become Reality under First Amendment

Commentary by Vernon Masayesva
Founder/Executive Director, Black Mesa Trust
Censored News

The American Indian Religious Freedom Act – AIRFA – has been called a law with no teeth. Sadly, this is true. This is the law that the U.S. Congress passed to protect Native American sacred sites, among them the Colorado Plateau, which the Hopi call “Mother of the Fourth World,” a sanctuary for all mankind, our Mecca, our Vatican, our Jerusalem.

AIRFA was passed by Congress in 1978 in an attempt to force federal agencies to protect Native American sacred sites on federal and private lands. But for 40 years federal agencies and federal courts have given AIRFA such a narrow reading that it is practically meaningless and not enforceable. Federal projects may destroy or expose such sites in ways that make their use by Indians practicing their religion impossible. Hopis have tried to protect Black Mesa, the San Francisco Peaks, Woodruff Butte and now Siipa’pu, the heart of Siipa’puni (Colorado Plateau), from the destruction caused by gravel, coal, water and uranium mining, but we have had little success. Both federal and state officials have been unable or unwilling to preserve the sites that are sacred to the Hopi, Zuni, and DinĂ© people and other tribes living on the Colorado Plateau. This includes Bears Ears National Monument.
Indian religious rights are entitled to protection under the Free Exercise Clause of the First Amendment to the U.S. Constitution. But Western colonial imperialism has resulted in federal agencies not protecting the Indian rights guaranteed by that clause.
Like AIRFA, the Surface Mining Control and Reclamation Act and the National Historic Protection Act have failed to force federal bureaucrats to look beyond their own cultural biases and protect Indian religious rights, for the same reason – a too-narrow interpretation and application of the laws and the regulations derived from them.
What AIRFA and other federal laws have in fact created is far less than what Congress intended or the First Amendment requires. In practice, federal bureaucrats come out to tribal lands for an “on-site visit” to “consult” with the Indians about their concerns related to a project. Following a nice visit with tribal government officials, the federal officials go back to their offices and include a few paragraphs in their decision document about the effects the federal project may have on Indian religious sites and rights. But they are not required to make any accommodation whatsoever to mitigate those effects in their final decision to let the project go forward. Certain procedural niceties must be observed; that is all that is required.
And that is the problem. AIRFA, SMCRA, NEPA and other laws have been largely construed to require only that certain procedural steps be taken. Even when it is clear that a project will impact Indian religious sites and practices, there is no requirement to stop the project. Federal agencies will generally explain that AIRFA does not demand any result; it only dictates process.
Other federal laws are different. For example, the Endangered Species Protection Act requires actual protection of plants, animals, fish, insects and birds --- it demands results. AIRFA, as federal agencies apply it, requires only procedure, not protection.
Even when federal courts and agencies face up to the First Amendment Free Exercise Clause, they have given precedence to Western science and property rights in ways that make it virtually impossible to take into account Native American beliefs, values and practice. Under this test Indians must show three things in order to invoke the protections for their sacred sites to which they are entitled:
1. That the religious practice is central to their religion. But how do people define which practices or beliefs in their religion are central and which are not?
2. That the religious belief or practice is indispensable to their religion. How can any people tell which practices or beliefs are indispensable? How would Catholics prove that the Vatican is indispensable to their beliefs, or Muslims prove that Islam would falter without Mecca, or Jewish people prove that their faith cannot exist without Jerusalem?
3. That the practice or belief cannot be done elsewhere. If we push you out of the way with a bulldozer, can’t you go someplace else to worship?
This three-part test is culturally biased. Native American religions are different from Western religions. Christianity, Judaism and Islam are oriented toward a universal being --- God – in some invisible, unearthly realm; places here on earth are largely of symbolic importance. For Indians, however, places and things here on earth often are more than mere symbols. God may actually be present in places or things on earth.
Most federal bureaucrats and judges come to these problems from a European perspective. In so doing, they seriously misunderstand that differences in culture affect the significance of places and things in the world around us. The legal test used by courts, described above, does not really comprehend the nature of this cultural difference, this fundamental difference in religious belief and practice.
A new beginning is needed. I am not prepared to say what the proper legal test is in detail. But I have some suggestions:
1. Courts and federal administrators must learn to examine these issues more thoroughly and with genuine respect for Indian cultural perspectives and religious beliefs, even if they do not share them. If an Indian says a rock contains the spirit of God, courts and judges must not dismiss this as a romantic description or a myth. Keep in mind that to a Catholic, consecrated bread is no longer bread but the very physical body of Christ. No court would challenge that Catholic belief. And no court should challenge as romantic overstatement the concept that places or things contain the spirit of God.
2. Federal agencies should apply cumulative impacts analysis in their decision-making. Too often, agencies only look at the physical or economic effects of an isolated project confined to a limited geographic area rather than looking at the entire cultural-ecological landscape. No consideration is given to the cultural impact this action may have in the context of the many other actions that have been or will be approved. A dollar bill is made with 100 pennies. One penny seems like so little. But if you take enough pennies away, you take away the whole dollar.
3. Courts and administrators must learn to examine cultural impacts using traditional unwritten law, which does not require an absolute burden of proof. The current test of central and indispensable site specific beliefs should be set aside. Common sense law and appraisal should be used. Regardless of whether beliefs are central and indispensable, the federal government should not be able to violate religious rights unless very important national interests are at stake
Native American Indian religions have been suppressed by official government actors and government-authorized missionaries for hundreds of years. Indian religious sites have been bulldozed or carried off to museums. Again and again, religious objects – objects of cultural patrimony -- have been stolen and sold. Religious experience can be lost in small bits. An advisor to Black Mesa Trust joked that NEPA is just another version of Manifest Destiny.
Government should bend first in the interest of preserving traditional cultural heritage – all humanity’s patrimony -- before it asks people to bend their beliefs or practices to accommodate government.
Many of the Europeans who came to this land did so to escape religious, racial and political persecution in Europe. They sought to make this country better than the ones they left behind. They adopted the Free Exercise of Religion Clause in the First Amendment to protect against the persecution they had suffered.
The time has come when the protection of Indian religious rights must also become a reality under the First Amendment."
Thank you,
Vernon Masayesva
*Black Mesa Trust was founded by Hopi elders to protect waters stored deep under Black Mesa, which they call “Tuuwanasave,” Center of the Fourth World of Hopi.

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