Lowanna's Story

Thus begins the testimony of Lowanna Brantner, a Yurok elder, who was one of the witnesses for the plaintiffs in the trial that led to the 1988 landmark U.S. Supreme Court case Lyng v. Northwest Indian Cemetery Protective Association. The Yuroks call it “the G-O Road case,” because it revolved around opposition to the construction of a road connecting the towns Gasquet and Orleans in northern California. Asked what she means by “sharing” the relics, Lowanna continues:

This testimony was offered in support of the Yurok, Karuk, and Tolowa Indigenous nations of northwest California, who claimed in the U.S. District Court for the Northern District of California that the plan of the Forest Service to develop the Six Rivers National Forest would impose a substantial burden on the nations’ ability to freely exercise their religious ceremonies in the area, which they consider sacred.Footnote ³ In her testimony, Lowanna draws a connection between the importance of these ceremonies and the violent conquest of the area by settlers. Developing the National Forest, according to Lowanna's testimony, would be a continuation of this violence and destruction. Constructing a road through the sacred area and cutting the trees there is not any different than destroying, burning, and killing, which had happened in earlier generations.

Lowanna's testimony was powerful and seems to have had the greatest effect on Judge Stanley Weigel—greater than that of any of the other witnesses testifying in the two-week 1983 trial. Nevertheless, her words have no resonance in the opinion of any of the judges who decided the case in three different federal courts. My argument in this article is that, even though Lowanna's story was not considered in the G-O Road decision, it is essential to understanding the dispute, because the case was argued and decided as one about religious freedom, based on the First Amendment's Free Exercise Clause and on the American Indian Religious Freedom Act of 1978 (AIRFA).Footnote ⁴ The legal framework of free exercise is limited in its ability to allow stories like the one told by Lowanna in the trial because, shaped in Sherbert v. Verner (1963),Footnote ⁵ all it requires (really, all it allows) plaintiffs to prove is that a religious practice they seek to protect is based on a sincerely held belief, and that this practice would be substantially burdened by government actions.

As we can see in the bits we have already read from Lowanna's testimony, it is difficult to fit her story into the categories of sincerely held belief and substantial burden. This is true, as I show in what follows, for the other Yurok and Karuk witnesses’ stories. In this article I focus on these stories nevertheless, because I believe that knowing them is necessary to our understanding of this landmark case. As Yurok leader Chris Peters, one of the named plaintiffs and central witnesses in the G-O Road case, tells us, to understand this case fully, “one must understand that for Indigenous peoples of Northwestern California, religious beliefs and everyday lifeways are one in the same.”Footnote ⁶ Going back to the G-O Road trial and reading the Yurok and Karuk witnesses’ testimony will lead to such greater understanding.

In the G-O Road case, the Supreme Court declared constitutional the National Forest Service's development plan in an area of the Six Rivers National Forest (known as the High Country) that is considered central to the religious practice of the Yurok, Karuk, and Tolowa nations.Footnote ⁷ The Court admitted that “[i]t is undisputed that the Indian respondents’ beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion.”Footnote ⁸ Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on the religious practice of the local Indigenous nations. The Court's disregard for Lowanna's contextualization of the development plan within a longer history of colonial destruction and dispossession is not unusual or surprising. However, the decision also overlooked an observation made in a study of the area that comprised the central evidence in the case, known as the Theodoratus Report, according to which seeing the practice in question as religious is problematic: “Because of the particular nature of the Indian perceptual experience, as opposed to the particular nature of the predominant non-Indian, Western perceptual experience, any division into ‘religious’ or ‘sacred’ is in reality an exercise which forces Indian concepts into non-Indian categories, and distorts the original conceptualization in the process.”Footnote ⁹

The Theodoratus Report was conducted by Theodoratus Cultural Research for the Forest Service as part of the consultation process required by the AIRFA. This five-hundred-page report, composed of ethnographic, historical, and archaeological studies of the High Country, concluded that the G-O Road should not be constructed through the High Country, only to be ignored by the Forest Service. But if this study is correct in observing that religion is not the right category through which to understand Native practice, we need to ask why the G-O Road case was argued and decided as one about religion. If it is not about religion, what is it about? The Supreme Court decision, as well as the decisions by both the district court and the court of appeals, seems to ignore and even contradict parts of the testimony and evidence presented in the trial. I therefore approach the trial from the point of view of law and literature to suggest a reading of the G-O Road case that centers the voices of the Native plaintiffs without imposing the religious freedom question upon the stories that they tell.Footnote ¹⁰ Such a reading will broaden our understanding not only of religion but also of law.

Specifically, in the case of Indigenous law and religion, we must take seriously what Indigenous law is, and how it differs from U.S. law.Footnote ¹¹ As Winnifred Fallers Sullivan writes, “We need to widen our lenses and work comparatively, seeing how other folks do religion and law.”Footnote ¹² Métis anthropologist Zoe Todd notes Anishinaabe legal scholar John Borrows's statement, “Law is the us. And it's the animals, and it's our dreams, and it's our stories, and it's our relationships. It's the way we talk with one another and try to persuade one another, and that persuasion of course involves many different traditions now. But that persuasion is a part of our law, and it's not just for the parliaments and it's not just for the courts. We have a role in taking that kind of action.”Footnote ¹³

So if law is “our stories,” as Borrows argues, then Lowanna's testimony should count as law just as much as the Court's decision counts as law. Moreover, it should count as relevant and valuable knowledge, just as much as the testimonies of expert witnesses count—but more on this below.

The point of departure for this article is, nevertheless, a U.S. Supreme Court decision, a landmark case in constitutional law, studied by every first-year law student in the United States. But what I propose here is to tell a story about this case that is more robust than the one we can tell based solely on a reading of the Supreme Court decision. Scholars of law and literature can offer useful insight into such a project when they propose, for example, to read legal text as literature and trial testimony as storytelling. In Indigeneity: Before and beyond the Law, Kathleen Birrell examines the articulation and recognition of Indigenous identity within land-rights law, and the subversive expression of identity within Indigenous literature that transcends the appeal to the colonial gaze for recognition of the Indigenous subject.Footnote ¹⁴ Birrell considers Indigenous literature as part of a longer, broader, oral tradition through which knowledge and law are passed from one generation to another. She also reads Indigenous literature as a form of resistance to the colonial narrative of law. Birrell explores the ways in which both law and literature “create and legislate” the meaning of indigeneity.Footnote ¹⁵ This exploration responds to a common notion of indigeneity as “authentic”—fixed, natural, prediscursive—and Birrell concludes that, on the contrary, indigeneities are constructed through deep colonization but also disrupt or deconstruct colonization. In order to appear before the law, the Indigenous subject must perform its indigeneity in a specific way—through attachment to the past—constructing indigeneity as static. Indigenous literature, on the other hand, portrays indigeneity as “articulated” or “fluid.”Footnote ¹⁶

Batchewana scholar Cheryl Suzack, in her book Indigenous Women Writers and the Cultural Study of Law, asks “how to account for legal practices that have devalued Indigenous women leading to their political marginalization and cultural disposability.”Footnote ¹⁷ She argues that gender justice is crucial to the survival of Indigenous peoples. The novels she examines demonstrate how “colonial law and legislation limit Indigenous women's political, cultural, and social authority. Yet, they also establish how Indigenous women's identities and cultural knowledge are foundational to social reform.”Footnote ¹⁸ While “law may do better to facilitate and protect Indigenous women's rights,”Footnote ¹⁹ Suzack concludes “rights alone are inadequate to compensate for women's historical exploitation and marginalization.”Footnote ²⁰ The literary voices she allows to be heard in her book “advance our understanding of colonial-legal gender injustice” beyond the rights discourse promoted by legal texts.Footnote ²¹ Storytelling, then, intervenes in the “collective[] social imaginary,”Footnote ²² and allows us—I argue, following Birrell and Suzack—to visualize justice anew.

The G-O Road Case

In 1982, the U.S. Forest Service planned to harvest timber and construct a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in the Theodoratus Report—a study of the area commissioned by the Forest Service—has historically been used by the Yurok, Karuk, and Tolowa nations for rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred sites, and also rejecting alternative routes outside the National Forest, the Forest Service selected a route through the Chimney Rock area. After exhausting administrative remedies, the Yurok, Karuk, and Tolowa filed suit in the U.S. District Court, challenging both the road-building and timber-harvesting decisions. The court issued a permanent injunction that prohibited the government from constructing the Chimney Rock section of the road or putting the timber-harvesting plan into effect, holding, inter alia, that such actions would violate the plaintiffs’ First Amendment right to freely exercise their religion. The Ninth Circuit Court of Appeals affirmed in pertinent part,Footnote ²³ and the Supreme Court reversed the decision.Footnote ²⁴ The government's plan, according to the Supreme Court, did not violate the nations’ free-exercise rights regardless of the plan's effect on their religious practices, because it compelled no behavior contrary to their belief. In other words, the government can do whatever it wants with its land, even if it virtually destroys a religious practice, as long as the destruction of this religious practice is not the explicit target of the government's actions.

In her majority opinion, Justice Sandra Day O'Connor quotes from Justice William O. Douglas's concurrence in Sherbert: “The Free Exercise Clause is written in terms of what the Government cannot do to the individual, not in terms of what the individual can exact from the Government.”Footnote ²⁵ She thus presents an interpretation of the religion clauses of the First Amendment as protecting an individual—rather than collective—right. Justice O'Connor's interpretation of religious freedom is tightly related to the Court's understanding of land as private property rather than a place of worship. Justice William J. Brennan Jr., dissenting, points to the absurdity created by focusing on one aspect of this land (as federal property) and ignoring another aspect of it (as a place of worship), which causes the “gravest threat to [respondents’] religious practices.”Footnote ²⁶ As he puts it, “the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property.”Footnote ²⁷ Justice Brennan in his dissent lays the ground to critiquing U.S. legal conceptions of land and of religious freedom as deeply intertwined. Moreover, according to Justice Brennan's reading of the case, it is a conception of land as property—rather than an interpretation of religious freedom—that leads to the majority opinion and ultimately to the Court's decision.

But Brennan's dissent, which is often celebrated as both politically progressive and legally correct, essentializes indigeneity in the ways that Birrell and others critique, and I believe that it is the framework of religious freedom that allows for this essentialization and depoliticization of indigeneity. In other words, the framework of religious freedom allows Brennan—or perhaps requires him—to ignore Lowanna's testimony in his dissent. One of the characteristics of Indigenous difference as it is produced in legal discourse is the connection between Indigenous peoples and the past, making Indigenous identity static, ignoring its fluidity and evolvement with time, especially through its encounter with and survival of colonial encounters. Here is how Brennan does it in his final words about Lyng: “[T]oday's ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual well-being of its approximately 5,000 adherents, so that the Forest Service can build a 6-mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that might conceivably use it.”Footnote ²⁸

Following scholars of law and literature, I therefore ask to read the testimonies in the case as a way of resistance through storytelling. When we listen to the witnesses, we can hear a story that cannot be told in the court decision because of the limitations that the legal framework of religious freedom imposes. In what follows, I let the witnesses in the G-O Road trial take the stage. The point is to show that what the plaintiffs seek to protect is their survival, which is tightly connected with the nations’ relationships with the High Country as their home. This relationship includes religion, so my argument is not that the G-O Road case is not about religion, but that the religious-freedom framework conceals the political nature of both indigeneity and religion. The witnesses refuse to accept these limitations, and thus their testimony tells a much larger story than the one we learn if we read only the Supreme Court decision.

The High Country

The proposed section of the G-O Road is 6.02 miles long, and, surprised that a case about a six-mile segment of a road reached all the way to the Supreme Court, I decided to go back and listen to the voices of Yurok, Karuk, and Tolowa members who reside in the area and use the High Country for religious purposes. Their voices are heard here through their testimony in the G-O Road trial and as consultants for the Theodoratus Report. They portray their religion as fundamentally territorial, as opposed to the approach of the courts to religion, which favors a Tillichian definition of religion as “ultimate concern.” In other words, religion, according to the Yurok, Karuk, and Tolowa plaintiffs, is grounded in place, while according to the Court, it is grounded in belief. This portrayal invokes the problematic described at the opening of this article—the practice in question is described at once as religious and as transcending the category of religion.

Christopher Peters (Yurok/Karuk) begins his testimony in the G-O Road trial thus:

The Theodoratus Report similarly explains the use of the High Country, highlighting the search for spiritual power as permeating all daily life and Native culture.Footnote ³⁰ Scholarship on Native American religions echoes these descriptions.Footnote ³¹ This means that religion cannot be separated from other aspects—either cultural or ethical—of everyday life. And the geographical area similarly cannot be divided into sacred and nonsacred areas; specific sites are not supposed to be singled out or isolated. In fact, the Theodoratus Report explains the concept of “site” as more than “a limited measurable locality.” A religious site can be a condition (psychological, visual, or other sensory quality)—silence, for example. “In order to understand what a site means to Native American residents of this area,” the report proposes, “a mental shift must be made away from the purely physical aspect of a site to an extended definition which includes various qualitative, psychological and sensory aspects.”Footnote ³²

Treating specific geographic locations as separate, as well as treating some aspects of local Native lives as secular and others as religious, is a colonial practice that results in forcing a non-Western practice into a Western category (religion). This distortion has to do with language as well. As Chris explains in his testimony, “It is difficult to talk about traditional types of things in translating it into the English language. I think the court will find [that] . . . converting Indian concepts into European language loses something in the translation.”Footnote ³³ It is nevertheless unavoidable to use English terms when arguing a case in U.S. courts, and it is worth asking, therefore, whether the legal route is appropriate in cases of Indigenous sacred sites.Footnote ³⁴

The religious practice of the Yurok, Karuk, and Tolowa nations is described as focused on world renewal, aiming to stabilize and preserve the earth from catastrophe, and humanity from disease.Footnote ³⁵ In trial, Chris explains that “world renewal” has both physical and spiritual aspects: “[T]hey are world renewal ceremonies, and most of the time when people think of world renewal, the general understanding, the image or the concept is making the physical world over again. The ceremonies do do that deed, but also they make a spiritual world over again, a spiritual bond that holds tribal people together.”Footnote ³⁶

The religious practitioners believe that world-renewal ceremonies were initiated by prehuman spirits who inhabited the world and brought all living things and culture to humankind.Footnote ³⁷ The Karuk call these spirits ixkareya and see them as guides for human behavior; the Yurok call them woge and believe that they are afraid of contamination by mortals.Footnote ³⁸ Ceremonies of world renewal include reciting of what the Theodoratus Report calls, following anthropologist Alfred Kroeber, “origin stories.”Footnote ³⁹ Here is one example:

The use of the High Country is described in detail in the Theodoratus Report. The knowledge related in the Report is valuable to Yurok, Karuk, and Tolowa members who may want to revitalize traditional practices, as a lot of the traditional knowledge has been lost in the era of assimilation policy (more on this later). However, it is also problematic, not only because of the reliance on Kroeber and other non-Native “experts,” but because, as one of the unnamed consultants quoted in the Theodoratus Report says, “One of our religious beliefs is that we don't expose our sacred practices. It is a personal thing.”Footnote ⁴¹ Reading this sentence with Kahnawake Mohawk anthropologist Audra Simpson's concept of “ethnographic refusal” in mind, one can see in this secrecy a political act. Simpson writes that such a declaration “involves an ethnographic calculus of what you need to know and what I refuse to write. This is not because of the centrality of esoteric and sacred knowledge. Rather, the deep context of dispossession, of containment, of a skewed authoritative axis and the ongoing structure of both settler colonialism and its disavowal make writing and analysis a careful, complex, instantiation of jurisdiction and authority, what Robert Warrior has called ‘literary sovereignty.’”Footnote ⁴² I therefore struggle to decide how much of the detail about the practice to describe here, and I find myself more interested in the meaning of the existence of a document such as the Theodoratus Report than in its specific content.

The Theodoratus Report mentions a “bitter disagreement” between different Forest Service employees regarding the impact of the development plan. One of the employees is Arnold Pilling, who will later become an expert witness in the trial. The Theodoratus Report was commissioned because of this disagreement. Thomas Buckley describes this disagreement at length in his chapter on the G-O Road in Standing Ground, his 2002 book that resulted from his extensive ethnographic work with the Yurok people.Footnote ⁴³ While both Buckley himself and Arnold Pilling objected to the completion of the road, the Forest Service archaeologist, Donald Miller, having overseen a few interviews with local Yurok and Karuk members and consulted the Kroeberian literature, concluded that the Indigenous nations had no case against the Chimney Rock section. But after a substantial back and forth between Miller and Buckley, the Forest Service was forced to start over. They hired a contract anthropologist, Dorothea Theodoratus, and gave her a free hand to design and execute her study as she saw fit, with only one condition: that she not consult Pilling and Buckley. “The ‘Theodoratus Report’ (USDA/FS 1979a) finally came in at nearly five hundred pages and cost the government over $200,000. While the report contained an invaluable wealth of information and new native testimony, its conclusions were rather simple: the GO-road should not be completed for precisely the reasons that both Pilling and Buckley had made clear by 1976,” Buckley writes, adding that Pilling worked pro bono and Buckley himself was paid a total of $200 for his report.Footnote ⁴⁴

Conducting ethnographic work in the area, as well as relying on earlier work of salvage anthropologists in the area, is problematic; using this knowledge in policymaking and in the courts is even more troubling. Given that the ethnographic insight into Indigenous lives portrays Indigenous peoples as “primitive” and as “dying cultures,” thus justifying (even if unintentionally) their colonization, dispossession, and genocide, relying on this knowledge in court cannot be expected to lead to any form of decolonization. As Hupa scholar Cutcha Risling Baldy writes:

Risling Baldy adds another aspect of salvage ethnography that is ethically dubious: though the anthropologists themselves usually rely on Native consultants, it is the anthropologists and archaeologists who are considered to be experts and authorities on Indigenous peoples. “Subsequently, these scholars were depended on as expert witnesses, and their ideas, theories, and findings were given more weight and consideration than that of Indigenous peoples.”Footnote ⁴⁶ I keep all this in mind when I cite the Theodoratus Report here, and I give most of my attention to the Indigenous plaintiffs’ testimony (and not at all to the expert witnesses), as a way to center Indigenous knowledge and sovereignty.

What, then, do we learn from the plaintiffs about their communities’ use of the High Country? We learn that people seeking power continue to go to the High Country to achieve personal medicine and curing medicine. Some Karuk members who use the Blue Creek area were originally trained somewhere else, but their sites were desecrated, so they have switched to this new area.Footnote ⁴⁷ In trial, Chris estimated that about forty people physically or actively used the area at the time. But he explains that there is also a spiritual use of the area that does not require attending it physically. He calls it “a spiritual visitation . . . through the mind.”Footnote ⁴⁸

In a letter to Judge Weigel, Kickapoo attorney Marilyn Miles explains that the number of people directly using the High Country is unknown—and probably very small—thus, “only a limited number of people are called or chosen by the Creator or Spirits to be such persons. Thus, only certain people can go to the Doctor Rock area on behalf of the rest of the community, and only then for a proper purpose and at a proper time. But this is not unlike other religions; not all members of a particular faith are permitted on the alter [sic], for the alter [sic] is reserved for the priest or spiritual leader.”Footnote ⁴⁹

Miles explains that the few people allowed in the High Country use the powers that they get there in ceremonies that benefit the entire community. Adding a photo to illustrate her point, Miles describes the photo: “Enclosed for the Court's assistance is a photograph from a recent ceremony in Weitchpec. The medicine woman in the center of the photograph was required to go to the sacred high country for guidance and power to pray for the Indian child held by her mother and for others in the community, and all those in attendance are dependent upon the powers and Spirits of the area, and thereby ‘use’ the sacred region.”Footnote ⁵⁰

Miles concludes her letter to Judge Weigel thus: “This is the best, and perhaps the only answer Indian plaintiffs can give the Court. The number of persons who physically go to the [H]igh [C]ountry is not known, although Indian plaintiffs recognize that the numbers may not be large. As explained above, however, it is wrong to measure the religious values of this sacred area and the associated practices in terms of the number who set foot there.”Footnote ⁵¹

When asked about their religion, the Yurok and Karuk witnesses describe a religious system that begins with community and its relation to the natural world, rather than with the individual and her relationship with God. Witness Jimmie James (Yurok/Hupa) tells the court that “[t]he most important thing was to have an understanding of nature. Love your people, and always remember to follow out the command of the Great Spirit, the Great Creator, and this up-to-date, I have tried to be obedient to those commands.”Footnote ⁵² The most important religious virtue is an understanding of nature, because nature, or specific natural settings, is considered to be sacred. Sacred places are those in which communication with the Creator, or the Great Spirit, can be conducted. As Chris explains, “the High Country[—]Doctor Rock, Chimney Rock[—]is essential to our religious beliefs, and serves as the very core of our cultural identity.” Therefore, “this area is our church: cannot be moved or disturbed in any way.”Footnote ⁵³

The witnesses often compare the High Country to a church, perhaps because they assume (probably justifiably) that it would be easier for the court to understand the importance or centrality of the area to their religion through this analogy: the High Country is to Yurok, Karuk, and Tolowa religion what a church is to a Christian congregation. But this analogy is misleading, because, as Marc DeGirolami points out, “destroying Saint Patrick's Cathedral, dreadful as that would be, would not destroy or even severely impair Roman Catholicism.”Footnote ⁵⁴ And while moving a church structure to the other side of a street to accommodate a development plan is not unheard of, the peaks in the Six Rivers National Forest cannot be moved; moreover, one cannot simply declare another part of the forest a new place of worship (thus allowing for the Chimney Rock area to be developed). As Justice Brennan writes in his dissent: “respondents here do not even have the option, however unattractive it might be, of migrating to more hospitable locales; the site-specific nature of their belief system renders it nontransportable.”Footnote ⁵⁵ The witnesses explain that the specific area is central to their religious practice because it was given to them by the Creator. “This is where we meet with the Great Spirit, that area, and that's why we all get a call to go there.”Footnote ⁵⁶

Questions about the specific ways in which the area is being used by religious communities and individuals are being addressed through specific stories. This is another advantage of reading the testimony rather than the Theodoratus Report. The report was conducted in consultation with the local communities, but the consultants’ explanation of the use of the High Country is generalized, supplemented by academic accounts, and thus loses the quality that I am looking for, of centering the concrete and the specific instead of generalizing and abstracting. Beyond Chris Peters's general explanation that the area has “been used throughout the years by Indian people who go there to pray for special purposes or special powers, or medicine,”Footnote ⁵⁷ and that “the High Country is used by Indian people who have dedicated years for special training and preparation,”Footnote ⁵⁸ Jimmie tells about his grandmother, who “lived to be about 110 years old . . . and has fought the spirits of the devil for our people, she's well known”: “And then she goes back to Elk Valley and stays there quite a number of days to give thanks, and you might say give praise to the Creator. Then, from there, she is all going to different areas wherever she is called, wherever she is called, she goes, regardless of what kind of weather. She charges nothing, and whatever they give her, she smiled.”Footnote ⁵⁹

Jimmie has also used the area himself:

These stories of the High Country highlight family relations, suggesting that what the nations are seeking to protect is more than their religious practice but their home, their past, and future. I return to this point in the next section.

It is interesting to note the different ways different witnesses describe the High Country. Jimmie says he is familiar with the area “because [his] grandmother was a Pomo Indian Doctor, and she went through very much before she could get the power from the Great Creator”: “Here is Doctor Rock, and this is where they start out their dancing, and Elk Valley is where they come first to meditate, to clean themselves, clean their hearts, so that they can thank the Great Spirit, the Great Spirit will be pleased before they can even talk to him. . . . Then they go down to the Doctor Rock and do their dancing, and they don't get involved with other voices but the Great Spirit, and from there, they are told what to do before they begin or are granted the power.”Footnote ⁶¹

Chris provides two descriptions of the area—a physical one and a spiritual one:

This description brings together the quality of the area that is most important to the lawsuit—the wild, or pristine, condition of it—and the fact of its invasion by the settler state. The first thing Chris tells the court when he is asked to describe the High Country is that “the area has had many intrusions already.” This may come as a surprise to the listener or reader. The other components of Chris's answer sound much more like a physical description of the area (there are trees and animal life; it is pristine), but the most important point Chris has to convey is that the area has suffered intrusions. He then continues to provide a spiritual description of the area: “The area, in terms of my conversations with older generations, the area has spiritual qualities. It is a sacred area. The area is a place where people can engage in an emotional interaction with a spiritual world. A translation to that in the English language may be likened to a prayer, but a lot more significant than a prayer. It is said that that area is not even a part of this world that we live in here. That that place up there, the High Country, belongs to the Spirit and it exists in another world apart from us.”Footnote ⁶³

The Burden of Invasion

Because Lyng is a religious-freedom case, those who read it tend to focus on the religious practice of the Indigenous plaintiffs. But when we free ourselves from this legal framework and listen to the witnesses, we hear a story about a place, a home, “a spiritual world . . . that holds tribal people together.”Footnote ⁶⁴ Similarly, if we are not bound by the religious-freedom framework, we are free from searching for the “substantial burden” that the government's development plan imposes on the Yurok, Karuk, and Tolowa's exercise of religion, and we can hear what the witnesses describe as more than such burden. What they talk about is invasion, contextualizing the “adverse effects” on religious practice within the colonial structure of which invasion is an integral part. Once we hear the story as one about colonial invasion, the government's arguments—that the High Country is one of many areas the nations hold as sacred,Footnote ⁶⁵ and that very few people actually use the areaFootnote ⁶⁶—become insignificant.

The notion of desecration of the sacred High Country is highlighted by the following analogy: “Empty beer cans and used condoms are about as appropriate on Doctor Rock as they would be on the altar of a cathedral; traditional Indian religion places great emphasis on abstinence from physical pleasures while seeking spiritual energy.”Footnote ⁶⁷ The nations are concerned that with increased access to the High Country, there is increased possibility that the area will be improperly used. Indeed, journalist Sarah Neustadtl describes one of the medicine caves in the High Country as “a soot-blackened grotto littered with beer cans.”Footnote ⁶⁸ A Yurok woman expresses concern that her children or grandchildren might be called to be doctors and that there might not be a place for them to go when they are ready to receive power. A Karuk woman adds:

The Theodoratus Report dedicates a short chapter to “contemporary attitudes toward non-Indian incursions.”Footnote ⁷⁰ It discusses the anticipated impact of the G-O Road on the High Country and the rituals that Yurok, Karuk, and Tolowa people conduct there. This discussion is presented within a more general context of Native-white contact, which suggests that the researchers understand that the problem is larger than the immediate impact of the construction of the road on the ability to perform specific rituals in specific locales. Because the Yurok, Karuk, and Tolowa view the environment holistically (the report refers to their approach as an “environmental viewpoint”), the question of mitigation is also irrelevant here—no matter where the road is built, it would pose a substantial burden on the local religious practice: “[T]he mountains, rivers, wildlife, and ocean are viewed as a whole in which each part is related to each other part. Thus, a discussion of the religious use of the [H]igh [C]ountry around Doctor Rock leads to consideration of the effect that a road there might have on the visual and aural properties of the area, then to the effects of logging on the environment, especially natural plant growth, then to the effects on the streams, silting of the river and finally to salmon fishing.”Footnote ⁷¹ This approach to the environment teaches us something about religion as well. “The religious aspect is not a thing apart, it is part of the whole.”Footnote ⁷²

Consultants have felt that the Forest Service had declared a systematic war on sacred sites. In their description of the impact of the development plan, they explain that they believe the road would lead to logging regardless of the specific route chosen, and because of the religious characteristics of the area, it must be treated as a whole rather than as consisting of distinguishable individual sites: “Many consultants stated that because of the religious characteristics of this area, nothing should be removed. It is believed that living things, especially trees and other plants, should not be removed from the [H]igh [C]ountry unless it is done following the specified procedures of Indian culture. To do so is considered irreligious. It is also believed, and reinforced by tradition, that ‘improper’ removal is likely to bring extremely bad luck or disease to the offender (whether he/she be a believer or a non-believer).”Footnote ⁷³

This passage highlights that the Supreme Court's understanding of “substantial burden” on religious practice cannot capture the harm to the High Country that the nations anticipate if the development plan is executed. The practitioners in this case cannot—as they could have in YoderFootnote ⁷⁴ or in Sherbert—disobey and avoid “extremely bad luck” in the cost of a fine, imprisonment, or loss of unemployment benefits.Footnote ⁷⁵ Because the trees themselves are considered living beings, their removal would be irreligious. But if the trees are considered to be living beings, part of the community, then their removal is an attack on the community, and it should be thought of as continuation of genocidal policy that I address below. In other descriptions, we can read a story that seems more in line with the prohibition interpretation: the construction of the road would result in heavier traffic, which would have an adverse effect on the audiovisual conditions of the area (which, as we have seen, are themselves considered to be a “sacred site”), which in turn means that the religious ceremonies that take place in the area would not be effective, which would lead to more adverse effects. When this is the story, one might say that the government's development plan does not prohibit the nations from using the High Country for their rituals (even though there is some adverse impact on the rituals). But the interpretation according to which the logging itself is desecration of the sacred area does not lend itself to the interpretation of burden as prohibition or coercion.

When the witnesses in trial are asked whether (and why) the High Country should remain undeveloped, they give several different answers. Jimmie James explains: “Let me put it this way: if we took a bulldozer and run it through the white man's church, it is like if they went in there and felled the trees, it would be like pulling the lumber and everything off of the walls, and then destroy their Bible[—]it is the same as that.”Footnote ⁷⁶ Chris Peters adds that the pristine nature of the area is its main religious characteristic, and this would be destroyed with development.Footnote ⁷⁷ In reference to the difference between the existing jeep road and the new proposed section of the road, he explains:

Chris's story is much more in line with Justice O'Connor's interpretation, according to which, the road in and of itself does not substantially burden the religious practice. It is the use of the road that would disrupt communication with the spiritual world. But when asked directly how the 6.02-mile proposed section of the road would burden the religious practice he has just described, Chris explains: “The whole area, the High Country, as I've indicated, the belief was that it's there for Indian people to prepare themselves and then go up into and communicate with a spiritual world. What we're talking about here is what I refer to as spiritual trespass, that is when people on the far extreme of manifest destiny can say they can manage something better than the Creator, and this is the Creator's land, and to build a road to intrude directly through that spiritual land is spiritual trespass, and that is what the Forest Service has perpetrated.”Footnote ⁷⁹

This was an unexpected response to the question about burden, which demonstrated how different the witness's view of the conflict is than the court's. For Chris, the construction of the road was unacceptable because it interferes with the Creator's plan for the area and its use. Judge Weigel did not accept such an answer, and even though he was generally very sympathetic to the witness, here he told him that his answer has not been responsive. The witness, who probably knew well that this is not an answer that the court can accept, immediately agreed and returned to the question of burden: “The road development in the area, once it is completed, would bring with it a lot of damage and more destruction. The road itself represents something down here in this world, asphalt for one, signs for another, and that intrusion in the area is significant. The dirt road intrusion has not been as significant as to what it would bring with it in terms of the new road, which is the asphalt.”Footnote ⁸⁰

Again, the judge did not understand what the problem is with asphalt. The witness illustrated this point with a story: “last night a woman . . . prayed for us, and to do that effectively, she had to take off everything that was a white man's stuff, jewelry and things like that, to engage the powers that she has. In the same respect here, you are bringing into a spiritual area something that is foreign to that area, and it is an intrusion.”Footnote ⁸¹ This answer helpfully ties together religious burden with colonial invasion. The road does not belong in the High Country because white settlers do not belong in the High Country. It is the Yurok, Karuk, and Tolowa home that the government proposes to invade, and it is only in this context that we can fully understand the G-O Road case.

To understand the G-O Road case within the context of colonial invasion (and its religious aspects), we should start with the Doctrine of Discovery. Two papal bulls, from 1455 and 1492, had declared the legitimacy of Christian domination over “pagans,” sanctifying enslavement and expropriation of property, specifically in the lands discovered by Christopher Columbus. What was termed “the Doctrine of Christian Discovery” saw Indigenous Americans as subhuman because they were not Christian. Chief Justice John Marshall used the language of these papal bulls in his infamous decision in Johnson v. M'Intosh (1823), to justify state dominion over Indigenous peoples, replacing the terms “Christian” and “pagans” with “European” and “savages”Footnote ⁸²—a term that similarly dehumanizes Indigenous Americans, even if this dehumanization was secularized.

Based on the notion that Indigenous peoples could not possess title to land, Native title was a colonial fiction, created by Marshall in order to grant Native peoples some property rights while allowing the U.S. government to maintain control over land, especially its sale and distribution. Marshall ruled that Indigenous nations had only “the right of occupancy.”Footnote ⁸³ They can do whatever they want with the land while they occupy it, but they cannot sell it to anyone but the sovereign. According to Marshall, discovery of a given territory granted the European discoverer the right, against other European nations, to acquire Native land (by purchase or conquest) and then grant that land to non-Natives. On one hand, the Supreme Court created a new property right for Natives, one that all parties, including the state, were bound to respect. On the other hand, the Court took away absolute control of Native land by Natives.Footnote ⁸⁴

The Court said that Natives possessed an occupancy right that only the discovering sovereign could extinguish.Footnote ⁸⁵ Thus, discovery did not vest title in the discoverer; it gave the discovering nation the right to extinguish Native title via purchase or conquest. The rights of the discoverer were against those of other European nations staking a claim to Indigenous land; they were not necessarily rights over Indigenous peoples. The Court now said that Natives could convey their land to the discovering sovereign and to no one else. Thus, the sovereign's rights derived from discovery, and the Natives’ rights came from occupancy. Residence in a given area conferred Native title upon an Indigenous nation.

We can ask how come such a revolutionary property expropriation did not do anything to the institution of property, and one possible answer would be that the people whose property was expropriated were already considered nonmembers of the community and therefore not worthy of property rights. In the Native American case, they were also considered too nomadic to own land and too unwilling to make significant improvements that would clarify their claim and give them moral weight.Footnote ⁸⁶ Thus, to de-essentialize and re-politicize indigeneity, we can say that taking Natives’ land required dehumanizing them and denying their sovereignty and autonomy.

The nineteenth-century Marshall Court—in addition to creating Native title—also sought to “domesticate” Native American nations, referring to them as “domestic dependent nations.” When I talk about this domestication, I mean, following Nez Perce scholar Beth Piatote, three things: (1) the discourse of domesticating or civilizing the “savage Indian” (“kill the Indian and save the man”Footnote ⁸⁷), which called for implementing policies that, despite rhetoric of humanization, violated the dignity of Native Americans, infantilized them, and destructed their communities; (2) the attack on Indigenous sovereignty through the domestic sphere (including the practice of out-adoption, the forced removal of Indigenous children from their families to attend government-funded boarding schools, and the allotment of reservation land in severalty); and (3) the legal definition of Native Americans as “domestic dependent nations” in the Supreme Court in the nineteenth century.Footnote ⁸⁸

In Cherokee Nation v. Georgia (1831), the U.S. Supreme Court recognized that the nationhood of Indigenous communities was limited primarily by U.S. military conquest. It defined the Native American political organization as “domestic dependent nations” and their members as “ward[s]” of the nation, existing in “a state of pupilage.” According to the Supreme Court: “Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the [p]resident as their great father.”Footnote ⁸⁹ Piatote writes that “Assimilation-era policies . . . were driven by the notion that the tribal-national polity, as a competing national sovereignty, must be destroyed. And the way to break up the tribe was to break up the Indian family and to cultivate children's allegiance to the United States rather than to the tribe.”Footnote ⁹⁰

The discourse of domesticity appears here as a special tool for domination, but it can also provide a site of resistance. Piatote shows “the resilience of the tribal-national domestic by centering the intimate domestic (the Indian home and family) as the primary site of struggle against the foreign force of U.S. national domestication.”Footnote ⁹¹ At this point, I bring religion back into the story.

Revitalization

The federal government began regulating Native religiosity during the era of the government's domestication policy—when the United States stopped signing treaties with Indigenous nations, treating them as foreign, sovereign nations, and started making policies for them, treating them as wards of the federal government. Together with limiting the movement of Indigenous communities and invading every aspect of their domestic life, this policy also made religion an object of regulation. “Policies about religion were at the core of this invasion,” Susan Staiger Gooding writes.Footnote ⁹² In the second half of the nineteenth century, all recognized Indigenous nations were assigned one of the thirteen recognized Christian denominations, and Christian boarding schools were institutionalized on a national scale. But these policies, Gooding argues, were the result of a concern not with Natives’ belief but with their ceremonial practices. In 1883, Courts of Indian Offences were founded on all reservations to enforce the prohibition on traditional practices referred to as “the old heathenish dances, such as the sun-dance, scalp-dance, etc.”Footnote ⁹³ The prohibited practices suggest that the policy aimed at eliminating the social and political communities created and maintained through them rather than at any religious belief.Footnote ⁹⁴

Yurok attorney Amy Bowers and legal scholar Kristen Carpenter provide context for the G-O Road case that invokes domestication. As part of the assimilation policy of the early twentieth century, Indigenous religion was outlawed and referred to as “the devil's religion.” As a result, many Indigenous peoples stopped performing certain rituals or were forced to go underground. In the face of racism and discrimination, many Natives tried hard to conceal their “Indianness,” undergoing a kind of identity crisis. The worst identity crisis was experienced by the generation of Natives sent to boarding schools run by the Bureau of Indian Affairs (BIA)—the most devastating manifestation of the assimilation policy. Native children from the Lower Klamath River (including Yurok, Karuk, and Hupa children) were sent to residential schools in Northern Oregon. According to Bowers and Carpenter: “These children left the Reservation speaking tribal languages, believing in their cultural covenants, and practicing the religion—only to be beaten and punished for exactly these traditional practices by boarding school teachers and administrators. These students became the first generation of Indian people from the Klamath River not to live in their aboriginal territory or participate in annual tribal religious ceremonies.”Footnote ⁹⁵

One of the witnesses in the G-O Road trial, Earl Joseph Aubrey Jr., a thirty-four-year-old Karuk timber faller, mentioned his schooling offhandedly in his testimony. When asked to describe his early training in the Karuk tradition, he responded:

Earl's story is unique in that he maintained his connection to the High Country, to medicine making, and to dancing (albeit partially) throughout his years in boarding school. His testimony is therefore useful for a religious-freedom case that requires proving the continuity of the religious practice in the area (which, of course, erases the colonial effects of domestication policies on Indigenous identity in general and on their religious practice in particular). Earl's story nevertheless alludes to this policy, even when what he needs to prove is continuity rather than change. Having this story told in a settler court and becoming part of the public record is important, and I see it as a form of resistance through storytelling—of speaking truth to power, if you will.

When Earl's generation returned from boarding schools to the reservation, they found extreme poverty, no job opportunities, and alienation from their traditional ways of life. “Yet, even at this low point,” observe Bowers and Carpenter, “hope was on the horizon—the civil rights era of the 1960s was headed to the Klamath River. The generation raised pre-contact was still alive. Although they were weary to ‘be Indian,’ they still knew their traditions. Children born in the 1940s and later were not sent away to boarding schools and in fact, they had been exposed to a better education in local public schools. Some of them had made it to college, graduated, and headed home.”Footnote ⁹⁷

Their experiences at the university had politicized them, having exposed them to Indigenous activism at Alcatraz and Wounded Knee. They were eager to reassert their Indigenous identity and to engage their elders in a political movement. Nonprofit organizations in Northwest California, funded by the U.S. government as part of its “war on poverty,” were involved in organizing local Natives. “Remarkably,” write Bowers and Carpenter, “within a few years the people began to dance again.”Footnote ⁹⁸ Medicine women returned to the High Country. “These events were significant to revitalizing the tribal religion and many of the participants would later become plaintiffs in the Lyng litigation.”Footnote ⁹⁹

In the G-O Road trial, when Judge Weigel asks witness Chris Peters about the impact that the development plan in the High Country might have on the revitalization of Yurok and Karuk ceremonies, Chris explains that the High Country is “[w]here we get personal power that reaffirms our Indianness and our way of life. To disrupt it and to destroy it, as the Forest Service is proposing to do, would definitely have an impact on the regeneration of Indian people. Currently it would totally destroy any hope of our grandchildren from knowing what that area has for them.”Footnote ¹⁰⁰