The Clash of Stories At Chimney Rock: A Narrative Approach to Cultural Conflict Over Native American Sacred Sites On Public Land, Howard J. Vogel

The Clash of Stories At Chimney Rock: A Narrative Approach to Cultural Conflict Over Native American Sacred Sites On Public Land, Howard J. Vogel

• Disputes arising from different views of moral understanding and the source of moral authority have been a prominent feature of political conflict in recent years in the United States
• James Davison Hunter refers to this phenomenon as "The Culture Wars"
• The stakes in these disputes ultimately involve a struggle for cultural domination that involves a struggle for survival of a particular way of life
• Rarely is the oldest, and one of the deepest cultural divides in American experience mentioned in the discussion of the culture wars
• That is the cultural conflict, which springs from the collision of European culture, in its various expressions, with that of the Native people of the North American continent 
• Litigation undertaken in the 1980s designed to secure judicial protection of six sacred sites failed dramatically
• This essay undertakes a critical reexamination of the Chimney Rock case, Lyng v. Northwest Indian Cemetery Protective Association, the only one of the sacred site cases to reach the United States Supreme Court
• In the course of this essay I will take up four tasks: first, I will offer some opening comments on the historical meaning of the American constitutional commitment to religious liberty within the larger context of the experience of the descendants of the European immigrants to the United States as compared to the experience of the Native American peoples
• Second, I will briefly describe "narrative method" as an alternative approach to analyzing cases of cultural conflict that can aid us in understanding the deep cultural issues at stake in sacred site cases
• Third, I will critically analyze the opinion of the United States Supreme Court in Lyng, with special emphasis on the doctrinal and cultural dimensions of the dispute as seen by the Court
• For European immigrants the First Amendment has been very good news
• But the First Amendment has not been good news for the indigenous people known as American Indians, or Native Americans
• The American historian, William Lee Miller, argues that the American commitment to religious liberty is distinctive as compared to similar commitments in other constitutional democracies
• The distinctive feature of the American commitment to religious liberty is found in the premises underlying the two religious liberty clauses of the First Amendment: "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof.
• The premises underlying these clauses can be summarized by embracing three key commitments: (1) personal religious liberty; (2) institutional independence; and (3) the absence of hostility to the traditional religious beliefs of the colonists of America
• The unique liberty in which the American nation was "conceived" included more than personal religious liberty as it would be understood worldwide; it includes also the full institutional independence of the federal union from all churches and of those churches from the national state
• In the most simple terms these principles may be summarized broadly as a commitment to neutrality between religions by prohibiting the state from establishing religion, coupled with a commitment of tolerance toward all forms of religious expression
• The most eloquent statement of this came from Justice Jackson in his 1943 opinion for the Court in West Virginia State Board of Education v. Barnette. In that case the Court struck down a state order that required all public school teachers and students "to participate in the salute honoring the Nation represented by the Flag" on pain of being cited for insubordination if they refused
• This commitment to neutrality and tolerance of diversity does not, however, solve, let alone avoid, Lincoln's Dilemma. Although neutrality and tolerance have been the backbone of doctrinal developments under the two religious liberty clauses, their articulation in specific cases have been the source of great difficulty in developing an intellectually satisfying body of doctrine 
• Against this historical record of some accommodation for religious observance in some government settings, one might expect that there might be some cases of accommodation of Native American spiritual practice at sacred sites on government land. But that has not been the case
• The bad news is the sacred sites cases is especially dramatic when seen against the good news on religious liberty that marks the founding of the American Republic
• The land seizures stretch back to the early years of European immigration, but they become especially dramatic during the nineteenth century with the "Opening of the West."
• In 1803, when Thomas Jefferson's government bought the huge territory in the center of the North American continent from the French, the land mass of U.S. territory virtually doubled overnigt
• A vast area was suddenly available to settlement
• Many new states would be created within their territory during the space of the next sixty years 
• The story of my home state of Minnesota is typical of what happened in these years
• In 1832, the "European discovery" of the source of the Mississippi River took place in what would become the Minnesota Territory in 1849
• Nine years later, in 1858, Minnesota became a state
• With the coming of the settlers and the establishment of U.S. governmental control over traditional Indian lands, the religious beliefs, rituals, and sites of the Native Americans came under severe pressure
• Some rituals, such as the Ghost Dance in the Northern Plains, were suppressed at the end of the nineteenth century 
• Today the picture is not radically different. Even though courts dealing with conflict over government action at Native American sacred sites often now proceed with full knowledge of the history of governmental sanctioned suppression of Indian religious practices, and on occasion express some sympathy for the extraordinary burden this has placed on the integrity of Indian culture, the decisions rendered in these cases have served to extend and entrench the cultural domination of the European immigrants and made it difficult for those Native American people who today are trying to revive traditional spiritual practices as a way to restore their culture
• Six sacred site cases were decided by the federal courts between 1982 and 1988
• In each case Native Americans sought to protect traditional sacred sites from government land use plans that would severely intrude on the spiritual significance and practices associated with these sites 
• What makes these cases especially troubling is the fact that in 1978 the United States Congress took note of the continued difficulties experienced by Native Americans who sought religious freedom on par with all other Americans
• In response Congress adopted the American Indian Religious Freedom Act of 1978 (AIRFA)
• This Act expressly declared that American Indians are guaranteed the same religious freedom available to all Americans under the First Amendment 
• What went wrong? What can we learn from these American cases concerning how we might deal with the problem of cultural diversity in a constitutional democracy? 
• Cases involving efforts to exempt religiously grounded conduct from the reach of the law of the state as a matter of religious liberty protected by the First Amendment to the U.S. Constitution are typically framed as individual rights cases
• One way of speaking about the high importance of particular narratives for particular people is to speak of them as "Master Stories."
• The Exodus story is the master story of the Jews. For them it conveys both the meaning of life and what is is they understand that they are called upon to do 
• Christians, Muslims, Native Americans, and others, all have particular narratives, which serve a similar purpose
• Where any of these people come into conflict with the state, it is often because their particular master story, and the tradition which surrounds it, calls them as individuals, to pursue a course of action which the state is not willing to permit
• Prominent within many of these master stories are sacred sites, and rituals, which embody the story and serve as vehicles for its passage across the generations
• Master stories are not neutral. They embrace and express a particular understanding of reality and are value laden. This means that they can be either "hegemonic tales" or "subversive stories"
• One of the major problems associated with conventional rights-based approaches to dealing with cultural conflict, and especially that involving ethnic or religious groups, is the potential for imposing one particular master story on an entire people in the name of the state; thus, extinguishing the cultural heritage of those who find their identity in the extinguished master story 
• The threat of suppressing or extinguishing a master story is especially serious in cases involving efforts to exempt religiously grounded conduct from the reach of the law of the state as a matter of religious liberty protected by the First Amendment to the U.S. Constitution 
• The Chimney Rock case involved the question of whether the government had a legal duty under the Constitution to abandon a land-use plan for government-owned land which would burden the use of the land for religious purposes by the Indian people who hold the Chimney Rock site as sacred
• The case involved a twenty-seven square mile area located on land owned by the U.S. government inside a national forest managed by the federal forest service
• In addition to the testimony offered by the Indian plaintiffs on the spiritually sensitive cultural significance of the area, the Forest Service commissioned an extensive study of the cultural significance of the area to the Indian people, which included an assessment of the impact the proposed action would have on the cultural importance of the site 
• The proposed site of the U.S. Forest Service road to connect the villages of Gasquet and Orleans in northwestern California included the site of several mountain peaks located in the Blue Creek area of the Siskiyou mountains rising 7,000 feet above the Klamath River Valley 
• The great power present in the high country is one of the gifts of ancient "pre-human figures who are said to have inhabited the world and to have brought all living things and culture to mankind."
• When a description of the questions presented in the Chimney Rock case takes into account the divergent views of time and space, which made this a case of cultural conflict, then the cultural stakes can more easily be seen  
• The Chimney Rock case is the only case in which the U.S. Supreme Court has fully considered a challenge to a public land use plan that was in conflict with the historic Native American religious purposes associated with the government owned land for which the plan had been prepared 
• The basic holding of the Supreme Court was that the government had no legal duty to accommodate the Native American religious practices at stake, despite the Court's awareness of the cultural injury sustained by the Native American plaintiffs at the hands of the government
• To begin with, it must be pointed out that the government was not unmindful of the religious significance of the Chimney Rock area on its land. 
• Recall the Theodoratus Report discussed earlier, which came out of a study commissioned by the government in 1978 to study the impact of the Chimney Rock area of the road it planned to build through the sacred site area
• Neither the government nor the Court questioned these findings or conclusion
• Indeed the Court went so far as to acknowledge the severity of the harmful effect of the road in dramatic language
• Despite what the Court called "the sympathy that we must all feel for the plight of the Indian people involved in the case, the Court held that the government was under no legal duty to alter its plan of action to lift the burden the road would place on the religious practices of the Indian people
• In the end, despite the Court's explicit recognition of the cultural stakes, the Court was unable to honor and respect the Native American understanding of land on either its own terms or within the conventional principles of First Amendment law
• In taking the approach the Court affirmed the high value traditionally placed on both property rights and on religious liberty under the American Constitution, but declined to interfere with the government's exercise of its property rights for the reasons I have already discussed above 
• In addition to discussing the questions presented as property rights issues, the Court also engaged in an extended analysis of the way in which religious liberty, as a constitutional value, was presented in this case
• Beyond the Court's transformation of the Theodoratus Report from a collective communitarian understanding of the religious dimension of the cultural stakes presented t an individualist understanding more congruent with the conventional understanding of rights found in the dominant culture, the analysis of religious liberty presents a sharp point of contrast between the conventional non-narrative approaches taken by the majority and dissenting opinions written respectively by Justices O'Connor and Brennan
• Against the description of the religious significance of the Chimney Rock Area, Justice Brennan argues that the Court's focus on whether the government has "prohibited' the practices in a formal sense is unconvincing
• Notice that in taking this balancing approach, Justice Brennan creates a duty on the part of the government to justify the means it has chosen to accomplish its objectives
• The balancing approach requires great sensitivity to the context 
• The stance taken by both of these Justices can be viewed sympathetically
• Justice O'Connor seeks to be true to the principle of government "neutrality" so distinctive of the American approach to religious liberty, while at the same time being true to the sanctity of property rights, which are also enshrined in the Constitution
• Justice Brennan, on the other hand, seeks to be true to the purpose for which religious liberty is protected under the Constitution
• Justice Brennan also seems to differ from Justice O'Connor in his view of how to take into account the government's property interest in this case
• We might well consider whether a sympathetic reading of the opinions of Justice O'Connor and Brennan might lead to an accommodation, which honors the concerns they express
• Despite his willingness to engage in a balancing of the interests presented, Justice Brennan gives us little guidance for applying the test he proposes 
• Reading the American story as one in which land is viewed as property, subject to possession and title, surely comports with the history and understanding of the American experience in European-American terms, informed as it is by the ideas of discovery and conquest
• What lessons can be learned from the Chimney Rock case? When we augment our understanding of the decision, with the additional perspective narrative method can provide, we can see clearly that a commitment to the principle of abstract neutrality in religious liberty cases can serve to entrench a dominant cultural view of human experience even where there is a commitment to cultural diversity as in the United States 
• We can now see that the "devastation" Justice O'Connor forthrightly anticipates if the road is constructed is a devastation which comes from the suppression of the Indian peoples' master story because it can no longer be reeneacted in its traditional way in its traditional setting near Chimney Rock
• In taking the master stories in a dispute seriously, a narrative approach is more faithful to the full scope of the American constitutional vision than conventional approaches to adjudication of cases of cultural conflict
• The examples of the dead stories of the past serve as warning to the possibilities for an American future, as each year the people who inhabit the several states of the union become more diverse
• Narrative method does not provide an easy answer to these questions
• It does suggest that understanding the deep cultural stakes present, when master stories are in conflict with each other, may help us find the depth of empathy from which imaginative legal approaches to resolve these conflicts might be fashioned
• We must be careful to avoid being seduced by the detail of what we might regard as exotic when we engage in the descriptions of others
• By gaining an understanding of these cases from this point of departure, despite the difficulties narrative method presents, we may hope to yet develop a creative approach to dealing with clashes of culture that may lead to social healing where the cultures come in the conflict within a particular political society, whether that be in the courts or the political life of the nation
• The warning of the Chimney Rock case is that the Indian peoples' master story suffered a terrible defeat at the hands of another master story--the American story--held dear by the dominant European-Americans who, as carriers of European culture, planned and executed the "discovery" and settlement of the Western Frontier in the United States, in the same way that their forbears had first planned and executed the "discovery" of the "New World"
• To make this argument is not simply to embrace an easy cultural relativism, rather it is to look for ways to embrace the contrast presented in the conflict in a way that can lead to the intensification of experience by all parties to the dispute within a larger synthesis that can hold these parties together without suppressing the contribution that each makes to the larger whole
• As we come to appreciate the master stories of other people, and the importance they have for the life of these people, so too might we see the presence of the master stories in our lives and the ways in which the law embraces and protects or burdens or stories
• Imagination, inspired by empathy and humility in listening to the stories of others far different than our own, can help us understand our own stories better and thus come to see the encounter with difference as an opportunity rather than as a threat
• From this perspective we stand to recover the meaning of our own stories because we are in conversation with those whose stories differ from our own
• In that vital conversation, engaged in with utmost seriousness, sensitivity, and appreciation of our master stories, we may yet learn to live with our differences rather than going to war over them