The continuing traditional practices of Native peoples in California are acts of bio-cultural sovereignty and are a means of resistance and revitalization. The term “bio-cultural sovereignty” is drawn from Varese’s work in his book Witness to Sovereignty: Essays on the Indigenous Movement in Latin America and his discussion on the related issues of “indigenous knowledge and biodiversity” and “bio-cultural and socio-political sovereignty” (Varese and Chirif 2006). Varese asks his readers to consider:
…how could the indigenous outlast the European military invasion, the massive biological warfare, the systematic ecological imperialism and the meticulous destructuring of their institutions, and still initiate almost immediately a process of cultural and sociopolitical recuperation that allowed for their continuous and increasing presence in the social and biological history of the continent?
For Varese, the answer lies in the “exploration of the complex concealed dialectic of daily forms of biological and cultural resistance and adaptation” (Varese and Chirif 2006). In this discussion, I extend Varese’s notions by exploring this form of biological and cultural resistance in California, with particular focus on the continuing biological and cultural knowledge of gathering in northern California as a means of exercising, maintaining, and reinforcing bio-cultural sovereignty. The practice of gathering demonstrates the continued resistance against colonization, but also the continued management of land and space regardless of acknowledgement or support from government agencies. It also demonstrates the continued partnership that Indigenous people have with the land space, and their continued responsibility to that space.
Lyng v. Northwest Indian Cemetery Protective Association (1988)
The first time my aunt took me to gather beargrass she said we would head “just up the G-O Road”. We drove along the paved roadway until we came to a burned area of the forest. “What you do”, my aunt told me, “is you find out the places that burned the year before, because that means next year there will be many good materials waiting for you”. We started by giving a gift of tobacco to the place where we were gathering with a short prayer in thanks for the use of the materials. We gathered most of the day. Throughout, my aunt took special care to remind us about being mindful of what we were collecting, to never take the entire plant, and to take only what we thought we would use. We ended our gathering with a song, reminding ourselves and the K’ixinay that we were grateful for the day.
At the time I did not think about the significance of our gathering “just up the G-O-Road”. This road, referred to by the federal government as the “Gasquet-Orleans Road”, was the centerpiece of the 1988 federal Supreme Court case Lyng v. Northwest Indian Cemetery Protective Association. In this case the U.S. Forest Service had proposed the building of a road that would run through the Six Rivers National Forest in northern California from Gasquet to Orleans. “The road’s primary purpose was to benefit the logging industry” (Miller 1990).
Local tribes quickly came together to protest the completion of the road. They argued that the road would not only destroy sacred religious sites but would impede their ability to practice their religion. We call this area the “high country”. It is an area filled with sacred spaces, geological and ecological formations and numerous resources required in the practice of traditional ceremonies. But aside from the religious significance of this area it is also a part of everyday interactions important to the balance of land and society. The high country is utilized by various tribes for many different reasons. The intimate ties that we have with this land are not only a result of its religious and spiritual purposes, but also the environmental, economic, agricultural, and societal importance of the area to everyday life.
In 1979 the Forest Service commissioned a report while planning the building of the G-O Road in which they did consult with local Indian tribes. The report, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest, stated that the road would have harmful effects on the religious practices of the tribes and that because there was no way to mitigate these issues, the road should not be built (Theodoratus et al. 1979). However, this consultation was actually used as a way to move forward with the building of the road, with the Forest Service maintaining that they had consulted with Indian tribes but that did not mean they had to listen to any recommendations. Government policies often call for “consultation” with Native tribes, and while they offer suggestions for how to best implement a consultation process, there is no requirement that the recommendations of tribes be respected, followed, or adopted. Though tribes in the area were steadfastly against the building of the road, the Forest Service went ahead and paved a portion of the high country.
Six environmental groups and the state of California joined with the Native people to “preserve the existing uses of this wilderness area” and they filed suit in federal district court. (Miller 1990). The Northern District of California found for the Native peoples stating that the building of the G-O Road would be a violation of First Amendment rights. They also found that it would be a violation of “the National Environmental Policy Act, the Wilderness Act, the Federal Water Pollution Control Act, the government’s trust responsibility to protect Indian water and fishing rights, and the Administrative Procedures Act” (Miller 1990).
Ultimately the case was brought before the United States Supreme Court. The government believed that it could remedy any environmental issues associated with the Wilderness Act and still build the G-O Road. The Court overturned a lower court injunction that halted the building of the road. The Court noted that the building of the road was not a violation of the local Indian tribes’ religious rights under the Free Exercise clause of the First amendment because the building of the G-O Road would not constitute an action by which Indian tribes would “be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens” (O’Connor 1988). However, the Court did note that “The Government does not dispute, and we have no reason to doubt, that the logging and road-building at issue in this case could have devastating effects on traditional Indian religious practices…” (O’Connor 1988)g.
At issue in the case was not only the exercise of religion in the high country. Justice Sandra O’Connor lamented in the majority opinion, “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land” (O’Connor 1988). She further expressed that “No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property” (O’Connor 1988).
With these remarks, Justice O’Connor was essentially re-establishing the “rightful ownership” of the federal government over this space. While the Lyng case was couched as a fight over the First Amendment and freedom of religion, it also centered, as per Justice O’Connor’s remarks, on concern over “ownership” of the land. This concern may have ultimately shaped how the Court responded to this case with the fear being that siding with the Native peoples could ultimately build support for divesting federal ownership from this area. Though the Court’s language in this case attempted to solidify federal ownership of the land by divesting Native “de facto” ownership, this ownership and sovereignty over the land were continually established by the Native peoples of the area through their interaction with and cultural preservation of the landscape. This was not at issue in the court case and was not discussed at length in the Court’s finding. However, not only had Native peoples continued to manage, interact with, and utilize this space throughout history, they also continued to do this despite the intrusion of the G-O Road and the Supreme Court’s findings. Native peoples, through continuous interaction with the “wilderness space”, demonstrated the power traditional practices have to show the physical connection to the land “in perpetuity”, and to demonstrate bio-cultural sovereignty. The Court’s findings were intended to solidify the federal government’s rights to the land without respect for how this ownership could and should be shared with Native rights to the land space.
While the case was on appeal, Congress passed the Smith River National Recreation Area Act (1990) which “…added the twelve-hundred-foot G-O Road corridor into the protected Siskiyou Wilderness” (Echo-Hawk 2010). The only way to protect this piece of land was to claim it as “wilderness”, a designation that carries with it a specific set of assumptions about the land and the people who used this area from time immemorial. The Native peoples of this area would have never referred to this land as “wilderness” implying that it was somehow unexplored, “virgin” territory that was scarcely used or cared for.
The passage of the Smith River Protection Act (1990) as a means to protect the G-O Road did not account for the bio-cultural sovereignty of this space and did not speak to the inherent political and cultural sovereignty of the tribes in this area. Section 460(b)(b)(b) of the Act states that the “protection of the Smith River’s unique values can be enhanced by a cooperative effort by Federal, State and local governments to coordinate use planning, management, and development of Federal and non-federal lands throughout the watershed” (1990). The Act does not specifically mention tribes, although it is not clear if tribes were meant to be included as “local governments”. In many cases this can be particularly problematic where state or other agencies need to be compelled to consider and include tribes in planning and management of these areash. What is particularly interesting about the language of the act itself is that while Sec. 460(b)(b)(b)-3 allows for management of the Siskiyou Wilderness pursuant to the provisions of the Wilderness Act (16 U.S.C. 1131 et seq) it does not speak to nor specifically allow Native-based management of, interaction with, or continued use of the area. The Act does specifically mention several acceptable uses of the area including recreation, public access (including vehicular roads for recreational activities such as camping, hiking, hunting and fishing), permitted use of off-road vehicles, and permitted programmed timber harvest.
The affirmation or acknowledgement of the bio-cultural sovereignty of tribes in regards to this “wilderness” would not have been unprecedented. In fact, the Act does provide for a reaffirmation of California’s sovereignty over the area. In Sec. 460(b)(b)(b)-5 the Act highlights that “Nothing in this subchapter shall be construed to affect the jurisdiction or responsibilities in the State of California with respect to fish and wildlife”. The Act further reaffirms California’s rights and responsibilities to this area in stating that “Except in emergencies, any regulation of the Secretary pursuant to this section shall be put into effect only after consultation with the fish and wildlife agency of the State of California”. Once again, tribes, who were the center of a major court case specifically regarding parts of the Siskyou wilderness, are not included as sovereign governments in either of these examples nor discussed in any separate section in order to solidify their role in consultation or cooperative management of the area. This does not mean that tribes did not continue to interact, care for, and exercise their bio-cultural sovereignty over this space. Many families, including my own, have long continued traditional practices including gathering plants and conducting religious, spiritual, and other cultural practices specifically in this area. Regardless of any concrete acknowledgement by the Supreme Court or the federal, state, or local governments, we continue to take responsibility for the land, interact with the land, protect the land and its inhabitants, and exercise our rights.
Clearly, there is an opportunity to learn from this example and to implement better quality practices for future policies, acts, and laws. Consultation with tribes is a first step toward building any policy but does not go far enough in forming partnerships among agencies, scholars, researchers, and tribal nations. Tribes have enacted and continue to enact bio-cultural sovereignty, which solidifies their relationship with the land. Written policies have been used as an attempt to divest Native peoples of their interest in the land and also as a means to erase Native interactions with the landscape. This means that written policies can also be used to protect Native interests in these land spaces and to develop a relationship between Native peoples and other agencies that supports a continued stewardship over land areas. Federal agencies can benefit from these partnerships with tribes as tribes can offer assistance to care for these land spaces, state agencies can alleviate potential funding issues for maintaining these areas by working with tribes, and researchers and academics can construct knowledge that incorporates traditional ecological practices to build solid, informed best practices.
(MiddletonThere are several successful contemporary examples of Native tribes and organizations working to establish partnerships that recognize bio-cultural sovereignty. Native American Studies Professor Beth Rose Middleton explores “new directions in Tribal Conservation” in her book Trust in the Land 2011b(Madrigal). Her case studies examine ideas and innovations in land conservation and how tribes are protecting lands by collaborating with organizations through conservation easements and land trusts. In many cases this means that tribes are able to legally acknowledge their protection of and interaction with land spaces in their aboriginal territory. Anthony Madrigal, a member of the Cahuilla Band of Mission Indians and the legal counsel for the Native American Heritage Commission, explores issues of sovereignty in Sovereignty, Land and Water: Building Tribal Environmental and Cultural Programs on the Cahuilla and Twenty-Nine Palms Reservations 2008). Madrigal highlights the Native American Land Conservancy (NALC) and their purchase of land jointly with the Anza Borrego Foundation. The subsequent agreement between NALC and the Anza Borrego State Park reflected a cooperative agreement for management of the land’s resources. The plan includes access for traditional use of plants and ceremonies and also includes the Cahuilla tribe “in a co-management role …to develop joint programs to interpret Native sites and a learning landscape program to instruct both Indian youth and non-Indians on native traditions, plants and animals” (Madrigal 2008). The 4,000-acre InterTribal Sinkyone Wilderness in northern California also offers an example of land management and protection that is run by an intertribal organization made up of ten tribes. The area is designated as a conservation easement to “protect the land’s cultural and ecological values in perpetuity” (Rosales 2010). The InterTribal Sinkyone Wilderness Council is believed to be the first tribal entity in the United States to have entered into a conservation easement with private land trusts. In addition organizations such as the California Indian Basketweavers Association have also worked closely with federal agencies to design policies to protect, acknowledge, and respect traditional gathering rights. CIBA was one of many agencies that consulted on the development of a traditional gathering rights policy that was signed in 2007 and “clearly recognizes that local indigenous peoples have rights to the forest, and that these rights should be respected, supported, and enhanced” (Middleton 2011a).
There is also a growing body of scholarship written in support of bio-cultural sovereignty rights of Indian tribes. Legal scholars Kristen Carpenter and Angela Riley have conceptualized what they call “peoplehood”, a concept of Indigenous cultural property rights that “dictates that certain lands, resources, and expressions are entitled to legal protection as cultural property because they are integral to group identity and cultural survival of indigenous peoples” (2011). They propose that these rights should be understood as “stewardship” rather than ownership and that cultural property claims “are often better explained and justified through a stewardship model” (Carpenter et al. 2009).