That's The Place Indians Talk About: Indigenous … 18 Readings/That's the...mere reaction, or a...

"That's The Place Indians Talk About":Indigenous Narratives of Survivance

Elizabeth Archuleta*

It is difficult to verbalize in another language, for another culture, exactly whatmakes a place sacred . . . . There are spirits that dwell in certain places that may bebeneficial to a fast and helpful in other ways to the individual and to The Peoplewhen one fasts and prays there. Other things that make a place sacred are what ourgrandfathers and their grandfathers before us have put there, or how the Great Spirithas shaped the rocks, or the ancientness of the grandfather trees, or the power of theplants. Our brothers, the animals know these places and come to these places.

- Hawk Little John'

The relationship[ ] between American Indians and the land is multifaceted. It's notone of ownership per se, for we are owned more by the land, tied to it more strongly,than the land is owned by us. We are tied to it by obligations and responsibilitiesestablished by our ancestors in times far back, and we pass those obligations on toour children and grandchildren.

- Joe Watkins 2

I. INTRODUCTION

Washington State charged Yakima Chief Meninock with violating the statefisheries code for fishing in the Yakima River.3 During the 1915 trial, when he

*Yaqui/Chicana. Professor of English, University of New Mexico. Ph.D., Pennsylvania State University;M.A., Pennsylvania State University; B.A., Westminster College. I would like to thank Robert A. Williams forhis generosity in sharing materials as well as his time in reading the manuscript. His insightful commentshave given me much more to think about, letting me know that I can and should take this article in newdirections.

1. Quoted in ANDEw GULLIFORD, SACRED OBJECTS AND SACRED PLACES: PRESERVING TRIBAL TRADITIONs 67(2000).

2. Joe Watkins, "Place-meant," 25 AM. INDIAN Q. 41, 41 (Winter 2001).3. See State v. Meninock, 197 P. 641 (Wash. 1921).

26

The Place Indians Talk About 27

testified on his own behalf, Chief Meninock brought to light Indigenous legalprinciples concealed by a system that has privileged Western legal narratives. Hestated under oath:

God created this Indian country and it was like He spread out a big blanket.He put the Indians on it. They were created here in this country, truly andhonestly, and that was the time this river started to run. Then God createdfish in this river and put deer in these mountains and made laws throughwhich has come the increase of fish and game. Then the Creator gave usIndians life; we awakened and as soon as we saw the game and the fish weknew they were made for us.... I was not brought from a foreign countryand did not come here. I was put here by the Creator.4

Despite the strength of such oral testimony, the legal establishment rarely, ifever, recognizes or affirms the philosophies or laws that order Indigenous worlds.Indeed, Western laws typically obscure prior custom by writing over or silencingthese traditions. Nevertheless, by affirming Yakima legal doctrine, Meninock'swords defy the legal establishment's attempts to submerge or erase prior Yakimacustom. At the same time that his words defy United States law, they also refute twolegal mythologies of conquest: (1) that Indigenous peoples had no law prior toconquest, and (2) that they have cautiously submitted to the ascendancy of UnitedStates law.

The dominant culture has created and employed legal mythologies of conquestin an attempt to deprive Indigenous peoples of their right to contribute to the UnitedStates' prevailing narratives. Legal narratives and official histories have becomenew simulations of dominance, replacing the violence of Manifest Destiny with whatGerald Vizenor has called "manifest manners" or the continued "surveillance anddomination of the tribes in literature[,]" especially through legal literature ordiscourse.5 Despite the dominant culture's presumed legal authority, Indigenouspeoples have been unyielding when it comes to their right to participate in theUnited States' creation, as well as to survive as distinct groups apart from themajority population.

Vizenor refers to this Indigenous resolve as "survivance," a state of being thatencompasses much more than mere physical survival.6 According to Vizenor,

4. Chiefs Meninock & Wallahee, Testimony During a 1915 Trial for Violating a Washington State Code onSalmon Fishing, in GREAT DOCUMENTS IN AMERICAN INDIAN HISTORY 297-98 (Wayne Moquin & Charles VanDoren eds., 1973) [hereinafter Meninock, Testimonyl.

5. GERALD VIZENOR, MANIFEST MANNERS: NARRATIVES ON POSTINDIAN SURVIVANCE 4 (1999).

6. Id. at 4-5.

28 2 UCLA INDIGENOUS PEOPLES' JOURNAL OF LAW, CULTURE & RESISTANCE (2005)

survivance is "an active sense of presence, the continuance of native stories, not amere reaction, or a survivable name. Native survivance stories are the renunciationof dominance, tragedy, and victimry."7 In other words, survivance means refusingto surrender to another authority and remaining true to one's worldview, includingcustomary legal traditions. This article explores three instances of Indigenoussurvivance where Native nations have signaled their refusal to yield to a foreignlegal system by asserting their Indigenous legal principles in ways that continue toauthorize their peoples to challenge and subvert seemingly powerful United Statesfigures and legal institutions.

II. "GOD CREATED THIS INDIAN COUNTRY"

Chief Meninock's testimony characterizes an early twentieth-century example ofIndigenous survivance. At his trial, he denied American legal supremacy andrefused to become a victim to the ongoing injustice handed out to Indigenouspeoples by legal institutions and through legal machinations. Voicing his belief inthe ascendancy of Yakima legal principles, his words defy Western law's perceivedpower in a number of ways.

First, because Western law bases its fundamental tenets on Christian ideology,Meninock proclaims a separate and distinct creation for his people when he rejectsthe Christian myth of humanity's origins in the Garden of Eden. He firmly statesthat his People's origins lie in this land and not elsewhere.8 Second, he refuses torecognize the United States' presumed sovereignty and rights over land andresources it claims when he affirms that God created "Indian country" and itsabundance for Indians.9 Next, when he pronounces that he "was not brought [here]from a foreign country," 0 he reminds his accusers of their own crimes by alluding totheir slaveholding past and the millions of Africans whom non-Indians shipped tothe United States by force. At the same time, when he declares that he "did not comehere,"'1 he reminds non-Indians of their perpetually foreign status in a land that histestimony asserts will never belong to foreigners. In addition to these declarations,Meninock takes his most notable stance against his accusers by referencing Yakima

7. Id. at vii.8. Meninock, Testimony, supra note 4, at 297.9. Id.10. Id.11. Id.


laws that resulted in "the increase of fish and game"12-a legal system that is notforeign or imported but instead intended for Indigenous lands and peoples.

Meninock's testimony signals his refusal to blindly accept or follow laws aliento Indian Country or a Yakima worldview. It also emphasizes the ongoing discordbetween two legal systems, a conflict that has formed the foundation of a wider legalrhetorical battle over the meaning of land and the legal principles that Indigenouspeoples have attached to their homelands. Because the genesis of non-nativeChristians lies in the Garden of Eden, they could only ever express their vision ofempowerment and persuasion in "Indian country" (i.e., the United States) throughthe abstract realm of a legal discourse which they presume grants them power andauthority. This Anglo-American sense of awe and respect for law7s presumed poweris exemplified by claims Barry Schaller puts forth in his book A Vision ofAmericanLaw .13

Schaller notes that "[t]he great diversity of racial, ethnic, and religiousbackgrounds in our society ... has contributed to our national dependence on law asa shared value system . . . ." because, he claims, "[olurs is a nation of immigrants-past and present . ".. ."14 While his sweeping statement encompasses the entirepopulation, it more significantly and simultaneously erases the presence of morethan 500 Indigenous nations that have never had a history of immigration or a stakein the values to which Schaller alludes.

Schaller also claims that "[l]aw exercises. . . a powerful influence on the values,culture, historical development, and direction of American society."15 In otherwords, he and many others believe that United States law is based on sharedvalues-or a social contract-agreed upon by immigrants who chose to come hereand live. Thus, Schaller deems that legal rhetoric and institutions remain thecontrolling stimuli in American societyfs development and transformation.

In contrast to the presumed visions of empowerment contained in Schaller'svision of American law, Meninock's legal identity, vision, and strength spring fromthe land, revealing a sense of self established in material reality rather than abstractphilosophies. His testimony asserts: "My strength is from the fish, my blood is fromthe roots and the berries. The fish and the game are the essence of my life."' 6 Since

12. Id.13. BARRY SCHALLER, A VisioN OF AMERICAN LAW: JUDGING LAW, LITERATURE, AND THE STORIES WE TELL

(1997).14. Id. at 2 (emphases added).15. Id.16. Meninock, Testimony, supra note 4, at 297.


this natural abundance contributed to his strength and physical well being, one canconsequently say that his laws have empowered him and contributed to his Yakimaidentity.

Because Meninocks strength and essence originate from the land, hisworldview and vision of empowerment come from a physical landscape thatnourished him and that played a major role in his survival. For that reason, weshould read his testimony as a legal challenge meant to undermine Americanmythologies' claim to ascendancy and Western law's claim to power and legitimacy.More significantly, we should read his legal statement as proof that the landengenders an Indigenous legal rhetoric that Native peoples still recognize, despitethe United States' attempts to build over or destroy its power through thepervasiveness of imported law.

Indigenous peoples recognize the power inherent in narrative, and they are alsocognizant of non-Natives' tendency toward transforming United States legalnarratives and myths into intellectual dogmas that serve dominant ideologies.' 7

American mythologies of conquest, for instance, portray the conquerors as fair andjust in order to depict the United States as a liberal democratic nation. Certain ofthese myths even claim that settlers purchased a greater part of Indigenous lands.We find examples of political figures rejecting the presence of dispossession andasserting the frequency of land purchases as early as Thomas Jefferson's "Query XI"from Notes on the State of Virginia:

That the lands of this country were taken from [Indigenous peoples] byconquest, is not so general a truth as is supposed. I find in our historiansand records, repeated proofs of purchase . . . and many more woulddoubtless be found on further search. The upper country we know has beenacquired altogether by purchases made in the most unexceptionable form.'8

The "proofs of purchase" of which Jefferson spoke became a symbolic or magicingredient that took hold of his imagination, allowing him to create and assert amyth of extensive land procurement from Indigenous nations. Clearly, thecontradictions in Jefferson's role as a member of the privileged elite and slave owneras well as a liberal spokesperson of equality and democracy and author of theDeclaration of Independence found their way into his writing. For Indigenous

17. See Jo Carillo, Disabling Certitudes: An Introduction to the Role of Mythologies of Conquest in Law, 12 U.FLA. J.L. & PUB. POL'Y 13, 13 (2000).

18. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, 1781-1785, at 3, available at http:/ /xroads.virginia.edu/~-HYPER/JEFFERSON/chl11.html.


peoples, the contradictory rhetoric in which Jefferson engaged exists in other textseven into the present.

Indeed, more than two centuries later, Felix Cohen, author of the Handbook ofFederal Indian Law, reinterpreted and reasserted these mythological foundations ofthe nation when he makes a similar claim to the effect that United States policy wasbased on purchase, unlike the policy of other European nations acting under theDoctrine of Discovery.19 Jo Carillo identifies such dubious claims as "disablingcertitudes" because, as she defines them, they are "a place where systems ofhierarchy, entitlement and positional privilege subordinate ... the 'ideological self-conception of a liberal legal order.' It is a place where the law does not practice theliberal values it preaches." 20

III. "THE LAND Is ALWAYS STALKING PEOPLE"

Because Indigenous peoples make little headway in resolving historical andcontemporary problems and struggles through conventional legal and politicalmeans, they have positioned themselves in the global arena, seeking redress throughinternational organizations like the United Nations. In July 1999, Ola CassadoreDavis (San Carlos Apache) spoke before the United Nations Sub-Commission onPrevention of Discrimination and Protection of Minorities sponsored by the WorkingGroup on Indigenous Peoples in order to alert the international community aboutthe United States' violation of its own laws and treaties:

We Apache people most earnestly seek the protection of this august body ofthe United Nations, from the destruction of our culture and human rightsby U.S., German, Italian and Vatican astronomers and their sponsoringgovernmental agencies focused upon a most sacred Apache mountain. . . .

We Apache wish to preserve in perpetuity our rights as secured underIndian treaties and agreements with the United States, including theConstitution of the United States, including the First Amendment, theAmerican Indian Religious Freedom Act, the Civil Rights Acts, the NationalHistoric Preservation Act, U.S. Executive Order 13007, and any other laws,including but not limited to the federal trust responsibilities of the U.S.government to Indian people. 21

19. Felix Cohen, Original Indian Title, 32 MINN. L. REiV. 28, 34-35 (1947).20. Carillo, supra note 17, at 19 (citations omitted).21. Ola Cassadore Davis, Statement and Petition to the United Nations to Protect the Indian Sacred Site

Dzil Nchaa Si An (Mount Graham), available at http://www.mountgraham.org/white/apache/newpage


Indigenous peoples recognize the boundaries of man-made laws and remainunimpressed by controlling institutions and their will to power through Westernlaw. This and the following part of this article examine how seemingly powerfulinstitutions maintain their assumed positions of authority by espousing liberal legalvalues while at the same time using their power and influence to gain "legal" accessor title to Indigenous lands.2 2 By broadening Carillo's definition of "disablingcertitudes" 23 to include universities, professors, scientists, and the Vatican, one cansee how non-legal entities and their representatives also embrace the paradoxicalmind-set to which she refers.

One such disabling certitude appears in a remark made by the Vice Presidentfor Institutional Relations at the University of Minnesota, Sandra Gardebring,regarding the Apaches' opposition to the placement of telescopes on their sacredmountain, Dzil nchaa si an (Big-Seated Mountain or Mount Graham in English).When interviewed by a newspaper about the ongoing controversy over the telescopeproject, Gardebring exclaimed that "[tlhere is no question that traditional Apachesview it as a sacred site, and who am I to argue with that?.... But it also has specialvalue to the university. Our value is to advance curiosity-driven research." 2 4

Gardebring's placing more value on the act of being curious than on theperformance of religious rituals subordinates the Apaches' use of the mountain tothat of those seeking Western knowledge. The University of Minnesota beganworking to improve its relations with Minnesota tribes in the 1960s.25 Yet, in 2002,Gardebring, a university representative, was still engaging in a racialized discourselong familiar to Indigenous peoples when she dismissed the value that the Apachesattach to Mount Graham and subordinated it to the "special" value that theuniversities have attached to land that was originally part of the Fort ApacheReservation. 2 6

91.htm (last visited Feb. 5, 2005) (on file with UCLA Indigenous Peoples' Journal of Law, Culture &Resistance).

22. See infra Part IV.23. See Carillo, supra note 17, at 19.24. Mary Jane Smetanka, 'U' Backs Telescope Project, MINNEAPOLIS STAR TRIB., Sept. 25, 2002, at lB.25. See Rick Moore, In the Spirit of Collaboration: The University and American Indians Seek Common Ground,

M (Fall 2002), available at http://wwwl.un.edu/urelate/m/fall2002/indian.html. The University ofArizona, another of the entities supporting the telescope project, has also worked to increase American Indianstudent and faculty numbers on campus. See Kim A. McDonald, U. of Arizona and Apaches Embroiled in Disputeover Columbus Telescope, CHRON. HIGHER ED., Dec. 18, 1991, at All.

26. See Rachel D. Hanson, The New [Teleiscope of Columbus: San Carlos Apache, et al. vs. Mt. GrahamInternational Observatory, 24 CANADIAN REv. AM. STUD. 63, 64 (Winter 1994).


Like most Indigenous nations, the Apaches lost vast amounts of land throughfederal policies as well as the legal system. Though Mount Graham had beenincluded as part of the Fort Apache Reservation, an 1873 Executive Order opened thearea to non-Indian settlers. 27 Finally, in 1902, rather than returning to the Apachesthis unlawfully seized land, the President of the United States incorporated MountGraham into the Coronado National Forest.28

The most recent battle over Dzil nchaa si an began in 1984 when the University ofArizona, in conjunction with several other universities and entities, sought to placetelescopes on the Pinaleno mountain range, which included Mount Graham. 2 9

Environmental groups stepped in to oppose the venture, but representatives of thelegal system intervened once again and exempted the telescope project fromNational Environmental Protection Agency guidelines, the Endangered Species Act,and other acts designed to protect American historical sites and culture.30

Vice President Gardebring's comment figures in this history and relies onsymbols of "the Indian" that have evolved out of legal narratives of conquest todivide Apaches into those who are "traditional" and those who are "non-traditional"or "progressive."3 1 The narratives of conquest on which she draws have encoded"the Indian" according to binaries that oppose "the civilized" with the "uncivilized,""primitive," or "savage."32 The United States' reverence for capitalism has supportedan update of this binary so that it now also counters the "efficient" with the"inefficient."

27. See id. at 64; see also John R. Welch, White Eyes' Lies and the Battlefor Dzil Nchaa Si'an, 21 AM. INDIANQ. 75, 83 (Winter 1997). This executive order was designed to provide white residents of Safford, Arizonaeasier access to the surrounding areas, which include the Gila River. See Hanson, supra note 26, at 64.

28. See Hanson, supra note 26, at 64.29. For a more complete history of the Mount Graham controversy, see generally Hanson, supra note 26,

at 63-81; Welch, supra note 27, at 75-78; Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Pifiatas,and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, 96 W. VA. L. REv., 1133,1133-64 (1994).

30. See Williams, Jr., supra note 29, at 1145-46 (citing Arizona-Idaho Conservation Act, Title VI, MountGraham International Observatory, Pub. L. No. 100-696, 102 Stat. 4571, 4597 (1988)). Williams notes that

[tihis stroke of brilliance was legislated into law in 1988, when Congress passed the Arizona-IdahoConservation Act. In Section VI of the Act, Congress essentially assumed the role the Forest Servicewould ordinarily have played and made a selection among the three "reasonable and prudent"alternatives, choosing Alternative Three-the one that permitted construction on Emerald Peak, themost vital portion of the red squirrel's habitat.

Id.31. See Smetanka, supra note 24, at lB.32. See ROBERT BERKHOFER, THE WHITE MAN'S INDIAN. IMAGES OF THE AMERICAN INDIAN FROM COLUMBUS

TO THE PRESENT 72-85 (Vintage Books 1st ed. 1979); PHILIP J. DELORIA, PLAYING INDIAN 3 (1998).


Such binaries have been embraced by people like Gardebring who rely ontheories of authenticity or legal authentication to determine who Indians are andhow to respond to them based on preconceived notions. She inherently admits that"authentic" Apaches are those who believe in Mount Graham's sacredness. Whenplaced in this binary, their "primitive" nature renders them incapable of realizing themountain's true value and therefore "inefficient" or unable to recognize and takeadvantage of the mountain's natural resources. Gardebring "values" the mountainaccording to principles of capitalism, but she also is careful not to appear insensitiveto the Apaches' concerns.

In an attempt to appease the Apaches, representatives from the University ofMinnesota and the University of Virginia (another entity hoping to purchase time onthe telescopes) encouraged Apache support by developing community-assistanceprograms and providing financial aid to their communities.3 3 While these areworthy projects, they merely represent attempts to "buy" the Apaches' cooperation,thus making their impending cooperation analogous to Jefferson's "proofs ofpurchase."34

Gene D. Block, Vice President and Provost of the University of Virginia, allegedthat the small area needed to erect the telescope would only "make a very smallfootprint on the mountain and is very respectful of the surrounding environment."3 5

Furthermore, Block adopts a position similar to Gardebring's and divides theApaches into stereotypical images of the "savage" and "noble savage." According tothese stereotypes, the former is the white man's enemy and the latter his friend.Block claims to know that "'a small group of Apache activists' would not be happyif the university moved forward with the project, but he, like his counterpart inMinnesota, [wa]s still trying to sort out whether some members of the Apache tribesmight be amendable to a compromise." 36 Block thus implies that these "activists" arepotential troublemakers who stand in opposition to those "noble" Apache friendswho might be convinced by the "reasoned" and "logical" arguments Block and hispartners know will win them approval.

Gardebring's and Block's use of hackneyed binaries and stereotypes isadditional evidence of the phenomenon Gerald Vizenor calls "manifest manners."37

33. Sara Hebel, On a Mountaintop, a Fight Between Science and Religion, CHRON. HIGHER ED., June 28, 2002,at A22.

34. See JEFFERSON, Supra note 18.35. Hebel, supra note 33, at A22.36. Id.37. VIZENOR, Supra note 5, at 4.


In manifest manners, stereotypical images that replace or silence real Indigenouspeoples remain an ongoing method for surveilling and dominating tribes inliterature. However, like those of the Yakimas, Apache narratives of survivancechallenge legal and settler mythologies of conquest and refuse to surrender anApache sense of self, worldview, and legal principles.

Similar to its role in Yakima legal custom, the landscape also reflects Apachelaws. Stories about the landscape remind Apaches of the fundamental canon ofApache culture and morality as reflected in the word ni'. Ni', in the Apachelanguage, means both land and mind, reflecting the inseparability of Apache landand thought, geography and memory, place and wisdom.3 9

In the same way that laws encourage individuals to act responsibly and withinthe law, Apache legal narratives illustrate how the land similarly compels them toremain aware of their responsibility for the land, of their relationship to thelandscape, and of their need to act sensibly. Seventy-seven year old Annie Peaches(Western Apache) emphasizes this interdependency between land and correctbehavior: "The land is always stalking people. The land makes people live right.The land looks after us. The land looks after people." 40 The land also demonstratesthe same concern for the people as if it were a relative who felt compelled to lookafter and feed his or her relations.

After examining Grenville Goodwin's field notes on his work with the Apaches,Robert A. Williams, Jr. (Lumbee) reaches the same conclusion as Annie about theApaches' homeland. He writes:

I found an Apache song that was a prayer to Mt. Graham. It was sungbefore an Apache went to the mountain to hunt for deer so that themountain's spirit and the Creator that controlled that spirit would give upits deer to the hunter. In the Apache belief system you pray to themountain because it feeds you . .. 4 1

That one would be compelled to pray before a hunt demonstrates thatIndigenous legal principles are intimately tied to the community's survival, asopposed to Western law's focus on the individual's right to hunt. In Western law, ifone person breaks a law, then that one person is punished. In contrast, if one

38. See John R. Welch & Rarnon Riley, Reclaiming Land and Spirit in the Western Apache Homeland, 25 AM.INDIAN Q. 5, 5 (Winter 2001).

39. See generally KEITH H. BASSO, WISDOM Scrs IN PLACES: LANDSCAPE AND LANGUAGE AMONG THEWESTERN APACHE (1996).

40. Id. at 38.41. Williams, Jr., supra note 29, at 1154.


Apache fails to pray before a hunt, then the mountain's spirit could withhold deerfrom every Apache hunter. Like Meninock, the Apaches know that the land willcare for them if they exercise humility when using natural resources and show theproper respect. In adhering to both of these legal principles (humility and respect),the Apaches know that the land will care for their spiritual, social, and physical wellbeing.

Additionally, Apache stories transform mountains and arroyos into surrogategrandparents or uncles who watch after them, or as Annie Peaches says, "stalk"them to ensure that they live right. As Keith Basso explains, Annie Peaches's claim"becomes understandable as a proposition about the moral significance ofgeographical locations . . . . [,]" and the land, as a living entity, relates these moraldictums through its physical features.4 2 Geographical features of the landscape arestoried with codes of appropriate moral behavior that remind the people of theirtraditional laws such as those that pertain to hunting and to living right.

Sandra Rambler's (San Carlos Apache) response to Sandra Gardebring'scomment regarding the "special" value Mount Graham holds for the University ofMinnesota 43 further demonstrates that, for the Apaches, the land engenders anIndigenous legal rhetoric whose laws they must obey. Rambler says that her "heartis broken.... It's like how our traditional people must have felt when Columbuscame to supposedly find America.... It appears that the University of Minnesota isseeking an exemption to the cultural and religious laws of Apaches, and that's notright."" Although the Apaches' case challenging the telescopes had been in and outof the court system for some ten years, 45 Rambler's only response to the presence ofWestern law threatening the sacred is her expression of dismay at the thought ofuniversity representatives disobeying Apache laws.

At the same time that Rambler conveys her disappointment, however, she alsoinherently renounces Western law by recognizing only those laws that have orderedher world. The domination of tribes in legal mythologies of conquest would claimthat Indigenous peoples have submitted to United States law. However, Meninock,

42. BASSO, supra note 39,at 61.43. See Smethanka, supra note 24, at lB.44. Id.45. See Mount Graham Coalition v. McGee, 52 Fed. Appx. 354 (9th Cir. 2002); Apache Survival Coalition

v. United States, 118 F.3d 663 (9th Cir. 1997) ("Apache Survival II"); Apache Survival Coalition v. UnitedStates, 21 F.3d 895 (9th Cir. 1994) ("Apache Survival I"); Apache Survival Coalition v. United States, No. CIV91-1350 PHX WPC (D. Ariz. May 29, 1991).


Annie Peaches, and Sandra Rambler prove otherwise, for they refuse to separateland, religion, and law as non-Indians have done with their legal principles.

Despite their seemingly divergent approaches to land, religion, and law,Indigenous and non-Indigenous peoples are sometimes not as far apart as theywould seem to be. In a legal case resembling the Mount Graham controversy,46

friends of the court attempted to appeal to Westerners' religious sentiment byreferring to a biblical tale which is strikingly similar in its representation of Christianand Indigenous sacred space. The biblical narrative they evoked was the story ofJesus entering a temple only to find that individuals had transformed it into athriving marketplace.? The friends of the court placed this story in an Indigenouscontext: "[Jiust as it was hard for Jesus to pray and meditate amidst the buzz of themarket in the temple, so it is for practitioners of traditional Indigenous spiritualpractices to pray amidst the buzz of chain saws, logging trucks, front-end loaders,and the like." 48

Another example of cross-cultural and cross-religious comparison appears inthe biblical stories of Moses on Mt. Sinai. These stories represent Moses as themediator between god and Israel, the man through whom Israel received their torah,traditionally translated as "law"-the authoritative teaching, instruction, andguidance that includes the Ten Commandments as the core.4 9 This example of lawfeatures in great detail how the people are to live their lives.

The Apache Survival Coalition has conveyed to the United Nations a similarstory concerning the origins of their legal principles:

Traditional Apache people believe that the Mountain Spirit was sent by theGreat Spirit from Big Seated Mountain to give instructions to the Apachepeople. He came to teach the Apache people special spiritual words andsongs which would give them power to become medicine men andwomen. 0

Divergent conceptions of place have created seemingly incommensurable definitionsof the sacred-for one, a church represents sacred space; for the other, landscaperepresents the sacred. To defile or desecrate sacred land given to one's community

46. See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (involving theconstruction of a logging road through an area used for religious purposes by the Yurok, Karok, and Tolowapeoples).

47. Mark 11:12-19.48. Carillo, supra note 17, at 15-16.49. Exodus 19:20-20:20; Deuteronomy 5:1-17.50. Hanson, supra note 26, at 64 (quoting Statement of Apache Survival Coalition n.d.).


by one's creator would not only be disrespectful, it would also be akin totransforming a church into a marketplace.

In spite of the obvious similarities across religious divides, legal representativeshave been incompetent at understanding an Indigenous worldview and the legalprinciples that Indigenous worldviews encompass. Apache medicine man FranklinStanley attested to this failure in a 1992 affidavit, saying that "in order to understandwhy there can not be any telescopes on Mt. Graham you would have to understandour religion, language and culture, and you would have to know how to showrespect.... On this mountain is a great life-giving force. You have no knowledge ofthe place you are about to destroy."5

Stanley indicts the scientists for failing to grasp the meaning of respect for themountain, which is an inherent element in the Apaches' worldview. Moreover, hederides them for having no knowledge of the place they would destroy in order tosecure what the Apaches deem as dangerous knowledge that would come bypeering into the night sky. To respect, one must understand; to understand, onemust have knowledge of place. Stanley realizes that non-Indians have noinvestment in trying to understand Indigenous cultures, and this lack of interestalone precludes them from acquiring a land-based knowledge that would allowthem to obey Apache law.

That Indigenous peoples continue to find themselves in legal struggles tooverturn myths disguised as law means that, in essence, their battles will alwaysbecome a contest over stories about divergent legal systems contained in narrative.Those who fashion legal narratives follow specific sets of rules to cleanse the law ofany emotion, rendering it rational and objective, and, presumably, fair and unbiased.Their narratives must appear to convey an objective reality free from imaginationand potential bias. Consequently, legal myths construct the Apaches' worldview,with all of its sentiment, as irrelevant because their worldview representsimaginative and obviously biased emotional narratives that a court of law woulddeem inadmissible or irrelevant. Yet it is this difference that opens the door forpossibly restructuring the legal system so that it truly represents a shared andcomprehensive value system.

Robert Williams reiterates the importance of the Apaches' inclusive worldview,where, in a court of law,

51. Welch, supra note 27, at 76.


stories and narratives like the Gaan creation myth invoke the imaginativecapacity to visualize the connections between the physical environment, thesocial welfare of the community, and the spiritual values that create theconsensus in Indian communities as to whether a particular use of theenvironment is beneficial or harmful to the human community. 5 2

In this statement, Williams highlights an Indigenous concern for the collective thatWestern legal culture ignores in its exclusive focus on individual rights. If a courtmarginalizes such stories because they reflect a biased perspective, then how can thelaw's neutrality be claimed by anyone when one can also say that Western lawfavors a Western worldview?

Historically, courts have been an essential resource for perpetuating UnitedStates colonialism because the legal system largely has continued to validate non-Indigenous stories of how Westerners should be in the world. These stories ignoreor invalidate Apache stories that stipulate the ways that Apaches should be in theirworld according to the demands made upon them by their laws. The dominantculture remains incapable of comprehending the meaning of land free from theideology of ownership, capitalism, and aesthetics. The liberal legal values espousedby the dominant culture would appear to respect the Apaches' unique approach toland. Yet, the ongoing myth of the United States' fair treatment of Indigenouspeoples conceals dispossession and subordinates narratives of a historically andlegally recognized land theft.

Furthermore, what has remained troubling throughout the Mount Grahamcontroversy is the resemblance of narratives told by university officials, scientists,and local townspeople to the American myth of Manifest Destiny. From 1620, whenthe Puritan John Winthrop proclaimed, "[W]e shall be as a city upon a hill. The eyesof all people are upon us . . . . [,]"5 to 1845, when John Louis O'Sullivanconceptualized "manifest destiny,"54 non-Indians have turned away from their pastand have concentrated on a predictable future. Believing that God had willedwestward expansion and Anglo-American domination over the continent,O'Sullivan wrote of the United States:

The far-reaching, the boundless future will be the era of Americangreatness. In its magnificent domain of space and time, the nation of many

52. Williams, Jr., supra note 29, at 1164.

53. John Winthrop, A Model of Christian Charity, in 1 NORTON ANTHOLOGY OF AMERICAN LITERATURE 206,216 (6th ed. 2003).

54. John Louis O'Sullivan, The Great Nation of Futurity, 6 U. S. DEMOCRATIC Riv. 426, 426-30 (1839),available at http:/ /cdl.library.cornell.edu/cgi-bin/moa/moa-cgi?notisid CAGD1642-0006-46.


nations is destined to manifest to mankind the excellence of divineprinciples; to establish on earth the noblest temple ever dedicated to theworship of the Most High-the Sacred and the True.5 5

Anglo-Americans would build their own temples in Indian Country, but theywould also desecrate those temples with the Christian-identified sins of greed anddesire for another's property. In a little over 200 years, the Puritans' "city on a hill"became secularized into the "divine principles" of Manifest Destiny. Thisnineteenth-century doctrine represents a disabling certitude in its idealistic rationalethat combined westward expansion and non-Indians' dominance with a religioussense of mission and a rhetoric that promoted the accumulation of private propertyand the development of land.

More than one century later, the ideology of Manifest Destiny would becomehidden beneath the seemingly innocuous ideology of manifest manners. Thisrhetoric continues to exclude Indigenous peoples because their conception of landuse stands in opposition to national goals that have encouraged non-Indian relationswith the land only in economic terms.

Consequently, when university officials and scientists claim a greaterentitlement to the mountain, their approach is analogous to Manifest Destiny. Theirmanifest manners mirror that earlier "pioneer spirit" whose rhetoric asserted thatnothing would impede progress-even if it meant pushing "inferior" or "inefficient"'groups aside. Official histories and the literatures of dominance typically have notportrayed Indigenous peoples as part of the story of progress; in fact, Americanmyths have characteristically described them as obstacles both then and now.

Father George Coyne, a Jesuit priest, University of Arizona astronomyprofessor, and Vatican Observatory director, adopted the ideology of ManifestDestiny when he argued that "[w]e [the telescope proponents] are not convinced byany of the arguments thus far presented that Mt. Graham possesses a sacredcharacter which precludes responsible and legitimate use of the land. .. . In fact, webelieve that responsible and legitimate use of the land enhances its sacred character.Land is a gift from God to be used with reason and to be respected."5 6

Unable to reconcile science and religion in his statement, Coyne seems tocontradict himself. While arguments made by the opposing side are not enough to

55. Id. at 427.56. Southwest Center for Biological Diversity, Internal AGFD Study: Mt. Graham Squirrel Numbers

Inflated 16 (Dec. 2, 1997) (News Advisory) (citation omitted), available at http://www.mourtgraham.org/white/white/MGl20297withaddendums.pdf (last visited Feb. 5, 2005) (on file with UCLA IndigenousPeoples' Journal of Law, Culture & Resistance) [hereinafter Southwest Center, News Advisory].


convince him that the mountain is sacred, he nonetheless ends his statement byreferring to its sacred character. In fact, he qualifies the mountains sacredness whenhe affirms that his "responsible and legitimate" use of the mountain will sanctify it,making him akin to a god. Coyne's statement approximates Manifest Destinyfsreligious sense of mission in that his rhetoric contains quasireligious undertones thatextol the sanctity of "doing science."5 7

Indeed, scientists have likened the "pure" research in which they engage to areligious calling which drives their sense of mission. They believe that the scientific"ceremonies" the telescopes would allow them to perform on the mountain have ahigher, more respected, and valuable purpose than the ceremonies in which theApaches have engaged for generations. University officials even resorted to adhominem attacks to discredit the opposition.

Father Charles Polzer, a University of Arizona history professor who filed anaffidavit for the university stated:

As an ordained priest and trained theologian as well as historian andanthropologist, I know that anthropological appeals to this court regardingthe sacredness of Mt. Graham to the Apache is [sic] little more than apreposterous misuse of academic status and the poorest manifestation ofsound methodology as I have witnessed in recent times.5 8

Polzer also referred to the opposition as "part of a Jewish conspiracy," which heclaimed stemmed from "'Jewish lawyers of the ACLU" who were attempting "toundermine and destroy the Catholic Church."5 9 In Polzer's mind, not only were theApaches dangerous in their obstruction of progress, but non-Catholics and theACLU were also treacherous.

Despite university attempts to portray the telescope project in grand terms, theproject's economic potential kept surfacing. This resurfacing could be translatedinto the willingness of a Vatican observatory director and priest's willingness to sellthe temple in order to convert it into a marketplace. University narratives contained

57. That the Vatican owns one of these telescopes is ironic. The Vatican Observatory was founded in1889 to counteract accusations that the church was hostile toward science. See P.J. TREANOR, THE VATICANOBSERVATORY 7 (1969). The Observatory is located in Italy and has a research branch in Arizona. The doubledidentity of the mountain represents the already contested histories attached to the land. Mount Grahamreceived its name in 1846 during General Stephen Watts Kearney's invasion of Mexico, now the southwesternUnited States. Lieutenant William Emory, the invading army's topographer, named the mountain in hisjournal for a fellow Army office, James Duncan Graham, a senior officer in the Army Corps of TopographicalEngineers. Graham County takes its name from the mountain. See BYRD H. GRANGER, ARIZONA'S NAMES: XMARKS THE PLACE 268-69 (1983).

58. Southwest Center, News Advisory, supra note 56, at 16 (citation omitted).59. Id. at 17 (citation omitted).


promises of impending wealth and world recognition that the telescopes wouldbring not only to the University but also to the surrounding community.60

Supporters of the project argued that the new generation of telescopes producedby the University's world-renowned Mirror Lab would bring the Universityinternational prestige, profits through contracts, orders placed with the Lab, and thecollection of fees that astronomers from around the world would pay to use thetelescopes. 61 The supporters' rhetoric also promised that the telescopes wouldgenerate economic development and tourism money for the surroundingcommunity.62 When telescope proponents portray the mountain as economicallyvaluable, the protracted battle over Mount Graham and arguments about whether itis sacred or not re-enacts the mechanisms of colonialism with scientists, universityofficials, and the court system privileging Western needs and desires whilemarginalizing and devaluing Indigenous concerns.

Ironically, certain legal narratives celebrate the United States' just and equitabletreatment of Indigenous peoples. The First Amendment's Free Exercise clause,6 3 theAmerican Indian Religious Freedom Act (AIRFA),A and other laws are designedpresumably to safeguard this nation's diverse religious practices, including those ofAmerican Indians.6 5 Nevertheless, celebratory legal narratives misrepresentreligious legal protections and Constitutional rights when they portray thesesafeguards as examples of religious tolerance and respect for diversity.

60. In this sense, the university narratives exemplify what Steven Winter refers to as idealized cognitivemodels. See Steven L. Winter, The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning,87 MICH. L. REV. 2225, 2233(1989). According to Winter:

Central to the intellectual process is the construction and sharing within a culture of idealized cognitivemodels ("ICMs") to structure and make meaningful regular aspects of our daily experience. These arelike "stock stories" or "folk theories" by which humans in a given culture organize the diverse inputs ofdaily life into meaningful gestalts that relate that which is "relevant" and ignore that which is not.

Id. (citations omitted).61. See Williams, Jr., supra note 29, at 1137.62. See id. at 1137-38.63. U.S. Const. amend. I.64. American Indian Religious Freedom Act of 1978, Pub. L. No. 95-341, § 1, 92 Stat. 469, 469 (codified at

42 U.S.C. § 1996 (2000)).65. See, e.g., Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, § 2, 107 Stat. 1488, 1488

(codified at 42 U.S.C. § 2000bb (2000)); 1992 Amendments to the National Historic Preservation Act, Pub. L.No. 102-575, § 4006, 106 Stat. 4600, 4755-4758 (recognizing that "[piroperties of traditional religious andcultural importance to an Indian tribe . . may be determined to be eligible for inclusion on the NationalRegister[ J" and requiring that federal agencies consult with any Indian tribe that attaches religious andcultural significance to such properties) (codified as amended at 16 U.S.C. §§ 470a(d)(6)(A) and (B) (2000)).


Regardless of the celebratory rhetoric contained in these narratives, legalsafeguards have often failed to preserve Indigenous sacred sites and thus protectreligious practices and legal relationships connected with those sites. The tendencyof legal safeguards to fall short may likely be due to legal decisions regarding publiclands that tend to separate land from religion and equate Indigenous religiouspractices with culture, thus applying arbitrary distinctions to religion which excludeIndigenous religious rituals from protections guaranteed by the First Amendment.

In the end, the United States legal system imperiled rather than protected theSan Carlos Apaches' ability to freely exercise their traditional religious practiceswhen it failed to protect Dzil nchaa si an from development.66 The case law and itssurrounding history represent the vast differences that exist in the way thatIndigenous and non-Indigenous peoples organize and communicate theirunderstanding of the world in a legal sense. While the Western understanding ofMount Graham reflects the use value of land as a natural resource, the meaning theApaches attach to Dzil Nchaa si an enables them to speak of Big Seated Mountain as aplace that represents home in an existential as well as in a legal sense.

Inequities in the U.S. legal system have not gone unnoticed by those who workwith or study traditional Indigenous law. What Chief Justice of the Navajo NationRobert Yazzie referred to as the "'vertical' system of justice" 6 7 in America can belikened to a pyramid of power where the weak and powerless are at the bottom,with the strong and power elite at the top. Leslie Marmon Silko's writing alsoreflects law's partiality toward those who have money and power.

Silko writes about a time when her father served as tribal treasurer: "[T]hePueblo of Laguna [had] filed a big lawsuit against the state of New Mexico for sixmillion acres of land the state wrongfully took."68 Impressed by the lawyer'sapparent dedication to the Lagunas, Silko entered the University of New Mexico as alaw major but left after three semesters. She confessed that her classes led her tobelieve that laws are predisposed to confirm the values and beliefs of the dominantgroup: "I realized that injustice is built into the Anglo-American legal system." 6 9

66. See Mount Graham Coalition v. McGee, 52 Fed. Appx. 354 (9th Cir. 2002); Apache Survival Coalitionv. United States, 118 F.3d 663 (9th Cir. 1997) ("Apache Survival II").

67. Robert Yazzie, Life Comes from It: Navajo Justice, 38 IN CONTEXT 29, 29 (1994), available at http:/ /www.context.org/ICLIB/IC38/Yazzie.htm.

68. LESLIE MARMON SILKO, YELLOW WOMAN AND A BEAUTY OF THE SPIRIT 18 (1996).69. Id. at 19.


Indeed, Silko refers to American justice as "a barbaric legal system" that facilitatesand reproduces inequality.70

After reading Charles Dickens's Bleak House, Silko came to conclude that thearistocracy possessed all the money and power and took it upon themselves todispense "justice" to the powerless, a model she felt reflected justice in the UnitedStates: "The Anglo-American legal system was designed by and for the feudal lords;to this day, money and power deliver 'justice' only to the rich and powerful; itcannot do otherwise."' The Lagunas were neither rich nor powerful. Thus, aftertwenty years and nearly two million dollars in lawyers' fees, the government offeredmoney as compensation for land illegally taken rather than the justice the Lagunashad hoped to receive-the return of their land.

IV. "THE PEOPLE 'HAVE' TO TALK TO THE HOT SPRINGS"

Because United States legal culture disallows Indigenous legal principles frombeing validated in courts of law, legal theorists have become increasingly skepticalabout the law's pretensions to objectivity. Critical Race scholar Richard Delgadoindicts "the prevailing mindset through which members of the majority race justifythe world as it is," because the majority "ideology makes current social arrangementsseem natural and fair."7 2 Critical race and feminist scholars have examined the limitsof objectivity to more critically analyze legal issues, and they have turned to literaryforms rather than traditional forms of overt legal analysis to interrogate law'ssubjective nature 73

Acoma writer Simon Ortiz's work shares the emotions of injustice and at thesame time refuses to accept the Indigenous tragedy and victimry that characterizethe discourse of dominance. In particular, his poem "That's the Place Indians TalkAbout" illustrates the Shoshonean peoples' active sense of presence through their

70. Id. at 20.71. Id. at 19-20.72. See Kim Lane Scheppele, Foreword: Telling Stories, 87 MIcH. L. REV. 2073, 2075 (1989) (quoting Letter

from Richard Delgado to Kevin Kennedy (June 1, 1988)).73. "Storytelling" and "narrative" appear in numerous titles of legal journal articles, attesting to the

various jurisprudential dimensions to which storytelling has been used by legal scholars. Examples includeNARRATIVE AND THE LEGAL DISCOURsE: A READER IN STORYTELLING AND THE LAW (David R. Papke ed., 1991);Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87 MICH. L. REV.

2099, 2099-2127 (1989); Richard A. Matasar, Storytelling and Legal Scholarship, 68 CHI.-KENT L. REV. 353, 353-61(1992).


refusal to yield to a foreign legal system or to surrender their legal principles.7 4 ThePaiute elder in Ortiz's poem, a former rangerider and migrant laborer, represents animposing presence ready to face seemingly powerful adversaries in a legal contestover meaning attached to land. These adversaries include the federal governmentand Navy,75 and the elderly Paiute's discussion of Indigenous legal principlesconnected with Coso Hot Springs can be juxtaposed with Navy myths of China LakeNaval Station's genesis.

Navy mythologies mirror settler mythologies of conquest and portray abenevolent military and federal government, both of whom have granted the Paiutesaccess to space that is normally inaccessible to all except military or governmentofficials. As is the case with the Apaches, the Paiutes' adversaries have allowedShoshonean peoples limited access to a place they hold sacred. However, even thatlimited access has come with a price. For the Apaches, the price paid has been thedesecration and lack of respect for sacred space, intrusions from the outside world,and the inability to visit a portion of the mountain where access is allowed only toUniversity of Arizona representatives.76 For the Paiutes, the price has been strictlimitations on visits to sacred springs that now lie inside the gates of a militaryestablishment.

Like the university officials and scientists involved in the Mount Grahamcontroversy, the Navy relied on narratives of conquest and Indian stereotypes inorder to secure land for a weapons testing center that encompassed the Paiutes'sacred Coso Hot Springs in California.77 The Navy's initial stories played on aculture of fear aided by Germany's 1939 blitzkrieg into Poland and reinforced by theUnited States' entry into World War 11.78 Nazi Germany provided the Navy with aready enemy for the United States, and one that posed a threat to the entire freeworld. Moreover, the enemy's progress in weapons' technology prompted the Navyto question whether the United States was ready to defend itself against Naziaggression.79

74. Simon Ortiz, That's the Place Indians Talk About, in HOME PLACES: CONTEMPORARY NATIVE AMERICAN

WRITING FROM SUN TRACKS 1, 1-5 (Larry Evers & Ofelia Zepeda eds., 1995).75. See id. at 1, 3-4.76. See Davis, supra note 21.77. The Coso Hot Springs are located in Kern County in the upper Mojave Desert of Southern

California, about one hundred and fifty miles north of Los Angeles.

78. ALBERT B. CHRISTMAN, 1 HISTORY OF THE NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA:SAILORS, SCIENTISTS, AND ROCKETS 71 (1971).

79. Id.; J.D. GERRARD-GouGH & ALBERT B. CHRISTMAN, 2 HISTORY OF THE NAVAL WEAPONS CENTER,CHINA LAKE, CALIFORNIA: THE GRAND EXPERIMENT AT INYOKERN 1 (1978).


The Navy not only played on the fear that war brings; they also wantedAmericans to question their perceived sense of exceptionalism. The Navy impliedthat, without a large-scale military rocket program, the nation would be unable toperform its duties, which included "keeping the peace, deterring aggressive acts bypotential enemies, and carrying out other actions in support of the national interests

"80

Commander Sherman E. Burroughs, Jr. headed the Navy's effort to establish amilitary rocket program. He enlisted the aid of Dr. Charles C. Lauritsen of theCalifornia Institute of Technology, who believed that the development of an atomicbomb would more quickly end the war.8 ' Added to Lauritsen's faith in a bomb toend the war was a reminder by Rear Admiral W. J. Moran that the Navy's failure toremain dominant in weapons' development was to invite aggression from ourenemies. 82 The Navy thus used the United States' failure to maintain its position ofdominance as a means of obtaining desired land for a rocket center that would allowthem to progress technologically and to surpass German technology.

Myths of American exceptionalism have reinforced the United States'perception of itself as a nation not to be surpassed by others. Consequently, Navyhistories stress how "the first word of German aircraft rockets reverberatedthroughout the United States military[ ]" because this placed the United States in aweaker military position in the global arena.8 3 Navy historians J. D. Gerrard-Goughand Albert B. Christman reveal that the aftershock of this news was morepsychological due to "a scathing syndicated article by the aviation pioneer Major A.P. de Seversky[ I" entitled "Nazis New Air Rockets Caught Our Side Napping."8 4

What was even more disturbing for military officials than a disparaging articlewas knowledge that Germany had a secret rocket center.85 This knowledge hadreinforced Burroughs's and Lauritsen's initial claim about "the immense militaryvalue of an isolated research and development center where civilian scientists couldconcentrate their talents in secrecy on the new technology of rockets." 6 Theiraggressive lobbying efforts met with success when the federal government finallyapproved their proposal for a permanent weapons research and development

80. Edwin B. Hooper, Introduction to CHRISTMAN, supra note 78, at vii, ix.81. GERRARD-GOUGH & CHRISTMAN, supra note 79, at 1.82. See H.G. Wilson & W.J. Moran, Foreword to CHRISTMAN, Supra note 78, at v, v (1971).83. GERRARD-GOUGH & CHRISTMAN, Supra note 79, at 2.84. Id.85. Id.86. Id.


center.87 The only item that remained on their agenda was finding a location, andthey had identified a site in the California desert as ideal. However, before the Navycould develop a permanent base, it had to acquire clear title to land that others werealready using.

The Navy more easily acquired "clear" title by using the rhetoric of discovery todescribe the desert location as an uninhabited wasteland. Military histories depictthe area as a "wilderness site" that consisted of "[v]ast stretches of uninhabited desertland . . . ." The Navy claimed that the region was emptied of Indigenous people."Centuries earlier, before the coming of the white man, tribes of migrant Indianstraditionally used the water holes at the base of the southern Sierra Nevada duringtheir peripatetic pursuit of game. It was for these early people and their wells thatthe Valley was named."89 According to the rhetoric of discovery, the Indigenousgroups' nomadic tendencies precluded them from claiming land that contained nopermanent settlements.

Gerrard-Gough and Christman also rely on the rhetoric of the "VanishedIndian" when they explain that workers recruited to build the Naval Ordnance TestStation (NOTS) included "several hundred Navajos recruited and brought in fromtheir New Mexico reservation." 90 According to military myths, the Indigenouspeoples who had wandered the region centuries ago presumably disappeared in thewake of small communities that began to spring up in the early 1800s.91 Thus, itbecame necessary to recruit Indian labor from other states because no Indians wereavailable nearby.

As they continue with their stories, Navy historians contradict themselves whendescribing the desert. After depicting a landscape free from any human presence,they suddenly reveal non-Indian populations who inhabit and use the land. Therhetoric of Manifest Destiny provided Navy historians with a language in which tojustify its condemnation of land inhabited by non-Indigenous families who hadsettled these original communities. This is because the Navy considered thesefamilies' numbers insignificant enough so as not to be problematic.

One Navy official involved in the survey recalled that "[ilt would be a bigproblem if people were living in there. It would take time then to condemn their

87. Id. at 4.88. CHRISTMAN, Supra note 78, at 168 (emphasis added); see also GERRARD-GOUGH & CHRISTMAN, Supra

note 79, at 5.89. GERRARD-GOUGH & CHRISTMAN, supra note 79, at 44.90. Id. at 51.91. Id. at 44-46.


property, get the government to buy them out, and so forth and so on. Well, therewasn't anything. There might have been a few shacks .... " A Navy historian

narrates that the surveyors saw "a broad area with a very small number ofinhabitants who might have to be displaced.'"9 3 This historian, like other Navyhistorians, also describes the land as "mile after mile of virtually uninhabiteddesert." 9 4 The individuals with whom they would find themselves grapplingincluded small numbers of cattle owners who leased public domain lands for cattlegrazing, as well as homesteaders, miners, and individuals who used curativemineral baths located nearby.95

The Navy saw the development and construction of NOTS as rescuing theseitinerant settlers by freeing them from an uncertain fate in an uncivilized wildernesslandscape. Navy myths describe these non-Indian settlers as living in a valley thatcontinued to slumber, even into the present, never able to realize their fortunes in alandscape that was too harsh to farm.96 It reasoned that the land would have beenvacated anyway as these individuals would have eventually sought their fortuneselsewhere, because the land was "worthless."9 7 The desert and its inhabitants areportrayed as static before the creation of NOTS, sitting at the edge of civilization andnever realizing the land's true value.

Because the land presumably remained unused, undeveloped, and uninhabited,Navy officials claimed that it would prove more beneficial to the entire nation if themilitary developed and civilized the landscape by building a secret rocket center atthat site. Surveying the land, they found evidence of key utilities and services thatthe Navy would need to build what they called an "an oasis on the desert[ ][including] water, roads, electricity, telephones, and railroad."98 They also sawaqueducts carrying water to Los Angeles, 88,000-volt electric lines and telephonelines, and the steel of railroad tracks that snaked across the horizons.99 Finally, theynoted the presence of U.S. Highway 5, what they called "a major link with%civilization."'100 To be sure, they felt that these signs of civilization almostguaranteed their project's success. Navy plans to develop NOTS in the California

92. CHRISTMAN, supra note 78, at 170.93. Id. at 171.94. Id. (emphasis added).95. See GERRARD-GOUGH & CHRISTMAN, supra note 79, at 23.96. Id. at 46.97. Id. at 23.98. CHRISTMAN, Supra note 78, at 171.99. Id.100. Id.


desert remained uncontested because the Navy based NOTS' purpose and reason forexistence on national security-the work would protect the nation from threats to an"American" way of life.

To impress on future generations the significance of NOTS' creation, Navyhistorians fashioned magnificent, quasireligious tales that resembled those told byuniversity officials and scientists in the battle over Mount Graham. According toretired Vice Admiral Edwin B. Hooper, "[tihe history of . . . [NOTS] is a story

approaching the miraculous. . . . It is a story of individuals of great ability,

imagination, determination and ingenuity . .. ."101 Hooper even portrays the Navy'sendeavors as synonymous with actions that led to this nation's birth. "During majorwars or when there was a direct and unambiguous threat of such a war, manyscientists, inventors, and engineers engaged in non-military activities have beenanxious to aid the military efforts. This was the case even in the AmericanRevolution." 1 02

While Navy mythologies report the "official" version of China Lake NavalStation's early development, there also exist unofficial versions about the station'seffects on Shoshonean peoples. Simon Ortiz's "That's the Place Indians Talk About"uncovers these voices, once again exposing the shortcoming of laws designed toprotect Indigenous peoples' right to worship at sacred sites-this time onDepartment of Defense lands. The Paiutes' alternative story as told to Ortizillustrates how selective narratives like the Navy's myths come to have the power oftruth even if other versions exist that point to other truths or other ways of seeing theland.

In God Is Red, Vine Deloria, Jr. outlines various Indigenous perceptions of theland in an attempt to define the sacred for non-Indigenous peoples.10 3 While the fourcategories he describes might overlap or be contested within and across variousIndigenous communities, respect for the sacred remains the one principle to whichthey all adhere.

The first category Deloria identifies are those lands that have become sanctifiedby events that have taken place there such as lands made sacred by humanexploits.104 For instance, Wounded Knee, South Dakota became sanctified through

101. Hooper, supra note 80, at vii.102. Id.103. VINE DELORLA, JR., GOD IS RED: A NATIVE VIEW OF RELIGION 271-77 (1994).104. Id. at 272.


the blood of the Lakota peoples massacred at that site.105 The second categoryincludes lands made sacred through the appearance of something holy that thenbecame part of the peoples' experience.10 6 This sacred experience finds a place inoral traditions and describes for later generations "the revelation that enabledhuman beings to experience the holiness there [at that place]." 07 The third categoryof sacred lands includes locations that are inherently and eternally sacred. 08

Examples are the space that held the burning bush where the god of Moses spoke tohim and Dzil nchaa si an, where the Apaches commune with their sacred deities.Coso Hot Springs is also such a place.109

Indigenous peoples travel to inherently sacred sites such as the Coso HotSprings in order to connect and communicate with the higher spirits that dwellthere. The Paiute elder tells Ortiz that their praying, singing, and talking to the hotsprings are rewarded when their actions elicit a response:

You could hear it talking.From far,from far away inside, the moving power.From far away, coming to us,coming to us pretty soon.

Getting closer, getting close,the power is getting close,and the ground is hot and shaking.Something is doing thatand the People know that.They have to keep talking.

And pretty soon, it's there.You know it's all around.It's right there,and the People are right there.110

The elder explains to Ortiz that the higher powers that reside at the springscommunicate with the people. But more than communicating, the deities also sharetheir regenerative powers with the people when they engage in a cleansing and

105. Id.106. Id. at 272-273.107. Id. at 274.108. Id. at 275.109. Deloria also discusses a fourth category of sacred lands that is not discussed here. See id. at 277.110. See Ortiz, supra note 74, at 2-3.


healing ceremony that restores health: "You drink that water, it makes you well. /You put it on your hands, face, all over, / and you get well, all well."" Inrecognition of this gift, the powers instruct the people to return each year andperform these praying, singing, and talking ceremonies that renew and restore theirlegal relationship with one another.

The power that dwells in the springs requires the people to observe certain lawsthrough the prescribed rituals that ensure their continued health. The Paiute eldertells Ortiz, "We go up there and camp. / Several days, we stay there. / . . . / And wewould stay / for the days we have to."112 His choice of words indicates that a higherpower requires their presence for a fixed amount of time. He continues: "The CosoHot Springs would talk to us. / And we would talk to it. / The People have to talk toit."113 Since their moral and legal responsibilities include ceremonies that areinclusive rather than individualistic, Deloria identifies such legal dictums assignificant because they ensure that the life-sustaining and life-affirming forces willbenefit everyone and not just Shoshonean peoples. 1 14 For generations, Shoshonepeoples have traveled to this sacred body of water.1 15

In sharing the Paiutes' history, Ortiz contests a military history that erased theregion's Indigenous inhabitants. The elder Paiute's story makes clear that they didnot disappear; nor did they renounce their customary relations with the landscape.In 1943, the federal government acquired the land surrounding the sacred springs.116

It then turned the area into a military base, fenced it in, and renamed the springsChina Lake. The Paiute elder includes this history in his narrative:

Since World War II, the Navy of the governmenthas a fence around that place.The People go up there to talk with the hot springs,to use the power, to keep ourselves well with,but there is a fence with locks all around,and we have to talk with the Navy peopleso they can let us inside the fence to the hot springs.We go up there to talk with the hot springs powerbut the Navy tells us we have to talk to them.We don't like it, to have to do that.

111. Id. at 1-2.112. Id. at 1 (emphasis added).113. Id. (emphasis added).114. DELORIA, JR., supra note 103, at 276-77.115. Ortiz, supra note 74, at 4.116. See CHRISTMAN, Supra note 78, at 187.


We don't want to talk to the government fence,the government Navy.That's the place the Indian people are talking about now."7

In the first part of the poem, the Paiute elder reveals that the Shoshoneanpeoples had originally talked about the springs in cultural terms whose meaningwas significant for them. The springs contained water that healed them and madethem well. It was an area where they performed specific rituals as part of thathealing process. It was here where they interacted with the land and the landinteracted with them. In contrast, the place they talk about now describes theirposition in relation to a federal government who has interfered with their free accessto the springs. Rather than a place that heals, the government has transformed theland into a place that is connected with death and destruction. China Lake is wherethe Navy tests its weapons."i8

In the rhetoric of American ideology, weapons testing remains an importantpart of the government's effort to protect its citizens from harm. What is ignored inthis valuation of the land is the way that the military's use of the land is antitheticalto the Shoshonean peoples' use. Therefore, Ortiz's poem is significant because it fillsin the history that the military and the federal government have suppressed in theirnarratives. The details that Ortiz presents in his poem are the events of Indigenoushistory. They are the histories that Indigenous peoples include in the stories they telleach other. These stories uncover the way that United States laws presumablydesigned to protect Indigenous religious practices still sanction religious intolerance.

Ortiz's poem is rich in the legal history it offers about Indigenous peoples'developing relationship with the federal government regarding land use and sacredspace. This relationship is complicated by "major U.S. laws and one militaryregulation that specify the role of Indigenous peoples in cultural resourcemanagement programs ... ."119

117. Ortiz, supra note 74, at 3-4.118. See id. at 1; see also Military: China Lake, at http://www.globalsecurity.org/military/facility/

china-lake.htm (last visited Sept. 16, 2005) ("Naval Air Weapons Station China Lake, the high desert home ofthe Naval Air Warfare Center Weapons Division, is where the Navy and Marine Corps have developed ortested nearly every significant airborne weapon system in the past five decades.").

119. Richard W. Stoffle, Introduction to NATIVE AMERICAN SACRED SITES AND THE DEPARTMENT OF THEDEFENSE (Vine Deloria, Jr. & Richard W. Stoffle eds., 1998), available at https://www.denix.osdhmil/denix/Public/ES-Programs/Conservation/Legacy/Sacred /chl html.


Included among these laws is the 1906 Antiquities Act, 1 20 which beganprotecting historic and prehistoric sites on federal lands by prohibiting excavation ordestruction of antiquities without a permit1 2 1 and authorizing the President todeclare public lands as National Monuments. 1 22 The Historic Sites Act of 1935 addedto the list of protected items "historic American sites, buildings, [and] objects." 123

The National Historic Preservation Act (NHPA) of 1966124 added properties"significant in American history, architecture, archaeology, and culture."12 5 The 1980amendments to the NHPA moved from preserving tangible objects such as land,historic sites, or buildings to preserving intangible items such as a people's culturalpractices.12 6 These amendments also encouraged the continuation of culturalpractices as expressions of an American national heritage1 27 and led to "traditionalcultural properties" (or TCPs) being specifically identified as eligible forprotection. 28 TCPs are defined as those properties that are associated with acommunity's "cultural practices or beliefs ... and are important in maintaining thecontinuing cultural identity of the community."129

In 1991, Congress established the Legacy Resource Management Program(Legacy Program) within the Department of Defense (DoD) in 1991.130 Under thisprogram, the DoD is responsible for managing the natural and cultural resources on

120. Act of June 8, 1906, ch. 3060, §§ 1-4, 34 Stat. 225 (codified as amended at 16 U.S.C. §§ 431-433(2000)).

121. Id. at §§ 1, 3 (codified as amended at 16 U.S.C. §§ 432, 433 (2000)).122. Id. at § 2 (codified as amended at 16 U.S.C. § 431 (2000)).123. Act of Aug. 21, 1935, ch. 593, § 1, 49 Stat. 666 (codified as amended at 16 U.S.C. § 461 (2000)).124. Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified as amended at 16 U.S.C. §§ 470-470w-6 (2000)).125. Id. at § 101 (codified as amended at 16 U.S.C. § 470a(a)(1)(A) (2000)).126. National Historic Preservation Act Amendments of 1980, Pub. L. No. 96-515, § 502, 94 Stat. 2987

(1980) (directing the Secretary of the Interior to study the means of "preserving and conserving the intangibleelements of our cultural heritage such as arts skills, folklife, and folkways[,J" and to recommend ways to"preserve, conserve, and encourage the continuation of the diverse traditional prehistoric, historic, ethnic, andfolk cultural traditions that underlie and are a living expression of our American heritage.").

127. Id.128. 16 U.S.C. § 470a(d)(6) (2000) ("Properties of traditional religious or cultural importance to an Indian

tribe. . . may be determined to be eligible for inclusion on the National Register [of Historic Places]."). See alsoStoffle, supra note 119.

129. See Patricia L. Parker & Thomas E. King, U.S. Dep't of Interior, Nat'l Reg. Bull. # 38, Guidelines forEvaluating and Documenting Traditional Cultural Properties 1 (1990), available at http://www.cr.nps.gov/nr/publications/bulletins/nrb38/ (A traditional cultural property is "[a] property that is eligible for inclusionin the National Register because of its association with cultural pracfices or beliefs of a living community that(a) are rooted in that community's history, and (b) are important in maintaining the continuing culturalidentity of the community.").

130. See Stoffle, supra note 119. The authorization of the Legacy Program was part of the Department ofDefense Appropriations Act of 1991, Pub. L. No. 101-511, 104 Stat. 1856.


lands in their jurisdiction.13' "Purpose 5" of the Legacy Program called on the DoD"to establish programs to protect, inventory and conserve the artifacts of NativeAmerican civilization, settler communities and others deemed to have historical,cultural or spiritual significance." 132 An important component of the Program is thatcommunities are to define their cultural resources. 3 3

When the DoD asked the National Park Service to assist them in fulfillingPurpose 5, this began a process whereby the DoD worked in conjunction withIndigenous consultants to review access to sacred sites or traditional culturalproperties on DoD-managed lands,134 which included the China Lake Naval Station.Based on the work of the Legacy Program, Coso Hot Springs was identified as acultural resource.1 3 5 Because the Springs are a cultural resource, legal requirementsmandated that the springs be protected. 3 6 Because the springs are involved inreligious ceremonies, the American Indian Religious Freedom Act (AIRFA) alsohelped make Coso Hot Springs accessible to Shoshonean peoples despite their beingenclosed in a military base.'3 7

While all of these Acts made Coso Hot Springs available once again, that accesscame with a price. As the Paiute elder states, before they can talk to the springs, theyfirst have to talk to the Navy Commander who acts on behalf of the United Statesgovernment. 38 Moreover, the Legacy Program agreement limits their access to andmovement within the area and applies only to those Indigenous groups specified in

131. See Stoffle, supra note 119.132. Id.133. See id.

134. See Richard W. Stoffle, A Consultation Model, in NATIVE AMERICAN SACRED SITES AND THE

DEPARTMENT OF THE DEFENSE (Vine Deloria, Jr. & Richard W. Stoffle eds., 1998), available at https://www.denix.osd.mil/denix/Public/ES-Programs/Conservation/Legacy/Sacred/ch5.html#ch5.

135. See Vine Deloria, Jr., Sacred Sites and Military Lands/Activities, in NATIVE AMERICAN SACRED SITESAND THE DEPARTMENT OF THE DEFENSE (Vine Deloria, Jr. & Richard W. Stoffle eds., 1998), available at https://www.denix.osd.mil/denix/Public/ES-Programs/Conservation/Legacy/Sacred/ch4.html#califomia.

136. See 1992 Amendments to the National Historic Preservation Act, Pub. L. No. 102-575, § 4006, 106Stat. 4600, 4755-58 (codified as amended at 16 U.S.C. §§ 470a(d)(6)(A) and (B) (2000)) (requiring federalagencies to consult with Indian tribes regarding the identification and protection of "[p]roperties of traditionalreligious and cultural importance to an Indian tribe").

137. Pub. L. No. 95-341, § 1, 92 Stat. 469 (1978) (codified as amended at 42 U.S.C. § 1996 (2000))(providing that it is United States policy to protect and preserve for American Indian, Native Alaskan, andNative Hawaiian peoples "their inherent right of freedom to believe, express, and exercise the[ir] traditionalreligions . [,] including but not limited to access to sites . . . and the freedom to worship throughceremonials and traditional rites.").

138. See Ortiz, supra note 74, at 3.


the agreement. 139 These groups are limited to a maximum of eight weekend visitsper year, twenty-five vehicles, and 100 people, and they are required to stay withinspecified boundaries.140 If necessary, the Commander will consider extra visits,unscheduled visits, and visits by other Indigenous groups or spiritual leaders on acase-by-case basis.141 A pre-approved military person must also escort them to thesprings every time.1 4 2 The Navy also retains its authority "to screen visitors, cancelvisits, and exclude or eject individuals." 14 3

Despite these rules and regulations, Shoshonean peoples continue to make theirpilgrimage from Nevada, Utah, Arizona, and California to Coso Hot Springs. As theelder states in Ortiz's poem:

We don't like to talk to the fence and the Navybut for a while we will and pretty soonwe will talk to the hot springs power again.That's the place Indians talk about.144

The place the Indians talk about now is politicized space, and the way the Paiuteelder talks about it conveys a political message: "We will not give up our struggle toaccess the hot springs."' 4 5 At the time Ortiz wrote this poem, many of the lawsdiscussed had not yet been enacted. As the Paiute elder suggests, however, theynevertheless continued to make their pilgrimage to the sacred springs and, until theywere provided access, they interacted with the springs through the fence. Thisknowledge demonstrates their commitment to the land and the legal principles itembodies despite the obstacles the federal government placed before them. Theirpersistence eventually led to limited access; however, weapons testing defiles sacredspace in the same way that the building and placement of telescopes defile MountGraham.

139. See Memorandum of Agreement Regarding Coso Hot Springs at Naval Air Weapons Station ChinaLake, July 20, 1992. This Memorandum of Agreement is reprinted as Appendix P in NATIVE AMERICAN

SACRED SITES AND THE DEPARTMENT OF THE DEFENSE (Vine Deloria, Jr. & Richard W. Stoffle eds., 1998) and isavailable at https://www.denix.osd.mil/denix/Public/ES-Programs/Conservation/Legacy/Sacred/ap-m-r.html#appendixp.

140. Id.141. Id.142. Id.143. Diane E. Austin & Brian K. Fulfrost, The Consultation Process in the DoD, in NATIVE AMERICAN

SACRED SITES AND THE DEPARTMENT OF THE DEFENSE (Vine Deloria, Jr. & Richard W. Stoffle eds., 1998), availableat https:/ /www.denix.osd.mil/denix /Public/ ES-Programs /Conservation/ Legacy /Sacred /ch8a.html.

144. Ortiz, supra note 74, at 4.145. For Ortiz's explanation of this poem, see That's the Place Indians Talk About, 1 WICAZO SA REV. 45,

46-49 (Spring 1985) (Ortiz explaining that the poem is political).


V. CONCLUSION

While these stories depict struggles that continue to take place in one particularcontact zone, they also preserve Indigenous memories of survival that teach futuregenerations how to adapt and survive in many shapes and forms. Renewal is asignificant feature in Indigenous philosophies, and this renewal is signaled in thepolitical and sacred nature of the springs that are presented in the stories and in theway Indigenous peoples interact with lands that have been transformed for otheruses. But accommodation does not signal acceptance; it signals a struggle topromote survivance.

Despite the politicization of sacred lands, Indigenous peoples maintain theirtraditional legal rituals that define who they are as citizens of their own nations indistinction to their roles as United States citizens. Vast differences exist in the waythat Indigenous peoples and non-Indians organize and communicate theirunderstanding of the world. Coso Hot Springs and the route traveled to arrive atthis sacred place are important aspects of the Shoshonean peoples understanding ofthe world. They communicate this understanding through narratives thatencompass ritual, geographical, and ecological knowledge of the Kern Valley area ofCalifornia, where the springs are located. Like the Yakimas and Apaches, thePaiutes also comprehend and relate to the world through a land-based legal rhetoricthat has developed out of their sacred texts.

We communicate what we know to one another through stories. Individuals ina culture of shared values and norms will narrate and interpret stories within thesame web of expectations, bringing with them the same assumptions about how theworld is and how one is supposed to be in the world. Robert Williams has arguedfor a re-examination of environmental law as a way to achieve environmental justicefor Indigenous peoples. 1 46 Yet, the same "perverse system of values"147 that createsenvironmental law has also influenced the process of legal adjudication. Until thelegal system is willing to incorporate American Indian values and legal principlesinto the judiciary system, then environmental or other laws that touch Indigenouspeoples will never change.

146. Williams., Jr., supra note 29, at 1164.147. Id. at 1134.

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