What does religious freedom look like today?

Apparently it’s a wedding cake, or more to the point, the absence thereof.

Today, religious freedom is a-cakeism.

For some folks anyway!

Religious freedom has meant different things to different people at different times.

Let me tell you about a time when religious freedom looked like a lake!

I don’t have a picture of the lake. I don’t even have a picture of the absence of it, because the lake is real; I just can’t go to it. Most of us can’t go to it. That’s religious freedom.

At least it does to the people of Taos Pueblo.

What I am talking about here is a landmark piece of legislation, known as the Blue Lake Amendments, which was signed into law by Richard Nixon in 1970. The law returned Blue Lake, along with its watershed to the people of Taos Pueblo, in effect placing roughly 48,000 acres under trust title for the benefit of the Pueblo. This rationale for doing this was explicit; this was done because it was deemed the only effective means of protecting the religious freedom of Taos Pueblo and its people.

That’s right!

Congress placed 48,000 acres of land under trust title because doing so was necessary for the protection of religious freedom.

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To fully appreciate this, you have two wrap your minds around two things (at least by my reckoning);

1. it isn’t clear that Native American peoples practice ‘religion,’ or at least that this term with all its Euro-American baggage can be applied to any aspect of Native American society without distorting a few things in the process.

1. Prior to 1970, Native Americans simply did not enjoy religious freedoms, and the elders of Taos Pueblo had been especially targeted for abuse on the basis of religious practices.

Is that a contradiction?

To say that Native Americans don’t necessarily have religions, then to say that their religious practices have been attacked?

Perhaps.

But only because language is a tricky thing.

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The first point is a question of social morphology, i.e. the language we use to chop up society into meaningful chunks of related activities. As it has typically been defined in western traditions, religion is a function of what you believe. Your membership in a given faith is a function of your decision to affirm or deny its tenets, and you religious practice is largely a function of prayer. Church may be a good place for prayer, but prayer is something you can do yourself.

As to the role of priests, mileage varies.

My point is simply that the concept of religious freedom has developed in a tradition in which religion is defined largely in individualistic terms. We can see how religion influences art, education, politics, and so on, but we can usually find some means of separating what counts as religion from what counts as the rest. It’s a lot harder to do this with Native American societies in which ceremonial participation was typically a function of community membership. Rather than helping Lutherans distinguish themselves from Methodists, etc. these ceremonial systems were historically much better suited to uniting communities, at least for a moment of social interaction. The practices in question are accordingly ubiquitous. Native ceremonial themes pop up in their politics, their art, their kinship, their hunting and farming techniques, etc. This is why the establishment clause was omitted from the Indian Civil Rights Act. It’s also why the word ‘sacred’ has become a highly over-used buzz-term in Indian-white relations. It’s short-hand for “this is important,” and for; “You guys probably wouldn’t understand.”

I think you could honestly say that Native American societies do contain almost everything we typically convey with the term ‘religion.’ What I don’t think we can say is that they isolate those elements of religious meaning from other aspects of their social life. This makes it kind of difficult to think about religious freedom in the context of Native American social practice.

Course it helps if you try.

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Which brings us to point number two, which is that for most of United States history, you’d be hard pressed to find anyone who thought about any aspect of Native American life in terms of religious freedom. Few in Native American circles seemed to try the argument, and fewer still outside those circles were prepared to respect those freedoms, or even to recognize them as such. When the office of Indian affairs turned its attention to cultural warfare instead of literal shooting wars, one of the first things they did was to formulate the religious crimes codes outlining punishments for Native American religious practice. This was all part of the effort to ‘kill the Indian’ in order to ‘save the man,’ so to speak, but for the present, the point is that government officials deliberately sought to punish Native Americans for practicing heir own religions. They even used the word ‘religion.’

The word ‘freedom’ didn’t enter into it.

It’s hard to say just how much these rules were enforced. It fell upon indigenous judges to do this, and it should surprise no one if more than a few of those judges found reasons not to. What we can say is that Taos felt the sting of these codes well into the twentieth-century, In the 1920s, Commissioner of Indian Affairs, Charles Burke had a number of Taos elders locked up on the authority of the Religious Crimes Codes. He was particularly outraged that they had taken children out of the schools for purpose of training in the ceremonial kivas.

Somewhere between the 1920s and 1970, the political climate in America had changed sufficiently that same government which had once locked up Taos elders for practicing their faith (and in particular, for teaching it to their children) was now prepared to protect the religious freedom fof Taos people, even to the extent of making claims on a rather large tract of land.

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What happened?

Significant changes in Federal Indian policy combined with shifts in the national culture may have helped the case for return of Blue Lake, but much of the credit would have to go to the Taos people themselves. Their own response to conflict over the lake forged much of the logic for return of Blue Lake to their land base. Arguably, their decisions also transformed the way that native and non-native alike came to view a range of issues now commonly thought of as involving matters of religious freedom.

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The trouble began in 1906, when…

No, it began before that.

The trouble began with the Treaty of Guadalupe Hidalgo in 1848. This treaty concludes the Mexican-American war. Its terms include cession of lands to the United States, including present-day New Mexico, and it also includes guarantees that pueblo land grants within New Mexico would be recognized and protected by the United States. Unfortunately, Blue Lake was not in the land grant for Taos, a fact which had never been much of an issue under Spanish or Mexican occupation. As Americans began settling into the area, the lack of title would soon become a problem.

This brings us back to 1906.

In 1906, the Federal government placed Blue lake and the surrounding lands under the control of the Forest Service. Today, some will tell you this is when the trouble began. Interestingly enough, this wasn’t seen as trouble at the time. An informal understanding with administrators in the Forest Service served for a time to help protect the lake from outside encroachment. It wasn’t until later, with changes in local administration, that this legal status became a problem.

What made it a problem?

It was a problem that the forest service clear-cut a section of land within the watershed.

It was a problem that they stocked the lake with game fish for sport fishing.

It was a problem that they built a cabin by the lake.

It was a problem when they allowed visitors into the area.

None of these things were consistent with the Pueblo’s own use of the lake which was largely centered around ceremonial practices carried out at the lake at specific times of the year. The Forest Service was implementing its own multiple use policies and planning long-term harvesting of the trees, consistent with the conservationist policies of the era. Such practices threatened the pristine environment critical to the significance of the lake in Taoseño cosmology. These changes were already too much. Who knows what could happen next? So, the Pueblo began to seek return of Blue Lake.

The campaign to secure return of Blue Lake was a long haul. It took many twists and turns, not the least of them being an effort to bargain with the Pueblo Lands Board (in effect, conceding interest in lands held by non-native squatters in exchange for a recommendation that Blue Lake be returned, …the concession was accepted; the recommendation was not made). Somewhere along the line, there was a cooperative agreement with the Forest Service, but that didn’t work out. When the Pueblo won a case before the Indian Claims Commission, they side-stepped the financial compensation to which they would be entitled, seeking instead to secure the return of Blue Lake and its watershed. This was not within the mandate of the claims commission, so the Pueblo turned to Congress.

This is where the argument for religious freedom came in.

(Believe me, I am skipping a lot of great detail here.)

In their dealings with Congress, lawyers working for the tribe began making arguments for the return of Blue Lake based on an explicit appeal to the principle of religious freedom. The people of the Taos Pueblo needed exclusive access to the lake and its watershed to perform the rituals central to their religious practice. It was, so the argument went, their church. Even the need to explain all this placed a double-bind on the tribe, however, because much of the religious symbolism of the lake and the ritual performed there was secret, being known only to leadership in the kiva societies. As each of these societies was responsible for different aspects of the ceremonial system, this meant nobody within the Pueblo had full knowledge the matter themselves, let alone some outsider. Explaining the details of the ceremonial sustem to outsiders would violate their religious interests as effectively as preventing access to the lake. This was a problem that cut both directions. If providing this information was a threat to the religious freedom of the Pueblo, failure to do so was a problem for Congress. They had to be sure they were acting on good faith claims. The solution took the form of outside experts. Anthropologist John Bodine, was particularly helpful in outlining the significance of the lake for the Taos people to the satisfaction of Congress.

To be clear, this was a hard sell. Some folks balked at the notion of 48,000 acre church, let alone one that could not be fully explained to outsiders. Additional concerns were raised about other indigenous peoples with sacred sites of their own. What sort of precedent would this set? All of these questions and more stem from the uneven fit between indigenous ceremonial systems and mainstream American ideas about religious freedom, but how was Taos to answer them? How was Congress? A court might have addressed these issues differently. A court would have had to demonstrate its fairness to an opposing legal team, and a court would have had to think quite seriously about that legal precedent they were setting for future cases. But this was Congress, and Congress could set aside 48,000 acres without answering to an appeal or spelling out a precedent for the future. As a legislative body, Congress had more options than a court would, and that meant it could accept the argument for religious freedom as the basis for a one-time decision.

One-time deal, or not, Blue Lake was a precedent in the moral sense. It established the principle that Native Americans were entitled to religious freedom, and if their traditions were more difficult to address within the context of American legal system, this was no longer an excuse for ignoring them altogether. Congress would later pass The American Indian religious Freedom Act (AIRFA), affirming the principle of religious freedom for Native Americans and arguably mandating that federal officials take that freedom into account in their own policies. This didn’t always go as planned. Courts had a way of finding against native claimants throughout the 70s and 80s, a pattern which included several cases involving sacred sites, and of course Scalia took a wrecking ball to the whole damned free exercise clause in the Smith peyote decision. Compliance with the AIRFA by federal agencies has been a mixed bag. Yet, even these mixed results are a marked improvement over previous eras. Lest this seem like faint praise, one has only to remember the crimes codes and the fact that it was once official U.S. policy that Native Americans could be locked up for practicing their own ceremonies. Today, the notion that Native Americans are entitled to religious freedom, just like the rest of us, is now commonly accepted as a given.

It was Taos Pueblo that brought made this possible.

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What does a sacred site look like?

In this instance, it looks like a lake that most of us will never see.

That is a kind of religious freedom.

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A note on sources: At one time or another, I read everything I could on this topic, but that’s ancient personal history. I wrote this mostly from memory, and from an old grad school paper, but my old files aren’t with me. As far as I am aware, the best single source to get a relatively complete version of this story here was written by R.C. Gordon-McCutchan, Taos Indians and the Battle for Blue Lake.

Regarding the pictures, I am still nervous about them. It wasn’t that long ago that visitors to Taos Pueblo were expected to refrain from taking them. A few years back, I remember being told we could take them for personal use, and the last couple times I visited, we were simply allowed to take pictures with no restrictions mentioned. I think I still refrained from taking any pics for at least one visit, and finally snapped a few pics. It is a really beautiful place though, and if it is now okay with the Pueblo, as I believe it is, I thought I’d like to share the few images posted here.