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49 The Washoes had very little reason to hope for a favorable outcome if their attempt to halt climbing at Cave Rock was taken into the court system. Prior to the last decade of the twentieth century, no Native American sacred site claim had ever been upheld in a federal court. While Christian sites such as Catholic missions and the National Cathedral in Washington, D.C., gained protection as national monuments, Native sites continued to be exploited, developed, and destroyed. Euro-Americans have ignored Native property rights from the time of earliest contact. Because at first the Natives themselves had no understanding of the American concept of landownership, the newcomers identified them as “hunter-gatherers” who had a transitory and impermanent relationship with specific sites. European immigrants simply appropriated the lands they coveted, either failing to recognize the sort of communal ownership the Indians practiced or placing no value on it.1 In 1823 Chief Justice John Marshall issued what would become a landmark ruling on the subject. In the case of Johnson v. M’Intosh, the Court had to decide on the legal ownership of a piece of land. One of the parties to the suit had purchased the land from Indians; the other had been given a patent of ownership for the land by the federal government. The Court ruled in favor of the latter, writing that the Indians had never owned the land, and thus had no right to sell it. Marshall ruled that the United States, as a Christian nation, had inherited from England title to all property in North America previously unclaimed by a Western nation. Indians had the right to occupy land but could not own it. Since M’Intosh the courts have consistently found for state interests, which have often involved financial promotion, over Native American religious values.2 Courts base their findings on precedent, and tens of thousands of property cases define recognized property rights. G. Jon Roush, presis i x Hunter-Gatherers and Courts 50 cave rock   dent of the Wilderness Society, termed such rulings “the cover of law” when he urged Congress in 1994 to protect sacred Indian sites. In his dissent against the majority ruling in Lyng v. Northwest Indian Cemetery Protective Association in 1988, Supreme Court Justice William J. Brennan Jr. pointed out that rather than balancing the competing viewpoints of Western culture and Native Americans, the court was both finding against the Native peoples and establishing unassailable precedent for the future. “The Court,” he wrote, “has effectively bestowed on one party to this conflict the unilateral authority to resolve all future disputes in its favor, subject only to the Court’s toothless exhortation to be ‘sensitive’ to affected religions. In my view, however, Native Americans deserve—and the Constitution demands—more than this.” Only two justices joined in Brennan’s dissent.3 The courts’ reasoning has always centered on economic concerns and the issue of the government’s control of federal lands. Glen Canyon Dam, built in 1963 to create Lake Powell, flooded a Navajo prayer site. After the dam was finished, the Bureau of Reclamation raised the water level behind it until the water entered Bridge Canyon, another important religious and cultural feature. The higher water level gave tourists easier access to the tribe’s sacred Rainbow Bridge. Earlier the Park Service had licensed boat tours; now it promoted other activities around the bridge. When the Court finally heard the tribe’s appeal in 1977, it found for the federal land managers despite its favorable view of the Navajos’ religious arguments. The interests of the tribe simply did not measure up when weighed against the economic prosperity produced by Glen Canyon Dam.4 Native American religious sites encompass lands used for ceremonies, prayer, vision quests, gravesites, and places such as Cave Rock where shamans work with power.5 The fact that there are tens of thousands of these sites and that they include vast expanses continues to cause problems in acknowledging and preserving them. But even when only a small property is at stake, the federal government tends not to give up control. The government determines whether an area should be open to the public , open to development, or protected as a historic site. Government interests that have been awarded precedence over Native American religious concerns include logging, road building, flood control, navigation, electric power generation, the construction of an observatory, and recreational uses including skiing. In the case hunter-gatherers and courts   51 of the...


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MARC Record
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