Culture as Cultural Defense.
This paper concerns the latent and implicit ways in which concepts of culture are employed by a set of actors (a panel of judges, expert witnesses of several sorts including myself, and American Indian litigants who appeared in a legal dispute) and what is in part a consequence of these differences in perspective; namely the failure to make a case for the importance of preserving a culturally significant site. I will advance the view that particular constructions of culture employed in the defense and preservation of what are described as American Indian sacred sites are problematic and ineffective and confront the modernist court in precisely the wrong ways. Efforts to construct a notion of sacredness in court as a means of creating legal space appears to be akin to a cultural defense in criminal litigation in that the court must accept premises which are neither shared by the judges' own cultures or the legal sub-culture and thereby stand outside of their values and experiences. U.S. and Canadian judges and judicial bodies face the dilemma of "reckoning culture," or assigning values to conflicting representations about a site. This is paradoxical: simultaneously the claims of epistemological difference are made by litigants while the courts' capacity to understand and the necessity to uphold comparability is upheld. If sacred site discourse is part of the contestation of the landscape by Aboriginal peoples within the nation state (Feld and Basso 1996:4), the issue becomes one of how to do so effectively in a political and legal sense rather than solely an intellectual one.
Some clarification of my position is in order. Political and legal struggles may well succeed in cases in which features of the landscape receive wide recognition and support across cultural groupings and represent national or international Aboriginal aspirations and cultural expressions. The case of Ayers Rock in Australia is such an example (Whittaker 1994; see Barsh 1996 for a consideration of international action to defend sacred sites). Burial sites and reburial issues have attracted much of the current dialogue concerning sacred sites (see Reeves and Kennedy, 1993), but sacred sites are more diverse than this single category. However, I do not exclude from consideration sites which appear to have legal protection as cultural properties, including archaeological sites and resources, glyphs, and graves; these may still be vulnerable to destruction or desecration. Indeed, before legal protections can gain force a site must become legally qualified, a dilemma which underlies the issues I address here and which is a cause of consternation to many aboriginal leaders (personal communication, Doreen Maloney, councilor, Upper Skagit Tribe, Sedro-Woolley Washington).
There are many reasons why the discourse of the sacred is problematic in court: the very idea of sacred sites requires judges to endow the landscape with cultural properties beyond the reach and outside the conventional rules of local civil authorities; because of the problems of establishing sacredness as a legal fact; and because of the court's requirement of differentiating between sacred, partially sacred, and non-sacred landscapes. A particular difficulty arises in arguing for the sacredness of sites that are not recognizable as archaeological sites; that is, they do not contain visible or tangible markers as cultural spaces and sounds. One account by a US National Parks service bureaucrat (Rogers 1993:136), for example, noting the obligation of the Parks Service to exercise stewardship over sacred sites as part of the practice of cultural resource management, listed museum objects, historic structures, and archaeological sites, leaving out what are perhaps the majority of cultural resources as defined by tribes themselves. Vision quest sites, for example, are said to have left no "footprints;" spiritual beings and Aboriginal supplicants are not well preserved in the archaeological record, often leaving nothing or only small anthropogenic stone structures (Dormaar and Reeves 1993:163).
I examine these issues through the device of a case study of litigation in which I participated in 1993 and 1994. The case, Citizens to Preserve Nookachamps Valley et al. v. Skagit County, et al., (SHB No. 93-14) was heard before the Washington State Shorelines Hearings Board and concerned the disposition of a proposed quarry site. A farm family, the Tewalts, wished to quarry a monolithic feature, a rock some 300' high and 1000' long, in anticipation of a considerable profit. This rock, I later discovered, is glossed "Hot Place" from the Lushootseed (Snyder 1953). A local citizen's group, headed by a tribal attorney for the Upper Skagit tribe and by a council member of that tribe, opposed the quarrying. The tribe itself hoped to stop the issuance of a license through participation as amicus curie.
Opposition to the licensure was on several grounds, including the effects on noise, water quality, and aesthetics. These issues were themselves directly linked to the interpretation of sacredness (of what came to be called the Tewalt site in legal proceedings) by senior members of the tribal community. In the legal proceedings noise, water quality and aesthetics were not included among the "cultural, historical, and archaeological resources" in question. The issue of noise in the environment, for example, was treated not as an issue of a particular cultural soundscape, but as sound mitigation in a technical and generic sense, despite current understandings of the relationship of sound to place and, ultimately, culture (see Feld 1996).
The Citizens Committee, via legal intervention, gained two days of site access and asked me, as an ethnographer of the Upper Skagit tribe, to examine the site in preparation for making an expert representation concerning the site in court two weeks later. I arranged to bring six colleagues, all archaeologists or graduate students in archaeology. The archaeologists attempted to find evidence of occupation, use, or short-term residence on the site. I spent part of my time working with an elder concerning the oral traditions about the site. The recently deceased Alice Williams told me a story of Snake and Beaver who wished to marry Frog and Mouse, who refused them. Frog and Mouse, in consequence, were drowned by a flood contrived by Snake and Beaver (an outcome congruent with the long history of a rising and falling watertable in the area). Oral material collected forty years earlier by an ethnographer and the material I collected on this occasion confirmed Tewalt Rock as Snakes' house (Snyder 1953). A quarter mile away is Beaver Lake, the mythological home of the beaver in the story (during our inspection we found several beaver lodges). Beaver Lake was also the site in which an ancestor of the current population was said to have obtained the skedilich power and the rights to employ a spiritually animated board in winter ceremonials. This is one of the most significant of Upper Skagit spirit powers and the site of acquisition is itself a place of spiritual importance. To the other side of the site is the hill that is the location of a starchild myth recorded by deceased elder Martin Sampson (Sampson 1972). From the top of the Tewalt rock one can see both Mt. Baker and Mt. Rainier, sisters in yet another, geographically broader, cycle of myths. In short, this small area was among the most spiritually freighted locations in the Skagit Valley.
On the second day of work a member of the party found what was believed to be a petroglyph of a double-headed snake clearly pecked into the rock. This interpretation was later confirmed by the senior staff archaeologist in the state historic preservation office, Dr. Robert Whitlam, and unanimously by three independent rock art consultants acting on behalf of the Shoreline Hearings Board as authorized by Skagit County (Bard 1994). The site therefore appeared to qualify for protection under Washington state law, Chapter 27.44, Indian Graves and Records, which protects "glyphic or painted record of any tribe," from disturbance by mining and various other activities, punishable as a class C felony. The Citizens Committee wished to proceed from this legal vantage point.
Ethnographic evidence (Collins 1974) indicates that the double headed snake is associated with an important shamanic power acquired through vision questing. Consequently, for these and other reasons, my own interpretation was that Tewalt Rock was the site of spirit questing by at least one individual who signified this by carving it into a rock. The archeologists also found a hand maul in the area near the petroglyph and, a little farther away, lithic scatter.
The attorneys acting for the Tewalts argued, however, that "the markings [previously described as the double headed snake] were formed when a tool mounted on a bulldozer scraped against the rock" (Skagit Valley Herald, August 17, 1995: A5). This opinion was supported by an associate professor of geography brought in as an expert for the farm family, who relied on radiocarbon dating to argue that the "brush rake" hypothesis "is consistent with a number of lines of evidence" (Dorn 1994:13) The three rock art specialists were of the opinion that the markings were not made by "accidental impact of a brush rake," but rather, was a petroglyph made by an "artist" who "undoubtedly used a sharp rock ... to peck out a deep (ca. 2-5 mm) `channel' into the rock surface" (Bard, 1994: 2). In addition, an archeologist brought in by the Tewalt family was said to have alleged that the site was either salted or the lithic scatter was caused by preliminary (and illegal) dynamiting of the Tewalt Rock (personal communication, archaeologist Al Reid, November 1994). A member of the Tewalt family told the local newspaper that he had suspicions the maul was not authentic. "We have the evidence but the courts say `So what? You can't show anyone'" (Skagit Argus, January 11, 1995:20).
An astonishing and misleading legal dialogue ensued in which contending experts probed the petroglyph for veracity, submitting it to electron microscope tests in an effort to date the rock art. Efforts to reconstruct the cultural context of the petroglyph divorced it not only from the larger spiritual entity for which it was no doubt produced, but from the context of Coast Salish culture. One archaeological expert contracted by the Tewalt family reported to the court that there were no other cultural materials "in front of the putative rock art panel," even though the lithic scatter and the maul were found in the near vicinity (Whitley 1994:15). Further, arguing from a particularistic geo-political stance, this scholar claimed that there were no similar petroglyphs in western Washington and therefore the double-headed snake was not likely to fall within the legitimate tradition even though less than sixty miles away in Coast Salish territory of British Columbia such art is present (Whitley 1994:15). In addition, the archaeological accounting of the rock art stripped it of its contextualization within the oral traditions of the community, which spoke of Snake, Beaver and other spirit beings.
The panel of judges eventually ruled that: Skagit County has considered the likelihood that the site contains cultural, historical and archeological resources.... It did so by accessing the state computer system known as TRAX [a data base]. The TRAX system yielded a response of no known cultural resources at the Tewalt site. Although the testimony has been lengthy and passionate on both sides, substantially all of the testimony is grounded upon observation, alone. What is needed, to conclude this issue, is examination of the rock by a trained and neutral expert using a carbon dating or similar process to objectively date the markings on the rock (Findings of Fact, Conclusions of Law and Order on Remand, SHB No. 93-14).
The judges made no further legal argument concerning cultural issues, moving on in their findings of fact to technical issues of water quality, noise abatement, traffic safety, and aesthetics, but their opinion reinforced the unfortunate notion that culture is discernible primarily by experts and that culture must be uniform (i.e. interpretable by experts in the same manner) and comprehensible to outsiders. The idea of a positivistic, scientific narrative was preferred to oral traditions of the tribe and, by inference, those interested in oral traditions were held to fall outside the bounds of the "trained, neutral discourse" the judges felt was required to decide the case. Physical sciences (such as carbon dating) were preferred to social sciences or to a mixture of approaches. The panel of judges made an effort to protect the petroglyph, but failed, however, to distinguish between what was culturally significant, namely the site where the spirit powers reside, and the secondary representation of the site, namely the petroglyph. The litigants, noting this discrepancy, found this mitigation inadequate.
In order to fulfill the requirement of an outside "trained, neutral expert" to decide between the opinion presented by me and archaeologists in my group and those presented by archaeologists and other scientists contracted by the Tewalts, an M.A. trained archaeologist was subsequently hired. The judges, however, constrained the work of the archaeologist by allowing only three weeks between the Order of Motions calling for a "cultural resources survey" and the date for filing the report, and by limiting the contract to "within the range of $3,500." Further, the judges ordered that "The scope of the "cultural resources survey (i.e, geography and technique) shall be based upon the discretion and professional judgment of the person selected by Skagit County to conduct the same" (Order on Motions, SHB 93-14). The archaeologist made one site visit, during a rain storm. He reported that he found no evidence of occupation or use, but did not report whether he had adequate funding or time to draw a conclusion concerning this issue. He was, however, hired to provide a definitive statement and his report failed to convey the limitations of his investigation (Reid 1994). Subsequently, the panel of judges permitted the issuance of a license for the quarry, and, noting the difficulty of deciding between experts, decided that the rock's markings "are not of archaeological, historical, or cultural value" (Skagit Valley Herald, August 17, 1995: A5).
First, a conceptual frame, conjoining approaches to modernity and ethnic competition; in his work on ethnogenesis Sharp (1996) points out that the idea of sacredness is related to the current debate about ethnic group/aboriginal identity positioning. One might note that judges themselves live within the communities in which this debate has currency. Sharp observes that the "sacred" belongs to a primordial discourse which locks local groups into a particular identity construction which itself builds on the idea of critical differences between Indian and dominant societies. Indeed, for American Indians and Canadian First Nations, the issue of presenting themselves as protectors of the sacred earth is emblematic of their "opposition ideology" (Hornborg 1994: 253). The problem may be even more fundamental than this, in that some members of aboriginal and mainstream communities hold differing views of culture itself. Whitten (1996:204), in commenting on the significance of confrontational, ethnic-bloc nationalist discourse (of which the Tewalt Rock case can be said to be an example), observed that for indigenous people, culture "is that which is worthy of reverential homage." Further, "indigenous culture, as such concepts are manifest in practical and spiritual conflict, [is] characterized by reverential webs of signification ..." (205). To members of the majority community, culture may remain less problematic, even invisible, except when pushed, for example, to incorporate an Indian understanding of the landscape into the local regulatory regime.
There are several consequences to current differences in perspective and in the salience of ethnic competition. Borrowing from Sharp (1996), I argue that the responses of the dominant society (here embodied by both the attorneys for those proposing to alter the landscape and by the trial judges) to such strategic discourse include these:
(1) The cultural grounds on which claims of sacredness are made are taken literally. This strategy produced a dismal outcome in the 1990 British Columbia land claim case Delgamuukw v Regina (McEachern 1991) in which the judge noted that he could not accept First Nations characterizations of a territory which was said to have been the site of an avalanche caused by a supernatural bear. Literal readings of the sacred simply result in a finding of incompatibility--that is, the court recognizes no concept of land tenure in which land belongs to the supernatural, rather than to Aboriginal people who express their relation to the immortal beings as one of subordination or supplication, as in the Upper Skagit case.
(2) A second response is to regard the discourse as part of a "faked culture" asserted by, to use Clifton's (1990) phrase, "invented Indians." This is a view current in right-wing discourse and has culminated in the creation of funds designated to contest Indian efforts to protect cultural sites and protected rights generally (see Ryser 1997). Proponents of this perspective cast doubt on Indian aspirations by attacking their credibility and their authenticity, focusing on variability in Indian phenotype, or on the poverty of documentation of Indian landscape. This issue arose when a Ph.D. holding archaeologist hired by the Tewalts equated the limited cultural documentation with the absence of cultural practice (Whitely 1994:15), and when the state TRAX computer system failed to show "known cultural resources at the Tewalt site" (Findings of Fact, Conclusions of Law, and Order of Remand, SHB 93-14). Further, discontinuity with ancestors is posited because of the adoption of western technology and material culture. This is referred to by some in British Columbia as the "transistor radio fallacy" because the trial judge in the Delgamuukw case observed that Indians employ modern technology and eat contemporary foods. In this discourse, Indians are culturally contaminated, corrupted descendants of their putatively spiritual ancestors rather than their spiritual heirs.
(3) A third response to the "sacred" discourse is one of fear and animosity generated towards those who portray themselves as fundamentally, even absolutely, different while simultaneously asserting a connection to the dominant society through claims on and connections to schooling, treaty fishing, medical care, and so on. This response focuses on the contradiction between claims of sameness and difference and on the position the dominant society assumes as the perpetrators of sacrilege. The imagery of exploding the sacred through literally blowing up a sacred site may well have been too powerful to be palatable for judges whose life experiences did not prepare them to contemplate Indian cosmological concepts, as was the case with the judges on the Shorelines Hearing Panel. I say this because of the nature of the decision rendered by the Panel, but also because of a question put to me by one of the judges during my testimony in this case. He noted that he is a "Catholic boy" and asked me to describe the Tewalt Rock in terms he could understand. In a response reminiscent of a debate in Australia over Ayers Rock (Whittaker 1994), I replied that the rock was something like a significant European cathedral. The Judge's counter, which caused me to have some optimism about the outcome of the case, was to say "no, its more like the holy grail." I didn't immediately think through to the conclusion he might have drawn, namely, that in accepting my proposition I required him to equate the religious tradition of a subordinated, obscure population with the grandest tradition of authority that he could imagine, surely an equation to be rejected by anyone not a wildly enthusiastic fan of cultural relativism. The holy grail, indeed, is a mythic, unembodied, unobtainable object in the Catholic, Christian tradition, no doubt a suitable analog to the Judge for what appeared to him to be an unembodied site, in fact, a non-site.
(4) A fourth response to the discourse of the sacred is to observe whether there is uniformity in the Indian community concerning the interpretations provided the court, to rely on a notion of culture emphasizing shared understandings rather than the current emphasis on diversity and contest (eg. Comaroff 1996). The legal implication is simply this: a finding of inconsistent interpretation, of diversity of viewpoint, will almost certainly provide grounds on which judges can find there is no relevance in a particular cultural claim of sacredness. It is difficult to demonstrate that an area or an object is sacred in the absence of agreement on this point and in the absence of a legal test of sacredness. Indeed, this occurred in the case in question. One of the judges asked me if all of the landscape was sacred to Indians. I understood this as a potential trap, an obstacle to conveying something meaningful about the site. If all of the landscape was uniformly sacred, then, in practical terms, there were no grounds to preserve any particular part. My response was that the landscape was differentiated; some places are more significant than others, that places differ in their uses and meanings.
As a way of undermining the claim of sacredness, of importance of the site, the attorneys for the Tewalts were said to have arranged for a court appearance by a tribal member prepared to testify to a lack of significance of the Tewalt site. As a counter, preparations were made to position a senior tribal elder and historian and senior relatives of the man in the front of the court room in an effort to publicly shame him and to erode his authority to speak. There were differences in how tribal members perceived the issue of the site: some community members saw a potential heavy financial burden in protecting the rock in question; others were disinterested because the rock was located in Nookachamps territory associated with some, but not all, of the constituent families composing the tribe and fell outside of their set of kin connections. Only some of the families knew particulars of the territory, its mythological construction, and cultural uses. Still others were disinterested because they are disinterested generally in what academics might regard as the importance of ethnic identity markers to the community elite. They are confirmed in their identity through the family teachings, the difficulty of life, and the disdain expressed by the surrounding world. They need no further confirmation that they are American Indian.
(5) Legal strategies which attempt to inscribe the landscape with Indian sacredness create texts which are written and rewritten by more than one author, and by people other than tribal members. A fifth sort of response to the claims of sacredness, then, is to redefine the claim into a more acceptable form. This, indeed, was the case with the Tewalt Rock, in which the debate about the landscape came to focus exclusively on the tangible and visible petroglyph. One scholar pointed out a difficulty:
[T]he sites frequently appear to have been ... for some sacred purpose, but the Aboriginal traditions themselves may have been lost to the people, and it is often very difficult to accurately reconstruct the sacred significance. Among other things, this inability to clearly understand the ceremonial complex ... makes it extremely difficult to determine the limits of the site in question, for it is impossible to always know what physical features are part of the complex and which are not (Byrne 1993:103).
Experts thereby created a legal culture of dimunition and containment within the same modernist discourse which is said to be deconstructed by the emphasis on the spiritual. This is a significant weakness of the sacred defense; once opened the discourse is not easily directed and counter discourses come not only from subordinated communities. In the Tewalt case, the spiritual site was legally reduced to the petroglyph, and not the larger cultural context.
Indeed, local non-aboriginal families have their own readings of local history and local landscapes, as Whittaker (1994) noted concerning the Ayers Rock debate. Local commentary emphasized the longevity of the Tewalt families' occupation of the Skagit Valley (of some four generations). The opening statement of the attorney acting for the Tewalt family focused squarely on this issue, characterizing the valley as a long-time farming (read: white) community with an established sense of appropriate land use, itself sensible, quiet, and in tune with rural life generally. Indian people were characterized as interlopers and directly disruptive of the rustic, productive lifeway established by farm families such as the Tewalts. The attorney, in effect, relied on a highly normative, exclusionary accounting of farm culture in setting the stage for advancing his clients' claims. The actions taken to protect the site were described as violating the rights of the clients, and one of the farm-family litigants told a local newspaper that "They've taken our land. They've taken our rights. What else can they do to us? ... What they're saying is that they can come in one anyone's private land, find something, then take your land and there's nothing you can do about it" (Skagit Argus, January 11, 1995: 20).
In contrast, the attorney acting for Upper Skagits emphasized the 9000 years of documented aboriginal occupation. The Upper Skagit narrative, however, did not easily fit within the current dialogue concerning the appropriate uses of the valley, the direct concern of the Shorelines Hearings Board, which had the task of deciding whether quarrying fit into the existing regime of agricultural land-use. In this sense, the Tewalt historical narrative more convincingly addressed the legal question at hand.
Strategies: Site Classification
The issue, then, is what to do in light of these dilemmas in successfully conveying the idea of a culture's sacred site to the courts. One strategy is to present a conceptually more differentiated landscape in legal settings, and to regard the landscape as constituted by various sorts of cultural resources, thereby employing a vocabulary already in use. This strategy may skirt questions such as this: if all the landscape is sacred, how can one differentiate and why should measures be made to protect particular locations? The following system of site classification of sacred sites in the Coast Salish tradition is culturally specific and cannot be generalized to other Indigenous communities, but is suggestive of what might be done elsewhere. This classification system is based primarily on the connection of sites to the role of transformer (a sacred, supernatural creator) in myth times through transformer's connection to the creation of the current features of the landscape. Eight such types of site and a ninth residual category are proposed (abstracted from Mohs 1994):
transformer sites most are bedrock outcroppings, colders, prominences, caves, river pools; feeling evoked more than physical nature spirit residences inhabitited by supernatural forces; ghosts, spirits, Thunderbird ceremonial areas associated with winter dancing, offerings, observances; longhouses, creeks, sweathouses, lakes, training grounds tradtitional landmarks site of cultural, historical events; pithouses, sites of epidemics questing/powersites usually remote areas in mountains, caves, rivers, transformer sites; secret legendary/ mythological sites vary in nature; judgement and predicition sites; associated with events/personages burials tree, box, funerary, cave, and interment sites; spirits present other eg. astronomical sites, medicinal pools, springs
It is worth noting that individual tribal and band members place greater signficance on some categories of sites than on others, although Mohs (1994:198) cautions that "Vested interests aside, each class of sites does incorporate cultural/ethnic significance and each may be considered of equal value within an overall ideological context." Similarly, a Umatilla tribal spokesperson articulated the commonly held view that cultural resources encompass all of creation and consequently the tribe cannot identify and separate all things in nature (Burney 1993: 115). While this may be so, efforts at protection may benefit from frank and painful efforts at specification, as noted above, and hierarchilization of cultural resources; surely transformer sites are no doubt more significant than some secondary historical sites. In addition, some sites may be more viable in a legal setting. Such efforts have been made before the fact of legal contestation, for example, in the efforts by Coast Salish to document and preserve sites potentially intruded upon by logging activities within lands administered by the National Park Service in Washington state. In this case, buffer zones of various sizes have been created around spirit questing sites. Spirits, which humans hope to gain as allies, are said to depart an area if it becomes contaminated. Outsiders cannot come close.
Much of the current literature implicitly assumes that sacred landscapes are contested sites in which efforts at conflict resolution and mutual recognition may produce favorable results, even while critiquing the propensity for capitalist society to erode aboriginal rights and cultural resources (see Carmichael et al. 1994, Kelley and Francis 1994). In this view, good will and hard negotiation can result in the preservation of culturally significant landscapes through careful documentation, parcel swaps, government buy-outs of developers, and so on (but see contrary claims in papers delivered to a conference entitled "Sacred Lands: Claims and Conflicts at the University of Manitoba, October 1996). Such swaps do occur, in, for example, the 1994 case of Xa:ytem Rock in the lower mainland of British Columbia, a Stolo (Coast Salish) site preserved through government funding and the coordinated activities of a volunteer group and the tribal council. But circumstances are considerably different concerning more localized, less visible cases, where sacred sites are under immediate pressure and where time is often short in finding means to protect them. No doubt the majority of endangered landscapes fall into this latter category.
Feld and Basso (1996:4) noted that social scientists have moved away from theorizing social well-being associated with "rootedness in place" as problematic and perhaps inauthentic to theorizing place largely from the standpoint of contestation and its linkage to local and global power relations. Relatedly, current scholarly argument holds that within the movement to stop the destruction of the landscape "the invocation of spirituality represents ... a successful revolt against the language of modernity" (Hornborg 1994:245). In this view, modernity is regarded as a "strategy of conceptual encompassment of local life-worlds" that constitutes a relationship of power and which objectifies, encompasses, and transcends the concrete realities of place (Ibid., 259). Further, the "disembedded language of modernity [it is said] generates ecological destruction" (Ibid., 263). As a consequence, throughout the world environmental and indigenous movements have used the image of the ecological and spiritual aboriginal "to bring their critique of industrial into sharper focus" and to impel the critique of development and of modernist identity construction, discourse, and, ultimately power (Ibid., 246).
Gledhill (1994:197), however, notes that the state's land tenure system constitutes a semiology of domination with implications for development, environmental issues, and conservation. The struggles over indigenous concepts of culture, nature, the sacred, and the land, too, have implications and it is dangerous to be optimistic concerning challenges given the enormous practical implications of the demands for recognition of indigenous views. Gledhill (Ibid., 198) concludes ominously that "the challenge that popular forces have been able to mount to the remorseless progress of the neoliberal, neomodernization agenda, and the continutation of authoritarian patterns of political life, has remained limited."
Mohs (1994: 205) discerns four strategies for the protection and conservation of sacred sites: continuing a tradition of silence about the sites, negotiation with government, legal action, and direct action. He argues that in British Columbia (and without doubt some other places) silence is of limited utility at present, that negotiation has yielded limited results within the larger context of tribal legal actions, and that legal protection is limited by the necessity to proceed on a case-by-case basis. But legal protection is also limited by the very way the landscape is conceptualized and described in court and by the "cultural defense" strategy of litigants. Although focusing on "the processes through which local experience is fragmented and absorbed by modernity [constitutes] a step toward the protection and resurrection of place" (Hornborg 1994:264) it is not enough, as Hornborg (Ibid., 263) advocates, to "resist the power of modernity" by refusing to be encompassed. Efforts to produce and emphasize a counter discourse of spirituality radicalizes and limits the grounds on which ethnic expression may be made. While this may be a good strategy concerning well-funded and well-supported national issues, it is a poor stance in addressing what are, at heart, local discourses between Aboriginal peoples and those non-Aboriginals they live with in their communities.
The case of the Tewalt rock points to specific problems in making the case for sacredness and in the difficulties of establishing sacredness as a legal fact. It is difficult to perceive directly the grounds on which the panel of judges granted a quarrying permit because the judges themselves asked few questions from the bench and their written statements are short and focused primarily on legal issues other than cultural heritage. However, the questions they posed show the difficulties they faced when asked to "reckon culture," to rule that a site is both outside of their own cultural understanding but within their power to place outside of the local regime of land management and regulation. In this case, complex, obfuscating legal debates made it all too easy for the panel to follow what was no doubt the path of least resistance and issue the quarrying license.
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Snyder, Sally 1953 Unpublished fieldnotes, Melville Jacobs Collection, Suzzallo Library, University of Washington.
Whitley, David S. 1994 Letter to Mr. Merle Ash, "Re: Inspection and Evaluation of Tewalt Quarry Marked Rock," p. 13.
Whittaker, Elvi 1994 Public Discourse on Sacredness: the Transfer of Ayers Rock to Aboriginal Ownership. American Ethnologist 21 (2):310-334.
Whitten, Norman 1996 The Ecuadorian Levantamiento Indigena of 1990 and the Epitomizing Symbol of 1992: Reflections on Nationalism, Ethnic-Bloc Formation and Racialist Ideologies. In History, Power, and Identity: Ethnogenesis in the Americas, 1492-1992. Jonathon D. Hill, ed. Iowa City: University of Iowa Press, pp. 193-218.
Bruce G. Miller is associate professor of anthropolgy at the University of British Columbia.
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|Author:||Miller, Bruce G.|
|Publication:||The American Indian Quarterly|
|Date:||Jan 1, 1998|
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