Zuni Protection of Cultural Resources and Religious Freedom
The protection of cultural resources is regarded as fundamental to religious freedom for the Pueblo of Zuni. Ancestral and culturally affiliated cultural resources simultaneously embody the past, history, culture and traditions. Cultural resources include archaeological sites, human burials, shrines, rivers. Spring, trails, plants, animals and minerals. They are integrally related into Zuni life, signifying links with the land and its sustaining use for the welfare, benefit and cultural survival of the Zuni people. Zuni Pueblo is a community of approximately 10,000 people located in west central New Mexico. The language, religion, and culture are intact and vibrant. (Almost all Zunis speak the language fluently.) Religious activities remain central to Zuni culture, following a seasonal cycle that begins each year around the winter solstice. All of this exists in spite of technological modernization and the proliferation of automobiles, satellite television and video recorders. The present day 422, 444-acre Zuni Reservation is less than 5% of the area of Zuni sovereignty in 1846, when the United States asserted political control over what is now New Mexico and Arizona from the Republic of Mexico. Prior to 1846, Zuni creation stories tell that from the time Zunis emerged from the four underworlds onto the surface of the earth to the point they arrived at the middle place (present day Zuni), the clans migrated throughout most of Arizona and New Mexico, as well as southern Colorado and Utah. During these migrations, many homes, camps, trails, shrines and burial grounds were established, and many other cultural resources were used and blessed. Today, these resources which number in the tens of thousands are scattered throughout the are of Zuni migrations. They have not been abandoned; they are imbued with life and spiritual forces and have an ongoing relationship to the Zuni people through the Zuni religion. An important aspect of Zuni religious freedom is the right to worship at, visit, use and ensure the protection of their cultural resources. However, present day fragmented land ownership patterns in the southwestern United States have had a major impact on Zunis' abilities to conduct many religious activities that otherwise could be conducted if no land boundaries existed. Private land is essentially off limits, whereas the religious use of state and federal lands commonly require that permits be obtained prior to such use. These restrictive problems have caused curtailment of some traditional Zuni religious activities beyond the present day Zuni reservation, because of factors beyond the control of the Zuni people. Recent amendments to federal legislation provide Zuni and other Indians additional avenues to protect their religious freedoms and human rights, even laws that do not, per se, address religious freedom. But, as is so often the case, the lofty goals of legislation are devilishly difficult to apply on the ground. When changes are required within the bureaucratic culture of state and federal agencies, progress can be agonizingly slow, or in some cases, doesn't occur at all. To accommodate and protect the religious freedom of Indian cultures means that change is inevitable for bureaucratic agencies, whether they want it or not. The tension between legislative goals and bureaucratic actions, between western culture and Indian cultures, and issues of land ownership impinge significantly upon the ability of Indians to know that their cultural resources and, thus, their religious freedoms are protected. At Zuni Pueblo, these tensions and issues are faced on a daily basis. The National Historic Preservation Act Whenever a federal agency initiates an action that has the potential to affect cultural resources, such as issuing a ground disturbing permit or licensing a project, the agency must ensure that a good faith effort is made to protect cultural resources from harm. The law is clear: "Properties [cultural resources] of traditional and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register [of Historic Places]. In carrying out its responsibilities...a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to [these] properties." Of course, consultation about cultural resources requires that they first be identified by the tribe, and only then can consultation-a meaningful dialogue between the federal agency and the tribe-be conducted. Only rarely are these two conditions of identification and consultation actually met in the real world. Even then, protection for cultural resources is not guaranteed, and, more often than not, strategies are developed to mitigate the impact to the resources and allow the project to proceed. Mitigation is usually dictated by the federal agency, despite the fact that the only way to mitigate the effect of a project on Zuni religious, cultural and traditional values is to avoid any disturbance of the resource. Under the National Historic Preservation Act and its guidelines, cultural resources of traditional and cultural importance to a tribe are called traditional cultural properties (TCPs) and may be protected if they are found to be eligible for inclusion in the National Register of Historic Places. However, protecting TCPs under this act can be a double edged sword for the tribes if great care is not exercised. Definitions of terms, confidentiality of information, and determining who absorbs the costs of the effort involved, often divide tribes and agencies. With agencies holding all the power to actually make decisions (such as determining eligibility and ensuring that compliance with the law is concluded), the use of this law to protect certain places necessary for religious freedoms can be a tricky proposition. On the other hand, it is often more successful than invoking the First Amendment to the U.S. Constitution, and many tribes are presently involved in TCP work to protect their heritage and religious freedoms. The National Park Service states that a TCP has "association with cultural practices or beliefs of a living community that (a) are rooted in that community's history and (b) are important in maintaining the continuing cultural identity of the community." Interpretations of this definition can vary radically. At a meeting with state and federal agencies, the Zuni religious leaders took this definition and declared an entire thirty-five square-mile mine are a TCP, based on Zuni cultural values. Completely surprised, the agencies responded that this would make TCP management impossible. Essentially, Zuni religious leaders see TCPs as unbounded entities that have no fixed characteristics. But to afford a TCP any possibility of protection requires that it be potentially eligible to the National Register of Historic Places, which requires fixed boundaries and characteristics (through Euro-American logic). On the Zuni Reservation, we have approached this issue with more flexibility. A wastewater line extension in Zuni cut through areas that are, at certain times of the year, very sensitive religious areas. For the purposes of protecting these TCPs we did not identify them in their entirely, instead only the portion of the pipeline within the TCP was identified. In addition, we treated each TCP in its appropriate contextual light; we created a temporal aspect for each TCP. Construction could not occur in certain segments of the pipeline at certain times of the year, thus, avoiding any clash of construction and religious schedules. What most state and federal agencies fail to understand, and National Register eligibility criteria fail to accommodate, is that some locations may have great religious significance in June and July, for example, when any construction is absolutely out of the question. However, for the rest of the year construction is perfectly acceptable. With flexibility, TCP protection can be accomplished and religious freedom exercised by writing specific scheduling conditions into a construction permit when appropriate. A few agencies have made an issue over the age and use of TCPs, arguing that if a TCP has not been used within living memory then its age and lack of use mean that it no longer has any significance to thronging Zuni culture. In addition, some agencies have argued that these TCPs have no significance to Zuni if the Tribe does not presently know the location of all TCPs in a particular project area. Such agency positions demonstrate a complete lack of understanding and insensitivity to Zuni culture. That a shrine or trail, for example, was created and blessed many centuries ago by Zuni ancestors, an that this shrine or trail has not been actively used for decades or even centuries, does not in any way diminish its purpose, power, or significance for the Zuni people. We note with some interest that archeologists, working under the same law and regulations, are required to "walk over" a project area to scientifically inventor and make assessments of archaeological sites (many of which also happen to be TCPs) that they clearly do not know exist prior to their work. Yet, these sites are almost invariably determined to have significance to a culture that is not even culturally affiliated with these sites. If archaeological sites, never before known to archaeologists, have such significance, why shouldn't TCPs be treated with similar respect because of their relationship and significance to Zuni? In addition, archaeologists are paid to perform their work, yet more often than nor, tribes are not offered compensation for their efforts. The message received in Zuni is that scientific freedom has much great importance than religious freedom, a message exemplified by a recent Bureau of Indian Affairs (BIA) action. Having concluded an archaeological survey for a proposed project at Kolhu/wala:wa(Zuni Heaven), the BIA write to Zuni asking whether the tribe had any traditional or cultural concerns such as "religious locations" within the project area. With some dismay, Zuni had to remind the BIA that Kolhu/wala:wa was made part of the Zuni Reservation, through an act of the U.S. Congress in 1984, specifically because of the area's immense religious significance to Zuni. also the BIA was remind that it had a trust responsibility to these lands because they are part of the reservation. The Tribal Council requested that the BIA consult with the Tribe prior to any further action regarding the proposed project. Subsequently, the BIA canceled the project. Perhaps the most vexing problem for tribes is confidentiality. To protect a TCP requires that the tribe identify the TCP and provide at least some information about its location and significance in order for it to be eligible to the National register. However, to divulge this information is an act, by itself, that diminishes the significance of the TCP to the tribe and may cause unforeseen harm. To combat this dilemma, Zuni demands control of any information collected on TCP projects and then decides what information may be released to the agencies. This control is maintained in a number of ways. First, a small group of religious leaders (who serve as an advisory team) actually conduct fieldwork and make identifications and assessments of any TCPs. their report, with only the information they deem appropriate to release, is then submitted to the Tribal Council for review and approval. Only then is the report released to outside agencies. In this way, Zuni controls the information and ensures agreement between the religious and political realms before a statement is made public. By striking a culturally acceptable balance between information control and release, Zuni maintains its freedom of religious confidentiality while protecting TCPs. Zuni Salt Lake Not all potential impacts to cultural resources and Zuni religious freedom derive from a project within the sacred area itself. Zuni Salt Lake, a volcanic feature some fifty miles south of Zuni, is a critically important religious place not only to Zuni, but also to the Hopi, Acoma, Laguna, Apache, and Ramah Navajo tribes. Over the centuries, Zuni has also provided access to the Lake by other tribes for religious purposes. The sacred significance of the Lake derives from religious beliefs that the salt is a life sustaining gift from Salt Woman for use by the people, and, consequently, appropriate rituals and offerings must be made when salt is collected. The Lake, returned to Zuni in 1978, is within a detached 618-acre parcel of the Zuni Reservation about fifty miles south of Zuni. Saline waters within the volcanic maar derive from subsurface aquifers which provide not only the water, but also the minerals that give the Lake its saline qualities. For Zuni it is vital that the Lake not be altered in any way, but the proposed Salt River Project (SRP) Fence Lake coal mine is within twelve miles of Salt Lake, and a proposed rail transportation corridor traverses within three miles of Salt Lake. While SRP contends that the mine will not affect Salt Lake, the Tribe is not completely convinced. In November 1992, then Zuni Governor Robert Lewis wrote then Secretary of the Interior Manuel Lujan stating that, "The Zuni Salt Lake is of central religious significance to the Zuni people. The suggestion that damage might occur to the springs, seeps, lake and the quality of the salt at Zuni Salt Lake is of very grave concern to us. We really cannot emphasize just how important this sacred area is to us...[The mine] must not be permitted unless it is absolutely certain that no damage will occur to Zuni Lake." Zuni continues it fight to protect Zuni Salt Lake from possible damage as a result of the proposed mine. The Tribe has hired its own hydrological consultant because the Tribe does not wish to rely on information provided by SRP or the state of federal agencies. The Tribe expects that a condition of the mine permit, should it be issued, will be for a monitoring system in place prior to the start of mine operations. Limits of tolerance for changes in aquifer levels will be established at the monitoring wells to protect Zuni Salt Lake. The Barefoot Trail to Kolhu/wala:wa Every four years, Zuni religious practitioners make a pilgrimage along the Barefoot Trail to Kolhu/wala:wa, a 12, 482-acre detached portion of the Zuni Reservation about sixty miles Southwest of Zuni. This four-day observance occurs around the summer solstice, has been practiced for many hundreds of years and is well known to local residents. Thus, when Earl Platt, a local non-Zuni rancher who owns some land over which the Barefoot Trail crosses, threatened to prevent the pilgrims from observing their time honored ways, a major crisis faced the Tribe. In 1985, and again in 1989, the Tribe secured restraining orders against Platt from federal district court in Phoenix in order to prevent Platt's threatened disruption of the quadrennial pilgrimage. During this period, the Tribe and the U.S. Department of Justice were pursuing a case against Platt to gain a prescriptive easement across his lands. Zuni religious leaders worked closely with their lawyers and with expert witness anthropologists and ethnohistorians to develop the information necessary for the trial. It was decided, at the outset, that the Tribe would not pursue the case as a First Amendment freedom of religion right. Instead, Zuni sought to obtain a prescriptive easement, based on Arizona law, to allow the Tribe the right to cross Earl Platt's land on its quadrennial pilgrimage. While the clearly religious nature of the pilgrimage was never in question, the tact taken by the Tribe and their attorneys meant that Zuni only had to demonstrate peaceable and adverse possession of the land during the pilgrimage for a least ten years. As Zuni was not claiming fee title to the land in question, but rather an easement for a specific, but rather an easement for a specific purpose for which there was a long, open and notorious usage, the court found in Zunis' favor, despite the country allegations of Earl Platt. During the trial, held in Phoenix in 1990, Zuni religious leaders, attorneys, expert witnesses an other local landowners-across whose land the Barefoot Trail crosses-testified to the use of the use of the trail by Zunis on pilgrimages to Kolhu/wala:wa. Platt and his attorneys rested their case without calling even one witness. Of central importance is that the actual purpose of the pilgrimage was not the basis of the Zuni case. Rather, the use of the land, for a few days every four years in a very open and well established way, was enough to establish a prescriptive easement for the Tribe. Thus, as far as the court was concerned, the fact that this use was for a religious purpose was irrelevant t the case at hand. This case for the right to conduct the pilgrimage along the Barefoot Trail to Kolhu/wala:wa may be unique, but it may also be a useful model for other tribes. While First Amendment rights are critical to all tribes, religious freedom does not necessarily have to be protected through invocation of the First Amendment itself. Concluding Thoughts Zuni fiercely protects its religious freedom using many available avenues in addition to the Tribe's constitutional First Amendment rights. The protection of cultural and traditional religious values through the National Historic Preservation Act is now being pursued by a number of tribes. Many, however, do not yet have the experience of Zuni in applying this statute. While the focus of this article is the National Historic Preservation Act, the Tribe uses other laws to achieve the same ends. The Zuni Salt Lake issue is being addressing through the provisions of the National Environmental Policy Act, and the state and federal permitting process for the coal mine itself. Success is also being achieved by Zuni, in its roles as both a political entity and as a technical expert on culture resources, in the Grand Canyon. Here the Tribe has worked as one of a number of cooperating agencies, overseeing the preparation of the Environmental Impact Statement (EIS) for the operations of the Glen Canyon Dam. The Tribe has conducted its own technical study in the Grand Canyon (the place of the Tribe's emergence) as part of the EIS process. In addition, Zuni is continually applying its legal right to assert control over and to protect its ancestral human burials and their associated funerary objects on federal lands throughout the Southwest, under the provisions of the Native American Graves Protection and Repatriation Act (NAGPRA). While it must be acknowledged that none of the laws discussed in his paper are specifically designed to protect religious freedom, per se, using them in creative ways within the legal and regulatory framework does provide some protection for Zuni religious freedoms through the protection of cultural resources. Ensuring the protection of cultural resources involves more than simply applying rules and limits established by federal and state bureaucracies. Tribes wishing to use these legal frameworks must constantly strive to expand definitions, concepts and the means of implementation if they their cultural resource and-by extension-their religious freedom. Article copyright Cultural Survival, Inc.