Stand With Standing Rock Nov 11-15 2016 | Image via Flickr user Leslie PetersonIndigenous peoples articulate their indigeneity within the political and legal language of secularism, even as it renders certain claims to indigeneity illegible. In this short essay, I examine the close linkages between secularism, settler colonialism, and Protestant Christianity in three interconnected issues in the United States context: sacred sites, temporality, and divine right.

The Thirty Meter Telescope at Mauna a Wākea

Although claims to indigeneity are often linked with a commitment to the sacrality of land, they need not be. However, the ways in which indigenous peoples articulate their relationships to land tend to differ greatly from the ways in which settlers and their descendants often do. For example, in the context of indigenous peoples subject to US state authority, the articulation of indigeneity vis-à-vis abiding to a belief in the sacrality of land varies greatly and is not necessarily the grounds upon which land claims are asserted.

For example, in the contestation over the Thirty Meter Telescope (TMT) at Mauna a Wākea on Hawai’i Island there has been a protracted legal battle for years over whether TMT officials can proceed with the $1.4 billion project for an eighteen-story observatory on the summit that Kanaka Maoli (indigenous Hawaiians) assert is sacred. Meanwhile astronomers and other TMT proponents continue to uphold westernized scientific knowledge as sacred. As David Maile has theorized, they mobilize the categories of science and time used to describe the TMT in order to justify capitalist-colonialist violence done to Mauna a Wākea.

Plaintiffs in the case insist on the sacrality of the summit, but that is not the basis of their legal challenge. The six appellants formed a group, The Mauna Kea Hui, which challenged a decision by the state Board of Land and Natural Resources (BLNR), which granted a conservation district use permit to the University of Hawaii at Hilo for construction of TMT. The group filed a lawsuit in 2013, alleging that the BLNR violated due process and failed to properly issue a permit for construction of the telescope. Meanwhile, opponents of the project organized to block roads and stop vehicles from getting through to a groundbreaking ceremony. In April 2015, protests grew with crowds of people gathering at the 9,000-foot level of the nearly 14,000-foot high mountain to stop the project, effectively halting construction. The state’s Third Circuit Court affirmed the BLNR decision, so the Mauna Kea Hui appealed to the Intermediate Court of Appeals (ICA). The Hui filed an application to transfer the case to the Hawaii Supreme Court, which took up the case and issued its decision in November 2015, temporarily suspending the TMT permit.1I should note that I offered testimony in the first contested case in 2011, which was later cited in the 2015 Hawaii Supreme Court ruling. See J. Kehaulani Kauanui, “Written Direct Testimony,” Kahea: The Hawaiian-Environmental Alliance; Supreme Court of Hawaii, “Opinion of the court,” December 2, 2015.

In a concurring opinion, Supreme Court Justice Richard Pollack wrote that the BLNR “failed to conduct a contested case hearing before deciding the merits of UH’s application and summarily granted the requested permit without duly accounting for the constitutional rights and values implicated. The board acted in contravention of the protections of Native Hawaii customs and traditions.”

Although the Mauna Kea Hui asserts the sacredness of the mountain, the lawsuit they filed alleged that the state had violated due process and failed to properly issue a permit for construction of the Thirty Meter Telescope. The court agreed, and remanded to state Circuit Court for a new contested case hearing, which proceeded in 2016. Hence in the group’s efforts to protect the mountain as a sacred Native Hawaiian place, they were tactically confined to work within state laws given the structural force of US occupation of the Hawaiian Kingdom that eventually led to unilateral annexation in 1898 and “50th statehood” by 1959. Nonetheless, the assertions of the sacred by the protectors were what spoke to people around the world who stood in solidarity, including but not limited to others indigenous individuals.

One of the youth leaders who camped at Mauna a Wākea to stop construction, Joshua Lanakila Mangauil, explained to media time and again that he and the other protesters (self-identified “protectors”) are not against the scientific goals of the telescope, but they believe that construction of another telescope will further desecrate the sacred mountain. As he put it,

This is a new time when we are greatly waking up to the combined responsibility of protecting our sacred places and our natural world . . . . Truth and dedication to standing firm with aloha in our hearts and combining the strengths of every member of our community is what has brought us this victory, and united we will continue.

Regarding the assertions of sacrality, the protectors also highlighted the fact that construction would disturb burial sites on the mountain. However, one of the centerpieces of the legal case regarding the permit was based on the fact that the proposed telescope’s structure was to be built underground and hence contaminate the main water source of the “Big Island” that originates from the mountain peak through snow melt and rain. Protectors also cited the flora and fauna unique to the mountain. Similar negotiations of sacrality and legal strategy played out, and attracted wide public attention, in the case of the Dakota Access Pipeline.

Claiming “Firstness”

Another example of how claims to indigeneity need not be directly linked with a commitment to the sacrality of land is through what Elizabeth Povinelli has theorized as “the governance of the prior”—a claim to firstness. She interrogates the paradox of claiming “firstness” in relation to the form of liberal governance in settler colonial states (forged through British settlement) that also rest on the governance of the prior. She shows how indigenous claims to being prior are easily coopted by the presuppositions underpinning political theory, social theory, and humanist ethics (obligation) which are themselves undergirded by English common law that relegate indigenous priors (practices) to customary traditions. Speaking to the US state, Povinelli explains:

Articulating itself as a “creole state,” a negative projection of the metropolitan state, Americans could claim and experience themselves as the prior occupant of the Americas: projecting itself against the metropole, the settler state constituted itself as prior to it. But in acceding to the logic of the priority of the prior as the legitimate foundation of governance, the settler state projected the previous inhabitants as spatially, socially and temporally before it as the ultimate horizon of its own legitimacy.

In this logic and structure, the governed prior (the indigenous) would be the customary, while the other prior—the governing prior (the settler society)—would be free.

Jean M. O’Brien had theorized this division as a process of “firsting and lasting” in the settler quest to write Indians out of existence in New England. She argues that local histories became a primary means by which European Americans asserted their own modernity while denying it to Indian peoples. Hence the Native “prior” (the last) is relegated to the preface of “real” history of the settler society, which claims to be “the first.” In other words, indigenous “primitive” life is relegated to the past deemed primitive, a pre-modern preface against which the settler society can write its own modern freedom. For example, settler regard for indigenous concepts of the sacred have been dismissed as “superstitious” and “heathen” as settlers and their descendants assert their own secular modernity by contrast, often in discourses of “progress.”

Povinelli, like O’Brien, identifies an unresolved temporal paradox that produces the conditions of indigeneity as prior to and a prior of the law at the same time; the law debases indigeneity from having any “prior” at all. She urges scholars of critical indigenous studies to move beyond the claims to “firstness” since the settler state continuously “projects the previous inhabitants as spatially, socially and temporally before it as the ultimate horizon of its own legitimacy.” She suggests, “Indigenous critical theory intervenes in something rather than explains something, not because it is located within the existing aporia of law and justice but because it lies in a particular spacing at once inside and outside of it.” Tending to this temporality question can potentially make for an intervention of what is considered sacred while refusing the colonial binary of insider or outside, secular or sacred.

Separation of church and state?

Western colonization of the “New World” was itself grounded in suppositions of the sacred. The Age of Discovery mandated by the Papacy that enabled the dominance of Europe and its colonies over indigenous peoples is based on the notion of Christian supremacy and divine right, which continues as a form of domination into the present. By the authority of Catholic Monarchs Isabella I of Castile and Ferdinand II of Aragon, the Christian Reconquista preceded support of Christopher Columbus’s 1492 voyage, the expedition that opened the way to genocide, colonization, and the enslavement of indigenous peoples.2See The Doctrine of Discovery: Unmasking The Domination Code, a film by Sheldon Wolfchild (director), co-produced by Steven Newcomb. Also in 1492, the monarchs issued the Alhambra Decree ordering the expulsion of practicing Jews from the Kingdoms of Castile and Aragon and its territories and possessions.3See The Doctrine of Discovery The 1493 papal bull written to legitimate Columbus’s second voyage to the Americas was subsequently used to justify colonial powers’ claims to lands belonging to sovereign indigenous nations. The doctrine established Christian dominion and subjugated non-Christian peoples by invalidating or ignoring aboriginal possession of land in favor of the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch.4See Steven Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, (Golden, CO: Fulcrum Publishing, 2008).

As Steven Newcomb documents in Pagans in the Promised Land, contemporary US laws that undercut indigenous claims to sovereignty can be traced back to Christian medieval law.5Independent states throughout the world continue to impose this notion of the “pre-modern” savage as a mechanism of control in their negotiations with indigenous peoples’ legal status and land rights. One result is that there is no global consensus that indigenous peoples have the right to full self-determination under international law. As Newcomb details, the Puritans drew a parallel between themselves and the Children of Israel, escaping religious persecution in Europe just as the ancient Hebrews were led out of Egypt. America was their “Promised Land,” making way for the doctrine of Manifest Destiny.6See also Steven Paul McSloy, “‘Because the Bible tells me so’: Manifest Destiny and American Indians,” Indian Country Today Media Network, 2004. The concept of Manifest Destiny thus stems from Puritan claims of destiny under God’s mandate to settle North America as articulated by John Winthrop in his 1630 sermon for “City upon a Hill”—the belief that they were divinely elected to settle the North American continent.

Consider as an example the enduring Discovery Doctrine, which undergirds all US federal Indian policy. United States justification of dominance vis-à-vis indigenous peoples is premised on Old Testament narratives of the “chosen people” and the “Promised land,” as exemplified in the 1823 Supreme Court ruling Johnson v. McIntosh. This landmark decision that held that private citizens could not purchase lands from Indian tribes, and the foundations of the court’s opinion lay in the “discovery doctrine.”

Based on this ruling still today, the United States government considers Native Nations as mere occupants of their traditional homelands, with “use rights” based on the court’s invention of the concept of “aboriginal title.” As Newcomb highlights so vividly, the United States’s claim of separation between church and state is a farce. Settler colonial rationales for the taking over of indigenous peoples’ homelands are grounded in Judeo-Christian concepts of the sacred, even as they purport to be guided by secular law.