Rebecca Tsosie

Are We Part of a “Moral Universe”? A Response to Easterine Kire’s “Dark Earth”

“The real interest of the old Indians was not to discover the abstract structure of a physical reality but rather to find the proper road along which, for the duration of a person’s life, individuals were supposed to walk. This colorful image of the road suggests that the universe is a moral universe. That is to say, there is a proper way to live in the universe. There is a content to every action, behavior, and belief. The sum total of our life experiences has a reality.”[1]

—Vine Deloria, Jr. (Standing Rock Sioux)

In “Dark Earth,” Easterine Kire introduces us to Oyangmopa, a young man struggling to define his “reality” as the grandson of a knowledge keeper and village elder who introduced him to the stories, values, and traditions that had always guided the moral universe of his people. Oyangmopa’s upbringing did not prepare him for his current vocation as a coal miner, and he spends his days extracting the lifeblood of the earth for the profit of the mine operators and land owners who employ him. Nonetheless, Oyangmopa perceives a duty to undertake this work in order to support his mother, as her only son. His world changes when he experiences dream premonitions that warn him of danger, followed by work-related fatalities for some of his fellow miners.

Kire’s story explores the fundamental lessons of what we might term “Indigenous sustainability.” Indigenous peoples share a close relationship to the places that they have stewarded and lived upon for millennia. For most Indigenous peoples, “sustainability” is the “result of conscious and intentional strategies designed to secure a balance between human beings and the natural world and to preserve that balance for the benefit of future generations.”[2] Indigenous knowledge has a core relationship to the practices of sustainability. Framed as “science,” Indigenous knowledge provides an accurate understanding of animals and plants, ice and snow, storm patterns, and river surges over time. The precision of Indigenous knowledge is often astounding to Western scientists, who have utilized this knowledge to “discover” entirely new species, and benefited from its ethnobotanical insights about the medicinal qualities of certain plants.

Framed as “ethics,” Indigenous knowledge offers a valuable framework to understand the “moral nature of the universe,” including the optimal relationship between human beings and other parts of the natural world. Within many Indigenous traditions, animals, plants and even stones may be considered “other than human” persons.[3] They are understood to be in a “kinship” relation to the Indigenous people, and various duties of care emerge. This relationship is embodied, for example, within the traditions of many Native Nations in the Pacific Northwest, who share a close relationship with Salmon. Similarly, the Lakota and Dakota people of the Plains share a close relationship with Buffalo, and the Gwich’iin’ People in Alaska share a close relationship with Caribou.

Indigenous knowledge also offers valuable lessons about what happens when human beings fail to carry out their duties and responsibilities to the natural world. The desecration of sacred places or species always has an impact upon human beings, and, in many cases, the transgressions cause spiritual harm, as well as physical harm. Spiritual harm is not a category of injury that is easily understood by Western jurists or policymakers. For this reason, it is often quite difficult for Indigenous peoples to secure their moral understanding of the appropriate relationship between humans and the natural world.

This leads to the dynamic tension between the “spirit world” and the “material world” that Oyangmopa must navigate. He and the other men from his village are told that mining is necessary to their survival and that they must work to feed their families. Consequently, the practice of burrowing into the Earth to extract coal becomes normalized, and Oyangmopa’s dream premonitions are dismissed, first by Oyangmopa, who fears being ridiculed, and then by the other workers, even as the dreams and deaths persist. Although the miners instinctively know that Oyangmopa’s warning dreams might be prophetic, they make an effort “to prioritise work.” To heed Oyangmopa’s warning would require them to pack up and go home: “They didn’t say it, but they thought it in order to press down their own knowledge of the world of dreams, omens and prophecies.” The lessons from traditional knowledge are often inconvenient truths in the modern world.

Which world embodies “reality”? For the mine operators, land owners, and the workers, the material world constitutes reality. Resources have an economic value in the market, and the harms of coal mining are underestimated in the economic calculus. The traditional people of the villages have a different understanding: “The elders were unhappy that the mine-owners had turned a deaf ear to the prophecies, dreams and messages from the spirits of the Earth.” The last straw was when the mine owners decided to pursue “exploratory mining in the territory of the spirit forest,” a sacred part of their homeland and one that the elders had advised could not be desecrated without causing great harm.

This reality haunts Oyangmopa in his dreams, where the spirits whisper to him in the old language and then chant their warnings until he awakens in fright. Oyangmopa starts to understand the larger context of harm, he sees the “drastic changes in the weather,” bringing “unseasonable heat and excessive rain,” and making the traditional farming practices “untenable.” Oyangmopa’s vocation as a coal miner actually contributes to his inability to survive as his grandfather did, by farming the land. However, he doesn’t fully understand the impact of these actions until the spirits “abduct” him to a cave. There, using the ancient language, they instruct him: “We who live under the earth and you who make your homes above the earth—are bound by an ancient relationship, one that has been broken. If you fail to take care of us, you will eventually perish along with us.”

Oyangmopa then understands that the toxic residue of coal mining has poisoned the water and livestock, and that the climate has shifted radically since the start of the coal mining. The mining desecrated the sacred forest, jeopardizing the survival of the village and the places that always nurtured them. The spirits enable Oyangmopa to “see” the relationships at the level of spirit, the web of life in which every aspect of the natural world is interdependent with all else. As he moves toward his home in the village, “everything looked strangely vivid…There were circular concentrations of light moving in the forest. In some instances, the orbs hung between trees, and in others, they connected birds to trees, and animals to the forest floor with threads of light.” Oyangmopa sees the world as his ancestors saw it, animated by the life force of the earth, the water, and the forests, providing sustenance to all of the animals, plants, and human beings who operate within that web of life.

The beautiful image shatters as Oyangmopa hears the bulldozers crashing through the trees, and he then hears the “screams” of the forest as it writhes in pain, the orbs shatter, and the people collapse to the ground in the throes of death. His grandfather’s voice comes to him, as it has throughout his dreams, alerting him that he is now the “knowledge carrier,” and it is his duty to protect the sacred web of life within the earth and forest. He finally understands the lessons of his youth, that those who “understand with their hearts, learn” and that he has a duty to “carry out what he has been entrusted with.”

Indigenous peoples often describe a stewardship responsibility in relation to their ancestral territories. In an era of climate change, Indigenous sustainability is the key to the planet’s survival.[4]  Globally, Indigenous peoples comprise approximately 5% of the world’s population and they reside on lands that make up less than 25% of the earth’s surface. Significantly, those lands also house 80% of the world’s biodiversity. The rapid development of the twentieth and twenty-first centuries has come with a great cost, measured by the increasing levels of greenhouse gas emissions that imperil our collective future. Yet multinational companies increasingly seek to engage in mining on Indigenous territories or install oil pipelines across their lands. In Brazil, the Amazon rainforest is being destroyed at an alarming rate, given the fact that the world’s forests operate as the “lungs” of the earth. Indigenous people are often displaced or forced into labor, and they may be unable to effectively continue their traditional practices of farming, hunting, fishing, or gathering because of the impacts of climate change.

The story that Kire relates has analogues throughout North America, South America, Asia, and Africa. On all of these continents, national governments lease land to multinational corporations so that they can engage in mining and deforestation, over the protests of Indigenous peoples. This is also true in the United States with respect to federal “public lands” which often have a “multiple use” mandate that authorizes mining and other destructive forms of development. It has been virtually impossible for Indigenous peoples in the United States to secure any form of enforceable protection for their sacred sites on “public lands.”[5] For the most part, the federal agencies will adhere to their procedural obligations to “consult” with the tribal governments or conduct environmental or cultural resources surveys. However, if the procedural requirements are met, the agency has considerable latitude to develop public lands as it chooses. This dynamic is now underway on the Arizona/California border, where Glamis Gold, Inc., a Canadian mining firm, acquired mining claims starting in 1987 on federal land managed by the Bureau of Land Management (BLM), northwest of Yuma.[6] In 2000, portions of this area were withdrawn from development due to their environmental sensitivity and the abundance of cultural resources that are affiliated to the Quechan Nation. The withdrawal terminated after twenty years, leading the successor corporation to revive its claim for a permit to develop an “open pit” gold mine that will use cyanide to leach the gold out of the rocky soil.

The Quechan people have always considered this area sacred. Tribal members pray there and hold ceremonies to renew the Earth. In 2009, the Quechan prevailed in their fight to halt issuance of the mining permit. The protests were costly to Glamis, which transferred their mining claims to another multinational corporation. Now that the withdrawal from development has expired, the Quechan people are renewing their fight to prevent the Canadian company from developing what they call “Snake’s blood.” For the Quechan, this is necessary to ensure the cultural survival of the Tribe, as well as to honor and protect the lands that they have stewarded since the time of Creation. Environmentalists agree with the tribal members that the mining would poison the land and water, and jeopardize the sensitive habitat.

For the Quechan, their traditional stories counsel against the lust for gold. One Quechan elder relates the traditional narrative to the current controversy, concluding that:

Quechan, the Hokan people, believe that gold is the snake’s blood. When the snake was killed and his blood came out, it was gold. The snake’s spittle was silver, and his urine made the oceans salty. And so the power of that snake is what people want, but it’s killing them. And that’s where that snake, that snake’s blood, is powerful, he’s a killer.[7]

The lands at issue were once part of the Quechan’s traditional territory, but they are now under the jurisdiction of the BLM. Thus, the fate of the Quechan’s moral universe rests in the hands of the federal agency and the Canadian corporation that purchased the mining claims from Glamis Gold.

Of course, the same set of tensions can also arise from the decisions made by sovereign tribal governments. Within the last half century, the reservation lands of American Indian Nations have been described as “resource rich” and “income poor.”[8] Reservation communities often have astounding levels of poverty, yet they comprise some of the most valuable lands for mining and forestry. This has incentivized some tribes to engage in mining, including hydraulic fracturing and oil and gas development. These lucrative forms of mining have transformed some reservation economies from poverty to wealth, seemingly overnight.  As the energy economy has shifted away from fossil fuels, some tribes have advocated for an exemption from closure of coal-fired power plants, given their dependence on the revenue from their coal mines.[9]

Tribal lands also house rich reserves of uranium, and an estimated 25% of the recoverable uranium in the United States is located on the lands of the Navajo Nation.[10] The Navajo Nation has experienced extreme levels of contamination from the uranium mines that were operated on Navajo land from the 1940s through the 1970s. There are over 900 abandoned mines on the Navajo reservation, and remediation has not even started on most of them. The toxic residue persists, contaminating the water and soil. The Navajo Nation issued a moratorium on new uranium mining on tribal lands in 2005,[11] and it has publicized the need for additional funding to clean up the toxic residue of past mining.  On the non-Indian-owned fee lands in the “Checkerboard area” adjacent to the Navajo reservation, in situ leach (ISL) uranium mining has been authorized by the state of New Mexico and the federal Nuclear Regulatory Authority. Tribal law does not extend to the fee land in this area, and even though the population of the area is virtually all Navajo, there is no formal recognition of tribal values within the policies and rules that govern drilling permits.

The tension between the “sacred” and the need for economic development persists at a global level for the Indigenous peoples that have always been part of the land. One scholar has described sacred places in China as subject to “community spiritual governance” as well as “state resources governance.”[12] Zhou discusses the efforts of local communities in Tibet to oppose development and tourism within their sacred mountains, and the response of government officials, who are committed to “secular” values and generally disregard the belief systems of local communities. According to Zhou, the local communities are expressing a form of “community spiritual governance,” and they often warn of disasters that will befall those who transgress the lands of the Mountain God. In many cases, the disasters occur. The State’s system of natural resource governance lacks the capacity to understand the spiritual governance system, prompting the author to suggest a human rights–based approach that will promote an integrated social-environmental-cultural assessment and recognize the values of the local communities.

The strongest contemporary expression of respect for the rights of Indigenous peoples is located within the United Nations Declaration on the Rights of Indigenous Peoples, which was adopted in 2007 by majority consensus of the U.N. General Assembly. That document recognizes that all Indigenous peoples possess the right to “self-determination,” including the right to “freely determine their political status and freely pursue their economic, social and cultural development.”[13]  Relevant to the topic of this essay, Article 25 provides that:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Oyangmopa’s call to action evokes the “spiritual relationship” that exists between Indigenous peoples and their traditional places and their “responsibilities to future generations.” Indigenous peoples have always been part of a Moral Universe in which all actions have consequences. Some consequences are visible and immediate. Others are not visible, but they can affect our collective future. This is the lesson of Indigenous sustainability in an era of climate change. Will we heed the messages and protect the Earth, or will we march forward on our path of destruction? As Vine Deloria, Jr. has observed, elders and knowledge-keepers within Indigenous communities understand the world to be governed by a different metaphysics. The elders understand that we are subject to powerful, yet unseen forces, and we must be respectful of the “larger cosmos” that is often beyond what our limited senses can discern.[14] It takes courage to live in a Moral Universe. That is Oyangmopa’s journey, and it should be ours.

[1] Vine Deloria, Jr., “If You Think About It, You will See That It is True,” in Barbara Deloria, Kristen Feohner, and Sam Scinta, Spirit & Reason: The Vine Deloria Reader, p. 46 (Fulcrum Publishing, 1999).

[2] Rebecca Tsosie, “Indigenous Sustainability and Resilience to Climate Extremes: Traditional Knowledge and the Systems of Survival,” 51 Conn. L. Rev. 1009, 1013 (2019).

[3] See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge,” 21 Vt. L. Rev. 225, 286-87 (1996).

[4] See IPCC, 2019: Climate Change and the Land.

[5] See, e.g., Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), holding that the U.S. Constitution’s Free Exercise clause does not preclude government from developing a sacred site on federal public land, even though this would foreclose the tribes’ ability to practice their traditional religion.

[6] See Debra Utacia Krol, “Tribe prepared for fight vs. mine: Gold plans near Yuma involve ancestral lands,” Arizona Republic, May 9, 2021, A1.

[7] Ibid. at 10A.

[8] See, e.g., Terry L. Anderson, Unlocking the Wealth of Indian Nations (Lexington Books, 2016), endorsing economic development of Indian reservation and integration into market economy.

[9] See Rebecca Tsosie, “Climate Change, Sustainability, and Globalization: Charting the Future of Indigenous Environmental Self-Determination,” 4 Envtl. & Energy L. & Pol’y J. 188, 225-236 (2009), discussing the Navajo Nation’s economy in relation to coal mining.

[10] See ibid. at 218.

[11] Ibid. at 221.

[12] Zhou, “Community’s Sacred Mountains vs State’s Natural Resources: Towards a Rights-Based Governance on Cultural and Biological Diversity in China,” publication forthcoming, Nordic Journal of Human Rights (2021).

[13] Article 3, UN DRIP.

[14] Vine Deloria, Jr., The World We Used to Live In: Remembering the Powers of the Medicine Men, at 194 (Fulcrum Publishing, 2006).

REBECCA TSOSIE

Rebecca Tsosie is a Regents Professor of Law at the University of Arizona, where she is also Faculty Co-Chair for the Indigenous Peoples’ Law and Policy Program. She is widely known for her work in the fields of Federal Indian Law and Indigenous peoples’ human rights. She is a Supreme Court Justice for the Fort McDowell Yavapai Nation, and an Associate Judge on the San Carlos Tribal Court of Appeals.