Q&A: Shannon Keller O’Loughlin on the border wall, religious freedom, NAGPRA and sovereignty

The Supreme Court announced last Monday that it would take up a case involving the U.S.-Mexico border wall.  There’s been no shortage of lawsuits filed against the Trump administration to try stopping construction of the wall. Most of the lawsuits are focused on money, specifically the administration’s use of Pentagon funding to build the wall along the country’s southern border.  

A pair of lawsuits filed recently by several Kumeyaay tribes in Southern California, though, have sued the federal government to halt construction of the border wall based on religious and cultural grounds. At issue is the wall’s impact on the tribes’ sacred sites, including the unearthing of ancestral remains and sacred artifacts.” 

“We cannot sit back and continue to watch the bones of our ancestors being dug up and strewn about like random debris,” one Kumeyaay member told Native News Online in August when the first suit was filed.  In September, the second lawsuit argued that the border wall was hampering the rights of Kumeyaay tribes to practice their religious beliefs and cultural traditions.  

Native News Online spoke with attorney Shannon Keller O’Loughlin (Choctaw), executive director Association on American Indian Affairs, about the border wall, religious freedom and tribal sovereignty. The conversation with O’Loughlin comes on the eve of the AAIA’s 6th Annual Repatriation Conference, which kicks off in a virtual format starting Monday, Oct. 26.

This year’s conference promises to dive into the 30th anniversary of the Native American Graves Protection and Repatriation Act (NAGPRA), which O’Loughlin calls “probably the most significant human rights legislation that the U.S. has ever passed.” The 1990 law requires federal agencies and institutions that receive federal funding to return Native American cultural items — including human remains, funerary objects, sacred objects and objects of cultural patrimony — to Indian tribes.  

NAGPRA also established procedures for inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands. Federal agencies are mandated under NAGPRA to consult with Indian Tribes to carry out graves protection activities on federal projects like the border wall.    

Native News Online: NAGPRA is turning 30 years old next month, and there are literally hundreds of treaties, federal laws and executive orders about tribal rights and tribal consultation on federal projects.  Yet, the wall is still being built on sacred American Indian lands without proper consultation with the tribes or regard for their religious and cultural beliefs.  How is this still happening in 2020? 

Shannon Keller O'Loughlin: Right? Or anything else—pipelines or any type of construction and development without considering religious freedom. I think this really has to do with the United States’ history in assimilating Native peoples. That history begins in 1492, but the real federal legislation begins in the 1800s with these civilization regulations, which outlawed the practice of any American Indian religion and had punishment tied to that practice. You would have your rations taken away. You could be imprisoned. And, of course, at the same time, your children were being taken and forced to go to school. 

There's been consistent federal law until the 1970s that outlawed and prevented American Indian religious practices, cultural practices, language from being spoken. And the attitude that is connected to that type of thinking — that American Indian religious activities are somehow “different,” “separate from,” “evil,” “pagan,” (or) “heathen” — have not changed over time.

Not all religious freedom is created equal in our country, right?

We still consider (the U.S.) a great, Christian country. And even with our First Amendment, which provides for freedom of religion and separation of church and state, we’re still fighting these fights. What's interesting about arguments of American Indian religious freedom, which we have not been able to protect sufficiently, is that there has been this history of coercion, which has impeded our ability to practice our religion free of interference from the government and what's happening on the border is exactly that. There's actually physical coercion that is preventing us, preventing the Kumeyaay from practicing their religions as they believe and as they have believed for thousands of years. 

Do you think most non-Natives understand that what's happening, in effect, is that the federal government is bulldozing the Indian Country equivalents of Arlington National Cemetery or Catholic churches and cemetaries — all so they can build a wall?

Again, I think this is an issue of having a society that is strongly Christian, and that other religious practices and cultures aren't given the protections they deserve. I think it's also a failure of our public education system and our other institutions, including our museums and schools and universities, that keep Native Americans invisible in the public eye. We are only about 2 percent of the population, but the atrocities that continue to occur regarding Native American rights and freedoms should be like a canary in a coal mine.

What’s the canary warning the other 98 percent of the population about? 

By protecting Native American religious freedom and rights, we're also protecting our own as a society. You know the whole idea of protecting marginalized peoples in our society will also help protect the majority — (that) does not seem to be valued highly, definitely not in this current administration.

Let’s talk about government-tribal consultations.  What do people need to know about how it works — or doesn’t, as the case may be?

Consultation is a very formalized process that executive agencies undertake with proper notice. There have been some agencies attempting consultation that have not gone forward very well in this administration, but particularly in the time of COVID when the consultation has had to be virtual. Tribes are very much against that kind of consultation because you're really not able to get into the weeds and you're not able to communicate as effectively as you can in person. So those consultations that I've been able to listen into at the time of COVID have been really clunky and not very productive. 

What needs to happen to make it productive? Like what should be happening?

Well, that's an interesting question, because it's a question really about how do you do good consultation as the federal government defines it — or what is really needed ... to really have a true government-to-government relationship? 

What could that look like? 

I would think we can look at the dialogue about free prior and informed consent to better understand what should be happening between governments. So when it comes to, for example, cultural heritage, who is the owner of a particular tribe's cultural heritage? Who is a caretaker? Who has jurisdiction over the tribe's cultural heritage? And if that's the case, shouldn't they have free prior and informed consent before anything damaging happens to their heritage?

What you're talking about sounds like something more than consultation. 

That's much different than consultation. That means, "Hey, I'm a sovereign government. If I say, no you can't, there's nothing that you can do to help mitigate damage to this in your project. And so you can't do it." 

Then the purveyor of the project would need to find another way to operate that doesn't damage that heritage. And that's just not the process that we have now. We simply have a check-the-box, federal process of consultation that is no more than listening to tribal government concerns and then acting at the government's interest.

Acting how they were going to act before they even talked to anybody?

Right.

Is this just a symptom of the Trump administration? You were a part of the Obama administration. Was it just a totally different story, that the tribe didn't have to litigate this type of stuff to get noticed?

This has been an ongoing struggle. Forever. Since 1492, or whenever the first colonial foot stepped on Turtle Island. This has been ongoing, it's not particular to an administration, but under the Trump administration it has been exacerbated by energy development and border wall and other issues that Trump has had on his short list.

So does some of this begin to change if we have a Biden presidency or is it more of the same?

It's still not clear. I think we're in a special time, maybe special is not the right word, but we're in a time of crisis. And that includes how we handle issues of diversity and race. And I don't think we can truly be clear about how best to do that until we go back to the beginning and repair the relationships with indigenous peoples and understand what we did wrong, the founding of this country, that we had to erase other people for our own success. And I think we need to come to some type of truth and healing about our history in order to move forward. And unless we educate our body politic about the issues in context of that history, I don't think the Biden administration or anybody else is going to be able to change it.

How does that happen? 

It has to be a sea change. It has to be a sea change in how we look at indigenous rights. And when you have the watershed legal decisions coming out of the U.S. Supreme Court, which are based on Native Americans being inferior, being savages and not capable of handling their own affairs. When that's what your laws are based on, you're never ever going to be able to change the attitudes of the body politic. 

Interview conducted and condensed for clarity by Brian Edwards. 

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