Former Forest Service Attorney: “River closure is legally and morally justifiable action.”
Note: This email was written by Claire Cummings, a former Forest Service attorney, to Regional Forester Randy Moore. She says Moore has the authority and legal ability to close 400 yards of the McCloud River for our Coming of Age ceremony this month. Previous ceremonies have been disrupted by recreational boaters who heckle and flash us.
Dear Mr. Moore
I wish to strongly suggest that not only is it within your power to briefly close the McCloud River for a few days for the Winnemem Wintu’s native ceremony, as respectfully requested, but it is also a morally and legally justifiable action.
In the early 1980′s I was an Office of General Counsel staff attorney in the U.S. Forest Service Region 5. In that capacity I advised the Shasta-Trinity National Forest and other forests on many policy questions. After four years at OGC, I began practicing environmental law and I had the opportunity of representing the traditional leader of the tribe, Florence Jones. I then worked with the forest to protect their ceremonial places and practices.
When the question of the ski resort on Panther Meadows came up, the forest was in clear violation of the National Historic Preservation Act. I was representing Florence Jones and in a meeting with the then Forest Supervisor, I said: “Look, you used to pay me for my advice, and it is just as valid now: you need to come into compliance with Section 106.” Eventually, the forest did the right thing and complied.
However, over all, the U.S. Forest Service does not do the right thing when it comes to respecting cultural diversity and cultural preservation. You can find the legal justification needed for a temporary closure, even if just on the basis of public safety, given the disreputable behavior of the public toward this ceremony in the past. So it is not a matter of if you can but if you will. Better yet, consider doing the right thing for the right reasons.
Is it a matter of not wanting to look like you are “giving in” to some interest group? In this case, using the lack of tribal status as an excuse. And yet, the federal government withdrew that status from this particular group of Wintu, as part of driving them off the river, thus depriving them of their legal rights.
Nevertheless, the rights of special interests abound in your forests, from Bible camps, to permits for summer homes, to recreational use from snowmobiles to cattle pasture. All these are allowed. But not the very uses to which these lands were put long before they became the property of the U.S. government.
These cultural practices are part of the rich tradition of this country and to discriminate against them, particularly when other religious and private, for profit, uses are permitted, is to be arbitrary, or even to continue the genocidal practices of the past.
This is not hyperbole. It is the real history of native people in this country.
Still, your obligation is framed by the law and the law is well tuned toward protecting private property and private interests. I understand that, but the law provides for the use of your discretion too.
In this case, your anthropologists (not archeologists) but someone trained in ethnography, can validate the ancient roots of this coming of age ceremony, the use of the particular place as essential and the timing as integral to the cultural practice.
Plus, we are talking about a small section of river – not its entire run, just several hundred yards before it ends, boats have to turn around anyway. And for a short period of time. The only inconvenience would be toward boaters who want to come a few hundred feet more where the river enters private property, another story of the theft of native land, the Bollibokka Club, a private fishing enclave that was given to the railroad barons and their heirs.
So, what is at stake is a few hundred feet of recreational use of the river, for a few days, versus the continuation of an ancient ceremony that has taken place on that part of the river for thousands of years.
I just want to make a heartfelt request that you err on the side of respect for native culture.
If you want me to find you the legal basis for the closure, I will do so, but really, you are paying OGC attorneys to do that already.
Claire Hope Cummings