Making Live and Letting Die: the Biopolitical Effect of Navajo Nation v. U.s. Forest Service

• Publication year: 2009

SEATTLE UNIVERSITY LAW REVIEWVolume 33, No. 2WINTER 2010

Making Live and Letting Die: The Biopolitical Effect of Navajo Nation v. U.S. Forest Service

Jessica M. Erickson (fn*)

The being within, communing with past ages, tells me that once, nor until lately, there was no white man on this continent; that it then all belonged to red men, children of the same parents, placed on it by the Great Spirit that made them, to keep it, to traverse it, to enjoy its productions, and to fill it with the same race, once a happy race, since made miserable by the white people who are never contented but always encroaching.(fn1)

I. Introduction

The philosophies of Michel Foucault have long been applied to various cultures and social movements in hopes of gaining insight into how power operates within a societal framework.(fn2) One philosophy, Fou-cault's conception of "biopolitics," refers to the state's regulatory control over the population as a whole, or its ability to control the life and death of the citizenry.(fn3) Instead of exercising power at the level of each individual, "biopower"(fn4) is exercised on the level of the population; it is the power to make live and let die.(fn5)

Indian(fn6) nations have been battling for sovereignty-freedom from external control in determining the direction of their life-since the founding of this country.(fn7) Throughout its relatively short history, the United States has espoused a number of varying policies directed towards Native Americans and tribal culture.(fn8) These policies, manifested through various congressional acts and case law, have had differing impacts on native culture.

One noteworthy example is the Religious Freedom Restoration Act (RFRA),(fn9) which despite its noble purpose,(fn10) has proven to have a negative effect on tribal culture. The Ninth Circuit has erected hurdles that tribes must face in order to establish a valid claim under the RFRA. Beginning with its ruling in Navajo Nation v. U.S. Forest Service ,(fn11) the Ninth Circuit has consistently denied tribes' claims under the RFRA because evidence of "damaged spiritual feelings" is insufficient to prove that practice of their religion was substantially burdened.(fn12)

This Note explores the connection between the philosophy of Michel Foucault and current Ninth Circuit sacred site cases, primarily Na-vajo Nation v. U.S. Forest Service .(fn13) Part II of this Note discusses Fou-cault's philosophies on biopower. Part III briefly explores the evolution of federal Indian policy. Part IV provides background on Native American religions and their connection to the land. Part V outlines the Ninth Circuit's legal framework for protecting native religions. Part VI concludes the Note, arguing that the test developed from Navajo Nation should be reconsidered because of its biopolitical effect on Native American populations. In its place, a new test should be implemented that takes into consideration the unique character of the link between native religion and the land.

II. Foucault and Power

Just as the history of Indian policy is relevant to understand how tribal sovereignty and land ownership has evolved, background on Fou-cault's theories of power is necessary to understand how this power is experienced in the Native American context. Because of the strong link between Native American culture and the land, regulations affecting the land inevitably affect the native populations themselves. Foucault's theories provide a framework from which we can criticize regulation(fn14) affecting Native American sacred sites. Moreover, the nature of Fou-cauldian power explains how entire populations can be affected, or even eliminated, by certain types of legal or political decisions.

Michel Foucault, noted philosopher, historian, critic, and sociologist, is widely known for his work on power and the relationships between power, knowledge, and discourse. Foucault taught at the Collège de France from January 1971 until his death in June 1984.(fn15) In a series of lectures delivered at the Collège de France in 1975 and 1976, Foucault addressed the function of racism in the state and the specific techniques of power associated with it. In his concluding lecture, he considered two different powers he had undertaken to study in the course.

The first was the power of the sovereign: from the early modern period, the power embodied by the sovereign was a "right of life and death" over his subjects-the right to "take life or let live."(fn16) The seventeenth and eighteenth centuries saw the emergence of techniques of power that were centered on the individual body, such as torture and the modern penal system.(fn17) However, in the second half of the eighteenth century, a new technology of power emerged, which modified the disciplinary power and expanded it beyond the realm of the individual.(fn18) As Foucault explained, "[u]nlike discipline, which is addressed to bodies, the new nondisciplinary power is applied not to man-as-body but to the living man, to man-as-living-being. . . . [T]o man-as-species."(fn19) This man-as-species power did not, like discipline, try to control by ruling a "multiplicity of men to the extent that their multiplicity can and must be dissolved into individual bodies that can be kept under surveillance, trained, used, and, if need be, punished."(fn20) Rather, this new power is established to address a multiplicity of men "not to the extent that they are nothing more than their individual bodies, but to the extent that they form, on the contrary, a global mass that is affected by overall processes characteristic of birth, death, production, illness, and so on."(fn21) It is this "massifying" and not "individualizing" power which Foucault called the "biopolitics of the human race."(fn22)

While disciplinary power is applied on an individual level to train and make use of the body, the second kind of power functions on a different scale and is implemented in a very different way.(fn23) This power, called biopower, is applied to the human species through a biopolitical form of government.(fn24) According to Foucault, biopower emerged during the eighteenth century as a result of the rapid growth of various disciplines and regulations designed to control burgeoning populations.(fn25) Such power reduced life into a series of exacting calculations by the state and assigned knowledge as the power to transform human life.(fn26) The subject of the state's calculations increasingly became the life and death of the population as a whole, as opposed to specific individuals.(fn27)

It is this slow evolution away from using political power to control the individual, to "take life or let live," and towards the impact of political power on all aspects of human life that Foucault describes as the "right to make live and to let die."(fn28) Another way to view this is to look at it as the contrast between an epidemic and an endemic. Instead of an epidemic, which suddenly causes more frequent deaths, an endemic has permanent characteristics and factors that often work over time, that is, "illness as phenomena affecting a population."(fn29)

While biopolitics most obviously concerns population-level health regulation and policy, it also encompasses environmental regulation. Foucault explained that control over the human species is also exercised by control over its environment, the "milieu in which they live."(fn30) This includes direct effects on geographical, climatic, or hydrographic environment, including "the problem of the environment to the extent that it is not a natural environment."(fn31) Basically, when you control a population's environment, you control the population.

Foucault's philosophy on biopower has primarily been connected to scholarship in the medical field and the field of health regulation.(fn32) However, any time a regulation, a court ruling, or even a social norm affects the ability to live, Foucault's ideas apply. The exercise of bio-power to "compel conformity and its tendency to oppress and alienate results in political struggles and strategies that manifest in culture wars over one's 'right' to life (and to death), to health, to happiness, to one's body, and 'to rediscovery of what one is and all that one can be."(fn33) This right to rediscover oneself and determine specific opinions and worldviews includes religion. Therefore, within the Native American context, regulation of the land, manifested through judicial holding, has a biopolitical effect on life because individual and tribal identity are inseparably connected with what is being regulated-the land.

III. A Brief History of Federal Indian Policy

Federal Indian policy has a long and varied history in the United States.(fn34) Occasionally, sentiments focus on tribes as inherent sovereign bodies associated with a particular geographical base protected by the federal government.(fn35) However, the dominant policy has been to completely disseminate tribes and assimilate their members into non-Indian society.(fn36) The tension between these disparate views is still felt in current Indian law cases. For this reason, it is unsafe to presume that federal Indian policy has settled in one particular direction.(fn37)

During early colonial times, tribes were viewed as sovereign pow-ers.(fn38) However, as the colonies continued to expand and the American Revolution came and went, tension grew between Indian and non-Indian populations...