Tradition is inherited; it is a customary pattern of thought and action. Elements of tradition, such as religious customs or social and attitudinal norms, are inherent in every culture and society. A law is a binding custom. It differentiates between legal and illegal and dictates how one should act in any given environment. On the surface, tradition and law are quite similar. They often inform each other, working in tandem to dictate our behaviour.
However, there comes a point where tradition and law stop working together and are in direct opposition. Many Native American and Alaska Native tribes find themselves engaged in legal struggles to protect their traditions from activists and the United States governments, both state and federal.
What is left to question is whether or not the US government has any jurisdiction over these traditions and where the line between tradition and law can be drawn. This struggle is particularly evident in the two cases: the Northwestern Makah tribe’s legal battle over a whaling treaty and the Navajo tribe’s troubles over the legalisation of peyote for religious use in the Native American Church.
Makah Tribe's Whaling Practices
The Makah tribe is located on the Olympic Peninsula in Washington State. Central to their culture is whaling or whale hunting. The event is deeply spiritual and is the subject of Makah music, art, dance, and design. Whaling serves practical purposes as well and benefits the whole tribal community. It is so integral to their society that they ceded thousands of acres of land to the US federal government in exchange for the right to continue whale hunting.
However, this tradition halted for around seventy years in the twentieth century due to a dangerously low population of grey whales from overhunting. In 1999, the Makah tribe had their first successful hunt amid mass protests. The Ninth Circuit Court of Appeals ruled that their hunting did not appropriately address environmental concerns and banned it, despite the treaty remaining in place. Twenty years later, the Makah tribe began to fight back.
The aforementioned treaty from 1855 does not require that the Makah tribe obtain permission from the federal government to hunt but the tribe did so to maintain a good relationship. Activists against whaling are basing their claims on the potential for whaling to dramatically reduce the grey whale population. However, the Makah are not partaking in commercial whaling. Instead, they are whaling for subsistence, keeping the number of kills to a bare minimum. They also use every part of the whale, resulting in minimal waste.
As the treaty has yet to be overturned, the Makah still have the right to continue whaling. Whaling is such an integral part of their traditions and the ban is beginning to cause cultural decay. Given the circumstances, both legal and traditional, the Makah tribe should be able to hunt. Thousands of years of tradition exist within the event. If they were to commercially hunt whales, this would pose a problem to an increasingly fragile ecosystem and there should be serious discussions surrounding its legality. As this is not the case and the tribe is advocating for lifting the ban for their own spiritual and traditional purposes, allowing them to continue the hunt would have an incredibly minimal impact. Additionally, given that the treaty the Makah tribe has with the government was never revoked, there is no legal basis for the ban. As of December 2020, the tribe has yet to hear a verdict from the Ninth Circuit.
Navajo's Efforts to Legalise Peyote
A few states south of the Makah tribe, the Navajo face similar struggles. An amendment to the 1978 American Indian Religious Freedom Act passed in 1994 dictates that only Native Americans are allowed to use peyote, and only in religious settings.
Peyote, a powerful hallucinogenic drug and a sibling to drugs like magic mushrooms, is used in small amounts by the cross-tribal Native American Church during religious ceremonies. The Church believes that using peyote allows them to more directly connect with God (The Great Spirit) or his Indigenous equivalent. Given the controversial nature of hallucinogenic drugs in general, this religion has been the subject of persecution. The Church has fought back, citing violations of their First Amendment right to the freedom of religion.
From this fight, the amendment in 1994 was ratified. This exemplifies another point of clear disconnect between tradition and law; despite the consumption of peyote being limited to a controlled environment for spiritual and religious purposes and having been used in traditional practice since the 1880s, the federal government outlawed it until the case was made for free religious practice. Now, the Church is able to freely use peyote in its ceremonies but faces growing concerns over dwindling peyote resources.
Rights of Indigenous Groups
One question that arises out of both of these cases is whether or not the United States government has any jurisdiction over the tribes in these decisions. According to the National Conference of State Legislatures:
“Tribal sovereignty refers to the right of American Indians and Alaska Natives to govern themselves. The US Constitution recognises Indian tribes as distinct governments and they have, with a few exceptions, the same powers as federal and state governments to regulate their internal affairs. Sovereignty for tribes includes the right to establish their own form of government, determine membership requirements, enact legislation, and establish law enforcement and court systems”.
Because tribes are sovereign nations within the US borders, as the NCSL makes clear, they are able to legislate themselves. This self-governance should include hunting and religious practices, especially if they are being conducted in a controlled manner. The federal government, by infringing on a treaty one signed and impeding another's ability to practice religion freely, takes an interventionist approach in territories in which they should theoretically have very little jurisdiction.
The US Department of the Interior categorises tribes as international states but the land they occupy is held in trust by the US. There have been recent instances of Indigenous disenfranchisement in which their entrusted land is revoked when the US and the tribe cannot reach an agreement. This leaves the tribes vulnerable and unable to adequately defend their rights as independent nations. The Bureau of Indian Affairs, a federal government office, has been working for the past few decades to return self-determination and governance back to the tribe.
Although tradition and law are deeply intertwined, one can also often impede the other. It is well known that tradition influences law and that should remain the case. However, when a government oversteps its bounds with legislation, traditions and culture begin to decay. In the struggles between tribes and the United States, the US has incredible leverage over the indigenous governments, allowing it to intervene in tribal governance around the country.
However, this does not need to be the case; concerns can be addressed in ways that do not impede tribes' right to self-governance. As whaling and peyote are integral to cultural and traditional practices, rather than an outright ban, as was attempted by the US, there could and should have been a push to minimise the "consequences" of the acts. If whaling was commercial or peyote was consumed recreationally, that would pose problems beyond the reservations and possibly warrant US intervention. Harming others or the environment is the line that tradition should never cross. However, in the case of the Makah and the Navajo and Native American Church, this is clearly not a problem.