The Powerful Story of Survivors Among Us

tumay aslay October 25, 2021

By Keesa Ocampo

*Dan and Nancy Harrington of Walnut Creek, with Concord’s first Afghan refugee family, Sayed, Zarifa, Kowsar, Zainab and Tajalla Hofioni. Photo by Keesa Ocampo*

Sayed Hofioni just led his family through the most horrific journey from Afghanistan. As with all great stories, his is one marked by survival, determination, and love.

Sayed’s was a childhood of beatings, fear, and of witnessing murder. A period of his life, forever etched in his memory is one of people being thrown into mass graves, still half alive. “They beat us repeatedly to near death. They used big diggers and just threw hundreds of people in there,” he recalled, tears welling in his eyes. He only knows of one friend who stood over 2 meters tall, who somehow survived being cast into a grave.

As circumstances would have it, he found himself in the United States in 1994, managing a property, moving from Las Vegas to North Carolina. In 2010, he returned to Afghanistan and worked at a nonprofit advocating against acts of gender violence. Soon after, his family found him a lovely woman to marry. “Back home, that’s how it was. Your families bring you together. We were engaged for a month and a half. Our wedding was a blessing I will never forget,” he recalls. “The country was turbulent but I remember we drove down a very peaceful road - ten to fifteen cars with our family. For four nights, we just celebrated.” His bride, Zarifa is from the city of Mazar-i-Sharif, a city whose name means "tomb of the saint," a reference to the tomb of Hazrat Ali ibn Abi Talib, cousin, son-in-law and companion of the Islamic prophet Muhammad. The city was once also home to Alexander the Great.

*Zarifa and her three children, Kowsar (5), Zainab (3), and Tajalla (6 weeks) with Ariel Neidermeier of WeSparq. Photo by Keesa Ocampo*

Sayed and Zarifa had two girls, Kowsar, whose name means a river in heaven and Zainab, named after a feminist woman leader, just a year and a half apart. And while their family grew, the country began to shift quickly, bringing Sayed to think, “If there is no future there for me as a man, what would there be for my daughters?”

Sayed recounted information on the natural wealth of his home country in copper, uranium, gold, lapis lazuli, and talcum powder that is almost exclusively found in Afghanistan. Even beyond the natural riches of his country, he recounted the educational wealth of his people, naming countless relatives - many of them female - who have graduated with advanced degrees. “We have suffered because of politics and greed. And after 42 years of war, our people are just trying to survive,” Sayed shares. “The goal in Afghanistan is to stay alive, eat, and don’t get killed.”

Ten days after delivering their third child by cesarean section, that goal meant taking one of the biggest risks of their lives. The Hofioni family made the trek to the airport in Kabul and waited four days and three nights for room on a US military plane. “Before going in, I bought ten loaves of bread so my family wouldn’t starve to death while waiting amongst six or seven thousand people,” he recounts. “At the airport, members of the Taliban screamed from the deepest part of their bodies, ‘Show me your passport!’ while pointing AK-47s and RPGs at me and my children.” They stood against a wall as members of the Taliban walked up and down, pointing guns, occasionally shooting people and beating them. He told his girls to “go to sleep” and promised that he would “wake them when it was time to go.”

*The flight out of Kabul. After four days, Sayed and his family landed a spot on a US Military plane that took them to Doha. Photo courtesy of Sayed Hofioni*

In the meantime, the stampedes were a real threat. A single door held off a determined crowd of up to seven thousand. Survival was not a guarantee. At one point, his girls witnessed a stray bullet hit a family just a few feet in front of them. After witnessing beatings and people getting killed, he thought that if they were going to die waiting, they might as well go back. But on that fourth night, Sayed received a message to come to a door at an appointed hour, and got access to a spot on the military plane, with 6-700 others. There were no chairs, seatbelts, or food.

“After a while, your body gets numb and your mind freezes. You think you are worthless and that there are no good people in the world; that life is just about torture and people taking your rights away,” Sayed says. He tells stories of some people who died from hiding in propellers and running after planes and says, “It was not out of stupidity. They knew there was a risk but people are so desperate to leave.” For a little over three hours, they traveled to Doha. His two older girls sat on his lap, and his wife held their newborn in her arms.

The wait in camps in Doha was almost unbearable. The heat was overwhelming and Zarifa developed a pain in her abdomen. After four days, they were on a military flight to Italy where she received antibiotics for an infection. But the journey was far from over. From Italy, they journeyed on to Philadelphia and then Concord, California.

The Hofioni family arrives in Philadelphia after witnessing people being killed and beaten as they fled Kabul, and after days at military camps. The family of 5 was amongst several thousands of people pushing through one door for a way out of Kabul. Photo courtesy of Sayed Hofioni

Zarifa is still in need of medical care and her husband shares that, “She is still traumatized in her dreams. I want a house for her, for her to learn more at a school. And I will not tell her about her family.” Zarifa’s mother traveled 400 kilometers from Mazar-i-Sharif to Kabul to say goodbye - a painful missed connection. And because of what they’ve seen, Sayed says, “We don’t believe the Taliban’s new promises.”

Nancy Harrington and her husband Dan visited the Noor Islamic and Cultural Community Center in Concord where she laid eyes on a woman holding a newborn child. “I went up to her and gave her a hug. I was told that they were the first refugee family here and I said - sign us up to be their partner family,” Nancy said. That happened on September 19th.

“Families like Sayed’s need reliable transportation for appointments, school drop offs and English tutoring lessons. They need culturally appropriate food and meals. Laundry service is important,” Nancy shares. And while these have an immediacy, the priority is that, “The children need to be given happy experiences like going to playgrounds, being around people who are looking after their safety and well-being. Most importantly, we must all realize their need for compassionate care, understanding the trauma that refugees of all ages have suffered. Helping them through this process is what Americans do best and we need to do our part.”

Since then, the Harringtons have taken them on daily trips to different parks and have the girls riding bicycles. Daily, they come to swim, do laundry, and read. Zarifa has found a comfortable refuge in the kitchen, making traditional Afghan meals.

*Zarifa Hofioni prepares an Afghan meal of braised meatballs, spiced chicken cooked in tomato, and stewed okra and tomatoes, served with Afghan bread. Photo by Keesa Ocampo*

Sayed shares that Zarifa is taking it one day at a time but it has been difficult for her. The pain from her surgery still persists and as they try to find her medical help, they’re also navigating the system for legal, social work, housing, immigration, job search, and other aid. And yet in the face of all this, he says, “I tell my family that our job is to be good humans and to love every living thing. We are blessed to be here.”

A known staunch advocate in the nonprofit community, Nancy says, “I push them to become their own strongest advocates. Sayed has incredible follow through.” Nancy has sought the help of local donors and the office of Congressman Mark DeSaulnier to expedite processes and understand what needs to get done. In the meantime, Sayed says that what they need most is housing and a car. “Kowsar starts kindergarten tomorrow and we would like to be able to bring her to school. I would like to look for work. And if we can have a place of our own, Zarifa can settle in. She wants to take classes and learn more things, as well as English.”

At 3 and 5, his older girls have shown as much resilience as is humanly possible for a horrific couple of weeks – witnessing beatings and murder by AK-47s. They love to color, read books and learn English from cartoons. Kowsar shows off her growing skill at writing the alphabet. But occasionally, they ask their father if the Taliban is outside, and whether they will kill more people. Sayed reassures them, “There are no more Taliban here, baby. Your life will be good here.”

Our partner agency, WeSparq, has launched a GoFundMe campaign to support the Hofioni family. Specifically, these funds will go towards the purchase of a second-hand car and a clothing and diaper fund. Any excess funding will go towards the humanitarian work of the Noor Islamic and Cultural Community Center in Contra Costa and Books for the Barrios. Visit www.tinyURL.com/HofioniFamilyFund to contribute and learn more.

Keesa Ocampo is an Emmy-award winning television writer, producer and director. CEO and founder of her brand and creative agency, WeSparq, she serves as chief creative consultant to Seismic Sisters.

Reference to the GoFundMe link (the “Link”) is not an endorsement of the Link by Seismic Sisters. Each reader should make their own decision as to whether to contribute.

Women on the Frontlines for Human Rights

tumay aslay October 25, 2021

By Keesa Ocampo

A global movement to protect the rights of women and girls is impacting the way the world thinks about, creates, and interprets human rights laws because of the work of Strategic Advocacy for Human Rights. Photo courtesy of SAHR/Sara Bergamaschi; graphic design by Lavinia Liclican, SAHR communication volunteer.

A frontline team of human rights defenders around the world is led by women and they’re shifting the existing legal narrative on sexual violence by changing the way laws are made, interpreted, and used. Strategic Advocacy for Human Rights (SAHR) founder Natasha Latiff first visited Afghanistan at 17, returning annually for the next decade as she worked with Afghan activists, providing legal training and counsel, defending the rights of women who were beaten, tortured, and raped. In 2008, she founded the organization at the age of 21 with a goal to promote gender-equal legal arguments for women’s rights issues and cases in Afghanistan within the country’s Islamic legal framework. At a young age, her life seemed to be the plot of blockbuster films as she would travel covertly and take cases undercover. She’s taken on powerful warlords, business magnates and politicians and has taken battered women under her wings.

In 2011, Natasha met Italian-born human rights advocate Sara Bergamaschi in Egypt and amidst a three-month lockdown from a coup d’etat, they decided to work together to take SAHR to the next level. Through that partnership, SAHR has grown to have team members, volunteers, partners and advisors throughout the world. Natasha remains as SAHR's driving force, mentoring Women Human Rights Defenders (WHRDs) intervening in cases of sexual violence in under-served and under-represented communities globally. From San Francisco to Belgium, Sara co-leads the scaling up of the organization as it embraces principles of good governance combining sound financial stewardship, ethical partnerships and sustainable growth.

Sexual violence was once viewed as a natural occurrence and in some cultures, a ‘normal’ part of interaction. But over the years, humanity stepped into an era where the understanding and appreciation of women’s role in society and their sexuality has been redefined. “New language was created to redefine sexual violence as an outcome of unequal power dynamics, coercion and control, influencing the language of laws, policies, practices for years to come,” shares Natasha Latiff, Founder and Legal Director of SAHR. The age of digital activism further strengthened the movement as the exchange of information happened quickly, beyond borders.

SAHR brought a method to the developing transformation of ideas around sexual violence. Through the creation of specialized “Working Groups,” over 100 student activists and young professionals from 12 countries helped create a methodology to extract knowledge and create new knowledge rooted in a variety of disciplines such as law, psychology, anthropology, religion and activism, to shift the socio-legal and political narrative around women’s rights and sexual violence.

*SAHR’s vision is to the way the laws are made and interpreted, building more protection for women’s rights around the world. Photo courtesy of Sara Bergamaschi.*

“SAHR’s analysis of women’s rights in Muslim family and criminal law for example, uncovered intellectual treasures that were buried in case law archives and the words of classical scholars long dead,” shared Latiff. “By uncovering these treasures, activists could access classical and contemporary interpretations of Islamic law for their work. We made complex legal concepts accessible to the everyday activist and easily replicable.”

Natasha then went on to apply the same methodology to support a small group of influencing Women Human Rights Defenders in Afghanistan to repeal discriminatory laws and enact gender-competent legislation. They went on to debunk the belief that Islamic law required rape victims to prove their rape with 4 witnesses; repeal the “defense of honour” which excused men from murder, strengthen witness protection as a means to gender justice and prohibit virginity testing. Variations of those ideas were eventually adopted into Afghan law over the last decade.

These brave new lenses have reshaped the way laws have been made and interpreted in countries where women have often had no recourse, where their rights were mostly theoretical and negotiable. "Lawyers and provincial judges have engaged with me positively in spite of differing and sometimes irreconcilable views,” said Latiff. “Some have even conceded to our views on human rights, expressing much to our delight that we had altered theirs. We know that it is through collaborative lawyering and measured confrontation that half the battle is won.”

The impact from this has been felt greatly, becoming even more clear that the methodology worked. In 2012, when news broke of a growing number of women who ran away from home including victims of rape were being prosecuted and imprisoned for “moral crimes” in Afghanistan, Natasha supported the draft of model defense statements for Afghan lawyers to use in court in 2012 and 2014, presenting them in a way that was compatible with Islamic law. They were instantly usable, adaptable and replicable, meeting the sensibility of a Shariah Court judge. Within 6 months, 19 women including rape victims who charged with “moral crimes” were released or had their sentence reduced.

SAHR began to raise funds in 2019 to move itself from being volunteer-driven to a sustainable US 501(c)3 nonprofit. That year, they launched a flagship workshop on tactical approaches to combatting sexual violence, giving WHRDs a glimpse of how the best lawyers have argued cases of sexual violence, debunking rape stereotypes and applying a gender lens to the concept of reparations.

Strategic Advocacy for Human Rights (SAHR) launched at least three key pillar programs since 2019, creating pathways for tactical ways to address sexual violence against women, funded through their 501(c)3 nonprofit. Photo courtesy of Sara Bergamaschi.

In the same year, they also launched their first fellowship program and supported Yasmine Bjornum, a young human rights defender from Vanuatu, fighting for justice for survivors of rape and sexual assault by a serial sex offender. Stuck “under investigation” for four years, the case was revived through their collective efforts within one year.

SAHR also set up a communications team to pilot the use of new media and social media platforms to disseminate new ideas. Their simulation of a rape trial cross-examination for a TEDx event in Italy received a standing ovation by 1,500 attendees. They also piloted a multilingual #BecomingSAHR Instagram Live Series on feminism, gender justice and human rights, viewed by 2,011 people and shared 102 times within 6 months, indicating the value of content creation on social media and the absolute need for SAHR to reach more WHRDs at multiple online and offline touchpoints.

One of their highest performing posts added value to the conversation by connecting rape and capitalism. “All too often in rape trials concerning powerful individuals, judges and defense lawyers isolate the rape or crime of sexual assault from the offender’s character, as though the rape was them acting out of character,” states Latiff. “They point to the offender’s profession, wealth or philanthropic past. This demonstrates how capitalism determines how we view an offender, suggesting that a crime committed by someone in a position of power is not as condemnable as the same crime committed by, say, a homeless drug addict. In no circumstance is rape acceptable or justifiable.”

Violence against women and girls affects 1 in 3 women and people from the LGBTQIA+ communities globally, and it continues to be one of the most pressing human rights issue of our time, deemed “devastatingly pervasive” by the World Health Organization.

Unfortunately, many victims and survivors have no recourse in their countries, and the international community lacks the guidance and comprehensive tools necessary to hold perpetrators accountable, while discriminatory laws, policies, practice and social norms continue to excuse the crimes and violations.

"We believe in building a resourceful movement for human rights defenders working on cases of sexual violence so that they can thrive doing the work that so really matters,” says Latiff.

Despite the life-changing and course-correcting work that many nonprofit organizations like SAHR are impacting globally, contributions to women’s issues and causes still receive a very low percentage of overall charitable giving. In fact, women’s organizations received $7.1B in charitable giving in 2017, accounting for a mere 1.6% of overall giving, according to The NonProfit Times. Throughout the COVID-19 pandemic and the tremendous decline in jobs and resources for women, several organizations have taken matters into their own hands, committing to provide more support and “build back better.” One such organization is U.N. Women and their feminist plan - a visionary but practical roadmap for putting gender equality, social justice, and sustainability at the center of the recovery and transformation from the pandemic.

The fight for women’s rights globally sees young women at its frontline. Natasha Latiff (right), dubbed the “Amal Clooney of Singapore,” founded Strategic Advocacy for Human Rights in 2008 at the age of 21. In this photo, she works with SAHR’s first fellow Yasmine Bjornum (left) -- Rabat, Morocco, October 2019. Photo courtesy of Sara Bergamaschi.

For the team at SAHR, the vision is simple: a life free of sexual violence that will ultimately lead to the right to safe and secure education, dignified employment, access to recreational and extra-curricular development, freedom of movement, freedom to participate meaningfully in civil and political activities.

They continue to welcome WHRDs through an annual fellowship. Through this program and its mission to create intervention paths to end sexual violence, they’re able to take on cases involving survivors from under-served communities who are rendered vulnerable by intersecting inequalities - including survivors living with disabilities, LGBTQIA+ persons, Afro-descendants, Indigenous persons, ethnic, religious and caste minorities, migrants, and those living in urban slum areas, rural areas, refugee camps, occupied territories and in conflict-affected settings. 2021 Fellows are five brave WHRDs from Argentina, Indonesia, Mexico, Nigeria and Pakistan.

“SAHR’s clients actually have two fights: one is their personal fight for justice and the other is against indifference,” states Latiff. “And, with unlikely wins for every case that gets turned around, SAHR offers specialist knowledge on strategies and tools that can lead to winning solutions. On a macro level, the lessons from each case are also translated into advocacy and awareness-raising interventions designed to challenge and change policies and practices.”

Natasha’s human rights work has been recognized by former United States President Clinton and United Kingdom Attorney General Dominic Grieve. Natasha was also recognised as a Human Rights Defender in 2016 by the Geneva-based organisation International Service for Human Rights, and named a change-maker in Thomson Reuters Foundation’s Trust Conference in the same year. To learn more about SAHR and how to participate in the fight to end sexual violence against women and girls, visit www.sa-hr.org.

UN Women’s Bold Plan for Progress on Gender Equality

tumay aslay October 25, 2021

By Polina Smith

The fight for gender equality seems to be a fight that never ends, and the unfortunate reality is that women all over the world are still treated as second-class citizens.

But there are people fighting for women’s rights on small and large scales, from feminist activists to government leaders. Recognizing their unique position to tackle the problem on a global scale, the United Nations has gone big launching new advocacy programs, campaigns and funding initiatives. Through UN Women, it is changing the game with fresh approaches to get to gender equity using top political leaders, popular artists, celebrities and social media influencers - and it’s working!

Meghan Markle, Oprah Winfrey, Michelle Obama, Anne Hathaway, and Nicole Kidman are some of the high-profile celebrities and feminist leaders who have delivered seismically powerful speeches at UN Women forums in recent years. Recognizing the need to involve men and boys in the movement as allies for #GenderEquality, the HeForShe campaign was launched with Emma Watson in a speech that went viral and got the conversation going around the world. It’s been a welcome development to hear the UN Secretary General, António Guterres, making bold feminist statements and using his global megaphone to advance gender rights.

Led by Sima Bahous as UN Women Chief, the organization is moving boldly forward on many fronts. They are engaged in advocacy and leadership for crisis needs, such as their work to support Afghan women and girls, as well as simultaneously mapping out long-game strategies to advance gender equity globally. Their Generation Equality Forum took place in Paris from June 30 to July 2, 2021, gathering changemakers to plot out major plans and funding strategies. Convened by UN Women and co-hosted by French and Mexican governments, the forum brought nearly 50,000 people together to set in action a five-year plan to invest in programs and policies that advance women’s rights. Led by six Action Coalitions and the Compact on Women, Peace and Security, and Humanitarian Action, the forum marks the beginning of this journey that aims to create immense progress by 2026.

Seven of the major factors discussed at the forum include ending gender-based violence, upholding economic justice, support for reproductive rights and bodily autonomy, investing in feminist movements, encouraging women to join the fight for the climate, fostering feminist technology and innovation, and putting women at the heart of humanitarian action. Read more about these seven steps here.

UN Women has upped their social media game and has been using it skillfully in highly creative ways to further drive their messages in the U.S. and around the globe. You can follow UN Women on social media and watch speeches and videos on their YouTube channel to stay up to date on their latest campaigns.

The gender pay gap in labor force participation has not changed in 30 years, sitting at a whopping 31%. Women must be compensated for their work; women spend triple the amount of time on unpaid labor compared to men. Supporting organizations that work with local girls and women, teaching entrepreneurship and financial literacy, is a good way to drive change and progress.

Although there are things we can do as individuals to help end gender-based violence, governments must also implement, strengthen, and finance laws and policies against gender-based violence. Women’s rights organizations must also receive more funding to help girls and women escape abusive situations.

Worldwide, nearly half of all girls and women who are married or in unions cannot make decisions regarding their own bodies (like saying no to sex or using contraception). Increasing the access to contraceptive services and ensuring women and girls can access safe and legal abortion is paramount.

The people affected most by climate change are women and girls in poverty, and they face greater health and safety risks as a result. Feminist action for climate justice is essential, as it enables women to lead the transition into a green economy and allows space for the marginalized to enact change.

Remember that, by keeping the above steps in mind, you can make a difference. Céline Bonnaire, Executive Director of the Kering Foundation, said: “I hope that each participant will come away from the Forum knowing what change they can implement the next day to help achieve gender equality.” We hope so, too.

Polina Smith is a writer and media producer with Seismic Sisters. Her creative work and collaborations are focused on the intersection of art and social justice.

The American Religious Freedom Act as applied to Native Americans and the Role of the Protection of Sacred Sites

tumay aslay October 25, 2021

By Charlene Eigen-Vasquez, Founder and Chairwoman of the Confederation of Ohlone People

Indigenous Peoples Day 2021, tribute created by members of the Confederation of Ohlone People. Photo courtesy of Charlene Eigen-Vasquez.

Over the course of history, by far the least amount of success for Native Americans has been in the protection of sacred sites for the preservation of culture and religion. Sacred sites are an integral part of religious practices going back to antiquity. Nevertheless, federal agencies have the power to destroy known sacred lands, resulting in the inability of Native people to practice their religion. Some of the most devastating contemporary impacts on sacred sites include the practice of fracking, mineral extraction, relaxed environmental impact studies, and urban sprawl. For Native Americans, the destruction of a sacred site is considered a “cataclysmic event” as the destruction of a sacred site can never be recovered. The preservation of sacred sites is so crucial to the preservation of Native peoples’ culture (including the ability to maintain religion) that international, state and non-governmental entities have increasingly become aware of the significance of the matter. Some consider the legal recognition of the right to protect a sacred site as being related to identity and self-determination for Native people.

To further understand the issue, it is critical to connect a trail of policies and court cases that correlate to racial persecution, as it is related to religious freedom. One of the very first policies to directly restrict Native American religious practices was the Dawes Act of 1887. The Dawes Act allowed the President of the United States to divide Native American land into allotments and restrict the movement of people. For a people with a “specific place,” a spiritual and cultural lifeline, the Dawes Act was a direct prohibition on the traditional practice of Native ceremony. The freedom of movement, access to specific places, and prayer are inseparable when it comes to spiritual health and cultural sustainability.

*Emiliana Palafox, Indigenous Peoples Day 2021 tribute to Ohlone Elders. Photo by Charlene Eigen-Vasquez*

Through the Removal Act of 1830, the United States used treaties as a way to further document a tribe’s agreement to be removed from their traditional homeland. Now, relocation was often forced upon Natives in exchange for their lives. For example, once the Treaty of the Cherokee was signed, they were then ordered to march to Oklahoma - this treacherous march is known as the “Trail of Tears.” By the end of President Andrew Jackson’s term in 1837, Jackson had signed almost 70 treaties resulting in the forced migration of over 50,000 Native Americans from their homeland. This approach would free 25 million acres of land for the benefit of White settlements and the expansion of slavery.

By 1870 the government turned to the Catholic Mission System. Not only was the government interested in the acquisition of Native land, the government was insistent upon ridding Natives of their “heathen” ceremonial practices. According to “Grant’s Peace Policy,” jurisdiction of tribal land would go to existing Christian missionaries who had an established relationship with Native Americans. The federal government recognizing the Catholic church’s efforts to assimilate Native Americans appointed the first Commissioner of the Bureau of Catholic Indian Missions. This era created the infamous “Indian boarding schools,” significant to the destruction of Native American religion.

By the time the Spanish Mission System began the process of colonization in the southwest territory of the U.S., the Missions purported to be an institution that attempted to instill Spanish social order and culture in native communities. The establishment of the first missions took place between 1573 and the 1760’s in the territory designated as “New Spain” which included what is now: Alabama, Arizona, California, Florida, Georgia, Louisiana, New Mexico, North Carolina, South Carolina, Texas, and Virginia. While the intent may have been to secularize Native Americans and the local residents, the church underestimated the task. Prior to Grant’s Peace Policy, “Mission Indians” were exploited for labor and economic purposes. This colonization of Native Americans by the Missions was a traumatic shock to Native American pre-colonial existence.

In 1934 the U.S. federal government recognized some Native American tribes as independent political entities by adopting the Indian Reorganization Act of 1934 (“IRA”). In 1943, the U.S. Senate conducted a survey to determine whether their land allocation plan was working. They discovered “horrific” conditions tied to extreme poverty. This survey expedited assimilation efforts and eradicated Indian tribal status in North America through the adoption of an official “Termination Policy.” In 1953 an increased effort to terminate tribal status was adopted under “House Concurrent Resolution 108.” This resolution would abolish federal supervision over tribes and impose state and local law on those previously bound by sovereign tribal law and policing. Thus began the era of termination policies where the federal recognition of tribes would be revoked and with this one swoop of the pen, Natives lost legal protections to traditional land, the right to maintain their culture and language, and above all the ability to practice ancient religious practices would be terminated.

*Emiliana Palafox, Ohone youth visiting her great-great Ohlone grandmother, Morgan Hill, CA 2020. Photo by Charlene Eigen-Vasquez*

While some tribes were able to quickly regain their sovereign status as a federally recognized tribe, other tribes have yet to see any success. As a result of the termination era, between 1953 and 1964, 109 tribes were terminated; consequently over 12,000 members of those tribes lost legal affiliation. In addition, Native Americans witnessed the sale of nearly 2,500,000 acres of reservation land. It was not bad enough that Natives were forcibly removed to remote territories, reservations shrank as land was unilaterally removed from protected status and sold to non-Indians. In 2005 the Federal Government recognized 561 tribes. These tribes only accounted for 44% of all Native people in the U.S. According to the Bureau of Indian Affairs, as of July 1, 2007 there were 4.5 million American Indians and Alaska Natives in the U.S, but not all Natives benefit from “federal recognition” status. In essence, over 2,521,901 Native Americans are still without federal recognition. This means, over 2.5 million Natives are without access to legal protections and economic benefits that would help sustain their history, culture and religion.

Hurdles to become re-recognized after being categorized as “terminated” are overwhelming. Over 100 tribes who were once recognized by the government through treaties, do not have the necessary resources required to prove their identity as original descendants of a Native American tribe. The process can require that tribes hire research consultants (often professors), attorneys and historians to gather evidence required by the U.S. Bureau of Indian Affairs. These expenses are often prohibitive. Even when tribes secure sponsorship to help cover the complicated data gathering process, the tribe always risks the devastation of denial. Some tribes have waited for over 30 years for an application decision. As time passes, tribal historians and elders continue to pass on. As a result, innocent error and inconsistencies will diminish the credibility of an application resulting in denial. As of 1997 there were nearly 250 non-recognized tribes and approximately 150 of these tribes were in the process of petitioning for federal recognition. As of 2017, no tribe had been granted federal recognition since 2010.

Federal recognition for Native Americans today is critical because this recognition’s primary benefit is the ability to qualify for federal protections and expanded powers through tribal sovereignty. Only this can give tribes the necessary legal authority to protect sacred sites, maintain cultural traditions and access natural resources that are an integral part of Native American religion. According to lawmakers, when a tribe is denied federal recognition, the legal status of a tribe is considered the extermination of a population, with no hope of future recognition. Based upon how the law is currently applied, there exists a double standard. While it is the prerogative of U.S. citizens to self-identify their race, Native Americans are the only racial group that are burdened by the government to prove their rightful heritage.

While the argument in this article is for a broad spectrum of protections linked to religious freedom that include Native Americans not currently recognized by the federal government, it is important to look at First Amendment Freedom of Religion claims filed by prisoners to demonstrate how our judicial system has acknowledged all aspects of fundamental religious practices. One could argue that for courts and policy makers to feign a lack of understanding for the foundational elements of Native American religion is inexcusable. The fact is that in our current prison system, Native Americans have won the right to have a “medicine man” available to conduct sweat lodge ceremonies and provide counseling.

According to Louis Holscher, while incarceration requires that prisoners surrender many rights and privileges, inmates must be afforded a reasonable opportunity to practice their religion under the First Amendment. This fundamental right to the freedom of religion is not limited to Native Americans with or without federal recognition status. For example, in Randall Trapp, et al. v. Commissioner DuBois, et al. plaintiffs residing in a Massachusetts prison filed a suit alleging an “ongoing pattern of discrimination.” By willfully and maliciously imposing burdensome regulations on Native Americans, administrators fundamentally deny an identified population the opportunity to practice their faith. In order to prove a violation of [the] right to the free exercise of religion, plaintiffs must prove that the activity interfered with by the State is motivated by and rooted in a legitimate and sincerely held religious belief. The next issue goes to who has the power to define a “sincerely held religious belief.”

*Justina Palafox, Ohlone parent, creating necklaces and other items for her children to wear during ceremony. Photo by Emiliana Palafox.*

For those who would admit to some basic understanding regarding Native American religious practices, it is important to reiterate and emphasize the relationship between religious doctrine, the environment, culture, language and ancestry. According to traditional Native American belief, each of these segments of life is not merely connected, they must coexist and rely upon one another. When one aspect of life is harmed, the result is harm to all of the remaining aspects of Spirituality. To that end, one of the biggest disconnects between the law and Native thought is in a system that compartmentalizes each aspect of sacred life and then goes down a path of deconstructing and redefining truths, long held to be sacred by Native people.

One could argue that while specific religious practices vary from tribe to tribe, extensive documentation and observation of a single race results in the ability to identify common elements of religion across all tribes. These elements are required in order to sustain basic religious practices. Establishing a system that would deny a particular segment of the Native American population the opportunity to practice religion, according to traditionally accepted practices, can only be construed as racial prejudice and a violation of the First Amendment.

*Mission San Juan Bautista 2020. Photo by Peter Eigen.*

There are two common aspects of religious practice and they are inseparable components of Native American religious practice. The first aspect of religion is the need to access specific ceremonial items in order to maintain religious practices. The second aspect is the need to sustain and protect a relationship with a particular physical site, also commonly referred to as a sacred site.

First, the incorporation of cultural objects and the maintenance of specific lifestyles are common across religions in general. Christian religions may consider a Holy Bible and incense to be sacred items. People of the Muslim faith would consider the Quran and the Ka'aba, a sacred shrine in Mecca to be essential to their faith. In the case of Native Americans essential shared elements of a ceremony might include: headbands, sweat lodges, medicine bags and bundles, ceremonial pipes and bags, sage and sweet grass, tobacco ties, eagle feathers, sacred cedar, or designated culture bearers. Common lifestyle practices include the wearing of a headband, or crown as demonstrated by practitioners of the Hawaiian religion. Other lifestyle practices include hair length and the acquisition of tattoos with religious significance.

Next, a primary difference between mainstream religion and Native American religion is related to sacred sites. In general, mainstream religions in the U.S. consider churches, temples and other enclosed structures to represent their holy site. Alternatively, Native religions often rely on very specific outdoor locations. Such locations are not based upon a specified “type of environment” but instead tied to a particular geographic ceremonial site that has been used by a tribe prior to colonial contact. For example, in the case of Bear Butte, multiple tribes and the government recognized the location as a traditional sacred site used for ceremony. Another major difference between mainstream religious belief and Native American belief is that Native Americans “view religion as synonymous with culture, politics, and social life, and the spiritual is not necessarily separated from the secular.” Based upon these understandings Congress created a number of rules that, if enforced, could provide the legal protections Native people desire.

The Religious Freedom Restoration Act (RFRA) was enacted in 1993 in response to a series of claims of violation to the Free Exercise Clause of the First Amendment, which excluded whole categories of governmental action from strict scrutiny analysis. The intent was to prevent the government from imposing a substantial burden on a person's exercise of religion unless it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” RFRA is only triggered when the government forces individuals to choose between an act contrary to their religious belief and the threat of civil or criminal sanctions. This conflict is far too common for Native Americans simply trying to uphold well-established religious tenets.

*Charlene Eigen-Vasquez during Wetlands restoration project in Watsonville, CA in 2021. Photo by Peter Eigen*

For example, in the case of the San Francisco Peaks of Arizona, the Navajo claimed that the government’s proposal to cover the mountain top with reclaimed wastewater was an infringement of the RFRA. The San Francisco Peaks are considered a set of sacred mountains. According to ancient teachings, children learn that “the world was covered in a great flood and a young girl was placed on a log to survive this great deluge. She landed on Wi' Hakinbacha (the Peaks) alone and went to the mountain's springs to bathe. As she washed, the spring's sacred water impregnated her and she gave life to twin warrior gods, from whom the Hualapai people are the descendants. When one of the twins became ill, the other began to collect herbs, plants, and other natural materials from the mountain to apply to his brother. The sacred materials, from this living being, healed the brother of his illness.”

It is essential to understand such beliefs because for Native Americans, such stories are an integral part of religious life. Knowing such stories helps outsiders understand the motivation for saving sacred sites. Nevertheless, such background is generally ignored as lawmakers move forward, ignoring evidence that would demonstrate the impact of decisions. In this case, the Ninth Circuit surmised that the appropriate analysis considers whether a government is preventing a plaintiff from engaging in religious conduct or having a religious experience. Here the tribe lost and the dissent argued that by desecrating a sacred mountain, known to be significant for water elements, the holding could be comparable to the government justifying the use of treated sewage water during Christian baptismal.

Finally, with the understanding that one of the major obstacles to freedom of religion protections for Native Americans is federal recognition status, it is time to consider partial recognition. Because establishing the bar for a group trying to acquire federal recognition is so high, limited benefits of federal Native status would be available to individuals who could demonstrate Native American descendancy. Such legal status would help to preserve cultural and religious rights by designating much desired religious and cultural benefits currently enjoyed by Natives formerly recognized by the federal government. Such recognition would allow tribes the opportunity to revitalize important aspects of their identity and create new relationships with regional historical and environmental partners for the purpose of restoring and protecting religious practices. This would be a compromise between Natives and those who do not fully understand the necessary elements of Native religion. Such a compromise would be temporary with a long-term goal of restoring justice by negotiating legally enforceable legislation that would for once protect sacred sites and religious practices for Native Americans.

Charlene Eigen-Vasquez is Founder & Chairwoman of The Confederation of Ohlone People. Born and raised in San Jose, California, she is an outdoor enthusiast, environmentalist, activist and textile artist.

For more information on The Confederation of Ohlone People, visit www.confederationofohlone.org.

Seismic Sisters thanks Charlene Eigen-Vasquez for contributing this commentary as a special Guest Columnist in our October 2021 edition of The Jolt newsletter. This column has been edited for length.