Oregon State Bar Bulletin — DECEMBER 2014






I have been spending quite a bit of time in Iceland recently, and I keep running into elves. On a car trip around the main highway of Iceland, the Ring Road, there are no fewer than 60 documented sites from history that figure in the sagas and legends. Elves, or “huldufolk” (hidden people), are entrenched in the Icelandic landscape, both geographic and cultural.

They appear in folklore as early as the Viking Age when Iceland was first settled in the late ninth century and were presumed to predate the human occupants of the forest. (John Lindow, Trolls: An Unnatural History, London, Reaktion Books Ltd., 2014, pp. 14-29). I first encountered them in 2001 on a horseback trip around the volcano Hekla in the southern part of the country. The guides pointed out elf habitat as we tolted along and made wide circles around certain boulders that spooked the horses.

Later we noticed miniature houses in the suburban backyards of Hveragerdi that had been built to accommodate the “little people.” They reminded me of spirit houses in Thailand meant to entice the spirits away from the human family’s home. Often the Icelandic versions are precise replicas of the other farmhouses in the area, down to details like the trim, paint color and window boxes. An NBC News story once carried a photo of such a house near Selfoss, on the road to Thingvellir.

Elves and Trolls and Wizards — Oh My!

In the fifth edition of the Traveller’s Guide to Icelandic Folk Tales, the historian Jon R. Hjalmarsson makes careful distinctions between elves and their sacred sites, ghosts and specters, wizards, trolls, ogres and demons. (Hjalmarsson, Reykjavik, Forlagid, 2014). Elves are the friendly ones, who help humans, build churches and provide excuses for babies born out of wedlock.1 They are invisible, unless they want to be seen for some reason. They can be mischievous, but not often harmful, unless provoked.

As the British expert on Icelandic legends, Dr. Jacqueline Simpson, recounts for her fellow folklorists in Icelandic Folktales & Legends (Oxford, The History Press, 2009, p. 16):

In present-day Iceland, a living belief in elves is still a factor to be reckoned with. It is quite common for the construction of new roads and buildings to be interrupted because a succession of accidents to workmen or their machinery is taken to mean that elves are angry at the disturbance to their own homes or routes; if they are allowed time to move away from the area, or if (better still), the construction plans are changed to avoid damaging the elf homes, work can safely resume. Vladimir Hafstein, who has studied this current lore, notes that elves no longer look and dress just like their human contemporaries; on the contrary, they wear old-fashioned clothes… They now stand for the traditional rural life of Iceland’s past, rejecting modern urbanisation.

When shopping in downtown Reykjavik last October, I stopped by a watchmaker’s shop to purchase a gift for my son — and, frankly for a respite from the cold, rain and wind sweeping the street. I asked the proprietor how long it would take me to walk to the university. Seeing my bedraggled state, he took pity and insisted that he drive me there.

En route, Gilbert asked me what I was going to research at the law school. I explained my interest in the alliance of environmentalists and elves bringing cases to halt governmental projects. That prompted an outburst from him about the necessity to “leave the little people in peace!” “This was their home before ours,” he declared.

Elves and Public Works

Gilbert then proceeded to describe an incident that occurred about 25 years ago in his neighborhood of Kopavogur, a suburb of the metropolis. Some construction workers intended to move a large rock that obstructed their project. They brought in a bulldozer, but it broke down immediately. Then a workman suffered a fatal accident at the site. Local residents ascribed the problems to the elves who worshipped at the rock. Ultimately, the contractor decided to abandon the route.

While this may sound like so much superstition, it is very reminiscent of the rumors that surrounded the Hopi sacred masks and idols in the 1980s in Arizona. When they were not in use in ceremonies, they were stored in a cave on First Mesa. As they were prime targets for artifact thieves, the Hopi priests put a curse on anyone removing them. One culprit’s brakes failed as he attempted to drive down the mesa with a stolen item in his car. Another thief suffered a major stroke in the cave. The Hopis publicized these events, and that seemed to be a more effective deterrent than any law.

Upon arriving at the law department at the University of Iceland, I inquired about information regarding environmental/elf cases. “Which ones?” the law librarian responded. “There are so many!” The most current controversy involves a case in which the Supreme Court of Iceland has issued a stay. The news was picked up in the United States by the Associated Press and the major television networks in December 2013 as a Christmas human interest story with headlines such as “Iceland’s Hidden Elves Delay Road Projects” and “In Iceland, Elves Have a Strong Lobby.”

In this pending case, Friends of Lava vs. Iceland Road and Coastal Commission (K-5/2013), a road was planned connecting the president’s mansion with the Reykjavik suburb of Gardabaer. Ancient lava beds would be disturbed in the process, as well as recognized elf habitat. An Associated Press story (Jenna Gottlieb, Dec. 22, 2013) noted that “the area is particularly important because it contains an elf church.” The lawsuit alleges both environmental and cultural impacts.

Ragnhildur Jonsdottir, one of the reporter’s sources, claimed that if the road went through, it would be a “terrible loss and damaging both for the elf world and for us humans.” The chief environmental advocate, Andri Snaer Magnason, commented: “Some feel that the elf thing is a bit annoying,” adding that personally he was not sure they existed. “However,” he added, “I got married in a church with a god just as invisible as the elves, so what might seem irrational is actually quite common” with Icelanders.

The word “respect” came up quite a lot in interviews and court documents. The attorney representing the elf/environmentalist alliance, Skuli Bjarnason, is a well-known corporate lawyer in Reykjavik with 30 years experience who works primarily in the fields of energy law, regional policy and planning. When I asked him about this litigation and the supreme court stay, he cited the seriousness with which the court considers these legal issues, underscoring that “when our clients were challenged, the supreme court ruled that they had standing to sue, and the case is proceeding on that basis.”

Lack of Similar Respect for Native American Sites

This Icelandic judicial perspective stands in sharp contrast to attitudes reflected in American courts. The most vivid example is Lyng vs. Northwest Indian Cemetery Association, 485 US 439 (1988). Federal Indian law scholar, Walter Echo-Hawk, features the majority opinion authored by Justice Sandra Day O’Connor in his book, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided (Colorado, Fulcrum Publishing, 2010, pp. 325-356). In Lyng, the U.S. Forest Service was determined to rubble through a “cathedral” sacred to the Yuroks, Karoks and Tolowa people, the center of their spiritual world, on a scale similar to Mount Sinai. The court found that there was no constitutional protection for tribal holy ground under the First Amendment. In his dissent, Justice William Brennan “was appalled at the agency’s brutally insensitive conduct” (p. 326) in its haste to harvest 733 million board feet of timber and termed it “a cruelly surreal result.” Nonetheless, the majority held that “Government action that will virtually destroy a religion is nevertheless deemed not to “burden” that religion.” (Brennan, J. dissenting at 472.)

Lyng is not an isolated case, and it is still valid precedent. It has been followed by many equally abhorrent federal agency degradations of Native American holy places and practices, since the agencies consequently believed that they could proceed with impunity. Two, in particular, are recent grievous examples: Navajo Nation et al. v. U.S. Forest Service, 535 F.3d 1058 (9 Cir. 2008) (rehearing en banc), cert. den., 174 L.Ed.2d 270 (2009); and Comanche Nation v. U.S., CIV-08-849-D (U.S. District Court for the Western District of Oklahoma, 2008).

There is a glimmer of hope in a process that the U.S. Forest Service initiated in 2012 to develop what it is calling a “state of the art” sacred sites policy. The secretary of agriculture has met with tribal representatives to define a meaningful consultation protocol. Notwithstanding these baby steps of progress, the contrast with Iceland’s regard for its elves is painful.

Elfin vs. American Indian Religious Protection

What accounts for the difference? It all hinges on respect and multicultural values. On the one hand, a 2007 survey by the University of Iceland disclosed that 62 percent of Icelanders believe that elves could exist. On the other hand, virtually all Americans know that Native Americans still exist (and existed before European settlers arrived on the continent), but most simply don’t care and dismiss indigenous religions as “savage.” (See, Vine Deloria, Jr., God is Red (New York, Grosset & Dunlap, Inc. 1973).)

Secondly, Icelanders were raised on stories of elves and their interactions with everyday people. They know the places where this common history occurred. England’s most prominent folklorist, Jacqueline Simpson, observes in the introduction to the second edition of her magnum opus, Icelandic Folktales & Legends, that Icelandic storytelling (“fijosagnir”) falls into the category of those “which are believed to be true by the teller and hearers alike, and are generally attached to real places and persons.” (p. 12) Icelandic elf tales, Simpson asserts, “are almost always very firmly localised. They often have a strong aetiological element: this specified rock or island … that hollow in the ground.” (p. 13)

In contrast, Americans were inculcated with pioneer legends. As Matthew Dennis reminds us in his special edition of the Oregon Historical Quarterly, “Death and the Settling and Unsettling of Oregon” (Vol. 115, No. 3, Fall 2014), the great frontier of the northwestern U.S. was “not a Virgin Land but a Widowed Land” (p. 284). Yet every school child can point to “sacred” landscapes such as the Oregon Trail or Pioneer Place or the statues of settlers that adorn the state capitol, but tribal historical landmarks and Native gravesites are beyond their ken. Pioneer icons, brands and athletes (Trail Blazers) rivet their attention.

Finally, and most basically, Icelanders are inextricably tied to the land and nature. Preeminent Icelandic historian Magnus Magnusson says of the elf legends that the “sense of place is so important … [as] is the identification with real people.” (Preface to Simpson, p. 8). He adds that the elves may be invisible, but they are otherwise just like humans. They live “in communities, especially in hillocks or boulders, and these homesteads have been considered sacrosanct for centuries.” Terry Gunnell, professor at University of Iceland, once told U.S. reporters that he was “not surprised by the wide acceptance of the possibility of elves” in the Icelandic population:

This is a land where your house can be destroyed by something you can’t see (earthquakes), where the smell of sulfur from your taps tells you there is invisible fire not far below your feet, where the wind can knock you off your feet, where the Northern Lights make the sky the biggest TV screen in the world, and where hot springs and glaciers ‘talk’… Everyone is aware that the land is alive, and one can say that the stories of hidden people and the need to work carefully with them reflects an understanding that the land demands respect.

Unlike Icelanders, Americans remain tied to the notion that progress means conquering nature. Indeed, they take pride in their apparent ability to do so. It is a matter of hubris, rather than humility in the face of primeval forces.

Icelandic public policy leaders recognize that elf habitat contains places of the heart for their constituents. They do not run roughshod over it. Issues about Huldufolk affect planning decisions. As NBC News has noted, “they occur so often that the road and coastal administration has come up with a stock media response for elf inquiries.” They have in-house elf experts (to whom I was referred by the University of Iceland Law Department).

Not without bitterness, but in his usual dignified way, Walter Echo-Hawk describes the lamentable comparison in American policy-makers’ attitudes: “Worship at holy places is an attribute of religion worldwide. Unfortunately, United States law fails to protect Native American holy places in our own country. That is a loophole in religious liberty that must be corrected.” (Personal communication with the author, Oct. 28, 2014.)

Echo-Hawk would place his faith in the United Nations Declaration of the Rights of Indigenous Peoples — rights that include access to sacred sites. Under the auspices of the Walter Echo-Hawk Distinguished Visiting Professorship, he will be teaching two courses in the winter term at Lewis & Clark Law School in 2015, based on his two most recent books, In the Courts of the Conqueror and In the Light of Justice. He welcomes auditors.

Lessons from the Elves

Perhaps at the outset of this holiday season, we can best prepare by reviving — and listening carefully to — the stories of the elves. They speak of documented historical figures (Jon Gudmundsson the Learned (1574-1658), places (the Fell of the Four Churches) and events (Dec. 31, 1599). They often contain injunctions about cardinal sins, particularly greed and pride. A famous one concerns the practice of waiting for the elves at a crossroads on New Year’s Eve, hoping to collect “tolls” from them to pass:

There was once a man who sat out at the crossroads one New Year’s Eve; some call him Jon, some Fusi… He sat there all night facing the elves…the Hidden Folk began to file past him and offer him gold and silver, fine clothes and costly dishes. For a long while he had spurned all this and remained silent, whatever the offer might be. So the first had gone away, but others had come and done just the same… This had gone on all night til nearly dawn. Then, last of all, there came a (elf) woman with hot dripping in a ladle…the food Jon liked best of all. And then, so he said, what happened to him was that he looked up and said: “I don’t often say no to dripping.” (Simpson, p. 71)

Because of this lapse of politeness and surge of gluttony, all the treasures that had been left at Jon’s side by the elves vanished. From thence, he “lost his mind and wandered in his wits.” Elves don’t get mad; they get even — even at times of fellowship such as New Year’s Eve.

Endnote

1. When women were tending sheep in the mountains, sometimes they returned pregnant. How? Ljuflingar, “lovers of mortal women from among the hidden folk population. “Apparently, these sensitive men … were also there in the sel [an upland meadow] to assist during the child’s delivery. Still, it was a doomed kind of love, what with the man being hidden and everything, so the woman generally returned to the farm and carried on with her life. However, the ljuflingar … typically returned many years later, hoping to revive the romance… This, however, tended to end badly for the ljuflingar, as he would usually end up dying in the process. Iceland Review, Vol. 52, Aug-Sept 2014, p. 10. 

 

ABOUT THE AUTHOR
Kris Olson is is a former professor of law at Lewis & Clark Law School, U.S. Attorney for the District of Oregon (1994-2001) and senior counsel to U.S. Rep. Earl Blumenauer. Her husband, OSB member Les Swanson, is honorary consul for Iceland.

© 2014 Kris Olson


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