Oregon State Bar Bulletin JANUARY 2015
On Elves and Indigenous Rights
I write in response to Kris Olson’s article about elves and indigenous rights in Iceland and in the U.S. (“Indigenous Rights? Of Hiddenfolk and Native People,” December 2014). The article suggests that Indians and indigenous people have a constitutionally protected religious interest in sacred sites on federal land.
An analogy helps to understand this claim. Plymouth Rock in Massachusetts was settled by Puritans who are the predecessors of today’s Congregational Church. The Congregationalists could say Plymouth Rock is sacred to them and therefore they have a constitutional interest in its management. However, the Constitution forbids the making of a law respecting an establishment of religion, and deference to a particular church about land use decisions might be unconstitutional. On the other hand, there is freedom of speech, and the right to petition for redress of grievances, so the Congregationalists probably have the right to lobby the Forest Service or whatever federal agency might via Congress own the site. That right does not mean a right to control or veto — or litigate — a decision by a federal agency.
By the same token, Indians who claim land is sacred to them do not have a constitutionally protected interest in the land that enables them to control the use of that land. Nonetheless, Indian or tribal groups certainly have the right to lobby the federal government just as any other organization may do so.
There is another underlying point. Our constitutional rights are based in part on the concept of ownership of property. Tribal groups do not own land that has been conveyed to the United States any more than a church owns a cathedral that they have conveyed to someone else. Therefore, neither the Congregationalists nor tribes can control the disposition of federal property.
There are also questions of what is sacred and whether that implies any right based on the Constitution in the first place. To be sacred sounds like a personal belief system which has religious or spiritual overtones, shared by individuals. How this might or might not create freedom of religion issues is a good question. These questions need not be answered if one acknowledges that groups and individuals have a right to lobby the federal government, but do not have a right to control federal property, even if Justice Brennan is unhappy with federal decisions.
The article refers to a U.N. Declaration of the Rights of Indigenous People. The U.S. Constitution is the supreme law of the land, not a U.N. Declaration of any nature. The laws of the U.S. are enacted by Congress, not the U.N., and U.N. Declarations do not have the force of law.
Finally, the planet Earth is made of drifting interlocking continents. Where the continents meet molten lava erupts from the interior of the earth to the surface of the planet. This occurs off the coast of Oregon underwater, and it occurs underwater everywhere in the world, except for Iceland. In Iceland, the seam is in the land. That is the reason for the incredible volcanic activity of Iceland.
Roger B. Ley
Don’t Impede Lawyer Access to the Courts
I hope the Bulletin will write an article soon about the way different courts handle lawyer security access credentials. Multnomah and Washington counties have reasonably priced access cards that pay for themselves in terms of billable hours not wasted going through security. Lane County’s credential was free the last time I checked.
By contrast, Clackamas County ostensibly has such a card, but the court there has made it almost impossible to acquire for anyone with a multicounty practice. As a result, while a few courthouse regulars breeze through, many more lawyers like me who appear there repeatedly, but less frequently, are slowly and intrusively searched, sometimes by rude and disrespectful contractors, every time we need to enter the courthouse. I doubt any lawyer has ever been the source of a security problem at the Clackamas County courthouse.
Allowing any OSB member in good standing who certifies that they have a need to pay a nominal fee and receive a security bypass credential would allow security resources to be focused where they are actually needed. That would save money and time for all concerned.
In the article “Remembering a Visionary” (Parting Thoughts, December 2014), we misstated the nature of Ross Shepard’s death. He died unexpectedly at his home on Oct. 22, 2013. We regret the error. —Eds.
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