The Dilemmas of Silence: Evidence, Indigenous Traditional Knowledge and Secrecy in Four Cases Involving Indigenous Peoples in Cultural and Territorial Isolation

Abstract

Within many Indigenous cultures, traditional and spiritual knowledge is considered secret. It requires initiation and is safeguarded by different groups or levels of religious authority within a community. Transmission of such knowledge is usually performed at specific times, places and to selected peoples only. When Indigenous communities are claiming their rights to traditional land in western-oriented legal forums, they are required to provide proof of their connection to the lands and speak about the importance the sacred grounds hold in their tradition–and are required to do so according to Western legal discourse and protocol. When requirements for evidence neither represent nor respect Native culture, Indigenous parties to the claim often go silent, or else risk silencing the practices they originally aimed to protect. This article discusses the dilemma Indigenous communities face when asked to provide evidence despite cultural restrictions on traditional knowledge transfer. It first looks at evidence and secret knowledge in the case Pueblo of Jemez vs. United States of America (2019) adjudicated in federal US courts, and suggests a set of alternative evidentiary mappings that respect Jemez Pueblo rules of traditional knowledge sharing, produced by the author and Jemez tribal members. It then turns to acts of refusal to share detailed information on sacred sites and its consequences, litigated over in the US federal court cases Havasupai Tribe v. United States of America (1990) and Pueblo of Sandia vs. United States of America (1995). Finally, it discusses questions of evidence production in the case Pueblos Indígenas Tagaeri y Taromenane vs Ecuador, the first case on peoples in voluntary isolation to be adjudicated by the Inter-American Court of Human Rights.