As Water Inures Its Strokes on the Stone (Part 2)

The standoff at Kennedy International Airport in July 2010 was not unexpected, but it did make a point.  The twenty-three members of the Iroquois Lacrosse team presented themselves, planning to take a flight from New York to London so they could participate in the World Lacrosse Championship.  It sounds routine.  But there was one problem. 

The documents the team members presented were traditional, partially hand-written, Haudenosaunee passports issued by the Iroquois Confederacy.  U.S. officials refused to recognize the passports and even after intervention by the U.S. Department of State to make a one-time exception, British officials refused to issue visas.  Compromises were rejected, with the team members refusing to travel on both U.S. and Iroquois documents because they viewed the suggestion as an affront to their claim of sovereignty. 

While the incident highlighted the issue that exists with Haudenosaunee passports, the reality is that they have been used for decades.  Indeed, in 1923, the Cayuga Chief Levi General, more commonly known at the time as Deskaheh, traveled to Geneva on such a passport to address the League of Nations about perceived violations of Iroquois rights by the Canadian government.  The League refused to hear him and a year later when the U.S passed a law to make the Iroquois within its borders citizens and when the Royal Canadian Mounted Police invaded the Iroquois to overthrow its traditional government, those two countries were notified that the Iroquois refused citizenship in any nation other than the Haudenosaunee.  But that has not stopped those countries from claiming those indigenous people as their citizens. 

The refusal by the League of Nations to hear Deskaheh remains iconically at the heart of what many indigenous peoples around the world protest:  the refusal to involve them in decisions that set forth their rights.  There has been some improvement, and the 2007 adoption by the United Nations of the Declaration on the Rights of Indigenous People is illustrative.  Drafting of the Declaration took more than 20 years, but involved representatives from indigenous people from different parts of the world.  When it passed, there were only four votes against:  by Australia, Canada, New Zealand, and the United States, all of which have substantial indigenous populations.  Since then, each of those four countries has made moves to endorse the Declaration.  A copy of it can be read here.  

In Part 1 of this post earlier this week, I commented briefly on another standoff between indigenous people and a government:  the Rapa Nui of Easter Island and the country of Chile.  The conflict began in August 2010 when members of the Hito clan occupied the Hanga Roa Hotel, which has for years been a de facto symbol of Chilean encroachment on the Rapa Nui’s perception of their rights.  It was not until 1966 that Chile stopped leasing the island as a sheep farm and granted Chilean citizenship to the Rapa Nui, precipitating a series of land-rights disputes in the 1970’s.  In 1979, Chile passed the Ley de Pasqua (“Law of Easter”), one effect of which was to prohibit the sale of land owned by a Rapa Nui to a non-Rapa Nui.  But in a move whose origins remain unclear, the land where the Hanga Roa hotel sits was conveyed to the German Schiess family.  The Rapa Nui claim the transaction was illegal and in violation of the Ley de Pasqua. 

In the several months since the Hito clan has occupied the hotel, there have been a number of confrontations, culminating in the removal of the Hito clan from the site by the Chilean Carabineros on February 7.  Later in that same month saw an agreement between Chile and the Schiess family for the land to continue to be used by the Schiess family for the next thirty years and then to be conveyed to a private Rapa Nui Foundation.  The problem is the age-old one:  the indigenous Rapa Nui were not involved in the decision and they remain suspicious. 

During the dispute, The Rapa Nui have pointed frequently to Chile’s acceptance of the Declaration on the Rights of Indigenous Peoples, particularly those sections dealing with land.  For example, Art. 8(1)(b) requires that “States shall provide effective mechanisms for … redress for … [a]ny action which has the aim or effect of dispossessing them of their lands, territories or resources.”  Art. 26 goes further, stating that “[i]ndigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use” and that “States shall give legal recognition and protection to these lands … with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”  The reality is that the Declaration lacks legal force.  It is relevant only to the extent that indigenous groups are able to embarrass governments by pointing out perceived inconsistencies between their endorsement of it and their actions. 

Today is “Free Rapa Nui Day of Action,” marked by a march and protest at the Chilean Consulate in San Francisco.  It is clearly timed to precede President Obama’s two-day trip to Chile next week, although the issue of the Easter Island dispute is not currently on the agenda. 

It is difficult to know what the outcome will ultimately be of the Rapa Nui efforts.  Some assert that they opportunistically squatted on private land and are abusing the generous intent of efforts like those embodied by the U.N. Declaration.  Others are more sympathetic, seeing the actions as a peaceful attempt to regain control of land that was swindled from them in the course of Easter Island’s turbulent history.  It is certain that those countries that already viewed the U.N. Declaration with suspicion and reluctance are watching, keen to understand the impact its full acceptance could have on their own treatment of indigenous peoples. 


Easter Island is a wonderfully unique part of the world that presents mysteries that still fascinate social scientists.  So much of its history has already been irrevocably lost.  Whatever the outcome, I hope its scientific wonder remains preserved so that future generations can enjoy the privilege of experiencing its mystique as fully as I have.

As Water Inures Its Strokes on the Stone (Part 1)

Anyone who has gone through the painful task of cleaning a deceased parent’s home knows how strongly it resurrects countless emotions.  It is as though every item in the house has been imbued with the power of some memory or other that resurrects feelings thought to have been buried years before.  And sometimes there are surprises, pearls waiting patiently to be discovered within the collected sand of a life.  

When Eve Dray spent her evenings in 1961 going through her deceased father’s effects at his home in Cyprus, she surely did not expect to uncover a cache of field notes from an expedition to what has at times been described as the most remote place on earth.  It is not quite accurate, of course, but it can certainly seem so when standing at Maunga Terevaka, the highest point on Easter Island.  From there, one has a 360° view of the Pacific Ocean, extending endlessly in every direction.  Indeed, the indigenous people of Easter traditionally called the place where they lived Te pito o’ te henua — the navel of the world.  

Katherine Routledge (1866 - 1935)

It is almost easy to imagine the curious expression Eve must have worn as she reached into the cupboard under the large bookcase and pulled out a horde of papers that had been prepared decades before by Katherine Routledge.  Anyone who has done any scientific research regarding Easter Island — and there are so very many things to study there — knows the name of Routledge.  Her expedition to the island in 1914 – 15 with her husband William Scoresby Routledge has been described as being of “historic magnitude” in developing an understanding of the archaeology and ethnography of Easter Island.  She was the first woman archaeologist to work in Polynesia and part of the mystique of her expedition is the remarkable persistence she and her husband showed in making in happen:  unable to find a ship to take them from England to Easter Island, they had one built at their own expense and hired their own crew.  

When Routledge returned to England after her expedition, she published a book for a general readership called The Mystery of Easter Island:  The Story of an Expedition, promising that she would follow it with a “more scientific” account of her explorations.  That later book was never written, even though she would live for another 15 years or so, and there has been some suggestion that part of the reason is that she may have suffered from paranoid schizophrenia.  Thinking her original notes had been lost, researchers relied for decades only on the accounts in her popularized book.  But they evidently followed her husband, who moved to Cyprus after she died and eventually bequeathed his house to Eve Dray’s father.  

Easter Island is a place of considerable scientific interest.  Its massive moai, whose construction occupied virtually all of the island for a period of time, have attracted the interest of archaeologists.  They have sought to understand not only their purpose but also how they were moved into place around the circumference of the island — and why the people of the island ultimately toppled every single one of them.  Its birdman competition, in which the ruler of the island was decided by a race to obtain the first tern egg of spring from one of the rocky islets off its coast, has fascinated ethnologists.  They identify it as an almost unique example in the world where political ascension was determined by an athletic competition.  Frustrated linguists have studied the rongorongo script, inscribed on wooden staffs and tablets in an unusual reverse boustrophedon format, and remain to this day unable to decipher it.  Environmentalists still point to the cautionary example of Easter Island as a lesson for us all, noting how its inhabitants overused its resources - they cut down every tree on the island for access to wood, and thereby precipitated a decimation of their population.  

The Rongorongo script

While almost a scientific playground, Easter Island has also sadly had a history of repeated exploitation by outsiders who were emboldened by the same remoteness that is paradoxically also responsible for much of the island’s unique interest.  There were the slaver raids by Peruvian blackbirders that resulted in the introduction of near-annihilating smallpox.  There was the effective conquest by Jean-Baptiste Dutrou-Bornier, a French thug who swindled the preliterate population by “buying” their land with instruments they did not understand and using his rifle as motivation for those who may have been reluctant.  He would come to rule Easter Island for a time, more as a slaver than as the “governor” he fancied himself to be, being deposed only years later when he began to kidnap prepubescent girls for his personal pleasure and was consequently murdered.  His acquisition of the land in this way has affected its ownership for generations according to the application of the laws of property.  There was also the shocking incarceration – literally – of an entire people when a wall was built to enclose the Easter Island population within their small town, isolating them from their ancestral lands to prevent their interference with development of the island as a sheep ranch. 

All of this history is relevant to understand the events there of the last few months.  Its small size and remote location still to this day limit how much the rest of the world hears of Easter Island.  In 1888, the island was annexed by Chile in a political move that seems mostly motivated by Chilean desires at the time to have a place on the same stage as European nations by copying their imperialism.  Relations between Chileans and the native Rapa Nui of Easter Island have always been uneasy and tha friction came to a recent head in August 2010.  Members of the Hito clan occupied the Hanga Roa hotel, claiming an ancestral property right they claim supersedes that of the private Chilean owners.  In the six months or so since, the conflict has escalated, at times turning violent in confrontations between the squatters and the Chilean military.  

In the next part of this post, to be published in a couple of days, I want to discuss the 2007 U.N. Declaration on the Rights of Indigenous Peoples, of which Chile is a signatory, to discuss the impact of the conflict on this scientifically important island.  A rally and protest are planned in San Francisco on Wednesday, March 16 before the Chilean Consulate.  Those wishing to read more about the conflict (from the perspective of the indigenous Rapa Nui) can do so here.

I Know It When I See It

It is easy to imagine the scene.  Les Amants was French director Louis Malle’s third film and had been tremendously popular in France and other European countries.  Many considered the film to be what established him as a serious talent.  So when the film was shown in the Coventry Village district of Cleveland Heights in Ohio in 1959, it probably attracted those people in the community who had an interest in seeing the works of foreign talents.  One can imagine men and women lining up at the Heights Art Theatre in this bohemian part of Ohio, perhaps pulling their coats tight around them on the cool autumn evening as they waited.  Surely the film was not as popular in sleepy Ohio as in the more cosmopolitan American cities of New York or San Francisco, but every part of the country has an element interested in such things.  Most waiting to view the film probably considered themselves to be reasonably sophisticated and looking forward to debates over late-night coffee about the merits and failings of Malle’s vision. 

There was just one problem.  The local government considered the film — which recounts the story of an unhappy upper-class woman who spurns both her husband and her lover for the uncertain excitement promised by a passing stranger — obscene.  The manager of the theater, Nico Jacobellis, was fined a total of $2500 for violating Ohio law by possessing and exhibiting an obscene film.  It is likely that few today would be in any way shocked by the film’s content, but it was Jacobellis’s conviction that resulted in Justice Potter Stewart’s famous proclamation about obscenity that “I know it when I see it, and the motion picture involved in this case is not it.” 

The contours of the guarantee in the U.S. Bill of Rights that “Congress shall make no law … abridging the freedom of speech” is one that the Supreme Court frequently struggles with.  Yesterday, the Court heard oral arguments in the case of Schwarzenegger v. Entertainment Merchants Assoc.  A transcript of the arguments can be found here

At issue in the case is a California law that prohibits the sale or renting of violent video games to children.  The definition of “violent video game” is reasonably specific in the statute, and this is relevant.  The statute seeks to regulate video games in which children play characters that “inflict serious injury … in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim,” with such terms being further defined to include that the “player relishes the virtual killing or shows indifference to the suffering of the victim.” 

No matter how strongly one feels about the right to free expression, including the right to expression that involves violent images, it is impossible not to recognize the concern of the legislature in wanting to regulate these types of games.  There are numerous studies that have been conducted by social scientists and medical associations that raise specific concerns with video games that go beyond what a viewer of a film or reader of a book experiences.  Books and films provide passive experiences.  But video games allow the child to “become” the character in the game inflicting the violence, and those studies have found a correlation between playing such games that influences the moral development of young people at an age when their senses of morality and sociability are not fully formed.  They have an increase in aggressive thoughts and behavior and become desensitized to violence in both minors and adults. 

This science has been criticized, and those criticisms need to be taken into account in a full exploration of the issues.  But for my purposes today, suppose that the science relied on by the state is accurate.  Does that science then justify this encumbrance on the First Amendment rights to expression?  It is not an easy decision.  As Justice Scalia amusingly noted during yesterday’s argument, the First Amendment does not read “Congress shall make no law abridging the freedom of speech except those that make sense.” 

There are many considerations that the Court needs to make sense of, but two of them stand out in particular.  First, how is the producer of a video game to know whether what is produced is a “deviant violent video game” as opposed to a “normal violent video game”?  Everyone agrees that some level of violence has always been accepted in artistic expression, with examples ranging from Grimm’s fairy tales to the Bible to cartoons being mentioned during the argument.  Such uses can be a powerful part of legitimate messages that are conveyed in artistic creations, and it clearly goes too far to prohibit all violence from any artistic expression, including video games.  It is reasonable to expect producers to know what crosses the line and what does not, particularly when every one of us has a different view as to when a certain level of violence becomes too much.  Justice Scalia incisively mocked the notion that the state should have a mechanism to examine each video game and decide, using language that makes us cringe and shudder:  “You should consider creating such a one.  You might call it the California Office of Censorship.” 

Second, should the law accept a different treatment for sex and violence?  One of the strongest arguments made in favor of California’s law is that it attempts to mirror the standards that have been set forth by the Supreme Court itself in regulating sexual expression.  Obscenity can be regulated in the United States, the Court having set forth a test decades ago to delineate when sexual expression crosses the line into unprotected obscenity.  The only justification the Court seems to offer is that sexual expression has a “historical tradition” of being regulated while violence does not. 

This is a difficult rationalization to accept.  And if anything, it appears to provide a result that many feel is backwards.  If there is scientific evidence that violent video games may hamper a child’s social development and make him less empathetic to the suffering of others, how does it make sense to allow such expression while regulating sexual expression just because one type of suppression is “traditional” and the other is not. 

It is very often the case that things that seemed scandalous years ago seem tame today, particularly when new types of expression are implicated.  Print images caused concerns centuries ago.  Motion pictures caused concerns decades ago.  Video games cause concerns today.  And something else will cause concerns in the future.  Each of these has been identified as being more “real” and therefore more likely to impact the way children develop, prompting calls for the government to intervene.  Anyone watching Les Amants today, with a modern sensibility, is likely to consider it almost prosaic in its themes and portrayals. 

In the end, perhaps Justice Stewart’s observation is even more profound than he intended.  Times change.  Morals change.  Technologies change.  But I still know it when I see it.

My Very Excellent Mother Just Served us Nine … What?

When I was growing up and learning about the planets of our solar system, many children used a mnemonic like the title of this post to remember the order of the planets, finishing it with something like “Pizzas” or “Pies.”  It was something we all accepted as part of the natural order of the universe — that we live in a solar system that has nine planets, with us on the third. 

But on August 24, 2006, the International Astronomical Union (“IAU”) finally provided a formal definition of a planet and poor Pluto did not make the cut.  There are only eight planets that orbit our Sun.  Some of the reaction to the change was strongly negative.  Petitions were organized online to implore the IAU to reconsider its decision and to reinstate Pluto to its “rightful” place as a planet.  Protests were held, with people marching with placards proclaiming that “Size Doesn’t Matter” and wearing T-shirts announcing their “Protest for Pluto.”  The State of New Mexico — where Clyde Tombaugh was working when he discovered Pluto in 1930 — passed a resolution declaring that Pluto will always be considered a planet when in the skies of New Mexico.  Illinois — where Tombaugh was born — did the same thing a couple of years later.  A resolution was introduced in California denouncing the IAU for “scientific heresy.”  And many astronomers I know, who remembered with deep fondness how they discovered the sky as children, felt a sentimentally wistful loss at the change.  Even now, four years after the IAU decision, protests are still occasionally being held. 

It is heady stuff, whether Pluto is rightfully part of the club of planets or not. 

The decision of the IAU is one that emblemizes how brutal science rightfully is as new information and understanding is developed.  Old ideas that no longer fit with modern evidence and knowledge are to be summarily executed in favor of concepts that do comport with what we have learned through our investigations into nature.  And even though some astronomers felt some nostalgia, they also know that this ruthlessness is a necessary part of the scientific method that they embrace. 

I was reminded of Pluto — and of both the strict demand that science has for evidence and its willingness to reject old ideas wholesale — when I read the decision in Perry v. Schwarzenegger, the federal court decision from last week holding that prohibiting same-sex marriages violates both the due-process and equal-protection clauses of the federal Constitution. 

One of the strongest reasons for opposition to same-sex marriages is rooted in the traditions of this and other countries that marriages are between one man and one woman.  Those traditions very much reflect a moral and often religious view of what marriage is, and a judgment that homosexuality is “wrong.”  But as Thomas Jefferson famously noted in his 1802 letter to the Danbury Baptists, the United States seeks to maintain a “wall of separation” between church and state through the First Amendment to the federal Constitution.  As the judge in Perry noted, a “state’s interest in an enactment must of course be secular in nature.” 

And so the judge — who interestingly had difficulty with his original appointment by Ronald Reagan because he represented the U.S. Olympic Committee in prohibiting use of the term “Gay Olympics” — demanded that there be some evidence that a legitimate state interest is promoted by limiting marriage to opposite-sex couples.  Like the IAU and Pluto, it would not be enough that there was a long history of such a limit, and the evidence had to be real and solid. 

There are many reasons that have been suggested by those who are opposed to same-sex marriage and that were considered in Perry.  The interest of the state in promoting procreation.  The commonly held belief that children’s emotional development is most stable when raised in a household with both a father and a mother as role models for each sex.  The risk that opening up marriage to same-sex couples will erode its value, even in perception, of providing stability for heterosexual couples.  If true and supported by evidence, it is difficult to argue that these are not legitimate interests of the state. 

But that is where the proponents of a traditional definition of marriage fell short.  Much evidence from social scientists was presented during the trial that these reasons are not supported by evidence — that children develop emotionally with as much strength when raised by same-sex or opposite-sex households and that relaxation of restrictions on the physical characteristics of parties who marry is unlikely to erode the respect that heterosexual couples have for marriage.  A strong analogy was made to the 1967 decision of the Supreme Court in Loving v. Virginia that miscegenation laws banning interracial marriage were unconstitutional. 

It is widely accepted that the parties wanting to preserve the traditional definition of marriage did a poor job in presenting their case during trial, even as the judge nudged and implored them to do better and to present their case more persuasively.  They didn’t call nearly as many witnesses as the other side and the witnesses that they did call were less well-credentialed and credible.  There is still a significant belief that some of those interests articulated in support of limiting marriage to opposite-sex couples do actually have evidence among social scientists.  And no matter which side one falls on the issue, we should all acknowledge one fundamental fact:  the contrary evidence deserves to have been presented in its strongest and most persuasive form.  It is when the strongest possible evidence is considered and still found to be lacking — just as the IAU did with Pluto — that we have the greatest confidence in decisions, particularly when they seem to run counter to tradition and intuition.

The full opinion in Perry can be read here.