Harvard Law Review Harvard Law Review Harvard Law Review

Freedom of Religion

Living The Sacred: Indigenous Peoples and Religious Freedom

The full text of this Book Review may be found by clicking on the PDF link to the left.


In recent years, the Supreme Court has shown solicitude for religious freedom claims arising under the First Amendment and federal statutes.1×1. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020) (ex-panding the ministerial exception to include teachers at religious schools); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2251, 2262–63 (2020) (holding that denying financial aid to religious schools under a state constitution violated the Free Exercise Clause); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2372 (2020) (upholding administrative religious exemptions to the contraceptive mandate of the Affordable Care Act); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2074 (2019) (upholding use of public funds to maintain a memorial that was in the form of a cross as constitutional under the First Amendment). Cases expanding the scope of free exercise and narrowing limitations on government establishment have favored religious belief and practice, even when arguably pitted against core concerns about public health and antidiscrimination.2×2. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1724, 1732 (2018) (upholding a religious baker’s refusal to serve gay customers on narrow grounds). Despite the current mood, however, the Court’s precedents still deny religious freedom to American Indians, a point that Professor Michael McNally underscores in his new book Defend the Sacred: Native American Religious Freedom Beyond the First Amendment (p. xviii).

McNally’s book is an important one. Indeed, in 2021, when both religious freedom and minority rights are front-burner issues, it is reasonable to ask why the Supreme Court has never extended the protections of the First Amendment to American Indians.3×3. This Review uses the terms “American Indian” and “Native American” somewhat interchangeably to refer to the original inhabitants of the Americas and their descendants. Other terms that appear in this Review are “Indian tribes” or “tribes,” which usually refer to American Indians in the collective, and include the 573 “federally recognized tribes” listed on the Federal Register and those having a political relationship with the United States, as defined by the Constitution, treaties, and statutes. See Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 84 Fed. Reg. 1200 (Feb. 1, 2019). This Review also uses the term “Indigenous Peoples,” which is gaining currency in the United States and acknowledges the connection between American Indians and similarly situated peoples around the world, from the Sami of Europe and Maya of Guatemala to the Ainu of Japan and the Khoisan of South Africa. The two key cases are more than thirty years old and their legacy is mixed at best.4×4. Both cases — Employment Division v. Smith, 494 U.S. 872 (1990), and Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) — are described by Walter Echo-Hawk as among the “ten worst Indian cases ever decided.” See Walter R. Echo-Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided 273–358 (2010). A third case from this era held that the Free Exercise Clause did not mandate exempting an Abenaki Indian plaintiff from the requirement that he obtain a social security number for his daughter in order to receive benefits. See Bowen v. Roy, 476 U.S. 693, 695, 699–700 (1986). In Lyng v. Northwest Indian Cemetery Protective Ass’n,5×5. 485 U.S. 439 (1988). the Court rejected Yurok, Karuk, Tolowa, and Hoopa Indians’ claims that building a road through their prayer sites in a national forest would violate the Free Exercise Clause.6×6. Id. at 441–42. Reasoning that the “government simply could not operate if it were required to satisfy every citizen’s religious needs and desires,”7×7. Id. at 452. Justice O’Connor wrote that the federal government could destroy the Indian sacred sites even if it would “virtually destroy the . . . Indians’ ability to practice their religion.”8×8. Id. at 451–52 (quoting Nw. Indian Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 693 (9th Cir. 1986)). The Court then held in Employment Division v. Smith9×9. 494 U.S. 872 (1990). that a state could deny employment benefits to individuals who lost their jobs for violating a state prohibition on peyote possession, which they ingested as a sacrament in the Native American Church.10×10. Id. at 890; see also Bowen v. Roy, 476 U.S. 693, 699–700 (1986) (holding federal government did not violate Free Exercise Clause by conditioning welfare benefits upon use of social security number in violation of Abenaki Indian’s religion). But see Sherbert v. Verner, 374 U.S. 398, 399, 406–09 (1963) (finding South Carolina violated the Free Exercise Clause when it denied unemployment benefits to an individual who refused to accept Saturday work in keeping with her Seventh-day Adventist beliefs); Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 138, 146 (1987) (holding that Florida violated the Free Exercise Clause when it denied unemployment benefits to an individual who, after conversion to Seventh-day Adventist church, was fired because she could not work on her Sabbath). Because the Controlled Substances Act was a “neutral law of general applicability,” according to Justice Scalia, its incidental effects on religion would not violate the Free Exercise Clause.11×11. Smith, 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)).

Cover for Defend the Sacred: Native American Religious Freedom Beyond the First Amendment

Defend the Sacred: Native American Religious Freedom Beyond the First Amendment

By Michael D. McNally. Princeton, N.J.: Princeton University Press. 2020. Pp. 376. $99.95 (hardcover), $26.95 (paperback).

Lyng and Smith have divided commentators. Some scholars of religious liberties suggest that these cases draw the right line, allowing government to regulate conduct, neutrally and fairly, right up to the point of private religious belief. To the extent that a religious practice may require special accommodations, these scholars argue for legislative or administrative measures, as in the Religious Freedom Restoration Act of 199312×12. 42 U.S.C. §§ 2000bb–2000bb-4 (2012), invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997); see Garrett Epps, To an Unknown God: The Hidden History of Employment Division v. Smith, 30 Ariz. St. L.J. 953, 1016 (1998) (explaining the mobilization of a religious coalition to advance legislative repudiation of Smith and its exclusion of the Native American Church whose sacramental use of peyote was at issue in Smith). For scholarly critiques of Smith, see, for example, Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1111 (1990) (arguing “Smith is contrary to the deep logic of the First Amendment”); and Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 59–68 (arguing that deference to ostensibly neutral laws restricting religion creates a “legal framework for persecution,” id. at 59). Following Laycock, scholars and advocates may wish to analyze whether regulations, plans, or programs destroying or desecrating American Indian sacred sites on the federal public lands are truly “neutral.” (RFRA), which restored the substantial burden/compelling interest test to government activities that substantially burden religion.13×13. See City of Boerne, 521 U.S. at 533, 536 (declaring RFRA unconstitutional as to the conduct of state and local governments). Yet, other proponents of religious liberties have argued that the Court should “revisit” Smith and noted the upcoming Fulton v. City of Philadelphia14×14. 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020). case as an opportunity to do just that.15×15. Lindsay See, Symposium: In Fulton, the Court Has the Chance to Jettison Employment Division v. Smith — and the Pandemic Shows Why It Should Take It, SCOTUSblog (Oct. 30, 2020, 5:16 PM), https://www.scotusblog.com/2020/10/symposium-in-fulton-the-court-has-the-chance-to-jettison-employment-division-v-smith-and-the-pandemic-shows-why-it-should-take-it [https://perma.cc/Q3CN-UTTQ]. In Fulton, the question is whether the city of Philadelphia may require Catholic Social Services, despite its religious objections, to place foster children with same-sex couples. Under Smith, the city’s nondiscrimination ordinance would likely be immunized as a neutral law of general applicability, but challengers argue that since the ordinance burdens religion, it should be subjected to a strict scrutiny analysis under pre-Smith jurisprudence.

While Indigenous Peoples’ cases arise in different contexts, they also test the American commitment to religious freedom, perhaps even more poignantly than other cases. Indigenous Peoples are not seeking to impose their religious beliefs or values on others. Rather, they seek the space to recover and revitalize their own religions following hundreds of years of suppression. Congress did afford certain legislative accommodations after Lyng and Smith, and, as described below, there are legislative protections for at least certain Indian sacramental interests, including peyote and eagle feather possession. Yet, these were achieved on a case-by-case basis and do not undo Smith’s potentially broader impact on any other Indigenous religious practices, especially because the courts have interpreted RFRA very narrowly in the Indigenous Peoples’ context, as also described below. In areas such as sacred sites protection, Indigenous Peoples’ religions remain extremely vulnerable to burdensome government activities. The upshot is that even though our country was ostensibly founded on a promise of religious freedom, it quite frequently denies that promise to American Indians.

In early 2021, for example, a federal district court denied temporary injunctive relief to Apache plaintiffs seeking to stop the federal government from transferring sacred lands to a foreign mining company, on the grounds that it would violate the First Amendment and RFRA, among other laws.16×16. Apache Stronghold v. United States, No. CV-21-0050, 2021 WL 535525, at *1, *8 (D. Ariz. Feb. 12, 2021). Although the federal government claims to own and manage the land as part of the Tonto National Forest, the land is within Apache traditional territory and is arguably recognized as such under treaties.17×17. Id. at *1. “Chi’chil Bildagoteel,” known in English as “Oak Flat,” is the site of young women’s coming-of-age ceremonies and other religious practices.18×18. Id. at *7. Rather stunningly, the court acknowledged that “the land in this case will be all but destroyed to install a large underground mine, and Oak Flat will no longer be accessible as a place of worship.”19×19. Id. at *9. Nevertheless, it cited Lyng for the proposition that the federal government may destroy Indian sacred sites located on federal public lands, notwithstanding the First Amendment or RFRA.20×20. Id. at *10. After the district court decision, the U.S. Department of Agriculture issued a temporary reprieve of sorts, withdrawing the “Notice of Availability, Final Environmental Impact Statement, and Record of Decision” supporting transfer of Oak Flat, until impacts on federally recognized Indian tribes could be more fully studied. U.S. Dep’t of Agric., Resolution Copper Project and Land Exchange Environmental Impact Statement (Mar. 1, 2021), https://www.resolutionmineeis.us [https://perma.cc/PZM4-3S8E]. This decision provides some time and space for concerned parties to work toward a political solution to protect Oak Flat permanently. Models include congressional legislation restoring Blue Lake to Taos Pueblo, as well as comanagement agreements and wilderness designations for tribal sacred sites, described below.

Other recent cases also reveal the difficulty of protecting Indigenous Peoples’ religious freedom under current jurisprudential standards. In 2020, for example, tribes complained that the Department of Homeland Security failed to consult with them before blasting sacred sites and burial grounds as part of the border wall construction project.21×21. See Christine Hauser, Blasting in Construction of Border Wall Is Affecting Tribal Areas, N.Y. Times (Feb. 15, 2020), https://www.nytimes.com/2020/02/11/us/trump-border-wall-arizona-native-americans.html [https://perma.cc/DDA9-JMPH]; Native Burial Sites Blown Up for US Border Wall, BBC News (Feb. 10, 2020), https://www.bbc.com/news/world-us-canada-51449739 [https://perma.cc/YNF2-C3WC]; Paulina Firozi, Sacred Native American Burial Sites Are Being Blown Up for Trump’s Border Wall, Lawmaker Says, Wash. Post (Feb. 10, 2020, 5:14 AM), https://www.washingtonpost.com/immigration/2020/02/09/border-wall-native-american-burial-sites [https://perma.cc/TF3E-LQMW]. The most tribes could realistically claim under current law is a right “to consult” on projects. See Robert J. Miller, Consultation or Consent: The United States’ Duty to Confer with American Indian Governments, 91 N.D. L. Rev. 37, 48–53 (2015). The right of federally recognized tribes to “consult” on certain matters affecting them is recognized in various statutes and executive orders. Id. While achieving this right to consult was itself a hard-fought victory for tribes at the onset of the self-determination era, it has often proven expensive, bureaucratic, and ultimately ineffective in securing any substantive legal protections in areas ranging from religious freedom to intellectual property and environmental regulation. See id. at 64. Ultimately, agencies are free to offer minimal consultation procedures and go ahead with their proposed decisions as a matter of administrative discretion. See id. at 67. It is for this reason that many tribes are interested in the United Nations Declaration on the Rights of Indigenous Peoples’ standard of “free, prior, and informed consent” (FPIC), which strives to improve consultation by envisioning best practices of notice and cooperation leading to mutual agreement. Id. at 67–68. FPIC is discussed throughout this Review. “Consultation” is one of the post-Lyng legislative accommodations that is supposed to protect Indigenous religious freedoms. Under statutes like the National Historic Preservation Act22×22. 54 U.S.C. § 302706(b). (NHPA), it gives tribal governments the right to receive notice and participate in government-to-government discussion regarding actions that would adversely impact sacred sites. Unfortunately, however, it fails to protect those sites in most cases. Even when federal land managers do consult with tribes regarding actions that will affect sacred sites, consultation has little chance of preventing destruction unless the department or agency is inclined to cooperate with the tribe. In cases such as the Standing Rock Sioux Tribe’s opposition to the Dakota Access Pipeline and the Navajo Nation’s opposition to development of the Arizona Snowbowl, courts construed statutory rights to consultation as entirely procedural and easily satisfied.23×23. See Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1060 (9th Cir. 2007) (holding U.S. Forest Service’s consultation process concerning effects on historic properties to which Indian tribes attached religious and cultural significance was substantively and procedurally adequate under the National Historic Preservation Act (NHPA)); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 32, 37 (D.D.C. 2016) (denying the motion for preliminary injunction in part because the Tribe had not shown the government failed to meet the standard for consultation under NHPA). The agencies checked the consultation box under the NHPA or National Environmental Protection Act, and went ahead with desecrating the sites anyway, over the religious concerns and objections of tribes. Reviewing courts held that these agency decisions did not violate the First Amendment or RFRA.24×24. See, e.g., Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1078 (9th Cir. 2008) (en banc). While there appears to be some disagreement among federal courts with respect to the reach of RFRA in sacred sites cases,25×25. Compare id. at 1063, 1078 (declining to find that the use of recycled wastewater to create artificial snow imposed a “substantial burden” under RFRA), with Comanche Nation v. United States, No. CIV-08-849-D, 2008 WL 4426621, at *2, *17 (W.D. Okla. Sept. 23, 2008) (finding that construction of a warehouse did impose a “substantial burden” on Indigenous religious practices). the Supreme Court has not revisited its American Indian religious freedom jurisprudence since upholding the government’s right to destroy Indian religions.

Walter Echo-Hawk has characterized the destructive powers and tendencies of the federal government vis-à-vis Indian tribes as comprising the “dark side of federal Indian law.”26×26. Echo-Hawk, supra note 4, at 31. The image suggests that, even with enduring tribal resilience27×27. See generally Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (2005) (tracing tribal histories from the federal Indian “termination” policy of the 1950s to the “self-determination” policy of the 1970s). and important legal victories,28×28. See, e.g., McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020) (holding the reservation of the Muscogee (Creek) Nation, as created by treaty in 1832, was never disestablished). there remains a shadow of conquest and colonization over the lives of Indigenous Peoples in the United States. In the search for daylight, many Indigenous people have turned to the field of human rights for new ways of addressing old problems in federal Indian law.29×29. See, e.g., Walter R. Echo-Hawk, In the Light of Justice: The Rise of Human Rights in Native America and the U.N. Declaration on the Rights of Indigenous Peoples 3–4 (2013). The United Nations Declaration on the Rights of Indigenous Peoples30×30. G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007) [hereinafter the Declaration]. (the Declaration) and the American Declaration on the Rights of Indigenous Peoples31×31. Org. of Am. States, American Declaration on the Rights of Indigenous Peoples, AG/RES. 2888 (XLVI-O/16) (June 15, 2016), https://www.oas.org/en/sare/documents/DecAmIND.pdf [https://perma.cc/B9XP-F6YR]. While this Review largely focuses on the U.N. Declaration because of its global application and longer time since adoption, many of its arguments could apply to the American Declaration as well. Relevant provisions of the American Declaration include articles VI, XIII, XIV, XX, and XXXI, which articulate a robust set of Indigenous Peoples’ rights to religion and spirituality, including sacred sites and ritual practices. recognize Indigenous Peoples’ rights in substantive areas including land and culture, health and development, language, participation, and religion. An entire infrastructure at the United Nations and Organization of American States32×32. For a description of U.N. mechanisms and procedures focused on Indigenous Peoples, see Int’l Work Grp. for Indigenous Affs., The Indigenous World 2019, at 582–88, 613–71 (David N. Berger ed., 2019). exists to help realize those rights.33×33. See, e.g., Sanila-Aikio v. Finland, CCPR/C/124/D/2668/2015, Views Adopted by the Committee Under Article 5 (4) of the Optional Protocol, Concerning Communication No. 2668/2015, ¶ 2.2 (U.N. Hum. Rts. Comm. Nov. 1, 2018); Käkkäläjärvi v. Finland, CCPR/C/124/D/2950/2017, Views Adopted by the Committee Under Article 5 (4) of the Optional Protocol, Concerning Communication No. 2950/2017, ¶ 2.12 (U.N. Hum. Rts. Comm. Nov. 2, 2018) (extensively citing the Declaration in support of findings that by extending the pool of eligible votes for elections of the Sami Parliament, Finland improperly interfered with the Sami peoples’ rights to political participation and to minority rights under articles 25 and 27 of the International Covenant on Civil and Political Rights). For a summary of these cases, see UN Human Rights Experts Find Finland Violated Sámi Political Rights to Sámi Parliament Representation, United Nations Hum. Rts. (Feb. 4, 2019), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24137&LangID=E [https://perma.cc/2KT3-CJSR]. Tribal governments themselves have adopted legislation embracing the Declaration and also created institutions to realize its promise.34×34. See Univ. of Colo. L. Sch., Native Am. Rts. Fund & UCLA Sch. of L., Project to Implement the U.N. Declaration on the Rights of Indigenous Peoples: Tribal Implementation Toolkit 9, 25, 28 (Mar. 1, 2020) (on file with the Harvard Law School library).

One of the most exciting aspects of Defend the Sacred, in my view, is that it lays the groundwork for applying this global framework for Indigenous Peoples’ human rights to the problem of religious freedom in the United States (p. 32). First, McNally observes that, despite the discouraging case law referenced above, American Indians have not given up on the First Amendment (p. 87). Rather, they continue, appropriately so, to insist on a right to practice Indigenous religions without government interference, under the Free Exercise Clause and statutes such as RFRA and the Religious Land Use and Institutionalized Persons Act of 200035×35. 42 U.S.C. §§ 2000cc–2000cc-5. (RLUIPA) (p. 96). Noting the many categorical and practical limitations of religious freedom jurisprudence, however, the author also argues against beating a dead horse. It is time to try something new. Accordingly, McNally argues that lawmakers should reframe their understanding of “religious freedom” toward a model that affirmatively protects the collective rights of “peoples” to actually practice their religions (p. 19). He notes that the Declaration, with its recognition of the collective rights of Indigenous Peoples, including the right to maintain their distinctive spiritual relationship with lands, is a potential source for a paradigm shift in this regard (p. 295). This Review assesses McNally’s analysis and then picks up where he leaves off, namely, in more fully articulating the potential for law reform guided by the Declaration, to bring about real change in religious freedom in the United States (p. 32).36×36. Another religious freedom scholar, writing in the Canadian context, ends like McNally with a call for implementation of the Declaration. See Nicholas Shrubsole, What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today 183 (2019).

To date, our legal institutions have not managed to afford Indigenous Peoples the full protections of the Constitution and statutory law on religious freedom. The history of conquest and colonization, in which Indigenous Peoples’ sacraments were outlawed and their lands taken, casts a very long shadow and renders many existing approaches to religious freedom unsatisfactory in the Indigenous Peoples’ context today. When, for example, critics of the Court’s establishment cases argue that religion should stay out of the public sphere,37×37. See Howard Gillman & Erwin Chemerinsky, The Religion Clauses: The Case for Separating Church and State 18–19 (2020). they perhaps do not realize that many Indigenous sacred sites are now located on federal public lands because the United States took those sites from Indian tribes long ago. There is no “private” place for those religions to go. And scholars who laud the recent free exercise cases38×38. Richard Garnett, Symposium: Religious Freedom and the Roberts Court’s Doctrinal Clean-Up, SCOTUSblog (Aug 7, 2020, 9:57 AM), https://www.scotusblog.com/2020/08/symposium-religious-freedom-and-the-roberts-courts-doctrinal-clean-up/ [https://perma.cc/8298-M8SV] (“An important part of the Roberts court story, though, is that it has both continued and facilitated developments-for-the-better in law-and-religion.”). rarely evaluate whether the Court’s new approaches will finally extend religious liberty to American Indians at sacred sites, nor do they consider whether the new jurisprudence will address the historical policies or ongoing discrimination that have left American Indians uniquely without judicial protection for their religions to date.

In some respects, the circumstances — historical, political, cultural, and racial — facing Indigenous Peoples when they try to practice their religions are simply unlike those facing other people. The Declaration is potentially a very powerful tool for legal advocates and decisionmakers to use in these distinctive cases because it addresses the question of how to achieve religious freedom for Indigenous Peoples whose sacred lands, plants, and ceremonies have all been taken or harmed through histories of conquest and colonization. With its provisions for remedial and ongoing approaches to Indigenous rights, the Declaration could help the United States to address past harms and recognize the contemporary rights of Indigenous Peoples necessary to ensure their religious freedom.

Implementation of the Declaration is underway in countries such as Canada, New Zealand, and Mexico.39×39. See infra notes 175–181 and accompanying text. In the United States, various federal, state, and tribal legal institutions are already referencing the Declaration in Indian law matters.40×40. See infra section II.D, pp. 2138–49. More specifically, the Declaration’s substantive provisions on land and religion, culture and spirituality, as well as its procedural provisions on political participation and free, prior, and informed consent (FPIC), all have salience in the religious freedom context. I argue that by embracing these provisions of the Declaration — or taking inspiration from them — advocates and lawmakers can help to make the United States a place where Indigenous Peoples have a right to survive, politically, culturally, and spiritually, and where Indigenous Peoples actually enjoy the freedom of religion.

This piece proceeds in three parts. Part I describes American Indian religions and McNally’s assessment of First Amendment jurisprudence in the United States. Part II takes McNally’s work as a launch pad for considering how the overall situation of Indigenous Peoples’ religious freedom in the United States could be improved by embracing the Declaration in sacred sites cases and other contexts. Part III concludes with some reflections about how and why the United States might wish to advance a collective human rights approach to religious freedom, as embodied in the Declaration. Among other things, the Declaration offers a way to distinguish Indigenous religions and respect them on their own terms, while fostering a cooperative, pluralist approach to religious freedom more broadly.

* Council Tree Professor of Law and Director of the American Indian Law Program, University of Colorado Law School; Member from North America, United Nations Expert Mechanism on the Rights of Indigenous Peoples. For helpful comments and insights, the author would like to thank Jim Anaya, Ben Barnes, Greg Bigler, Rick Collins, David Comingdeer, Amy Cordalis, Daniel Cordalis, John Echohawk, Walter Echo-Hawk, Matthew Fletcher, Kim Gottschalk, Lorie Graham, Chris Jocks, Greg Johnson, Sarah Krakoff, Michael McNally, Steve Moore, Angela Riley, Brett Shelton, Wenona Singel, Michalyn Steele, Alexey Tsykarev, and Charles Wilkinson.