Introduction
In recent years, the Supreme Court has shown solicitude for religious freedom claims arising under the First Amendment and federal statutes.1 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 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 The two key cases are more than thirty years old and their legacy is mixed at best.4 In Lyng v. Northwest Indian Cemetery Protective Ass’n,5 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 Reasoning that the “government simply could not operate if it were required to satisfy every citizen’s religious needs and desires,”7 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 The Court then held in Employment Division v. Smith9 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 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
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 (RFRA), which restored the substantial burden/compelling interest test to government activities that substantially burden religion.13 Yet, other proponents of religious liberties have argued that the Court should “revisit” Smith and noted the upcoming Fulton v. City of Philadelphia14 case as an opportunity to do just that.15 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 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 “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 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 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
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 “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 (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 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 While there appears to be some disagreement among federal courts with respect to the reach of RFRA in sacred sites cases,25 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 The image suggests that, even with enduring tribal resilience27 and important legal victories,28 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 The United Nations Declaration on the Rights of Indigenous Peoples30 (the Declaration) and the American Declaration on the Rights of Indigenous Peoples31 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 exists to help realize those rights.33 Tribal governments themselves have adopted legislation embracing the Declaration and also created institutions to realize its promise.34
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 (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
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 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 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 In the United States, various federal, state, and tribal legal institutions are already referencing the Declaration in Indian law matters.40 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.