Native American Religious Freedom after Trump

Native American Religious Freedom after Trump, by Dana Lloyd, December 14, 2020, Responding to: Rethinking U.S. Domestic Religious Freedom. Dana Lloyd is a visiting scholar and lecturer in the Program of Holocaust and Genocide Studies at Stockton University, as well as a research fellow at the Indigenous Values Initiative. Her book, Arguing for This Land: Rethinking Indigenous Sacred Sites

Religion is relevant to the struggles of Native communities toward justice.

Sacred Indigenous lands have been at the center of recent controversies—along the Dakota Access Pipeline, on Mauna Kea, in Bears Ears. Indigenous scholars such as Vine Deloria, Jr. (Standing Rock Sioux) and Winona LaDuke (Ojibwe) have also offered us ways to think about the sacred without subjecting it to western ideas about religious freedom. In books such as God is Red and Recovering the Sacred, they remind us that sacred lands are living beings and that those lands have witnessed genocide and dispossession. If we want to protect Indigenous lifeways, we need to protect Indigenous relationships to these lands, understood as sacred living beings that have witnessed genocide and dispossession. Can religious freedom encompass such an understanding of the sacred? 

Religious studies scholars such as Greg Johnson and Michael McNally have argued that religious freedom could be a useful tool for Native Americans if we go beyond the First Amendment. They emphasize the importance of international law, and especially the UN Declaration on the Rights of Indigenous Peoples, but also domestic rights other than free exercise, such as the right to protest, that are central to the protection of Native American religious freedom. As law and religion scholar Nick Shrubsole points out, there is a whole network of relationships that are at play in sacred sites cases—between the state, religious communities, legal orders, and transcendent sources of authority—and the religious freedom framework alone may be too narrow to fit them all in. 

What am I interested in then? I want us to strive for the kind of protection that would recognize both Indigenous communities’ power to decide how to use their sacred sites and the responsibility of the United States to promote the well-being of Indigenous communities. 

It seems that the answer is to be found in social movements or grassroot organizations, as Charlie McCrary points out. Social movements can open themselves to a range of practices including ones that are inspired by transitional justice—such as truth commissions, reparations, apologies, and prosecutions—to respond to the structural injustices that exist in states that have not undergone regime transition in their relation to Indigenous peoples. Those movements can open themselves to Indigenous worldviews and jurisprudences rather than simply continuing to privilege the legal mechanisms of the state. Alternative legal mechanisms that are not limited by the adversary procedure that rules the common-law system can provide a platform for marginalized voices to be heard and for more robust stories—about religion, about injustice—to be told. While settler colonial law and legislation limit Indigenous peoples’ political, cultural, and social authority, alternative modes of conflict resolution can establish Indigenous identities and cultural knowledge as foundational to social reform.

Alternative modes of conflict resolution can establish Indigenous identities and cultural knowledge as foundational to social reform.

One advantage of such alternative mechanisms is that they can be flexible in their relation to the state—they can work side by side with formal legal mechanisms, enjoy government support, or subvert state power altogether. They can transcend the rights discourse that is promoted by legal texts about religious freedom and focus on expanding the social collective imaginary, allowing Indigenous voices to be heard. There are examples of such collaborations between Natives and whites in the United States, such as the voluntary ban on climbing Mato Tipila/Devils Tower during the month of June, or the attempts by Christian activists to convince their individual churches to formally repudiate the Doctrine of Christian Discovery. Even if the U.S. Supreme Court would eventually overturn Smith, it is still the courts’ function to translate human stories into legal language, to convert communities into rights-bearing individuals. Social movements can do more than that.

But what about the political route? After all, it was Congress that eventually passed a law that protected the sacred lands that the Court failed to protect in the Lyng case; it is the American Indian Religious Freedom Act (1978) that requires consultation with Indigenous communities before taking any action that might affect their sacred sites. President-elect Joe Biden is expected to name his nominee for secretary of the interior in the next few days, and many progressives, environmentalists, and Native Americans are hopeful that he will choose Congresswoman Deb Haaland (Laguna Pueblo) of New Mexico for the job. Haaland says she would accept the position if it is offered to her. In her own words, “The symbolism alone, yes, it’s profound.” But choosing her to lead the department that oversees public lands, natural resources, the Bureau of Indian Affairs—the department that oversees Indigenous sacred sites—would be much more than symbolic. It would be “a remarkable plot twist in the American story” of religious freedom.

Rethinking Protections for Indigenous Sacred Sites

134 Harvard Law Review (forthcoming 2021)

BYU Law Research Paper No. 20-23

67 Pages Posted: 9 Sep 2020 Last revised: 16 Sep 2020

Stephanie H. Barclay

Notre Dame Law School

Michalyn Steele

Brigham Young University- J. Reuben Clark Law School

Date Written: September 8, 2020


Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.

Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.

Keywords: American Indian Law, Federal Indian Law, Native American Law, Tribes, Indigenous Peoples, Sacred Sites, First Amendment, Religious Freedom Restoration Act, RFRA, Religion

Suggested Citation:Barclay, Stephanie H. and Steele, Michalyn, Rethinking Protections for Indigenous Sacred Sites (September 8, 2020). 134 Harvard Law Review (forthcoming 2021), BYU Law Research Paper No. 20-23, Available at SSRN: This PaperOpen PDF in Browser

24 References

  1. Plaintiff’s Response to Defendant’s Motion for Partial Summary Judgment, Slockish v. United States FedHighway Admin, issue 3Posted: 2018-10-10
  2. Id*15Crossref
  3. Id
  4. ); see also Plaintiffs’ Objections to Magistrate’s Findings and Recommendations at 18, Slockish v. United States FedHighway Admin, issue 3Posted: 2018-04-22