By: Steven Newcomb, Berkeley Center, October 21, 2020 Responding to: Indigenous Peoples, Sacred Rights, and Religious Freedom
In a brilliant essay, “Decolonial Theology and Changing the Global Church” on the Berkley Forum, Dr. Debora Tonelli says that “At the end of official colonialism, religion has often been the space in which colonized people have fought to build their new identity.” With regard to Indigenous nations and peoples, I would suggest a slight modification of that concept: “…the religion of the invaders has often been the space in which dominated and colonized peoples, those who have survived the intergenerational onslaught, have fought to build a new identity under an imposed system of domination.
My inspiration for that modification comes from a number of Vatican papal decrees issued by various popes during the fifteenth century (1436, 1452, 1454, 1455, 1456, 1481, 1493, 1506, and 1514). The Latin language of those documents is quite useful. It provides insight into the church-state coalition that served as an engine, so to speak, for establishing a system of domination over distant non-Christian lands during the so-called Age of Discovery.
Are the Papal Bulls Political Documents of Christian Empire?
While present-day Catholic Church experts tend to say that the language of those papal bulls is not part of official Church teaching, this is beside the point. Years ago, in 1992, Bishop (now Archbishop) Charles J. Chaput told me that the papal bulls I was referring to were “political documents.” I think he meant that they are not based on and do not express official church teachings.
I understand his use of the phrase “political documents” to mean that those papal decrees expressed the political intention of the popes of the Holy See, an intention to extend the system of domination of Western Christendom to distant lands in a spirit of “Christian empire” (Christiani imperii, in the Latin language of the bulls). This was to be accomplished by “reducing the barbarous nations” (ac barbarae nationes deprimantur) to subjection or domination.
The more egregious political language of those documents, going back to the Dum Diversas of 1452, expressed the directive to “invade, capture, vanquish, and subdue” non-Christians; “reduce their persons to perpetual slavery”; “take away all their possessions and property”; and “convert” the land, meaning to unlawfully or wrongfully take away that which belongs to another.
That kind of language provides us with the insight into what happens when free and independent nations and peoples have been invaded and deadly colonial patterns have been brutally imposed on them for generations, in the name of “the state” and Jesus. A resulting system of domination will then become “the space” within which Dr. Tonelli says that colonized people have fought to build “a new identity,” and within which they will perhaps “struggle for independence.” However, this “new” identity will be a “colonized” rather than a liberated one. The colonized will then be working toward a form of independence under and subject to the imposed Christian European system of domination. Curiously, Dr. Tonelli’s account does not envision dominated (colonized) nations and peoples working to restore their original free and independent existence, by liberating themselves from the imposed system of Christian empire and domination.
Dominorum Christianorum: Christian Dominators
During a 2016 meeting with the Pontifical Council for Justice and Peace, I said to Archbishop Silvano Tomasi, “With respect, I believe there is much of your own history you don’t know. Let me ask you, have you ever actually read the papal bulls” from the fifteenth century? He replied, “No, I must confess.” The point being that most Catholics and even some of the highest Church officials have never studied the Latin language of those Church documents, and certainly not from an Original Nations or Indigenous peoples’ perspective.
A book published by the U.S. Library of Congress, just a few years ago, contains replicas of the papal bull of September 26, 1493, the Dudum Siquidem. That line is taken from the middle of the papal bull dated May 3, 1493, “que sub dominio actuali temporali aliquorum dominorum Christianorum constitute non essent.” This refers to lands discovered and to be discovered in the future “that were not established under the domination of any Christian dominators.”
Whether the intent of domination expressed by that language is part of “official Church teachings” is irrelevant in my view. What is relevant is that, throughout the world, the present-day context and conditions experienced by “Indigenous” nations and peoples is an outgrowth of the patterns of domination and dehumanization expressed in those many documents issued centuries ago by the Holy See.
In State of the World’s Indigenous People (2009), published by the Economic and Social Council of the United Nations, there is section titled “The Concept of Indigenous Peoples.” After saying that no specific definition has been “adopted by any United Nations-system body,” an example of a “working definition” is provided. It refers to “Indigenous communities, peoples and nations” which have “a historical continuity with pre-invasion and pre-colonial societies that developed on their territories.” Terms such as “pre-invasion” and “pre-colonial” suggests a post-invasion and post-colonial period, or, in other words, after the claim of a right of domination has been asserted and maintained.
Furthermore, the international working definition says that Indigenous peoples “consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them,” which means “now dominating.” It also says that Indigenous communities, peoples, and nations “form at present non-dominant sectors of society…” The opposite of the non-dominant is the dominant, or the dominating states, which are the non-Indigenous. Despite these clear connections, the UN working definition never uses the word domination. Nor does it focus on the fact that the phrase “Indigenous peoples” is accurately interpreted as meaning “dominated peoples.”
Here’s one thing the Vatican papal bulls are able to teach us: Over a period of more than five centuries, a system of domination (the dominio of the dominorum Christianorum) was globalized by means of the language patterns found in the Vatican papal bulls of the fifteenth century.
That system now serves as the linguistic and behavioral “space” in which colonized Indigenous peoples, without being aware of it, have been working to build an identity as dominated peoples within the framework of the United Nations, which is an organization of “states” of domination. The question arises: How do we end the global system of domination and its devastating effects on the planet?
Other Editorial Responses
Response: Indigenous Religious Freedom: Between Individual and Communal Human Rights by Helge Årsheim October 23, 2020
Response:Defend the Sacred: Native American Religious Freedom by Michael McNally October 21, 2020
Response: On Lifeways and Litigation: Rethinking Native American Religious Freedom Michael P. Guéno October 21, 2020
Religion as a category was born from a Euro-American context and as such prioritizes aspects of culture and life that have historically been significant within Western, especially Christian, perspectives. However, many Native American cultures recognize that religion is inseparable from culture and permeates all aspects of human life. Thus, Native Americans strive to simultaneously protect their religions and cultures from and through colonial categories and institutions whose legal definitions of religion, culture, and property insufficiently accommodate Indian spiritual beliefs, values, and practices.
Federal and state courts have struggled to situate Indian religious liberty claims relative to the legal protections created by America’s founding documents and later legislation. The political and legal systems of the United States and the subsequent criterion for evaluating Native American petitions for legal protection of traditional religious or spiritual practices are all deeply rooted in European Christian values and norms. They were not constructed to recognize or protect the form of religion found among many Native American peoples for whom spirituality, ritual performances, and a sense of the sacred may pervade all aspects of their lives. The American legal definition of religion is disinclined to perceive religion that exists as an encompassing way of life, or lifeway, of a people. Nor does its emphasis on an individual’s right to believe, hold, or change their opinions according to the dictates of their conscience align well with a practice of religion that is often inextricable from group identity and performed as an expression of and on behalf of a people.
Native American peoples traditionally understood the world they inhabit as constructed and governed by ties of kinship. Concepts and relationships deemed sacred were guided by a commitment to interrelation and interpersonal ethics rooted in familial interactions. These ties of kinship bound all creatures found in nature, human beings and those beings that Western culture might label supernatural. Native American individuals and communities navigated the world and situated themselves in the cosmos through the performance of familial relationships. Such relationships are negotiated and maintained through structured ritual interactions but also through the interpersonal behaviors and daily practices that enable quotidian existence. Hunting, farming, food preparation, art production, interpersonal behaviors, and the daily routines of households are often reinforced and taught through religious stories or associated with the revealed wisdom from past generations. Although American legal definitions of religion would not recognize such activities as religious, the performance of daily life itself helps to situate Native American—and arguably all—people in the body, the community, space, and the cosmos. Thus, Native American cultures reveal that practices of daily life are informed, influenced, and contextualized by religious worldviews and shade indiscriminately into dramatic, recognizably religious practices.
If, however, we may use this forum as an occasion to entertain a hypothetical, then we might try to imagine how religious freedom concerns would appear in an America that adopted a Native American-influenced conception of religion: a more diffuse, community-centered, and relational notion of religion; religion as a lifeway of a people oriented to maintain proper relations throughout an extended familial network.
Currently, most legal claims regarding religious liberty emerge from one of three realms.
- The first is when an individual feels unable to comply with a generally applicable state or federal law without violating their religious beliefs or while engaged in their religious activities.
- Conflicting understanding of proper actions that emerge within employee-employer relationships form the next significant area that generates religious liberty concerns.
- Protracted legal battles over ownership of and access to sacred sites and artifacts has ensured that divergent beliefs about property is another such realm.
In each of these scenarios, with a Native American reframing of religion, whether the two parties in disagreement believe in the existence of the same powers or understand themselves and the cosmos differently is of little relevance. As the conflicts arose over clashing lifeways among different people, or divergent understandings of the proper actions necessary to maintain the network of relationships in which they are both inevitably entwined, then resulting litigation might effectively seek resolution by bringing together both the individuals and the community from whom and for whom they are practicing. Recentering understandings of religion as that which situates humans within a world comprised of a complex web of relations intersecting emphasizes the role of the relationship between the litigants and correspondingly decenters concern with what an individual has a right to do. Thus, justice in this case would seek to render the solution that restores the best relationship between the two parties and their peoples.
That is to say that, once religion is reimagined from a Native perspective, the method structurally proscribed to seek reconciliation over conflicts of religion evokes the method of Circle Justice or Restorative Justice—a Native American form of justice found throughout peoples of North America. Contrary to America’s current criminal or retributive justice system which seeks primarily to identify and punish offenders of laws, restorative justice seeks to heal the offender, victim, and community. Thus, the incorporation of Native American-influenced concepts of religion predicates traditional Native American conceptions and practices of justice. The fact that religious liberty may be the issue prompting a conflict is fairly inconsequential to the resulting litigation procedure. Notably, in this way, incorporation of an understanding of religion informed by Native American cultures, for whom religion would be inseparable from other aspects of culture and life, produces a legal proceeding that appears comparable to the litigation for any other legal or social infraction among several Native American peoples. Native American practices of justice seem to attend the importation of Native American religious conceptions into this hypothetical American legal system. For scholars of religion, this may highlight the inextricable nature of religion within Native American cultures and encourage scholarly, if not legal, redefinitions of religion.
Response:Protecting Native American Sacred Space: The Promise and Limit of Cultural Preservation by Allison Dussias October 21, 2020
The first freedom named in the Bill of Rights, religious freedom, has proved elusive for the United States’ First Peoples. In the nineteenth century, the First Amendment’s ban on laws “respecting an establishment of religion” did not stop the United States from adopting a “Christianization” policy, pursued by funding missionaries’ proselytization on Indian reservations and sectarian schools for Indian children, and through religious indoctrination in government schools. Similarly, the proscription of laws prohibiting the “free exercise” of religion was ignored when Native religious practices, such as “barbarous” ceremonial dances, were banned, and worshippers were punished with incarceration and withholding of treaty-guaranteed food supplies.
Even after suspension of these direct attacks on Native religions in the twentieth century, serious threats to religious freedom persisted. Although the government failed to eradicate Native religious beliefs and practices, it enjoyed greater success in achieving another goal—separating tribes from their land. Dispossession of millions of acres has had significant adverse impacts on Native religious freedom because of the intimate ties between Native spirituality and land. Loss of land has meant loss of the ability to access, and to control and protect, sacred sites.
Dispossession of millions of acres has had significant adverse impacts on Native religious freedom because of the intimate ties between Native spirituality and land.
In the western United States, considerable areas that were taken from tribes are today federal lands, managed by agencies such as the U.S. Forest Service. Since the 1970s, tribes have turned to federal courts in their efforts to protect sacred sites on these lands from desecration and to safeguard access for worshippers. Given the religious nature of their claims, tribes and their allies initially relied on the First Amendment’s Free Exercise Clause. In 1988, however, in Lyng v. Northwest Indian Cemetery Protective Association, a case challenging Forest Service plans to allow logging and complete a road in an area in a national forest with sacred significance for several tribes, the U.S. Supreme Court in effect placed Native religions outside the scope of the First Amendment’s religious freedom guarantee. The Court held that even assuming that the challenged actions would “virtually destroy the…Indians’ ability to practice their religion,” the Free Exercise Clause did not prohibit the government’s actions on what was now its land. The Court went on to state, however, that the government should not be discouraged from voluntarily accommodating Indian religious practices.
Subsequent to Lyng, tribes have endeavored to persuade federal land managers to voluntarily protect sacred sites. Tribes have found that a discourse of cultural preservation may help their arguments for sacred site protection gain better traction than a solely, or predominately, religious freedom-focused discourse. Tribes have turned to the National Historic Preservation Act (NHPA), which requires federal agencies to take into account the effects of proposed actions on historic properties. The NHPA makes Indian sacred sites eligible for treatment as traditional cultural properties (TCPs) and requires land managers to consult with tribes as to actions that might affect such properties. Ironically, describing tribal claims in cultural terms is not so far off the mark as such a characterization might at first appear. “Cultural” and “religious” are largely understood as separate categories in the Western worldview, but in the more holistic Native worldview, they are intertwined.
An ongoing controversy over Montana’s Badger-Two Medicine Area is illustrative of both the promise, and the limitations, of a NHPA-based cultural preservation discourse. A place of great sacred significance and spiritual power for the Blackfeet Nation and part of Blackfeet ancestral land, the Two Medicine Area today lies within a national forest.
A place of great sacred significance and spiritual power for the Blackfeet Nation and part of Blackfeet ancestral land, the Two Medicine Area today lies within a national forest.
In 2002, the Forest Service designated the area as a traditional cultural district (a type of TCP), based on Blackfeet use of “the lands for traditional purposes for generations.” This recognition ensured the Nation a seat at the table during the recent forest plan revision process. Reflecting the Nation’s influence on the process, the May 2020 plan establishes as the goal for the area its continuation as a sacred land and cultural touchstone and requires consultation with the Nation to determine the compatibility of proposed uses with that goal. The plan does not, however, prohibit uses that would adversely impact the area. This failure, along with the requirement of tribal consultation but not tribal consent, illustrates the limitations of reliance on the NHPA’s cultural preservation discourse. Where a sacred site qualifies as a TCP, tribes have a right to be heard, but not to be heeded. The traditional cultural district designation did play a role, however, in an Interior Department decision to cancel a lease and drilling permit in the area, a decision that the U.S. Court of Appeals for the D.C. Circuit upheld in June 2020.
More permanent and extensive protection could come from a July 2020 Senate bill to establish the Badger-Two Medicine Cultural Heritage Area. In addition to creating management restrictions, such as a commercial logging prohibition, in the 127,000-acre area, the statute would require Blackfeet Nation consent for new uses of the area. Acknowledging Badger-Two Medicine as a “sacred land” and “living cultural landscape,” in which the Blackfeet have been present from time immemorial, the statute would ensure tribal access for cultural purposes and prevent public disclosure of information about cultural sites where disclosure may risk harm to cultural resources or impede traditional use of the site. By prohibiting new uses of the area without tribal consent, the statute goes well beyond the NHPA’s cultural preservation-based protection.
Seeking support for the bill’s passage, tribal members have characterized the area as “our last cultural refuge, home to many of our cultural origin stories, a stronghold for our ceremonies and traditions.” Here they practiced their culture “in safety after the federal government outlawed Blackfeet ceremony”; they “still seek healing and solace, guidance and renewal” there. Badger-Two Medicine is, they tell us, “above all else, a place of healing, and our world needs it as much as it needs us.” By passing this bill, Congress would be recognizing the need for healing the United States’ relationship with the Blackfeet Nation, and, it can be hoped, establishing a precedent for similar legislation to protect other sacred sites where existing legal mechanisms have fallen short.
Response: Religious Freedom, Direct Action, and Rethinking Foundations by Greg Johnson, October 21, 2020
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
Abstract
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: https://ssrn.com/abstract=3689111
