2018 marked the fiftieth anniversary of the Indian Civil Rights Act (1968), the fortieth anniversary of the American Indian Religious Freedom Act (1978), the thirtieth anniversary of the United States Supreme Court case Lyng v. Northwest Indian Cemetery Protective Association (1988), and the twenty-fifth anniversary of the Religious Freedom Restoration Act (1993). This symposium brings together lawyers and scholars of law and religion to debate the state of American Indian religious freedom.
The question of American Indian religious freedom is especially relevant today not only because of the multiple anniversaries counted above, but also because of the current struggle against the reduction of Bears Ears and Grand Staircase-Escalante National monuments and the recent protests against the construction of the Dakota Access Pipeline. While Indigenous sacred land claims are central to both of these cases, neither the Native leaders involved nor the public discourse around them emphasized the issue of religious freedom.
Neither the American Indian Religious Freedom Act (AIRFA), that declared in 1978 that “it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions,” nor the Religious Freedom Restoration Act (RFRA), that declared in 1993 that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” provide American Indian nations with appropriate mechanisms to resist the continued development of lands that Indigenous peoples consider sacred.
The connections between Lyng and RFRA is interesting and often overlooked. Lyng, a landmark case in constitutional law that denied the right of three American Indian nations to the free exercise of their religion for the sake of protecting property rights of the federal government, is the main precedent used in the more well-known Supreme Court case ofOregon v. Smith (1990) – the peyote case that directly led to the enactment of RFRA in order to secure the strict scrutiny of generally-applicable legislation that burdens the free exercise of an individual’s (or a group’s) religion. The Court in Lyng determined that even though there was no doubt that the religious practice at the center of the dispute was based on a “sincerely held belief,” and there was also no doubt that the government’s development plan at the center of the dispute imposed a “substantial burden” on this religious practice, the development plan was not found unconstitutional. The Court has been criticized for its neglect of minority religious communities, and RFRA is a result of this criticism. Nevertheless, RFRA has been ruled unconstitutional by the Supreme Court, and some twenty individual states have legislated their own versions of religious freedom protection laws.
But the Lyng case is even more complicated. It raises definitional questions about what religion is. A study that forms the central evidence in the case found that the practice in debate cannot be considered religious at all, because religion is a Western category into which Indian practice cannot fit. Given this finding, we raise the question whether arguing cases about American Indian sacred sites as cases about religious freedom is appropriate. Given that none of these religious freedom cases has been won so far, some scholars and litigators have concluded such arguments are in fact inappropriate.
What route, then, should cases about the protection of American Indian sacred sites take? We have recently seen a significant movement toward arguments about environmental justice in American Indian sacred land cases (such as the Dakota Access Pipeline and Bears Ears), but the authors in this symposium worry that this strategy overlooks something that is unique about these cases, something that has to do with American Indian sovereignty. Can the Indian Civil Rights Act of 1968 help us to address these questions better?
The Indian Civil Rights Act, that celebrated its fiftieth anniversary last year, applies the Bill of Rights, including religious freedom, to American Indian nations. But this act is also fundamentally about American Indian jurisdiction, sovereignty and self-government, and it therefore offers us another way to think about the protection of American Indian sacred sites as an issue of Indigenous sovereignty rather than merely one of religious freedom. The authors of this symposium all take seriously the framework of religious freedom and respond to it critically. Reflecting on the GO Road trial, on teaching Indigenous religions to undergraduate students, on recent legal developments in Hawaii, and on religious freedom discourse beyond First Amendment jurisprudence, the authors in this symposium strive to complicate the framework of religious freedom and to broaden it to include collective rights, or to replace it with a notion of Indigenous sovereignty.
This symposium brings together scholars of law and religion as well as legal practitioners to explore these questions. Even as they emerge out of a long history, they are theoretically and practically relevant for today.