Why Not Religious Freedom?

To our question, Is the framework of religious freedom suitable for the protection of American Indian sacred lands? there may seem to be, at least among religious studies scholars, a short answer – “no.” As we’ve heard from Lyng and Smith, the San Francisco Peaks case, and more recently in phase two of the Standing Rock no-DAPL litigation, religious freedom law has failed miserably in the courts to safeguard Native peoples’ sacred sites. But I want to suggest we shouldn’t make too quick work of the question, given the particular urgency of current threats to Native nations and their sacred lands and the economic and political muscle standing behind those external threats, an urgency that calls for whatever legal and political arguments might stick in what Native American Rights Fund Senior Attorney Steve Moore characterized as “guerrilla warfare.”

After eight years doing targeted training with legal scholars and close readings with Suzan Shown Harjo of the last five decades of history and having spent last year writing a book, Defend the Sacred (under contract with Princeton U. Press), and a related more technical article forthcoming from BYU Law Review, I’ve changed my mind on this question of suitability. As its subtitle Native American Religious Freedom beyond the First Amendment still suggests, I began the book following Native religious freedom claims away from the shut doors of religious freedom discourse to the cracked-open doors of other legal discourses in which Native communities have strategically articulated sacred claims to sacred places, objects, practices, and ancestral remains: environmental and historic preservation law, treaty law, international Indigenous rights law, and statutory law specific to Native Americans (like the Native American Graves Protection and Repatriation Act). 

Why Not Religion?

This still seems like the right architecture for such a book: as any scholar of Native American traditions knows, “religion” has never worked particularly well to encompass or capture Native American traditions. 

Native religions are many, not one, often with widely divergent beliefs even in one community. They are decidedly oral. They are oriented toward sacred lands in ways that defy most Christian analogies. They are integrated with other, less visibly religious, aspects of lifeways where the “sacred” is not clearly set apart from “profane” matters of economic livelihood or political organization. Religious beliefs and practices are often markedly local, rather than generally universal propositions disaggregated from everyday life on a particular landscape. No one tries to convert you to Osage religion, for example. Native religious freedom claims have typically involved forcibly interrupted traditions whose resurgence has called into question their claims to authentic tradition.Finally, they are better understood in terms of collective obligations and duties, elementally the province of communities rather than that of individual belief or conscience, or subjective experience. Native people also have good reason to be reluctant because of frequent associations of the sacred with the secret; for many, making a showing of religion in public can incur or cause real harm.

I used to think that the issue here is fundamentally one of poetics, of translational imagination, of a search for less impoverished metaphors than “Bear Butte is our St. Patrick’s Cathedral” by which jurists could finally recognize the religiousness of Native religious claims. But the problem of Native American religious freedom goes far deeper. Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood and others have shown how some religions don’t count for religious freedom legal protection not simply for their being misrecognized: the very notion of religious freedom can have baked into it a subtle but no less forceful discrimination that naturalizes and universalizes the individual, interior, subjective, chosen, belief-oriented piety characteristic of Protestant Christianity and enables such a piety to flourish at the expense of traditions characterized more by community obligations, practices, and law. “To have religious freedom,” as Sullivan puts the matter, “you must first have religion,” and the indeterminacies of religion effectively portray universal inclusion while masking all but deliberate exclusions. (1)

What’s more, we know from David Chidester and Tisa Wenger that the very category of religion settles into the semantic shape by which we know it at the time of colonization and in and through the regulation of Indigenous others and their untidy practices. Accordingly, exclusions of Native traditions were part of the larger capture of Native lands and peoples. My first chapter follows the excellent historical work of Tisa Wenger to explore Religion as Weapon in the Religious Crimes Code, which for more than half a century (1881-1934) criminalized Native American ceremonial practices such as the potlatch, the Sun Dance, and traditional medicine.

 

What Can Religious Freedom Mean?

But I have to say, the closer I’ve gotten to the stories of Native religious and cultural claim-making in the last fifty years, the less drawn I feel to the view (whether it is projected from empirical historical study or more deduced theoretically) that arguments for religious freedom are destined to be dead on arrival. A sampling of recent book titles speaks to the contemporary valuation of religious freedom talk. As important as these projects are for their unmasking of how religious freedom discourse serves to secure and advance the power of the powerful and to authorize discrimination – especially at this particular political moment, I think otherwise amazing work can risk contenting itself without appreciating the fuller picture. My book takes its main cues from the claim-making of Native nations to accentuate what has become something of a footnote in much of this work: that the indeterminacy of religion and religious freedom is not simply a tool to exclude those at power’s margins; it is reworked creatively from those margins, its indeterminacy a possibility and not just a limit. And as discourses go, I do not see that of religious freedom disappearing anytime soon: whatever the actual history of its interpretation in the courts. Given its profile as first clauses of the Bill of Rights, religion will long be a site for the negotiation of power.

This all perhaps rings of an unbecoming optimism, but I aspire to show in the book-length elaboration of the argument, that the approach is more realistic, since the Native advocates I engage are pragmatic, not wide eyed, when it comes to speaking their claims in the language of religion. Indeed, often as not, the legal appeals to religious freedom appear as last resorts after other, putatively more salutary legal arguments for cultural resource protection, fail (as was the case with both Lyng and Navajo Nation). And civil rights regimes of equal protection to which Sullivan gestures at the end of The Impossibility of Religious Freedom is untenable in the case of Native Americans, reducing them from their special legal and political status as nations under domestic federal Indian law and the ripening norms of protections as peoples, not just people, under international Indigenous rights law. Finally, efforts to articulate claims in terms of cultural sovereignty or cultural property, as powerful as they are, miss tapping into the discursively powerful reservoir of religious freedom talk in a land ostensibly all about religious freedom.

Like the advocates I follow, I don’t ask what does religious freedom really mean; I ask what it can mean. Although the book treats this question with nuance, there is an arc to my analysis toward an appreciation for the collective shape of – and the collective rights to – Native American religions.

The book draws on what’s helpful conceptually in the elision of the “religious” about Native claims to sacred lands, practices, ancestors and material heritage into notions of sovereignty and peoplehood. This replaces the conceptual gymnastics required to render claims as those of Native American religion, relieves Native peoples of having to traipse out proprietary, initiatory, or secret traditional knowledge to make a showing of religion. Most importantly, eliding the religious honors Indigenous peoples’ rights to self-determination, including the rights to determine for themselves what’s sacred and how to treat it. 

So this is where I end up: beyond mere religious freedom in final chapters on treaty rights under domestic federal Indian law, where Native nations have quite successfully protected traditional practices associated with ceremony and peoplehood – salmon practices in the Northwest; fishing and wild rice practices in the Minnesota, Wisconsin, and Michigan, when there are treaty provisions on which to hang the argument and when courts aren’t otherwise held back by federal Indian law’s racist and colonizing apparatus tied to the Doctrine of Christian Discovery, and Congressional Plenary Power. A final chapter celebrates the enormous potential of rights as Indigenous peoples under the ripening norms of international law after the 2007 passage of United Nations Declaration on the Rights of Indigenous Peoples.

But with an eye toward legal and political effectiveness, the book does not content itself with the elision of religion into something else. Apart from the relative weakness of international law norms in U.S. courts, in the case of the U.N. Declaration, religious rights are very much a species of cultural rights that make a lot of sense in the world of international law but that lack constitutional or other meaningful legal reference points in domestic U.S. law.

And the distinctive legal architecture of federal Indian law seems increasingly precarious, with increasingly conservative courts determined to decimate what they only see as “special rights” as though federal Indian law is one more instance of affirmative action, as is exemplified most recently in Brackeen v. Zinke, in which a federal judge held the Indian Child Welfare Act to be unconstitutional.

So while I end up beyond the First Amendment, beyond RFRA, I maintain there’s legal and political value in keeping “religion” and “religious freedom” in the mix, towards a bundle, or hybrid construal of “religious freedom” law in terms of the collectivist protections of federal Indian law and emerging norms of international Indigenous rights law, for something we might call Religious Sovereignty.This evokes the rubric of Cultural Sovereignty commended by Indian law scholars Rebecca Tsosie and Kristen Carpenter in their constructive work, but it doesn’t step away from the category of religion. But it is emphatically not keyed to notions of church autonomy or collective rights to religious freedom advocated by a number of religious liberty scholars and underscored by courts in recent key cases like Hobby Lobby. Religious self-determination/sovereignty as I speak of it is narrowly tailored to political, not religious communities: to Native nations and their members or citizens, not to religious groups.

The argument draws on a range of legal authority and although it takes a whole book to develop, the key authorities can be briefly summarized here. First and most directly, strategic Native efforts to draw on the discourse of religious freedom to secure statutory protections specific to Native Americans as part of federal Indian law. In many ways the heart of my book, I explore the strategic efforts behind American Indian Religious Freedom Act (1978), the Native American Graves Protection and Repatriation Act (1990), and AIRFA’s Peyote Amendment in 1994. Commentators have misconstrued AIRFA as a religious freedom law, and a failure at that, as Lyng shows; I read AIRFA instead as a powerful policy statement decrying inadvertent assimilation policies and extending of the federal fiduciary responsibility to “preserve and protect tribal religions, cultures, and languages” as the heritage of tribes as collectives.  Similarly, AIRFA’s Peyote Amendment legally guarantees the practice of the Peyote Way by members of federally recognized tribes and NAGPRA protects ancestral remains on federal lands and establishes repatriation processes for human remains and sacred objects to federally recognized tribes with which they are culturally identified.  Although religious freedom concerns animate them, the legal logic of these statutes hews closer to federal Indian law, and U.S. obligations to Native nations and their members, not individual religious practitioners as such.

Secondly, courts have recognized the collective nature of rights to Native American religion amid challenges to an accommodation process under the Eagle Protection Act that enables access to eagle feathers for practitioners of Native religions but limits that access to members of federally recognized tribes. It’s dripping with paternalism to be sure, and vexed with the question of federal recognition, but courts have held up the accommodations as part of a government to government responsibility to the tribes against even the religious freedom claims of individual practitioners of Native American religions who are not members of recognized nations. In one case, the Tenth Circuit offered a close reading of the Eagle Protection Act, concluding that “Congress saw the statutory exception not as protecting Native American religion qua religion, but rather as working to preserve the culture and religion of federally-recognized tribes.” (1286)

Thirdly, if this court recognition of the collective rights of Native religions comes through the back door as it were, the front door reasoning of the United Nations Declaration on the Rights of Indigenous Peoples (2007), with its full-throated acknowledgement of Indigenous peoplehood, spiritual facets of Indigenous regard for land, and ceremonial traditions. The more UNDRIP’s norms are spoken forth in briefs and law reviews, the more these norms can influence domestic law and policy. But the implementation of UNDRIP in U.S law and policy, I suggest, will go further if it owns, rather than downplays religious freedom talk merely as a matter of cultural rights.

In sum, for Native Americans, religious freedom protections can mean more than they have meant thus far in the courts. They can mean that rights to religious practices, like collective rights to language and to self-government are among facets of Native peoplehood under federal Indian law and international indigenous rights law. I