Excerpted From: Michael D. McNally, The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated, 111 California Law Review 395 (April, 2023) (396 Footnotes) (Full Document)


MichaelMcNallyThis Article explores a major obstacle to the legal protection of Native American sacred places that has largely eluded the legal studies literature: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred for Native Americans to merit protection. From a comparative religion or religious studies perspective, this presumption makes little sense. This Article will show that, in most world religions, the sacredness of holy places is no function of their being naturally pristine or historically untouched. The Article argues that judges apply a double standard to Native American claims to sacred places. The double standard comes from a longstanding misrecognition of diverse and complex Native American religions in terms of a romanticized and simplified Nature Spirituality that says more about Euro-American longing than it does about place-specific Native traditions themselves. What is more, since courts uniquely apply this double standard in Native American cases, it is plainly discriminatory. Other religious groups that regard churches, temples, or other built worship structures as their most sacred places enjoy far broader protections from various regulations, even when their condition is anything but pristine.

The presumption that an already desecrated, polluted, or urbanized place can no longer be sacred to Native American peoples generally operates either below the surface or at the periphery of legal reasoning. But in the rare instances where the presumption is framed as an argument, the irony and circular logic are laid bare: sacred places are already so degraded by settler-colonial processes that they merit no notice for protection against further desecration.

Recent litigation over a proposed massive telescope at the summit of Mauna Kea is an exemplar of this dynamic. Mauna Kea is a sacred mountain and living divine presence for Native Hawaiians. Despite years of legal challenges and on-the-ground mobilizations, in 2018 the Hawai'i Supreme Court affirmed a permit for the massive Thirty Meter Telescope (TMT) by virtue of what its sole dissenting justice called the “degradation principle.” Mauna Kea's summit was already so degraded by the presence of seven other telescopes (also challenged by Native Hawaiian traditional practitioners) that further development of the TMT would make no appreciable further adverse impact. The desecration was already complete. Justice Michael Wilson's dissent begins thus:

The degradation principle. The Board of Land and Natural Resources (BLNR) grounds its analysis on the proposition that cultural and natural resources protected by the Constitution of the State of Hawai'i and its enabling laws lose legal protection where degradation of the resource is of sufficient severity as to constitute a substantial adverse impact .... Under this analysis, the cumulative negative impacts from development of prior telescopes caused a substantial adverse impact .... Thus, addition of another telescope-- TMT--could not be the cause of a substantial adverse impact on the existing resources because the tipping point of a substantial adverse impact had previously been reached.

I will explore the decision in some detail below, but the blunt dissent highlights how the logic of the degradation principle in environmental law can seem so natural. This Article extends what Justice Wilson says about environmental law to explore how religious claims to sacred places by Native peoples are contained and weakened by virtue of various forms of physical and sensorial degradation of these places under settler colonialism, facets of dispossession. In these cases, the degradation principle is no mere technical matter of environmental law, assigning when and where key adverse impacts happened. It roots itself more deeply in what I will call the profanation principle: an assumption steeped in a long tradition of Euro-American thinking about Native peoples that authentic claims to sacred places apply only to pristine, “natural” places, and that where that physical integrity no longer exists, claims to sacred places can no longer be considered authentic. If they register at all, those claims register only as concerns of interior spiritual fulfillment, not justiciable claims to the exercise of religion.

Litigation over the TMT sounded in environmental law, but Native Hawaiian opposition to the massive TMT project, like opposition to previous telescopes on Mauna Kea, had been set in the key of the sacred, environmental degradation equated to desecration. The two are often twinned. Yet, regardless of environmental concerns, Mauna Kea is sacred. Threats to its integrity are not only questions of environmental degradation but also questions of desecration. The mountain's integrity is of urgent importance to the well-being of Native Hawaiian people and, in the view of many traditional practitioners, the well-being of the cosmos itself. Much is at stake.

The profanation principle is invidious in religious freedom caselaw. Courts have consistently been unconvinced that grave threats to Native American sacred places constitute a substantial burden on religious free exercise. The substantial burden threshold is required for protection under either the First Amendment's Free Exercise Clause or the Religious Freedom Restoration Act (RFRA) (1993). Citing Lyng v. Northwest Indian Cemetery Protective Association, which held that there was no First Amendment protection for the Native sacred lands at issue, the Ninth Circuit's 2008 decision in Navajo Nation v. U.S. Forest Service applied the same standard to desecration claims of sacred places under RFRA. The Navajo Nation court ruled that the spraying of treated wastewater to make artificial snow for recreational skiing on the San Francisco Peaks, a holy mountain for the Navajo Nation, Hopi Tribe, and four other litigating Tribes, did not “substantial[ly] burden” Native religious exercise, but merely diminished Native “spiritual fulfillment” on the sacred mountain. After all, the court reasoned, the ski area in question had been operating on the Peaks in some capacity since the late 1930s, and Navajo and Hopi religious exercise had continued despite failed efforts to block the ski area's expansion in the early 1980s as a violation of Navajo and Hopi religious freedom under the First Amendment. The Ninth Circuit's decision did not overtly turn on this reasoning-- it didn't have to. But the reference to the ski area's ongoing existence and the previous religious freedom litigation was not mere dicta. It animated the decision. As demonstrated later, similar facts animate courts to flatten and deflate religious freedom claims that Native peoples make to protect specific places. The effect is to regard asserted beliefs as pretextual without overtly questioning their sincerity.

The argument from profanation seldom, if ever, deems the religious claims of Native peoples as pretextual or insincere. To do so openly would likely prompt reversal by appellate courts. No court has openly declared religious beliefs of Native peoples in such cases as insincere or pretextual. But the result is the same. The profanation principle colors the analysis of substantial burden in religious freedom law and thereby understates the reach of the harm. Accordingly, Native peoples have also sought protection for sacred places under historic preservation and environmental law. But the profanation principle, or variations thereof, seeps into both fields. There too, the argument that existing degradation means Native claims to sacred places are exaggerated or pretextual can also hinder protections within these legal domains.

This Article analyzes the salience of the profanation principle in judicial and administrative proceedings under the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), and a number of state environmental statutes. Congress passed NHPA in 1966 after the destruction of New York's Penn Station largely to protect buildings important to architectural history, as well as archeological sites, from damage due to various forms of development. Eligibility for listing on the National Register of Historic Places, the threshold determination for any of the procedural protections of NHPA to set in, includes among its listed criteria, “integrity.” As discussed later, the integrity of a property is necessary for its protection under NHPA, and concerns about profanation or degradation can be implicated in threshold determinations under the act. This remains an issue in spite of 1992 amendments to NHPA that clarify how traditional cultural properties and properties of traditional religious and cultural importance to Indian Tribes and Native Hawaiian organizations are eligible for listing on the National Register of Historic Places.

By turns, NEPA has evolved to take a hard look not simply at the immediate impacts of a government action on the “human environment,” but also cumulative impacts of such actions. Under NEPA, the human environment includes cultural as well as natural resources. But cumulative impact analysis hews more closely to the quantifiable effects on natural resources.

From the perspective of scholarship in comparative religion, the qualities that endow a place with sacred power, purity, or presence seldom correspond to the presumption of necessary pristineness animating jurisprudence. For Hindus, the Ganges River is a holy and pure embodiment of divinity; it is all this at the same time that devotees know it to be a devastatingly polluted river in environmental terms. For Jews, the Western Wall on the Temple Mount in Jerusalem is unquestionably a holy site, a place of pilgrimage and prayer. But the sacred here does not issue from an unobscured continuous history of temple-based worship at the place. The sacredness of the Wailing Wall encompasses the interruptions of that history at that place, including the Romans' profanation of the Second Temple on the site in 70 CE. If Jewish piety there asserts a kind of triumph over those discontinuities, it gains its force in and through, not in spite of, the historical destruction of the Temple and the diaspora that ensued. Santiago de Compostela, Rome, Canterbury, and other great pilgrimage sites of Christianity have remained for the devout deeply sacred places even amid the consistent mixing of the sacred and profane that pilgrims have encountered at those places.

If each of the major world religions has places that remain sacred despite various forms of degradation and desecration, the world's Indigenous religions are entitled to the same standard. Vine Deloria, Jr., strongly distinguished the bases for the overall philosophical orientations of Euro-Americans and Native peoples in terms of time and space, respectively:

The vast majority of Indian [T]ribal religions have a center at a particular place, be it river, mountain, plateau, valley, or other natural feature. Many of the smaller non-universal religions also depend on a number of holy places for the practice of their religious activities. In part the affirmation of the existence of holy places confirms [T]ribal peoples' rootedness, which Western man is peculiarly without.

A more fitting way to construe Native claims for the protection of sacred places already profaned is to regard them as duties and obligations as would be due a sickly relative. Such a relationship is fitting since Tribes' relationship with those sacred places is borne of tradition and long experience since time immemorial.

Part One will explore examples from comparative religion to place in relief the flawed logic of current jurisprudence on Native sacred places. It will also help frame why the argument from profanation seems to stick. Parts Two through Four, in turn, identify the workings of the profanation principle in three fields of law in which most sacred place claims are made: religious freedom, historic preservation, and environmental law. In Part Five, I turn by way of conclusion to a more wholesome account of the kin relationship that gives shape to Native claims on behalf of sacred places and a brief consideration of the U.N. Declaration on the Rights of Indigenous Peoples (2007) as a corrective to domestic jurisprudence on these matters.

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What the Onondaga Nation is doing on behalf of Onondaga Lake offers a fitting, if brief, example to rethink the profanation principle and put its explanatory power to rest in future Native sacred place cases. Onondaga Lake is the powerful, exceptional place that was made sacred when the Haudenosaunee prophet, the Peacemaker, first taught the Great Law of Peace on its shores, establishing the Haudenosaunee (Iroquois) Confederacy and creating the conditions for respectful relations of all beings. But Onondaga Lake is commonly spoken of as the most polluted lake in the country, a catchment for toxic sludge and waste for a soda ash processing plant in the 1880s and, later, industrial plants by Allied Chemical, Honeywell, and General Motors. Nine distinct Superfund sites overlap the lake's bottom sediments, shores, and immediate tributaries. There are some initial signs of clean up, but as Tadadoho Sid Hill put it, an agreed-upon remedy between Honeywell and the State of New York to cap contaminated lake bottom sediments has been more akin to “a cover-up, not a clean-up.”

The recognized current reservation of the Onondaga Nation lies several miles up Onondaga Creek from the lake, but the Onondaga claim the entirety of the lake and its environs not only as part of their aboriginal territories but as lands secured by a series of treaties. A recent Onondaga Nation land rights action moves beyond the logic of property acquisition to encompass the authority to heal Onondaga Lake and its people. The complaint begins:

The Onondaga People wish to bring about a healing between themselves and all others who live in this region that has been the homeland of the Onondaga Nation since the dawn of time. The Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession or legal rights .... It is the duty of the Nation's leaders to work for a healing of this land, to protect it, and to pass it on to future generations.

Dismissed by federal courts, the future of such legal action by Onondaga Nation remains uncertain. But this much is certain: Onondaga Lake remains sacred even amidst its profanation. More than one hundred years of industrial pollution disrupts, but ultimately does not destroy, the workings of the sacred at Onondaga Lake and the obligation to bring healing to it, with or without legal title. Onondaga Nation issued its own Vision for a Clean Onondaga Lake, and, in an exercise of sovereignty, Onondaga Nation acts on the lake's behalf in government-to-government consultations and through coalitions of neighbors. Onondaga Nation's struggle is specific to Onondaga Lake, informed by what that Nation knows is required to care for that particular sacred place. If the example of Onondaga Lake shows the failure of the courts and settler law to protect degraded Native sacred places, it also shows the resolve and imagination with which Native peoples press on to protect the sacred and the profaned.

John M. and Elizabeth W. Musser Professor of Religion, Carleton College.