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Excerpted From: Michael D. McNally, Native American Religious Freedom as a Collective Right, 2019 Brigham Young University Law Review 205 (2019) (319 Footnotes) (Full Document Not Available)

MichaelMcNallyThe 2016-17 encampment at Standing Rock, North Dakota has put on public display the impressive strength and ongoing vitality of traditional Native American religions, not to mention the spiritual grounding and rhetorical force of their resolve to defend the sacred. But intensive coverage has also put on display just how weak the legal remedies available to Native people are as they seek to defend sacred lands and waters. In addition to the proposed pipeline's endangerment of drinking water by crossing the Missouri River a half mile upstream from the reservation boundary, the Standing Rock Sioux Tribe cited concerns about the pipeline's desecration of a veritable sacred district of gravesites, stone rings designating Lakota ancestral knowledge, Sitting Bull's traditional encampment, and the holy confluence of the Cannonball River and the Missouri. The enormous eddy that formed in Spring at this confluence fashioned large spherical sacred stones (hence Cannonball) until the Army Corps of Engineers built an enormous dam forming Lake Oahe.

The processes for tribal consultation and public consideration of adverse effects on cultural resources like sacred sites (and natural resources like water that are also cultural resources) ostensibly safeguarded by historical preservation and environmental law turned out, in this case, to be hoops to jump through, and the broader purposes of which can easily be exploited by pro-development environmental consultants, corporations, and agencies. One need not be a specialist to sense something amiss when, on July 16, 2016, the Army Corps of Engineers issued its formal “Finding of No Significant Impact” for the crossing of the Missouri. This finding formally concluded the review necessary under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) without a fuller Environmental Impact Statement process that NEPA requires when a federal action is more consequential for the human environment. Playing the few legal cards available to it under NHPA, NEPA, and other laws relating to federal permitting of the crossing of waterways, the Standing Rock Sioux Tribe failed to persuade a federal court to issue a preliminary injunction blocking approval of the pipeline's crossing of the Missouri River at Lake Oahe. Despite considerable available evidence that the Army Corps' consultation with the Standing Rock Sioux Tribe fell short of standards set by Congress, and standard practice in the Obama Administration and clarified in the courts, the judge found the claims insufficient for a preliminary injunction.

But the three federal agencies involved with the Dakota Access Pipeline approval immediately issued a halt to construction pending further review. And in December 2016, the Army Corps denied the remaining easement for the Missouri River crossing until alternatives were considered under an Environmental Impact Statement process, an action which drew the pipeline company's lawsuit challenging the decision. When President Trump took the reins of power, he issued a directive on day two of his administration for the Army Corps to grant the necessary easement and to expedite completion of the Dakota Access Pipeline. A range of challenges to Trump's directive in courts have extended the legal process through the time of this writing and will extend into the future. Whatever the final outcome, the Standing Rock/Dakota Access story begs a question: Why--and how--should Native peoples boldly perform prayer, ceremony, and encampment itself as protest, with the world watching and admiring their spiritual resolve, and not have any meaningful recourse under religious freedom law? Why, in other words, are we even talking about the legal weeds of environmental and historic preservation law and not about what many consider the American first freedom?

The answer to the why of the question is the starting point for this Article, but I will make quick work of it: Native American claims to sacred lands have consistently failed in the courts, either under the Free Exercise Clause of the First Amendment or under its statutory counterpart, the Religious Freedom Restoration Act (1993). Indeed, Standing Rock's downstream neighbor, the Cheyenne River Sioux Tribe, failed to block the Dakota Access Pipeline's completion with a religious freedom claim that was too little and too late to effect a preliminary injunction, since the district court judge found the religious freedom claims were nullified by a laches determination, and in any event unlikely to succeed on the merits, given the difficulty of establishing a substantial burden on religious exercise in sacred land case law. 

My answer to the how entails a more complex consideration of the distinctive contours of Native American religions as they relate, or not, to the legal conceptualization of religion. The distinctiveness of Native religions has mattered not simply insofar as they are land-based, a point that has been made often, and well. More elementally, I will argue, what distinguishes Native religions and such legal claims to traditional religions like those of the Standing Rock Lakota/Dakota is that they are collective in shape.

Like so many begged questions, the one raised at Standing Rock is also a rhetorical one, and I will argue in this Article for an approach to the collective rights of Native American religious claims.

Because religious liberty protections have so often failed in the courts to deliver meaningful protections to distinctive Native American religious traditions, Native communities and their advocates have looked beyond the First Amendment and religious freedom law to accommodations under either federal Indian law, or under federal Indian law in concert with other legal regimes, such as historic preservation, environmental law, or Native specific statutes like the Native American Grave Protection and Repatriation Act (NAGPRA). “Religion” has often been seen as a category too closely associated with the process of colonization and dispossession to meaningfully, much less legally, encompass the full reach or get at the thick weave of indigenous practices, beliefs, lifeways, and land relationships that are shot through with the religious without being solely, or plainly, religious. “We don't have a religion; we have a way of life,” is a maxim often heard in Indian country. What is more, the growing momentum of legal discourses of tribal sovereignty, on the one hand, and of the rights of indigenous peoples in international law, on the other, have folded rights to “religion” into broader political and cultural rights to peoplehood. This is all to the good.

But a reluctance to speak of Native traditions in the language of religion has produced its own difficulties. The preferred everyday parlance of Native “spirituality” over “religion,” or the legal parlance of “cultural resource” or “traditional cultural property” over “sacred site,” can and does come at considerable expense to the protection of sacred places, practices, objects, and remains. For“religion,” notwithstanding its indeterminacy, remains a powerful category word by virtue of its place in the U.S. Constitution and in discourses of American national identity. Native advocates have long understood a doubleness of religious freedom discourse: its power to exclude them from, say, sacred land protection together with the generative power of an appeal to religious freedom in getting accommodations and even legislation like NAGPRA through legislatures despite being fewer than two percent of the population.

In what follows, I argue that religious rights protections for Native American places, practices, objects, and ancestral remains, can be understood more properly as collective rights of Native communities rather than as the private conscience rights of so many Native individuals. What I propose is an approach to Native American religious claims that aligns and conjoins such claims with elements of federal Indian law and with the emerging norms of indigenous rights in international human rights law. Oriented by theoretical insights from my field of religious studies, my argument draws on a critical reading of recent discussions in religious freedom law about group rights, but especially on federal Indian law's elaboration of the special government-to-government relationship with Native American communities as collectivities, and what courts have identified as collective rights to religion under accommodations in the Bald and Golden Eagle Protection Act. If religious freedom arguments are read in light of these multiple sources of authority, rather than merely as making reference to religious freedom law, they may not be the non-starters that the signal decisions on Native American religious freedom made by the Supreme Court suggest to be the case. In this regard, I aim to suggest the promise of more intellectual commerce between the disparate fields of federal Indian law and religious freedom law.

I am emboldened to make this argument, on the one hand, by my training in academic religious studies, a field whose critical turn has made it more keenly aware of the constructed, contested, and malleable nature of the category of religion, and by extension, the discourse of religious freedom. Religious studies scholars have also unearthed how that discourse has historically privileged the rights of some religious people over others, particularly along the lines of the individual right in contrast to the collective tradition. And, to be sure, scholarship on Native American religious traditions in particular takes pains to point out the often irreducibly collective nature of Native American religious claims. As the Lakota scholar Vine Deloria, Jr. famously wrote, “there is no salvation in tribal religions apart from the continuance of the tribe itself.”

If what counts as religion is not given but arrived at through processes of deliberation and constellations of power that make some voices more authoritative than others, one time-honored axis along which this deliberation has aligned is the question of whether, as Durkheim famously argued, the sacred is an eminently social thing or whether, following Rudolf Otto, Mircea Eliade, or William James, it is elementally a matter of subjective experience. If the latter cluster of viewpoints has generally carried the day in American legal interpretations of religion's definition, there is anything but a consensus among religious studies scholars that religion is, at base, a matter of private conscience or subjective experience-- indeed there may just be consensus that it is, at base, a social phenomenon.

On the other hand, I am emboldened to make this argument by the confluence of four distinct legal developments. First, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby Stores, Inc., that for-profit corporations are considered persons with protectable religious exercise under the Religious Freedom Restoration Act (RFRA), makes clear that the legal reach of religious freedom is hardly constrained by the conventional wisdom that America's first freedom is keyed in the liberal vein to an individual's conscience alone. Given the highly charged political climate of Hobby Lobby's challenge to the Affordable Care Act, this may seem like an outlier or splitting of hairs, but the decision does suggest a development in a long history of religious freedom decisions that have cautiously engaged the rights of religious groups as groups. Indeed, a close reading of Wisconsin v. Yoder, and a number of other cases, suggests that the Court's ruling in Hobby Lobby is no such outlier, and this can help frame a rethinking of what courts have done to flatten collective Native American claims in Lyng v. Northwest Cemetery Protective Ass'n and the Ninth Circuit's 2008 ruling in Navajo Nation v. United States Forest Service.

Second, legislative and administrative accommodations for Native American religions based on treaty relationships and the legal doctrine of federal trust responsibility, even those that extend to preserve and protect the religions, cultures, and languages of recognized Native communities, are based on the structure of nation-to-nation regard for the political status of tribes. An inquiry into the case law concerning a Native American religious accommodation to the Bald and Golden Eagle Protection Act suggests how effectual this view has been for religious rights of tribes. In the Eagle Act accommodation cases, courts have recognized the priority of protections resting on this distinctive basis over the religious freedom rights of individuals, including Native American individuals.

Third, even if First Amendment and RFRA jurisprudence has largely confirmed the individual rights basis of religious freedom in findings against tribal claims, in a number of arenas, courts have made increasingly consistent use of a distinction between individual claims and what we might identify as the hybrid claims of collectives.

Fourth, there have been important developments in clarifying indigenous rights within international human rights law. The 2007 United Nations Declaration on the Rights of Indigenous Peoples, affirmed with reservations by the United States in 2010, clarifies how recognized international human rights protections, including religious rights, must be regarded in terms of collective, and not simply individual, rights, if they are to extend equally and justly to indigenous peoples and people.

The structure of the Article roughly follows this sequence in the argument. The first Part considers a consistent judicial misrecognition of Native American religious freedom claims to sacred lands heretofore as those merely of individual practitioners, through a consideration of major First Amendment cases and those weighing the corresponding statutory protections of the RFRA. This Part also examines contemporary discussions of an institutional turn in religious freedom law to help suggest that the judicial misrecognition is not inevitable in religious freedom law.

The second Part considers the shape of legislative accommodations specific to Native American communities under statutes like the American Indian Religious Freedom Act (AIRFA), NAGPRA, and a number of administrative accommodations. In this Part, I argue that these statutes and regulations are properly understood as clarifications that religious accommodations for Native communities will conform more to the collective contours of federal Indian law than to the individual conscience contours of religious freedom law.

The third Part considers how courts have recognized the often collective shape to Native claims under such Native specific legislative and administrative religious accommodations, especially those under the Bald and Golden Eagle Protection Act.

The fourth Part considers how a more consistent approach to Native American religious freedom in the register of collective rights conforms to emerging norms of international law spelled out in the United Nations Declaration on the Rights of Indigenous Peoples.

The fifth and final Part concludes that an elaboration of the group rights of Native American religious freedom can draw support from the Supreme Court's 2014 recognition, in Hobby Lobby, that religious liberty rights can pertain to certain kinds of collectivities.

I owe a particular debt here to the work of Kristen Carpenter, who argues that, in American Indian religious freedom cases, courts worried about potential “slippery slopes” of concern in other minority religious freedom cases consistently overlook the internal “limiting principles” of indigenous religions that accompany virtually any claims that Native communities qua communities make, thus exaggerating the potentially unlimited nature of individual claims. Carpenter views as a welcome development legislative and administrative accommodations in the wake of failed religious freedom claims in the courts, but she observes that such accommodations are always balanced against a range of other, often very powerful, non-Indian stakeholder interests.

With a general preference for the nation-to-nation and consultative model over that of the legislative-administrative accommodations model, together with a strong argument for the cultural property rights of tribes to sacred places, Carpenter implies, but does not expressly argue, that Native claims under the broader religious freedom protections of the First Amendment, RFRA, and RLUIPA, can and ought to be viewed in light of their collective nature.

In these pages, I wish to build on and extend Carpenter's work, to argue that Native religious freedom claims can gain further traction under the protections of the First Amendment, RFRA, and RLUIPA if those claims are construed as not merely individuals asserting rights of conscience but as collective rights. Of course, prevailing political theory in the liberal tradition, and not surprisingly most First Amendment jurisprudence, regards religious freedom, like the right to free speech, expression, and even assembly, as a right of individual citizens. But as a number of religious liberty scholars have argued, there are some compelling ways to think of the religious liberty of groups.

[. . .]

And where it comes to sacred land claims by tribes that are so crucial to Native American religious freedom, courts should rethink just how controlling Navajo Nation and Lyng should be in the wake of the Supreme Court's Hobby Lobby ruling that Congress intended RFRA to go well beyond the pre-Smith jurisprudence. As I argue above, the Native claims to sacred lands could very well have prevailed in Navajo Nation were the case adjudicated in the wake of Hobby Lobby.

Congress can do more to enact narrowly-tailored legislative accommodations to promote fuller religious freedom for Native Americans, along the lines of the UNDRIP and more immediately along the lines of the Peyote Amendment of 1994 to AIRFA. Indeed AIRFA, which the Lyng court found to lack the legal teeth of a formal "cause of action" to bring suit, is one such congressional clarification that could draw on the persuasive power of religious freedom discourse as well as the clarification of the UNDRIP to level the playing field of competing claims, especially on federal lands, and to deliver on protection for Native sacred sites. In 2014, the National Congress of American Indians passed a resolution endorsing some suggested language for such an AIRFA cause of action related to sacred sites. After the November 2016 elections, one strains to imagine signed legislation in the short term; but perhaps as the idea builds, the statutory language can make even more explicit what AIRFA makes implicit--that Native American religious freedom not only requires considerations beyond the conventional understandings of religion in a majority Christian country to include such things as sacred sites but that Native American religious traditions may have far less to do with the spiritual fulfillment of Native American individuals meditating in pristine natural places, than with the collective obligations, and rights, of Native nations.

Federal administrations have considerable room to bring various agency policies to standards in keeping with the government-to-government relationship and federal trust responsibility and in aspiring to conform those policies to the provisions of UNDRIP. Although this Article has left unexplored this administrative terrain and what fuller accommodations for collective rights of Native American religious freedom would look like, it is clear that due diligence under current standards of government-to-government consultation and in the federal review obligations under environmental and historic preservation law (much less incorporation of UNDRIP's standard of indigenous peoples' free, prior, and informed consent on policies and developments that impact them) would go far to negotiate reasonable accommodations for Native communities' sacred claims in advance of costly litigation or costlier controversy in courts of public opinion. As the U.S. Army Corps of Engineers, Energy Transfer Partners, and the state of North Dakota learned the hard way in terms of millions of dollars of lost revenue and lost clout, it can make good fiscal sense--not just moral and legal sense--to engage Native nations early and often to navigate impacts on what they hold sacred, collectively. 

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

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