Berkley Forum

Finding the “Founding Fathers” at Bears Ears and Beyond

Responding to Using a Religious Freedom Framework to Protect the Rights of Native Americans

What passes for identity in America is a series of myths about one’s heroic ancestors.
—James Baldwin

On February 8, in remarks to the 66th Annual National Prayer Breakfast, President Trump noted that “faith is central to American life and to liberty,” and called on those present to be “true to America’s founding and the example that all of [its] great founders have set.” Just a few days earlier, however, President Trump’s modification of the Bears Ears National Monument converted some of the most sacred and spiritual areas of the country—true American Holy Lands for American Indian tribes of the Southwest—into a “house of trade” by opening them to oil, gas, uranium, and coal leasing.

The ongoing failure to “be true to America’s founding” by protecting the rights of America’s first peoples to engage in their religious practices illustrates a myth at the core of America’s identity. If the nation is inherently committed to secure the free exercise of religion for all, then its Constitution and laws must surely protect the original American faith, that of its indigenous people. But, as the ongoing conflicts over Bears Ears and the Dakota Access Pipeline demonstrate, that is not yet the case. 

Many American Indian people center their spirituality in the peaks and gullies of the lands on which they’ve lived since time immemorial. According to Dr. Rosalyn LaPier, scholar of environmental and religious studies and member of the Blackfeet Nation and Métis, “[t]he intimate connection between landscape and religion is at the center of Native American societies.” The proclamation establishing Bears Ears National Monument expressly recognized this connection, noting that generations of tribal members come to the area “for ceremonies and to visit sacred sites.” This connection also ignited opposition to the Dakota Access Pipeline, as the Sioux Nation and thousands of others joined forces to protect the sacred waters of the Sioux homeland. The Cheyenne River Sioux Tribe (CRST) even challenged the federal government’s approval of the pipeline as harming the free exercise of their religious beliefs. And yet, the sacred lands around Bears Ears are now open to leasing, and oil is flowing under the water of the Sioux. Why?

The First Amendment expressly prohibits the government from interfering with the free exercise of religion; but, until 1924, most American Indians were not citizens entitled to those constitutional guarantees. In fact, over much of its first century and a half, the United States engaged in a concerted legal, military, and social effort to eviscerate Native people, their culture, and their religion. Not until 1934 did the federal government direct that intentional disruption of or interference with tribal religious practices cease. Now almost a century later, however, American Indians remain subject to governmental interference with their religious practices.

In a 1988 case over federal approval of a road through a sacred area, for example, the United States Supreme Court determined that even if the road would “virtually destroy the … Indians’ ability to practice their religion, the Constitution simply does not provide a principle” that would protect the tribal interests. Instead, “the First Amendment must apply to all citizens alike,” without allowing certain (tribal) religious claims to impose a “religious servitude” over federal land. Thus, the Court refused to protect the area. Modifying the Bears Ears National Monument without considering tribal religion and rejecting the CRST’s religious freedom challenge to the Dakota Access Pipeline perpetuated that same approach.

But, ironically, the Supreme Court’s demand that fundamental notions of religious freedom “must apply to all citizens alike” ensures that tribal religious freedom will not be protected. No other claims to religious freedom invoke the “intimate connection between landscape and religion” at the heart of tribal claims. And, only American Indians can call upon the federal government trust responsibility to protect and support them and the express policy of the United States to protect and preserve their religious freedom. The Supreme Court’s treatment of tribal religious freedom on the same basis as all others thereby eliminates the very grounds on which it should protect that freedom – its difference. 

To be true to its founding, America’s Constitution and laws need not treat American Indian religion the same as all others. Instead, real consistency with our founding principles would ensure protection for the exercise of the only beliefs intimately and historically connected to the American landscape. Rather than relying on myths about the “great founders,” tribal voices rising in defense of their beliefs are demanding a new reckoning with America’s real identity.

Other Responses
No Religious Freedom for Traditional Native Religions

No Religious Freedom for Traditional Native Religions
Melissa Tatum
February 20, 2018

Why Religious Freedom Won’t Protect Native American Sacred Lands

Why Religious Freedom Won’t Protect Native American Sacred Lands
Tisa Wenger
February 20, 2018

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