Religious freedom has failed us: progressives, non-Christian, non-white, non-male, non-straight people. It has been weaponized by white Christian homophobes, and now the tool once used by minority groups—Seventh Day Adventist workers, Amish parents—is used by Hobby Lobby and Jack Phillips, and it doesn’t look like we can get it back. But on the thirtieth anniversary of Employment Division v. Smith (1990), we should note that from the perspective of Native Americans, religious freedom has never been a good tool. Native claimants have lost Smith, just as they lost Lyng v. Northwest Cemetery Protective Association (1988) two years before and Navajo Nation v. United States Forest Service (2008) almost 20 years later. Perhaps the issue is that Native American tribal nations are not minority groups within a so-called multicultural society; indeed, their claims are always first and foremost claims to sovereignty, which do not fit into the religious freedom framework.
We should note that from the perspective of Native Americans, religious freedom has never been a good tool.
And so maybe the problem with religious freedom is simply that it conceals deeper political controversies—about reproductive justice in Burwell v. Hobby Lobby (2014) or Indigenous sovereignty in Smith. Indeed, when the question of Indigenous sovereignty has been recently brought in front of the Supreme Court, in McGirt v. Oklahoma (2020), it was a Trump appointee—Neil Gorsuch—who wrote the celebrated court decision in what is considered to be “probably the most significant Indian law case in well over one hundred years.” Maybe the problem is not Trump’s court; maybe the problem has always been religious freedom.
This is not to say that religion is not important, or that it is not relevant to the struggles of Native communities toward justice. Sacred Indigenous lands have been at the center of recent controversies—along the Dakota Access Pipeline, on Mauna Kea, in Bears Ears. Indigenous scholars such as Vine Deloria, Jr. (Standing Rock Sioux) and Winona LaDuke (Ojibwe) have also offered us ways to think about the sacred without subjecting it to western ideas about religious freedom. In books such as God is Red and Recovering the Sacred, they remind us that sacred lands are living beings and that those lands have witnessed genocide and dispossession. If we want to protect Indigenous lifeways, we need to protect Indigenous relationships to these lands, understood as sacred living beings that have witnessed genocide and dispossession. Can religious freedom encompass such an understanding of the sacred?
Sacred Indigenous lands have been at the center of recent controversies—along the Dakota Access Pipeline, on Mauna Kea, in Bears Ears.
Religious studies scholars such as Greg Johnson and Michael McNally have argued that religious freedom could be a useful tool for Native Americans if we go beyond the First Amendment. They emphasize the importance of international law, and especially the UN Declaration on the Rights of Indigenous Peoples, but also domestic rights other than free exercise, such as the right to protest, that are central to the protection of Native American religious freedom. As law and religion scholar Nick Shrubsole points out, there is a whole network of relationships that are at play in sacred sites cases—between the state, religious communities, legal orders, and transcendent sources of authority—and the religious freedom framework alone may be too narrow to fit them all in.
What am I interested in then? I want us to strive for the kind of protection that would recognize both Indigenous communities’ power to decide how to use their sacred sites and the responsibility of the United States to promote the well-being of Indigenous communities.
It seems that the answer is to be found in social movements or grassroot organizations, as Charlie McCrary points out. Social movements can open themselves to a range of practices including ones that are inspired by transitional justice—such as truth commissions, reparations, apologies, and prosecutions—to respond to the structural injustices that exist in states that have not undergone regime transition in their relation to Indigenous peoples. Those movements can open themselves to Indigenous worldviews and jurisprudences rather than simply continuing to privilege the legal mechanisms of the state. Alternative legal mechanisms that are not limited by the adversary procedure that rules the common-law system can provide a platform for marginalized voices to be heard and for more robust stories—about religion, about injustice—to be told. While settler colonial law and legislation limit Indigenous peoples’ political, cultural, and social authority, alternative modes of conflict resolution can establish Indigenous identities and cultural knowledge as foundational to social reform.
Alternative modes of conflict resolution can establish Indigenous identities and cultural knowledge as foundational to social reform.
One advantage of such alternative mechanisms is that they can be flexible in their relation to the state—they can work side by side with formal legal mechanisms, enjoy government support, or subvert state power altogether. They can transcend the rights discourse that is promoted by legal texts about religious freedom and focus on expanding the social collective imaginary, allowing Indigenous voices to be heard. There are examples of such collaborations between Natives and whites in the United States, such as the voluntary ban on climbing Mato Tipila/Devils Tower during the month of June, or the attempts by Christian activists to convince their individual churches to formally repudiate the Doctrine of Christian Discovery. Even if the U.S. Supreme Court would eventually overturn Smith, it is still the courts’ function to translate human stories into legal language, to convert communities into rights-bearing individuals. Social movements can do more than that.
But what about the political route? After all, it was Congress that eventually passed a law that protected the sacred lands that the Court failed to protect in the Lyng case; it is the American Indian Religious Freedom Act (1978) that requires consultation with Indigenous communities before taking any action that might affect their sacred sites. President-elect Joe Biden is expected to name his nominee for secretary of the interior in the next few days, and many progressives, environmentalists, and Native Americans are hopeful that he will choose Congresswoman Deb Haaland (Laguna Pueblo) of New Mexico for the job. Haaland says she would accept the position if it is offered to her. In her own words, “The symbolism alone, yes, it’s profound.” But choosing her to lead the department that oversees public lands, natural resources, the Bureau of Indian Affairs—the department that oversees Indigenous sacred sites—would be much more than symbolic. It would be “a remarkable plot twist in the American story” of religious freedom.
Dana Lloyd is a visiting scholar and lecturer in the Program of Holocaust and Genocide Studies at Stockton University, as well as a research fellow at the Indigenous Values Initiative. Her book, Arguing for This Land: Rethinking Indigenous Sacred Sites, is under contract with University Press of Kansas.
