October 23, 2020
Native Americans and Native Hawaiians have lived in a post-apocalyptic world since the time of European arrival, having lost most of their land and political autonomy. In addition to being a historical nightmare, this is a continuing religious crisis. An entire people have had their world ruptured with no substantial redress. Even recent efforts to protect Indigenous religious freedom have yielded precious little, with some important exceptions, including by way of repatriation laws and openings created by cultural and environmental resource protection laws and policies . Looking to the future, if religious freedom for Native peoples is to mean more than protecting beliefs held in private, something more than offering the legal equivalent of ill-fitting hand-me-downs, then a major shift in thinking about democracy relative to Native people will be required.
On the ground, the rise of direct action protests is a clear sign that the need for change is real and urgent. As with other communities for whom “democracy” has seldom been translated or transacted in a meaningful way, Native American direct action is an important tactic that may yield progress on the path to legal reform. It is not that Native people reject all jurisdictional authority; increasingly, however, they insist on their own. We should take this stance seriously.
As the world witnessed at Standing Rock with the #NoDAPL protests, this kind of full-throated self-determination entails occupying space on their own terms, often ritually comported in prayer, dance, and other forms of ceremony. In short, for many Indigenous people, meaningful religious freedom takes hold where bodies move on the land. Such rituals of occupation appear to some observers as being invented and opportunistic, a way of sacralizing otherwise profane acts—trespass, for example—for narrowly political purposes and generating favorable optics. Countering this cynical view, I would argue that the quest for genuine religious freedom for Native peoples makes profound ethical demands upon them that run counter to prevailing laws. Such actions are performed out of a duty to engage their place on earth in a way that the ancestors and spirits will recognize, honor, and respond to.
In short, for many Indigenous people, meaningful religious freedom takes hold where bodies move on the land.
We can expect protest and direct action approaches to continue, despite alarming trends with regard to police violence and vigilante interference. Communities on the ground are simply that frustrated and that committed. They insist on exercising religious freedom despite significant risks, including bodily harm, incarceration, and outsized fines. Responding to this situation of dire need and fraying social fabric, what steps can be taken to reverse course and rebuild a solid foundation for religious freedom? Here are three things that would make a difference.
The first step is to decriminalize protest. In places such as North Dakota and Hawai‘i, the needle is moving in the opposite direction right now, not only through new laws explicitly designed to curtail protest, but also by way of various obstructive administrative actions that dissuade people from congregating at sacred sites, including on public land. In addition to religious freedom, rights of assembly and free speech are imperiled by such measures. Legislators and administrative bodies need to be pressed to restore integrity to these fundamental features of democracy. Without correcting course on these issues, Indigenous people will continue to be strangers to the Constitution.
Second, jurisdictions in the United States at every level need to be better acquainted with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP 2007). This landmark declaration offers frameworks and language for protecting religious freedom. It should be embraced and acted upon, which means reforming existing laws and policies to fulfill its vision. Education is a major step in this process . Additionally, tribes and Native nations must persist in their leadership role, translating UNDRIP into their languages and building it into their tribal codes, as is currently being done by the Mvskoke (Creek) Nation. Ultimately, for the UNDRIP to have traction, we in the United States need to begin thinking of ourselves as members of a global community to which we are accountable.
Third, Native peoples deserve restored sovereignty, building on the recent decision of the Supreme Court in McGirt v. Oklahoma (591 U.S.___ 2020). The answer is not to finesse definitions of religion in law in hopes of making them more capacious. Real progress will happen when decision-making authority over what constitutes the sacred and how best to approach it is restored to Native peoples. This will not be achieved through forms of piecemeal sovereignty. Indigenous religious well-being is a function of many things, including access to natural resources and financial autonomy. For sovereignty to be functionally significant, it needs to be predicated on land returns and undiluted jurisdictional recognition.
Real progress will happen when decision-making authority over what constitutes the sacred and how best to approach it is restored to Native peoples.
This sounds radical, but it is not a new claim. Admittedly, it felt unrealistic to talk this way in the not too distant past. The situation is different now. Fathoming ways to salvage principled democracy, it is obvious that our house of cards can’t be sustained without a reckoning. Being at the precipice is also an opening, an opportunity to reset priorities that harken to our common humanity. As we take stock of the lessons from the Black Lives Matter movement, and as we come to terms with the need for immigration reform, let’s also insist that the place of Native peoples and their rights is recentered. This will take an historical paradigm shift in order to advance basic constitutional rights, including to protest, recognition of international mechanisms such as the UNDRIP, and robust sovereignty accompanied by land reparations. Absent steps like these, religious freedom will remain unrealized for Native people, an insult and impediment to their collective sense of the sacred.
- On the latter, see Michael McNally, Defend the Sacred: Native American Religious Freedom Beyond the First Amendment (Princeton, NJ: Princeton University Press, 2020).
- The University of Colorado Law School and the Native American Rights Fund have undertaken a joint project on this important issue. See, for example, a report on their joint conference, “Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country.”
Other Editorial Responses
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Michael P. Guéno
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