Berkley Center

When bulldozers arrived to finish work on the Dakota Access Pipeline last February, the state had already crushed the protest camps that had mobilized against it. The Standing Rock Sioux Nation had named the pipeline a serious threat to the purity of their water, to their tribal sovereignty, and to indigenous spiritual traditions. Tribal leaders warned that it would desecrate land and water that is sacred to them and to other Native peoples in the region. They made a point of incorporating prayer and ceremony into protestors’ daily routines. But after a presidential election that merged corporate interests with resurgent white nationalisms, the pipeline could not be halted.

In December 2017, President Trump issued an order to slash the size of the Bears Ears and Grand Staircase-Escalante National Monuments, both located in Utah. Ute and other Native leaders in the region had worked for decades to create these monuments, hoping that this step would definitively protect places that they call sacred. But with a stroke of his pen, the president claimed the power to reverse that legacy for the sake of coal and oil. Last month a U.S. House subcommittee held hearings on legislation that would codify the reduction of these monuments. At this writing litigation is underway and the final outcome for these monuments remains unclear. 

Although indigenous sacred land claims are central to both of these cases, neither the Native leaders involved nor the public discourse around them emphasized the issue of religious freedom. Just before the protest camps were destroyed at Standing Rock, tribal leaders filed a last-ditch appeal in court that appealed, among other things, to religious freedom. But a federal judge ruled that the pipeline posed no demonstrable harm to Native religions, and that the government had no constitutional obligation to halt the construction. Likewise in the ongoing battle over the national monuments, religious freedom appears as a minor key within Native arguments and is unlikely to make any difference to the outcome. 

The prevailing legal strategies are quite different here than in the 1980s and 1990s, when Native activists and tribal leaders placed religious freedom at the heart of their advocacy for sacred lands. Cold War cultural imperatives had enabled Native Americans, like many other racial and religious minorities, to leverage popular rallying cries of “faith and freedom” into a new politics of pluralism. Among the legislative victories they secured was the American Indian Religious Freedom Act (AIRFA, 1978). Even as Native activists warned that the new law lacked mechanisms for enforcement, they hoped that it would aid their efforts to stop the logging, mining, and commercial development that increasingly threatened indigenous sacred places. But as at Standing Rock, virtually all the cases they advanced would fail in the courts. 

Religious freedom appeals, in fact, have rarely succeeded in protecting indigenous sacred lands. Indeed, through much of U.S. history religious freedom was hardly considered applicable to Native American traditions at all. Until the 1930s federal officials actively attempted to impose Christianity on Indians and, in the name of civilization, completely banned many Native ceremonial practices. Although couched in benevolent rhetoric, these bans were violently enforced. They also coincided neatly with settler desires to eliminate Native communities and Native claims to the land. In other words, Christian desires to eradicate “savagery” and “heathenism” helped forge federal Indian policy, and these religious imperatives were never separable from Native struggles for land and sovereignty. 

Christianity no longer holds such overt privileges under U.S. law, but it still enjoys significant structural advantages. The American legal system has always reflected the norms of an overwhelmingly Protestant society—norms that shaped everything from the public school calendar to what the courts will consider under the rubric of religion. Land, even when a judge acknowledges that a Native tradition considers it sacred, fits within the incommensurable category of property instead. 

Property is sacred under U.S. law, of course, in an entirely different sense. Indeed, the legal grounding for all U.S. property rights (public and private) rests in the settler colonial Doctrine of Discovery, which identified Europeans as superior because they were Christians and posited divine sanction for their conquests across the “heathen” world. The Supreme Court detailed the Doctrine of Discovery in Johnson v. M’Intosh (1823) to explain why Indians ultimately lacked authority to sell their own land, and noted that however odious it might seem, this doctrine served as an essential foundation for all non-indigenous land and sovereignty claims.

With all this history in mind, the idea that U.S. law should extend religious freedom to Native Americans begins to seem a bit farcical. Within the current system, to be sure, this freedom might sometimes serve to protect indigenous practices and sacred lands. Under certain circumstances—though I doubt it will be often—Native Americans may find religious freedom to be a useful tool. As AIRFA promised long ago, it should be interpreted as expansively as possible in their favor.

But even as Native leaders demand various rights and freedoms under U.S. law, they have continued to insist on the principle of tribal sovereignty. When protestors at Standing Rock burned the fifteenth-century papal bulls that grounded the Doctrine of Discovery, they did not merely call for religious freedom but rather issued a more serious challenge to the Christian settler colonial foundations of U.S. law. They called for the federal government to recognize them as sovereign nations with the right to protect their water and their land. Given the ongoing realities of indigenous dispossession, federal and state courts and legislatures should repudiate the Doctrine of Discovery and reject its pre-emptive sovereignty claims. 

Given the biases against indigenous traditions that are built into the U.S. legal system, I think it unlikely that religious freedom will ever reliably protect Native sacred lands in the United States. But in the final analysis, as Native activists and intellectuals have long argued, their struggle is not merely for religious freedom but rather for the sovereignty and self-determination of indigenous nations and peoples around the world.