Michael David McNally - Defend the sacred : native American religious freedom beyond the First Amendment

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DEFEND THE SACRED

Water Protectors at Standing Rock, Fall 2016.
(Courtesy of Dallas Goldtooth, Mdewakantonwan Dakota)

Defend the Sacred

NATIVE AMERICAN RELIGIOUS FREEDOM
BEYOND THE FIRST AMENDMENT

MICHAEL D. MCNALLY

PRINCETON UNIVERSITY PRESS
PRINCETON & OXFORD

Copyright 2020 by Princeton University Press

Requests for permission to reproduce material from this work should be sent to

Published by Princeton University Press
41 William Street, Princeton, New Jersey 08540
6 Oxford Street, Woodstock, Oxfordshire OX20 1TR

press.princeton.edu

All Rights Reserved
ISBN 978-0-691-19089-1
ISBN (pbk.) 978-0-691-19090-7
ISBN (e-book) 978-0-691-20151-1
Version 1.0

Some material in the book has been taken from the authors previous publications: From Substantial Burden on Native American Religious Exercise to the Decrease in Spiritual Fulfillment in the San Francisco Peaks Sacred Lands Case, Journal of Law and Religion 30:3664 (February 2015); Native American Religious Freedom as a Collective Right, Brigham Young University Law Review (forthcoming); Religion as Peoplehood: Native American Religious Freedom and the Discourse of Indigenous Rights in International Law, in Brill Handbook of Indigenous Religion(s), eds. Greg Johnson and Siv Ellen Kraft (Leiden: Brill, 2018); Native American Religious Freedom beyond the First Amendment, in After Pluralism, Reimagining Religious Engagement, eds. Courtney Bender and Pamela Klassen (Columbia University Press, 2010).

British Library Cataloging-in-Publication Data is available

Editorial: Fred Appel and Jenny Tan
Production Editorial: Karen Carter
Jacket/Cover Design: Layla Mac Rory
Production: Erin Suydam
Publicity: Kate Hensley and Kathryn Stevens
Copyeditor: Dawn Hall

Jacket/Cover Credit: Standing Rock, North Dakota Water Protectors. Courtesy of Dallas Goldtooth, Mdewakantonwan Dakota

For Svea and Coleman

CONTENTS

ix

xi

xv

ILLUSTRATIONS

ABBREVIATIONS

ACHP	Advisory Council for Historic Preservation (body established to oversee NHPA)
AIRFA	American Indian Religious Freedom Act (1978)
APE	Area of Potential Effect, in NHPA Review
BIA	Bureau of Indian Affairs, US Department of the Interior
BULLETIN 38	1990 National Register Bulletin that describes TCPs under NHPA
CIA	Commissioner of Indian Affairs
DAPL	Dakota Access Pipeline
EA	Environmental Assessment (lesser environmental review under NEPA)
EMRIP	UN Expert Mechanism on the Rights of Indigenous Peoples
EIS	Environmental Impact Study (fuller environmental review under NEPA)
FPIC	Free, Prior, and Informed Consent (standard affirmed in UNDRIP)
ICCPR	International Covenant on Civil and Political Rights (1966)
ICESCR	International Covenant on Economic, Social, and Cultural Rights (1966)
LYNG	Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) (logging road through Native sacred place does not violate First Amendment)
NAGPRA	Native American Graves Protection and Repatriation Act (1990)
NAVAJO NATION	Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc) (artificial snow made with wastewater on holy mountain does not violate RFRA)
NEPA	National Environmental Policy Act (1969)
NHPA	National Historic Preservation Act (1966)
NMAI	National Museum of the American Indian
OAS	Organization of American States
RFRA	Religious Freedom Restoration Act (1993)
RLUIPA	Religious Land Use and Institutionalized Persons Act (2000)
SHPO	State Historic Preservation Officer (NHPA)
SMITH	Employment Div., Dept. Human Serv., State of Oregon v.Smith, U.S. 872 (1990)
STANDING ROCK I	Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 205 F. Supp. 3d. 4 (D.D.C. 2016) (does DAPL approval violate NHPA?)
STANDING ROCK II	239 F. Supp. 3d 77 (D.D.C. 2017) (does DAPL approval violate RFRA?)
STANDING ROCK III	255 F. Supp. 3d 101 (D.D.C. 2017) (does DAPL approval violate NEPA?)
STANDING ROCK IV	282 F. Supp. 3d 91 (D.D.C. 2017) (should oil flow stop pending NEPA remand?)
TCP	Traditional Cultural Property (NHPA designation of eligibility for National Register of Historic Places of places significant to living cultures)
THPO	Tribal Historic Preservation Officer (counterpart to SHPO under NHPA)
UDHR	Universal Declaration of Human Rights (1948)
UNDRIP	United Nations Declaration on the Rights of Indigenous Peoples (2007)

PREFACE AND ACKNOWLEDGMENTS

THIS BOOK FOLLOWS Native American peoples as they struggle to defend the sacred in and through law. Whether the sacred refers to sacred lands, practices, plants, animals, objects in museums, or ancestral remains, Native peoples have over the last fifty years increasingly sought to defend the sacred in hearing rooms, around negotiating tables, or in courts of law and public opinion. But because religious freedom law has largely failed them, Native peoples have gone through and beyond the First Amendment to defend the sacred in other fields of lawenvironmental law, historic preservation law, federal Indian law and treaty rights, and international human rights law. Its not only that religious freedom law has failed them, but also that religion as a category has failed to capture whats distinctive about Indigenous religions, local as they are to particular peoples and to living well on particular lands and waters. This book explores the varying results of these legal efforts and ultimately returns to religion, imagined capaciously as an Indigenous collective right keyed to the collective nation-to-nation relationship but that can carry the legal teeth of religious freedom.

Placing the Book in an Unsettling Contemporary Moment

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