Religion as Collective Right

2020 ◽  
pp. 171-195
Author(s):  
Michael D. McNally
Keyword(s):  
Native American ◽  
First Amendment ◽  
Common Sense ◽  
Religious Freedom ◽  
The United States ◽  
Native Peoples ◽  
Federal Indian Law ◽  
Indian Law ◽  
The One ◽  
Rhetorical Force

This chapter considers efforts to legislate Native American religious freedom in the American Indian Religious Freedom Act (AIRFA, 1978). Where courts and even common sense have seen AIRFA as a religious freedom statute—as an extension of the legal protections of the First Amendment into the distinctive terrain of Native American traditions—the chapter suggests a different view. If the legal force of “religious freedom” discourse has been only dimly effective for Native sacred claims in courts, this chapter is the one that most pointedly shows how Native peoples drew on the rhetorical power of the sacred and religious freedom to win significant legislative protections specific to Native peoples. It does so through interviews with Suzan Shown Harjo. These interviews show how the remarkable legislative accomplishment of AIRFA and, later, the Native American Graves Protection and Repatriation Act (1990), carry the rhetorical force of religious freedom into the legal shape of federal Indian law, with its recognition of treaty-based collective rights and the United States' nation-to-nation relationship with Native peoples.

Defend the Sacred

2020 ◽  
Author(s):  
Michael D. McNally
Keyword(s):  
Native American ◽  
Native Americans ◽  
San Francisco ◽  
Religious Freedom ◽  
Indigenous Rights ◽  
Legal Rights ◽  
International Human Rights Law ◽  
Native Peoples ◽  
Preservation Law ◽  
Indian Law

From North Dakota's Standing Rock encampments to Arizona's San Francisco Peaks, Native Americans have repeatedly asserted legal rights to religious freedom to protect their sacred places, practices, objects, knowledge, and ancestral remains. But these claims have met with little success in court because Native American communal traditions don't fit easily into modern Western definitions of religion. This book explores how, in response to this situation, Native peoples have creatively turned to other legal means to safeguard what matters to them. To articulate their claims, Native peoples have resourcefully used the languages of cultural resources under environmental and historic preservation law; of sovereignty under treaty-based federal Indian law; and, increasingly, of Indigenous rights under international human rights law. Along the way, Native nations still draw on the rhetorical power of religious freedom to gain legislative and regulatory successes beyond the First Amendment. This book casts new light on discussions of religious freedom, cultural resource management, and the vitality of Indigenous religions today.

Conclusion

2020 ◽  
pp. 295-306
Author(s):  
Michael D. McNally
Keyword(s):  
United States ◽  
Native American ◽  
First Amendment ◽  
Religious Freedom ◽  
Cultural Landscapes ◽  
The United States ◽  
Native People ◽  
National Monument ◽  
Negotiated Settlements ◽  
Sacred Lands

This concluding chapter gives a nod in the direction of successful negotiated settlements and other agreements that grab fewer headlines and leave fewer public traces because they can avoid the courts altogether and proceed in the context of the nation-to-nation relationship. For an example, it turns to the newly created and recently embattled Bears Ears National Monument, a collaboratively managed preserve of sacred lands, cultural landscapes, and traditional knowledge in southern Utah. Since the quiet goal for most Native people is to protect what is sacred to them without calling attention to themselves, the best outcomes for Native American religious freedom are so far beyond the First Amendment and its legal counterparts, they can remain entirely off line. Here, the story of Bears Ears is less the story of the Obama administration than it is the story of decades of activism and the concerted strategic efforts of a consortium of Native nations. When President Barack Obama designated 1.35 million acres of southeast Utah lands as Bears Ears National Monument, he authorized a new experiment in cooperation, even collaboration, between the United States and Native nations in safeguarding sacred lands.

Religion as Collective Right

2020 ◽  
pp. 196-223
Author(s):  
Michael D. McNally
Keyword(s):  
Native American ◽  
American Indian ◽  
Religious Freedom ◽  
National Museum ◽  
Political Leaders ◽  
Legal Cases ◽  
Federal Indian Law ◽  
Indian Act ◽  
Legal Challenges ◽  
Indian Law

This chapter discusses repatriation law and a cluster of legal cases involving possession of ceremonial eagle feathers, where courts have consistently affirmed the collective contours of Native religions. Courts have upheld an exemption to the criminal penalties for feather possession tailored to members of federally recognized tribes against legal challenges by individual practitioners of Native religions who are not members of those tribes. These cases illustrate well the difficulties and the possibilities of religion as a category encompassing collective Native traditions. The coalition that persuaded Congress in 1994 to pass the Peyote Amendment to AIRFA was successful in part because it was largely the same circle of advocates, lawyers, tribal spiritual and political leaders, and allies who had recently won congressional passage of two repatriation statutes: the National Museum of the American Indian Act (NMAI) in 1989 and the Native American Graves Protection and Repatriation Act (NAGPRA) the next year. The chapter thus tells the story of Native-led efforts to secure these two laws and offers an interpretation of them not as religious freedom laws, but primarily as additions to federal Indian law that encompass religious and cultural heritage.

scholarly journals Louise Erdrich's The Round House: Restorative Justice in a Coming of Age Thriller

Nordlit ◽  
2018 ◽  
Author(s):  
Laura Virginia Castor
Keyword(s):  
Native American ◽  
Restorative Justice ◽  
Coming Of Age ◽  
Indigenous Communities ◽  
The United States ◽  
State Laws ◽  
Federal Indian Law ◽  
American Law ◽  
International Audience ◽  
Indian Law

In a novel critics have described as a "thriller-like" coming-of-age story, Louise Erdrich's The Round House (2012) integrates two apparently conflicting approaches to Native American law. First, Felix S. Cohen's Handbook of Federal Indian Law legitimizes the need for working with allies to Indigenous peoples in developing contextual applications of settler state laws. The second draws on the authority of authorless Anishinaabe stories and dreams. While Cohen and his descendants in tribal law practice are allies to the Anishinabeg, dream narrations by the narrator's grandfather affirm the contemporary vitality of Anishinaabe approaches to justice. Finally, Erdrich's narration suggests why restorative justice for women in Indigenous communities in the United States should matter for her international audience.

Religion as Spirituality

2020 ◽  
pp. 94-126
Author(s):  
Michael D. McNally
Keyword(s):  
United States ◽  
Native American ◽  
Religious Beliefs ◽  
Religious Freedom ◽  
The United States ◽  
Sacred Places ◽  
Beliefs And Practices ◽  
Sacred Lands ◽  
American Spirituality ◽  
Religious Claim

This chapter examines the failure in the courts of Native appeals to religious freedom protections for sacred lands, and it extends the previous chapter's analysis of the reception of Native claims to religion as religion. Where a religious claim conforms to the subjective, interior spirituality that has become naturalized in the United States, it has worked reasonably well in the courts. This is emphatically not the case where claims involve religious relationships with, uses of, and obligations to, land. The chapter explains how courts reason their way out of taking steps to protect Native American religious freedom when sacred places are threatened, a puzzling matter in that courts consistently acknowledge the sincerity of the religious beliefs and practices associated with those sacred places. Along the way the chapter develops a fuller sense of the workings of the discourse of Native American spirituality as it comes to control judicial comprehension of Native religious freedom claims.

1917

Peyote Effect ◽  
2018 ◽  
pp. 44-54
Author(s):  
Alexander S. Dawson
Keyword(s):  
United States ◽  
Native American ◽  
First Amendment ◽  
House Of Representatives ◽  
The United States ◽  
Late Nineteenth Century ◽  
State Governments ◽  
Late Nineteenth ◽  
Indian Agents ◽  
The U.S

This chapter explores the first sustained efforts to enact a federal ban on peyote in the United States. Missionaries and Indian Agents began pressing for a ban in the late nineteenth century, only to be thwarted by Native American peyotists and their allies in the Bureau of American Ethnology, who argued both that peyote worship should be protected by the First Amendment to the U.S. Constitution and that it was not deleterious to the health of individual peyotists. By 1917, however, state governments were beginning to pass local bans, with the first prohibitions passed in Colorado and Utah. In early 1918, the U.S. House of Representatives took up the cause, holding hearings on a proposed ban. The record of those hearings offers a fascinating glimpse into the ways that racial anxieties were articulated through anxieties over peyotism in the early twentieth century. The ban passed the House but failed in the Senate.

Law, Religion, and the Present Danger

Worldview ◽  
1979 ◽  
Vol 22 (9) ◽  
pp. 46-53
Author(s):  
Harold J. Berman
Keyword(s):  
First Amendment ◽  
The United States ◽  
United States Constitution ◽  
Establishment Clause ◽  
Free Exercise ◽  
Group Activities ◽  
Or Groups ◽  
Governmental Support ◽  
The One ◽  
Governmental Control

When the word "law" is juxtaposed with the word "religion," an American lawyer today is apt to think immediately of the First Amendment to the United States Constitution with its double protection against any governmental interference in "the free exercise" of religion on the one hand and against any governmental "establishment" of religion on the other. From the standpoint of contemporary American constitutional law, religion has become the personal and private affair of individual citizens or groups of citizens. Indeed, in recent decades our courts, in interpreting the "free exercise" clause, have gone far toward immunizing individual and group activities from governmental control, whether federal or state, whenever they are considered by the persons engaging in them to be of a religious character; and at the same time, under the "establishment" clause the courts have struck down most forms even of indirect governmental support of religion, whether federal or state.

Federal Indian Law

2014 ◽  
Author(s):  
N. Bruce Duthu
Keyword(s):  
United States ◽  
The United States ◽  
The Body ◽  
Executive Orders ◽  
Federal Indian Law ◽  
Dominant Society ◽  
Indian Tribes ◽  
Formal Relations ◽  
Indian Law ◽  
The U.S

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.

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