Book Review

Michael D. McNally, Defend the Sacred: Native American Religious Freedom Beyond the First Amendment (Princeton: Princeton University Press, 2020), 400 pp., $99.95 (hbk), ISBN: 9780691190891.

In an effort to halt America’s long campaign to control the religious lives of tribal nations and individuals, in 1978 Congress unanimously passed AIRFA, the American Indian Religious Freedom Act (P.L. 95–341). Unanimity came at the expense of Congress’s failure to provide a law with ‘teeth’, as AIRFA’s Democratic House sponsor, Rep. Morris K. Udall, famously admitted in securing votes of resource-rich western states legislators. Still, toothless AIRFA’s missing cause of action did not dampen the energies of the many tribes and individuals who began employing it almost immediately to protect ceremonies, practices, and the homelands that provide their frequent and necessary focus. AIRFA-based challenges against government infringements managed to achieve some important victories: exemptions for ceremonial uses of eagle feathers, protecting free exercise rights of Indigenous prisoners, and the creation of government-to-government consultation regimes and policy reviews involving tribes and agencies administering public lands and resources.

However, the record was mostly one of loss—especially when challenges arose regarding sacred sites on traditional lands. There, economic development consistently trumped tribal claims, as in Navajo Nation v. US Forest Service (2008), the Ninth Circuit’s dismissal of thirteen southwestern tribes’ opposition to Arizona Snow Bowl expansion in the San Francisco Peaks. In that case, the court concluded that the tribes’ opposition to use of treated sewage from the City of Flagstaff for the resort’s snowmaking operation reflected merely individual tribal members’ subjective religious sentiments. Most recently, the heavy scale-tipping towards economic development loomed large in the Trump administration’s 2017 seventy-five percent boundary cutback of Bears Ears National Monument, and its 2018 push for the Dakota Access Pipeline.

Michael McNally’s Defend the Sacred opposes this trend, offering a well-researched and provocative argument for strengthening the position of tribes seeking to protect traditional lands. Although considering important leadups to the conflicts of the AIRFA era, and numerous important cases, the book is not really a legal history. And although concerning the religious claims tribes have advanced in court challenges and political campaigns, the book is also not primarily a study of Native American religion. Instead, it is a creative argument about the law, one that might help encourage public debate and inform the strategies of tribal advocates.

The idea that the free exercise principle might serve tribes in preserving landscapes rich in ceremony, story and collective obligation met its match in two Supreme Court decisions handed down a decade after AIRFA’s passage: Lyng v. Northwest Indian Protective Cemetery Association (1988) and Employment Div. v. Smith (1990). McNally examines their impact, setting them up as the roadblocks around which he negotiates his argument for Indigenous free exercise. Lyng and Smith eviscerated several decades’ worth of free exercise precedent, and thus enflamed a national campaign to meet the First Amendment policy emergency. Various churches and a raft of ecumenical organizations were only able to dampen this emergency with the help of subsequent statutes and executive orders. Overlooked in this flurry of policymaking and case law was the fact that Native American lands of sacred significance remained under the continual threat of resource development. The tribes’ ostensible religious liberty allies ironically steered clear of supporting them for fear that new laws protecting their own free-exercise claims would not withstand likely courtroom assaults of always resource-hungry developers from western states, various oversight agencies, and the western legislators who generally represent their interests in Congress. These days the very idea of religious free exercise seems mostly to interest those of a conservative, Christian bent. Most liberal commentators and activists have only referred to Hobby Lobby (2018)—which held that a Christian business was under no obligation to provide health insurance coverage of birth control for its female employees—as a leading example of the Supreme Court’s dangerous tilt to the political right.

McNally’s solution to the loss of interest in religious freedom by those he thinks should support it, and its take-over by the political right, is to advocate for what he calls an Indigenous ‘religious sovereignty’—a powerful tool for tribes to employ in strengthening their legal and political abilities to determine their ways of life. He does acknowledge the rough-cut nature of terms such as ‘sovereignty’ when referring to Indigenous peoples; but thinks its history within federal Indian law makes the cut close enough to use. He distinguishes his approach to religious sovereignty from two trends he sees encouraging the general abandonment of a strong Indigenous religious freedom position. The first, often adopted by tribes themselves, turned post-Smith to secure protection for sacred places from cultural resource provisions contained in environmental assessment policies. McNally offers a well-researched examination of the positive and negative aspects of this approach in the book’s most extensive chapter. He concludes that although consultation provisions deriving from NEPA and other legislation have helped tribes gain a seat at the dialogue table with agencies and business interests eager for access to their traditional lands, they are still often less than successful. For McNally, ‘culture’ is no more secure and no less-contentious a concept in the hands of bureaucrats than ‘religion’—which remains entrenched in the Constitution.

The second trend that McNally tackles reflects the intellectual influence of social constructionism in religious studies. Along those lines of thought (shaved here to the nub), if religion really is basically a by-product of more fundamental power relations, then the courts are only likely to favor protecting religious exercise of the socially powerful. As McNally notes, this perspective has encouraged many members of tribal nations and their advocates in the media and academia to turn away from arguments for free exercise protection, and to say that they are not religious after all, simply ‘spiritual’—another frequently weak-kneed concept. Rather than devote a tangential chapter to the theoretical discussion of religious studies in the wake of post-modernism, however, McNally confines himself to footnotes and occasional discussions of authors more devoted to that line of analysis. For readers most interested in his legal discussion, that attention is likely sufficient.

The weakest chapter seems to me to be the first, detailing the administrative roles regarding Indians that the US Congress, executive agencies and the courts adopted after the Civil War. This focus shortchanges a complicated history, also relevant to the legal predicaments within which tribes have struggled for their continued freedom. As Chief Justice John Marshal discussed in Johnson v. M’Intosh (1823), the American legal regime created to control tribes and their lands arose out of the originary debates of modern international law, such as the sixteenth-century Spanish debates at Valladolid on the status of the Indians. To do justice to the many ways in which Indigenous religion intersected with settler law during those earlier centuries would itself require a book. Readers interested in a more thorough discussion of that legal history than McNally has room to provide could turn to Antony Anghie’s Imperialism, Sovereignty and the Making of International Law (2005), or Robert Miller and his colleagues’ Discovering Indigenous Lands (2010).

A strength to McNally’s work is that his argument for the continued potential of religious freedom to assist Indigenous claims draws upon legal strategies and aspirations developed within Indigenous legal and political circles. Much of his outlook comes from his indebtedness to figures such as Vine Deloria, Jr. and interviews with Susan Shown Harjo, director of the National Congress of American Indians from 1984–1989, and one of the key figures in marshalling the interests and energies of elders and other tribal leaders to spark the original passage of AIRFA, and later the Native American Graves and Reparation Act (1990). Drawing on Harjo’s and Deloria’s insight, and the arguments of various Indigenous legal scholars, he demonstrates that the rhetorical power of religious language regarding sacred sites dovetails with the broad range of treaty rights that tribes have successfully asserted across the country. American courts have consistently upheld treaties as agreements between sovereign entities, a principle enduring despite the courts’ schizophrenic approval of Congress’s century-long claim to hold ‘plenary power’ over Indians. In addition to the constitutional strength of treaties, and the doctrine of fiduciary trust that requires Congress to protect the well-being of tribes who have made treaties (admittedly a thorny subject), McNally also discusses the contemporary international law focus on Indigenous rights of self-determination—as seen in widespread support for the United Nations Declaration of the Rights of Indigenous Peoples (2007)—which he says plays an important role in increasing our understanding of Indigenous religious freedom.

As an argument about law, Defend the Sacred’s outlook is pragmatic. The question in the end is whether judges might find persuasive its effort to expand our understanding of Indigenous freedom colored by UNDRIP and honoring the many prominent Indigenous arguments across North America for self-determination. Judges often don’t like creative legal arguments, tending to see the term ‘creative’ as a black mark. I don’t mean that. Defend the Sacred’s creativity is part of its contribution to the work of many scholars, tribal advocates and activists who are making progress to forge a just legal order. McNally seems to recognize that such progress is slow.

Matthew Glass

University of Guelph

Western University

Faculty of Law

[email protected]