Native American Religious Freedom as a Collective Right

By McNally, Michael D. | Brigham Young University Law Review, January 1, 2019 | Go to article overview

Native American Religious Freedom as a Collective Right


McNally, Michael D., Brigham Young University Law Review


Introduction: The Strength of Standing Rock and the Weakness of the Law

The 2016-17 encampment at Standing Rock, North Dakota has put on public display the impressive strength and ongoing vitality of traditional Native American religions, not to mention the spiritual grounding and rhetorical force of their resolve to defend the sacred. But intensive coverage has also put on display just how weak the legal remedies available to Native people are as they seek to defend sacred lands and waters.1 In addition to the proposed pipeline's endangerment of drinking water by crossing the Missouri River a half mile upstream from the reservation boundary, the standing Rock sioux Tribe cited concerns about the pipeline's desecration of a veritable sacred district of gravesites, stone rings designating Lakota ancestral knowledge, Sitting Bull's traditional encampment, and the holy confluence of the Cannonball River and the Missouri. The enormous eddy that formed in spring at this confluence fashioned large spherical sacred stones (hence Cannonball) until the Army Corps of Engineers built an enormous dam forming Lake Oahe.

The processes for tribal consultation and public consideration of adverse effects on cultural resources like sacred sites (and natural resources like water that are also cultural resources) ostensibly safeguarded by historical preservation and environmental law turned out, in this case, to be hoops to jump through, and the broader purposes of which can easily be exploited by pro-development environmental consultants, corporations, and agencies. One need not be a specialist to sense something amiss when, on July 16, 2016, the Army Corps of Engineers issued its formal "Finding of No Significant Impact" for the crossing of the Missouri. This finding formally concluded the review necessary under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) without a fuller Environmental Impact Statement process that NEPA requires when a federal action is more consequential for the human environment.2 Playing the few legal cards available to it under NHPA, NEPA, and other laws relating to federal permitting of the crossing of waterways,3 the Standing Rock Sioux Tribe failed to persuade a federal court to issue a preliminary injunction blocking approval of the pipeline's crossing of the Missouri River at Lake Oahe.4 Despite considerable available evidence that the Army Corps' consultation with the Standing Rock Sioux Tribe fell short of standards set by Congress,5 and standard practice in the Obama Administration6 and clarified in the courts,7 the judge found the claims insufficient for a preliminary injunction.8

But the three federal agencies involved with the Dakota Access Pipeline approval immediately issued a halt to construction pending further review. And in December 2016, the Army Corps denied the remaining easement for the Missouri River crossing until alternatives were considered under an Environmental Impact Statement process, an action which drew the pipeline company's lawsuit challenging the decision. when President Trump took the reins of power, he issued a directive on day two of his administration for the Army Corps to grant the necessary easement and to expedite completion of the Dakota Access Pipeline. A range of challenges to Trump's directive in courts have extended the legal process through the time of this writing and will extend into the future. Whatever the final outcome, the Standing Rock/Dakota Access story begs a question: Why-and how - should Native peoples boldly perform prayer, ceremony, and encampment itself as protest, with the world watching and admiring their spiritual resolve, and not have any meaningful recourse under religious freedom law? Why, in other words, are we even talking about the legal weeds of environmental and historic preservation law and not about what many consider the American first freedom?

The answer to the why of the question is the starting point for this Article, but i will make quick work of it: Native American claims to sacred lands have consistently failed in the courts, either under the Free Exercise Clause of the First Amendment or under its statutory counterpart, the Religious Freedom Restoration Act (1993). …

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