A wag once observed, “The trouble with old friends is that there are so few of them left.” I have been involved in this profession for over thirty years. The problem with becoming a senior scholar is that there are people that you have known all their careers, and they are now senior scholars themselves. I have known Michael McNally since he was in graduate school—in fact, since we were both in graduate school. He graduated from Harvard the same year I graduated from Union Theological Seminary and started at Yale. I have followed his career closely. He has been both a stalwart and a leader in the study of Indigenous religious traditions in the American Academy of Religion.

Defend the Sacred: Native American Religious Freedom beyond the First Amendment, the book that is the focus of this symposium, is the culmination of McNally's long-standing interest in the intersection of law and the study of Native American religious traditions. Though he still has many years of teaching and scholarship ahead of him, the monograph feels like a kind of summa, a comprehensive work covering a particular subject, in this case the struggle to protect Native traditions. In it, he was generous enough to acknowledge my work on religious freedom alongside the generative work of the late Vine Deloria, Jr, who was one of my mentors in the field and a beacon for us all. A central tenet of McNally's book is that the fight to protect Native religious traditions must move, as the subtitle itself indicates, beyond the First Amendment. It is something about which I have written often.

Though the First Amendment to the United States Constitution, on its face, would seem to prohibit any interference by Congress—or, after incorporation, against the states—with the “free exercise” of religion, we all know such a proscription is far from total. Courts have recognized the right of the state to interfere with religious practices in any number of circumstances, and the standard the state must meet has evolved a number of times. Put simply, the First Amendment does not mean what the plain meaning of its words would seem to imply.

There is a reason that freedom of religion is included in the First Amendment alongside freedom of speech and freedom of the press. Freedom of speech means you are free to say whatever you want within broad parameters. You cannot yell “Fire!” in a crowded theater. You cannot slander someone. Freedom of the press means you are free, again within broad parameters, to print whatever you want. You cannot print the movement of troops during wartime. You cannot libel someone.

Freedom of religion, as interpreted by the courts, means you are free to believe whatever you want. However, while beliefs are always beyond the reach of the state, actions are not. One is not free to do whatever one thinks one's religion dictates, nor is one free to do it wherever one feels compelled to do it. Such an interpretation dates to 1879 and the Supreme Court's decision in Reynolds v. United States. In Reynolds, the Mormon polygamy case, the High Court ruled that religious duty is no defense against criminal prosecution. The court worried that to rule otherwise would make “every man a law unto himself.”Footnote ¹

This interpretation of religious freedom has made Native American religious traditions impossible to protect under established First Amendment jurisprudence. Unlike what James Laine calls “meta-religions”Footnote ² or textual religions such as the Abrahamic religions of Christianity, Judaism, and Islam, which are at base religions of belief and dogma, Native religious traditions are akin to other Indigenous traditions worldwide. Like Shinto, they are religions of ritual performance, dependent upon practitioners’ continued practice. Further, as McNally discusses, they often require specific sites for their performance.

While even some sympathetic scholars of federal Indian law, such as Charles Wilkinson, also cited by McNally, argue that belief must be the limit of First Amendment protection, I reservedly disagree.Footnote ³ I elaborate upon this point below, but even the analysis I offer does not provide unreserved protection of Native religious traditions. Though it has not yet become a particular problem in litigation, many tribes have injunctions within their traditions that do not permit them to disclose certain elements or aspects of those traditions. For instance, among the Hopi and other Pueblos there are prohibitions on disclosing the location and nature of some shrines. To even do so would destroy the efficacy of the shrine disclosed. Even sympathetic jurists cannot simply take it on faith that the site is sacred without explanation. To do so puts the court back on all fours with Reynolds, permitting each tribal nation to be a law unto itself.

In Defend the Sacred, McNally discusses a wide array of aspects of Native religious freedom, from access of prisoners to religious objects and practitioners to rituals and sacred sites; from 1883 with the imposition by the Department of the Interior of the Rules for the Courts of Indian Offenses (more colloquially known as the Religious Crimes Code) to today, including the United Nations Declaration on the Rights of Indigenous Peoples and protections under international law.

As McNally summarizes in the book's conclusion, four key arguments flow throughout the book as red threads (295–96); I further summarize them as follows:

1. 1. Religion and religious freedom have been discourses available with power to exclude as well as to include, because they are powerful discourses, they have also been significant to Native communities.

2. 2. If freedom of religion claims have failed consistently in courts to protect sacred lands, Native communities have creatively appropriated discourses of religious freedom and the sacred, drawn on their rhetorical power, and extended their logic into legislative and regulatory successes beyond the First Amendment.

3. 3. The collective shape of Native religious traditions may seem inevitably ill-suited to religious freedom in US law, which privileges the individualized faith and interiorized spirituality of traditions like Protestantism.

4. 4. Native efforts to defend the sacred have been generative of religion, a source of renewal and a spirited sense of peoplehood.

McNally could have added a fifth, a truth that is implicit throughout the text and of which I have been repeatedly reminded in over thirty years of both studying and working to defend Native religious traditions: Native victories are always temporary, fragile, and contingent. In what follows, I examine these five threads in McNally's monograph.

Almost half a century ago, in his seminal, if polemical, book God Is Red, Vine Deloria, himself an attorney, cautioned that Natives could not rely on the courts to vindicate religious claims. They would need to resort to extrajudicial means to accomplish their goals. After all, Deloria pointed out, it was reliance on treaties and negotiations with the federal government and Congress that led to the restoration of Blue Lake to Taos Pueblo. While, as McNally avers, the rhetoric of religion is indeed a powerful tool for Natives and those who would defend their interests, when engaging in debate about religion with the prevailing legal system, Natives and non-Natives are engaged in incommensurate discourse. Native American and Indigenous “religions” are not religions within the commonly understood sense of that term. This is why scholars specializing in Native religions now most often refer to them as “religious traditions.”

As noted above and as McNally states, the framers of the Constitution and the First Amendment had in mind Christianity and, more specifically Protestantism, not religions (it is hard, as desirable it might be, to avoid the term) of ritual performance or that are land-based.

One need look no further than the well-known case of U.S. v. Sioux Nation. In 1980, after more than a century of legal struggles, the United States Supreme Court ruled that the Sioux had been illegally deprived of the Black Hills in 1876. The High Court awarded the Sioux $100 million as compensation.Footnote ⁴ The Indians asked for specific performance, contending they wanted the Black Hills, not money. The Court maintained it could not do that. As John Marshall wrote in Johnson v. M'Intosh, “Conquest gives a title which the Courts of the conqueror cannot deny.”Footnote ⁵ The Lakota, some of the poorest people in the country, refused the money. Today that fund, gathering compound interest for forty years, stands at two billion dollars, still unclaimed.

This example of incommensurability could be replicated many times over. I briefly note only two legal disputes in which I was involved on the periphery. The first involves the 9,000-year-old skeleton found on the Washington-Oregon border in 1996, colloquially referred to as Kennewick Man. Scientists wanted to subject the bones to DNA testing. The tribal nations objected. The scientists framed the discourse in the courts and in public painting the Indians as, in their words, “religious fundamentalists,” contending that testing would prove the Bering Strait theory and disprove tribal creation stories that they had always been on the land there. For the Natives, it was a simple issue of desecration of human remains because DNA testing destroys the sample it tests.Footnote ⁶

In 1999, the Clackamas issued to the American Museum of Natural History a claim under the Native American Graves Protection and Repatriation Act for the return of the Willamette Meteorite, known to the tribe as Tomawonos. The tribe claimed it was a sacred object. Though Tomawonos had been used for generations by the Clackamas in rituals, the museum contended that the meteorite was a naturally occurring object and that, to be a sacred object under the act, it needed to be something human made.Footnote ⁷

Consistent with Deloria's decades-old injunction that Natives would need to rely upon extrajudicial means to protect their religious freedom, there have been more than fifty lawsuits brought by Natives, seeking to protect sacred sites under the First Amendment. Natives have lost every one. McNally, following Deloria, points to regulatory successes. Chief among these is President Clinton's 1996 Executive Order 13007, reaffirmed by President Obama, directing federal agencies to protect Native American sacred sites and to facilitate Native access to them.Footnote ⁸ While the order covers only federal agencies and federal lands, it provides more than is obvious to the untrained eye. Much of the land in the western United States is owned by the federal government, more than is commonly known. Sixty-five percent of Utah is federal land. Eighty-five percent of the state of Nevada is. Executive action throughout the twentieth and twenty-first centuries has produced notable successes in guaranteeing protection of religious practices on these lands by Native communities, some of which have spilled over into the courts. Yet as I indicated previously, any such gains are fragile and contingent. Though President Trump did not rescind Executive Order 13007, a future administration could.

A few additional examples will suffice. In 1906, President Theodore Roosevelt created the first national monument, Devil's Tower National Monument in northeast Wyoming. In 1916, the monument came under the management of the National Park Service. In 1995, the Park Service proposed to ban climbing on the butte Natives know as Mato Tipila, the Lodge of the Bear, during the month of June, when it is used by Natives for ceremony. Under pressure from climbing interests, the National Park Service took a step back and proposed a voluntary climbing ban.

Yet even this voluntary ban was opposed by the climbers. Styling themselves the Bear Lodge Multiple Use Association and represented by the Mountain States Legal Foundation, the climbers filed suit in federal court, claiming that even the voluntary ban so that Natives could use the butte unmolested and in peace constituted an impermissible establishment of religion in violation of the First Amendment. When the case went to the Tenth Circuit Court of Appeals, Deloria called me to work with him. Our portion of the brief argued that, far from being an unconstitutional preference for Native practices and, therefore an establishment of religion, it was merely a “reasonable accommodation,” which is allowable. In the end, the appellate court ruled on the grounds on which I would have ruled: they found that an ad hoc group of climbers had no standing to challenge the uses to which the federal government put lands that it owned.Footnote ⁹

A short while later, I was contacted by the lawyer for the Quechan, the tribal nation formerly known as the Fort Yuma Indians, whose reservation is on the Arizona/California border. The lawyer contacted me because I had done a minor piece of legal work for the Quechan some years before.

Quechan religious traditions involve a set of interconnected pilgrimage trails to various shrines. While these trails and shrines are on Quechan traditional and ancestral lands, most now lie outside the boundaries of the small present-day reservation. Over time, various developments have severed the trails one by one. This is no problem for the living who can learn alternative routes to the shrines, but Quechan dead continue to make the pilgrimage, as well. And the dead know only the traditional trails.

In 1999, the Bureau of Land Management proposed to site an arsenic-heap leaching gold mine on traditional Quechan lands. The location was such that it would sever the only remaining trails. The Quechan's attorney asked me to prepare a brief on Quechan religious traditions for the Advisory Council on Historic Preservation, which advises the president and Congress on historic preservation policy, under President Clinton's executive order.

Though I wrote my own brief, I contacted a number of religious and legal scholars, hoping to organize a group to write letters in support of my brief. It was my turn to call upon Deloria, and, true to his character, he was the first to reply, stating simply, “Tell me what you want and when you need it.”Footnote ¹⁰

In my brief, I explained Quechan religious traditions and argued for a standard of integrity, a concept I borrowed from anthropologist Deward Walker.Footnote ¹¹ I first elaborated on the concept in my essay “Losing My Religion: Native American Religious Traditions and American Religious Freedom,” from my edited volume Native American Religious Identity: Unforgotten Gods, revised and updated in my book Other Words: American Indian Literature, Law, and Culture. Put simply, integrity means “an unimpaired condition” or “the quality or state of being complete or undivided.”Footnote ¹²

The advisory council ultimately recommended against the mine, and Secretary of the Interior Bruce Babbitt refused to approve it. Underscoring the contingency of any victories in this arena, however, when the George W. Bush administration took over, it immediately revisited the decision. Fortunately, at that time, the price of gold had dropped, making the proposed operation unprofitable. The site is under threat again today, as new developers consider paving over it with solar panels, and Quechan traditions are still at risk.

McNally discusses Bears Ears National Monument (297–304). Bears Ears was proclaimed a national monument on December 28, 2016, under the Antiquities Act,Footnote ¹³ a power exercised by every president since Theodore Roosevelt. In an unprecedented move, President Trump reduced its boundaries by 85 percent, opening the area excluded to extraction. Never before had a president reduced or eliminated a monument declared by a predecessor. The move was immediately challenged in the courts. President Biden and Secretary of the Interior Deb Haaland have moved to undo the Trump administration action.

As I have previously suggested, I believe it is still possible to use the courts as a venue to vindicate Native religious rights through application of the principle for which I argued in the Quechan case: integrity. In the past, courts have sometimes applied a principle of centrality. A sacred site or ritual would be protected only if it is “central,”Footnote ¹⁴ which is to say, “essential, indispensable, or requisite” to the religious practice and traditions of a particular tribal nation. Not only is it an inquiry for which courts are ill-suited, but as Walker states, “In its application, this standard goes well beyond the meaning of ‘infringement’ and borders on ‘extinction’ . . . Judgments by courts as to centrality, therefore, are being made in terms of a standard of survival/extinction.”Footnote ¹⁵

Integrity is better suited to the process of judicial fact-finding. Among the possible lines of inquiry a court could pursue to arrive at a determination of fact, Walker suggests three:

1. 1. Is the affected practice (or site) held by members of the group to be an essential part of their religion? or,

2. 2. Are there alternatives for the affected practice (or site) acceptable to members of the group? or,

3. 3. Would removal or alteration of the affected practice (or site) impair or prevent other essential practices of the religion?Footnote ¹⁶

In the 1996 case Van der Peet v. Regina, the Supreme Court of Canada applied something like the integrity test for which Walker and I have advocated.Footnote ¹⁷ While a complete discussion of the Van der Peet case is beyond the scope of this article, a brief outline is in order. Dorothy Van der Peet, a Sto:lo Indian, was convicted of selling a salmon to a neighbor, in violation of a prohibition on commercial salmon fishing. Before the Supreme Court, the issue was whether there was a constitutionally protected aboriginal right to engage in commercial fishing. The issue was poorly framed, and the High Court found against such a right, putting the onus on the Natives to prove such a right had previously existed.

Conservative opponents of aboriginal rights, such as Toronto Globe and Mail columnist Jeffrey Simpson, immediately hailed Van der Peet as placing a limit on the “expansive interpretation” given such rights by the Canadian government and courts.Footnote ¹⁸ Though the case was undeniably a loss, Native leaders, by contrast, stated that the Court “had finally set a clear test for defining Indian rights that many Indian nations can easily meet.”Footnote ¹⁹ Accounting for these divergent reactions was the failure of non-Native critics to understand the new test articulated by the Court and its potential implications. The decision stated that courts must look at both Natives’ relationship to the land and the practices, customs, and traditions of a given Native culture. Aboriginal rights are those “practices, customs or traditions” that are “integral to a distinctive culture” that existed at the time of non-Native settlement. Though reflecting in this latter requirement mainstream, white assumptions about the static nature of Native cultures, the real hope of Van der Peet, as yet largely unrealized, lies in the language celebrated by opponents of Aboriginal rights—that practices, customs, or traditions integral (that is, “essential to completeness,” “constituent”) to a distinctive culture will be protected. The approach is, in essence, that advocated by Walker and me. Though admittedly far from perfect, it should nonetheless make it easier to protect cultural and religious traditions and sacred sites that until now have been extremely difficult to vindicate in the courts. While Indian law in Canada and the United States tend to broadly parallel each other,Footnote ²⁰ US courts have yet to adopt the Van der Peet test. It should give Native advocates new arrows in their quiver, and I did successfully argue for the standard in the Quechan case. Had integrity been the test in Lyng v. Northwest Indian Cemetery Protective Association, the outcome would have been different.Footnote ²¹

McNally justifiably devotes considerable attention to Standing Rock and the Dakota Access Pipeline (151–69). One the one hand, it is a classic case study in the fragile nature of Native victories in this arena. The project was halted by the Obama administration and reversed by the Trump administration. In July 2020, a federal district court ordered the pipeline shut down and drained until a mandated environmental assessment was completed. In August 2020, the district court order was vacated by the Court of Appeals, saying the lower court had failed to make the findings required for injunctive relief.Footnote ²²

As of this writing, the pipeline remains in operation even though the required environmental assessment has not been completed. According to ABC News on August 6, 2021, “Energy Transfer executives said during a quarterly earnings call . . . that the line can now transport 750,000 barrels of oil daily, which is 180,000 more than before. Energy Transfer is adding pump stations to boost the pipeline's horsepower, and said when the full expansion is up and running, as much as 1.1 million barrels of oil will flow through the pipeline each day.”Footnote ²³

Yet as McNally makes clear, Native efforts to defend the sacred also have been generative of religion, “a source of renewal and a spirited sense of peoplehood” (295). If Standing Rock is a case study in the contingency of Native victories in the arena of religion, it is also a shining exemplar of McNally's principle. Having lived, operated, and worked in Indian Country my entire life, I have not seen any event more galvanic than the Standing Rock protests since the seventy-one-day occupation of Wounded Knee in 1973. Henry and Leonard Crow Dog were the spiritual advisors to the leaders of the American Indian Movement there at Pine Ridge, and in the events surrounding the occupation, they revived the Ghost Dance for the first time since the 1890 Wounded Knee massacre.

Like that siege, the events at Oceti Sakowin Camp electrified and united Indigenous peoples across the United States and Canada, and hundreds of Natives rushed to the reservation to stand in solidarity with Standing Rock. The motto “Water Is Life” was on lips across the continent, motivating action. A plethora of ceremonies were performed on a daily basis. Water Protectors at Oceti Sakowin staged a production of William S. Yellow Robe, Jr.'s play Sneaky during the standoff. That standoff became a source of both pride and renewal for Native persons, and whether they participated or merely watched events from afar, they felt that “spirited sense of peoplehood.” Though it is still relatively soon after the events at Standing Rock, these sentiments have perdured.

As objects of study Native religious traditions are at once amorphous and pointedly multifaceted and multivalent. It is this complexity that makes them difficult to protect under western law. And I would hazard they are the very qualities that make them so worth protecting. McNally's Defend the Sacred captures both the problem and the necessity.