The Collective Rights of Native American Religious Freedom

Native American communities qua communities have sought protections for sacred lands, practices, objects, and ancestral remains under the legal regime of religious freedom without marked success.  While many have understood this as a failure of judicial understanding of the distinctive features of indigenous religions, I contend courts have failed to reckon fully with the collective nature of the religious freedom claims, especially when tribes, not individuals, are the litigants. When courts face sacred claims of Native communities, they should regard these both in terms of religious freedom law and in the collective terms of federal Indian law, based on treaties, the special government to government relationship with the tribes, and the federal trust responsibility to preserve and protect the cultures and religions of the tribes.  Specifically I analyze key sacred lands for the workings of a misrecognition of collective claims of religious obligation as matters of individual spiritual fulfillment; 2) trace the decidedly collective contours of statutory protections in the American Indian Religious Freedom Act (1978) and the Native American Graves Protection and Repatriation Act (1992), tailored as they are to the government to government relationship; 3) identify a pattern effective court  recognition of collective Native American religions in the case law surrounding accommodations under the Bald and Golden Eagle Protection Act. 4) consider the logic of the United Nations Declaration of the Rights of Indigenous Peoples (2007); and 5) develop a reading of Burwell v. Hobby Lobby (2014) that supports such recognition of collective rights to Native American religious freedom under the Religious Freedom Restoration Act (1993) in the Hobby Lobby moment. 

Join us on March 5th, 2018 in Humanities 250 from 5:00-6:30pm.