Defend the Sacred: Native American Religious Freedom Beyond the First Amendment by Michael D. McNally

Field: Arts and Humanities (Social Sciences)

Reviewed by: Defend the Sacred: Native American Religious Freedom Beyond the First Amendment by Michael D. McNally N. Bruce Duthu (bio) Defend the Sacred: Native American Religious Freedom Beyond the First Amendment by Michael D. McNally Princeton University Press, 2020 NATIVE PEOPLES HAVE GOOD REASON to be skeptical of religious studies scholar Michael McNally's call to embrace the rhetoric and substance of religious freedom as a viable means of securing legal protection for what Native peoples hold sacred: certain lands or waters, remains of ancestors, nonhuman species (or parts thereof), and particularized cultural practices. After all, the track record of legal claims anchored in religious freedom brought by Native peoples in state and federal courts is a fairly abysmal one. To his credit, McNally confronts this negative legal history directly, with rigor and honesty. What he advances instead is something he calls religious sovereignty, which envisions a reframing of religious freedom claims as a species of collective Indigenous rights that are tied to the distinctive legal and political status of tribal nations under federal Indian law and that advance Indigenous claims to peoplehood under emerging notions of international Indigenous law. The book's eight chapters are organized in terms of the legal language employed by Native peoples in advancing their religious claims: for example, religion as religion (or, at times, spirituality) under standard religious freedom law; religion as cultural resource under environmental and historic preservation law; religion as collective right and as peoplehood pursuant to federal Indian law doctrines of tribal sovereignty, federal trust obligations to tribal nations; and emergent international rights for Indigenous peoples. Some readers may well remain skeptical of McNally's central argument, particularly given the checkered history of legal protections for tribal sovereignty claims and the legacy of colonialism baked into that body of law, as well as our national aversion to incorporating international law principles into our domestic legal system. Nonetheless, I think readers will find considerable value and insight in McNally's thoughtful, accessible, and comprehensive analysis. I want to call attention to at least three major features of this fine book. First, McNally's careful articulation of the differences between "religious" and "spiritual" claims provides, in my view, some of the most compelling [End Page 140] insights and understanding as to why American courts have almost universally rejected Native claims for protection of sacred lands. The courts' shift from the frame of religion to the spiritual serves to ignore the underlying collective nature of these claims that are rooted in complex systems of relationship, stewardship, and obligations owed by tribal nations to particularized (not limitless) places. For many tribal nations, these obligations are codified in tribal law. For example, as McNally notes, the Navajo Tribal Code embodies Navajo natural law in relation to their sacred mountains, including this provision: "The Dine have the sacred obligation and duty to respect, preserve, and protect all that was provided, for we were designated as the steward for these relatives through our use of the sacred gifts of language and thinking" (112). Second, McNally duly notes the efforts of Native leaders and organizations to advance Native religious claims in the political sector. Some readers may be surprised to learn that the American Indian Religious Freedom Act of 1978—often maligned as a "toothless resolution"—actually served as the underpinning for subsequent federal legislation and administrative actions protecting the sacramental use of peyote, sacred sites, and the repatriation of ancestral remains and ceremonial objects. More central to his thesis, McNally demonstrates how Native leaders employed the rhetoric of religious freedom in these advocacy efforts, connecting their claims to the discourse of tribal sovereignty and the concomitant federal trust obligations to protect Native lands, cultures, and other rights. Finally, McNally demonstrates how tribal claims grounded in treaty-based rights to natural resources (e.g., land, water, hunting, and fishing) invariably involve or implicate claims of religious freedom. He includes this noteworthy quote from longtime activist and Presidential Medal of Freedom recipient Suzan Harjo (Cheyenne and Hodulgee Muscogee): "Even when people talk about fishing rights or hunting rights, they're talking about religion. When you talk about land, you're talking about religion . . . the first salmon song that goes...