The subject of religion is both exceedingly important and fraught with tensions. It is important because of the role religion plays in society and in the lives of many. It can provide a sense of identity, comfort, guiding values, community, and social cohesion. But at the same time religion divides humanity into diverse religious belief systems, and historically and still today religious divisions have brought conflicts, in many cases violent ones. As societies try to temper that division with secularization, what is secular seeks to divide itself from what is religious, and that division can also be conflictual.
Fully explaining the importance of Indigenous peoples’ own religious traditions and practices is beyond what I’m able to do. But what can be readily observed is that Indigenous religious traditions are characteristically central to the identities of Indigenous peoples and pervade many, if not all aspects of life within Indigenous societies. Also characteristically, Indigenous religions are not hegemonic in the way Western religions are, or at least have been historically. Indigenous religions typically do not evangelize for converts. And the line between Indigenous religious life and secular life is usually blurred or even non-existent.
The tensions that relate to Indigenous religious traditions are not typically about competition with other religions or with secular life. Rather, the tensions lie more simply in how the religious beliefs and practices of Indigenous peoples are radically different from the religious and cultural patterns of the settler societies that have grown up around them. This difference often makes it difficult for the laws of the State and the majority society to make necessary accommodations for Indigenous religious practices. As a result, those practices are continually suppressed.
I want to tell you about a few stories from the United States to illustrate this suppression of Indigenous religions. I’ll then discuss how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) calls for a different model for the treatment of Indigenous religious practices.
Jose Abeyta was a member of Isleta Pueblo, one of the several pueblo Indigenous tribes or nations in New Mexico, and he was part of the Katsina Society, a religious society that engages in traditional ceremonial practices rooted in the Pueblo religion. Jose killed a Golden Eagle to use the eagle parts in ceremonies, in keeping with religious tradition. The federal government criminally charged Jose for killing the eagle, alleging a violation of the federal Bald and Golden Eagle Protection Act. It just so happens that I was assigned to defend Jose against the criminal charges. At a hearing on our motion to dismiss the charges, we put forth expert testimony about the significance of eagle parts to Katsina religious practices and about the lack of an environmental justification for the restrictions on the taking of golden eagles. After the hearing, the federal district court dismissed the case based on the religious freedom provisions of the Treaty of Guadalupe Hidalgo and the U.S. Constitution. This was a rare judicial victory for an Indigenous religious practitioner and one that has not much been replicated. And even though he was successful in defending against criminal prosecution for taking an eagle, Jose Abeyta was forced to reveal and prove the religious significance of the use of eagle parts in a federal court. Shortly after the decision in Jose Abeyta’s case, the U.S. Supreme Court, in another case, held that the Bald and Golden Eagle Protection Act abrogated Indian treaty rights to take eagles, including for religious purposes. Federal law and court decisions have since consistently restricted the taking of eagles and possession of eagle parts to the limited permit scheme imposed by the act.
A second story is about Alfred Leo Smith and Galen Black, who were members of the Klamath Nation and Indigenous religious practitioners who used peyote in religious ceremonies. Peyote is a small cactus that contains psychoactive alkaloids. It is used in religious ceremonies by Indigenous peoples in many parts of North America. Alfred and Galen were also drug and alcohol counselors for a private rehabilitation clinic. They were fired from their jobs because of their use of peyote, and the State of Oregon denied them unemployment benefits. Alfred and Galen challenged that denial based on the religious Free Exercise Clause of the U.S. Constitution, and their case made its way to the U.S. Supreme Court. The court held that the denial of employment benefits was valid because Oregon law prohibited the use of peyote including for sacramental purposes. The court found that the Free Exercise Clause of the Constitution does not protect against laws of general application, and the law prohibiting the use of peyote was such a general law. Later, Oregon law established an exception for the sacramental use of peyote, but the constitutional religious free exercise standard established by the Supreme Court has stood to continue to deny Indigenous religious practitioners protections against other laws and governmental actions that limit the practice of their religion.
A final story is about a mountainous area known as the San Francisco Peaks in northern Arizona. The San Francisco Peaks are sacred to the Navajo, Hopi, and several other Indigenous peoples in the area. These Indigenous people have long accessed the peaks for religious purposes and for the collection of medicinal plants. The peaks figure prominently in their spiritual and cultural narrative. The San Francisco Peaks and surrounding area are officially federal public land, and the area is administered by the U.S. Forest Service. In the 1970’s, the Forest Service permitted the construction of expanded facilities for a ski resort called Snowbowl, despite opposition from the Indigenous peoples for whom the peaks are sacred. In 2005, the U.S. Forest Service permitted another expansion of the ski resort and, more controversially, for the use of reclaimed sewage water from the nearby city of Flagstaff to make artificial snow for the ski area. The Navajo Nation and other tribes sued in federal court, claiming that the use of sewage water for the making of snow on the mountain was a desecration, in violation of their rights under the federal Religious Freedom Restoration Act. That act requires the government to justify, with a compelling public interest, any “substantial burden” on the exercise of religion resulting from governmental actions. The case was ultimately decided by a federal court of appeals. The court held that the making of snow from wastewater did not substantially burden the religion of the tribes, because it did not coerce them into violating their religion. The court interpreted the concept of substantial burden restrictively to only include those burdens that coerce religious practitioners into actively violating their religion. Thus, according to the court, there was no violation of the federal Religious Freedom Restoration Act and the use of wastewater to make snow on the sacred mountain could proceed, as it did.
As these cases illustrate, domestic laws and practices are often inhospitable to Indigenous religious practices. The United States domestic legal order, like in many other countries, is built upon a Judeo-Christian religious tradition for which Indigenous religion is invisible, at best. Historically, European explorers and settlers regarded Indigenous peoples as heathens or barbarians, and their lack of Christianity served to justify efforts to conquer them and take their land. Even up to the middle of the last century, dominant governmental policies and social norms in many countries looked down on Indigenous religious traditions, and governmental agents and Christian churches worked actively to suppress Indigenous religious practices. Today what we see are structural barriers to the practice of Indigenous religions. These barriers arise from persistent lack of seeing Indigenous religious traditions as having value and being worthy of accommodation, if not protection, to the same degree that dominant religions are valued and deemed worthy of protection.
The UNDRIP calls for a different model. It was adopted in 2007 by the United Nations General Assembly of the United Nations, with an overwhelming majority of UN member states voting in favor. The few states that voted against adopting the Declaration – namely: Australia, Canada, New Zealand, and the United States of America – eventually reversed their positions and formally declared their support for it. The Declaration can now genuinely be seen as a consensus document that expresses a global policy on the rights of Indigenous peoples and a certain commitment to those rights. Significantly, the consensus around the Declaration is joined in not only by UN member states but also by Indigenous peoples from around the world who actively participated and even drove the discussions leading to the final document.
Another important aspect of the Declaration is that it does not create new rights. Rather, it builds upon long-time recognized international human rights, such as the rights to equality, self-determination, cultural integrity, and property, as well as the general human right to the free exercise of religion. The Declaration elaborates upon these rights in the specific context of Indigenous peoples and their communal bonds. In doing so, the Declaration affirms not just the individual rights of members of Indigenous nations or tribes, but also the collective rights of Indigenous peoples, as peoples. The logic of the Declaration is to understand that the human rights of Indigenous individuals, such as rights to language, traditional lands, and religion, are dependent on the collective rights of the Indigenous communities they are part of.
The Declaration includes 46 articles, 40 of them affirming specific rights and substantive norms. In each of these 40 articles, alongside the affirmation of a right is the requirement that states take positive measures to implement and protect the latter. In this way, the Declaration is consistent with international human rights law more generally, which requires that states not only respect human rights, that is, avoid active infringement of these rights, but also act affirmatively to protect and fulfill the rights.
Regarding religion, the Declaration states in the article 12:
1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
In the second paragraph, Article 12 goes on to affirm:
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.
Major human rights treaties that are binding on ratifying states, including the International Covenant on Civil and Political Rights and the American Convention on Human Rights, generally affirm the right to religion. As we can see, Article 12 of the Declaration interprets the general human right to religion in the specific context of Indigenous peoples and their realities. It makes specific mention of sacred sites and ceremonial objects, and it underscores that the right to religion is not just a right that pertains to Indigenous individuals but a right that is enjoyed collectively by Indigenous peoples, who in fact have collectively given rise to the Indigenous religious belief systems and practices.
Full appreciation of Article 12 requires the consideration of the Declaration’s larger context. This document is essentially a remedial instrument. It exists because of the historical and ongoing patterns of oppression of Indigenous peoples and persistent denial of their human rights. Implicit in the Declaration is that, considering this history and the continuing situation of vulnerability of Indigenous peoples, states have a heightened duty to secure and protect their rights, including their right to religion. And in doing so, states must fully consider the particular aspects of Indigenous religions that are important, such as the access to sacred places and ceremonial objects.
Given the interconnectedness between religious practices and other aspects of life, other articles of the Declaration are also relevant to Indigenous peoples’ right to religion. I’ll just mention a few. First, Article 15 affirms that “Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.” Articles referring to rights over lands and territories are also relevant:
Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
The sacred places of Indigenous peoples are characteristically included within lands of this description. And under Articles 27 and 28, states have an obligation to establish fair procedures to “recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources […] which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”
Also important regarding Indigenous religions is Article 19, which establishes a safeguard for all the rights affirmed in the Declaration. It requires that states “consult and cooperate in good faith with the indigenous peoples […] in order to obtain their free, prior informed consent before adopting and implementing legislative or administrative measures that may affect them.” This requirement of consultation with the objective of consent applies to administrative measures – such as the U.S. government’s approval of the expansion of the Snowbowl ski area and the use of wastewater to make snow on the sacred San Francisco peaks. In that case, the government engaged only in minimal consultations, and certainly made no effort to gain the consent of the affected Indigenous peoples.
So, with all this, we can see that the Declaration advances robust protections for Indigenous religious practices. Further, the Declaration articulates a heightened standard that the government must meet as a condition for taking any actions that might limit Indigenous religious practices. Let’s briefly examine that standard by which a government might legitimately limit the exercise of Indigenous religions.
Generally, under international humain rights law, the government can limit rights, with few exceptions. The rights not to be tortured or subjected to genocide, for example, are absolute rights that cannot be limited. The right to religion and most other rights, though, are subject to limitation under specific conditions. The Declaration itself has a limitation clause that is consistent with the limitation clauses in the major international human rights treaties, including in connection with the right to religion. Article 46 states that “the exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”
This provision establishes a standard of proportionality of governmental actions limiting rights that can be met only in pursuit of one of the stated objectives. For example, governments cannot simply limit Indigenous peoples’ access to sacred places or objects for any reason, but only for a nondiscriminatory, valid public purpose related to the human rights of others or the most compelling requirements of a democratic society. And the limitations must be only as necessary to achieve such a legitimate objective. This is a much more exacting standard than that applied by U.S. Courts to assess the validity of governmental actions affecting religious practices. First of all, under the Declaration and international human rights law more generally, any limitation on Indigenous religions is subject to scrutiny, not just those limitations or burdens that coerce Indigenous peoples to act contrary to their religious beliefs. And the limitations must be strictly necessary for one of the stated valid purposes, which do not include a commercial or recreational purpose. The development of a ski area is not a valid purpose.
Moreover, in assessing the validity of any governmental limitation of Indigenous religions, the overall objectives of the Declaration must be considered. And those objectives include, as I stated earlier, remedying the historical and ongoing patterns of oppression of Indigenous peoples and denial of their fundamental rights. The Declaration envisions a future in which Indigenous peoples, and their religious traditions, can thrive. And the state has an affirmative obligation to allow the space and conditions for that to happen. Any limitation on Indigenous religions cannot ultimately undercut that obligation. Now of course what I’ve just laid out in my remarks raises several questions that I have left unanswered. Perhaps foremost among these is how the protections for Indigenous religions advanced by the UNDRIP can be practically implemented by states throughout the world.
S. James Anaya