Introduction to the Book Review Symposium on Michael McNally's Defend the Sacred

Indigenous nations have repeatedly lost federal court cases seeking to protect sacred lands and practices under U.S. religious freedom laws, including the First Amendment, the American Indian Religious Freedom Act, and the Religious Freedom Restoration Act. Michael McNally's book argues that religious freedom law has failed Indigenous peoples because the category of religion itself does not capture what is distinctive about Indigenous religions, which are tied to particular lands, waters, and ways of living well. In response to these losses, some Indigenous nations are pursuing alternative legal strategies, such as the Yurok Tribal Council's 2019 Klamath River Resolution, which recognizes the river's rights to exist and flourish.

Study at a glance

Abstract

Michael McNally’s book Defend the Sacred: Native American Religious Freedom beyond the First Amendment responds to recent doubts, raised by Indigenous communities, lawyers, and scholars about the usefulness of religious freedom law for Indigenous nations who are trying to protect their cultural practices and natural environment—especially land and water. Native American plaintiffs have gone to federal courts, armed with the U.S. Constitution’s First Amendment, the American Indian Religious Freedom Act (1978), and the Religious Freedom Restoration Act (1993), asking to protect the High Country in northern California, the San Francisco Peaks in Arizona, and the ceremonial use of Peyote in Oregon. They went to federal and state courts to protect water on the Standing Rock Sioux reservation in South Dakota and Mauna Kea in Hawai’i. They lost all these cases. As McNally writes in the preface to the book, “It’s not only that religious freedom law has failed them, but also that religion as a category has failed to capture what’s distinctive about Indigenous religions, local as they are to particular peoples and to living well on particular lands and waters” (xv). Following these devastating losses, Indigenous lawyers, activists, and scholars have been searching for a different legal path. In 2019, the Yurok Tribal Council issued the Klamath River Resolution, acknowledging the rights of the Klamath River to exist and flourish, free from the effects of pollution and climate change, and granting jurisdiction to the Yurok Tribal Court over violations of the river’s rights. In 2021, the White Earth Nation of