Defend the Sacred

Native American Religious Freedom beyond the First Amendment

Michael D. McNally

• Publisher: Princeton University Press
• Year: 2020
• ISBN:
  9780691201511
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

The remarkable story of the innovative legal strategies Native Americans have used to protect their religious rights From North Dakota's Standing Rock encampments to Arizona's San Francisco Peaks, Native Americans have repeatedly asserted legal rights to religious freedom to protect their sacred places, practices, objects, knowledge, and ancestral remains. But these claims have met with little success in court because Native American communal traditions don't fit easily into modern Western definitions of religion. In Defend the Sacred, Michael McNally explores how, in response to this situation, Native peoples have creatively turned to other legal means to safeguard what matters to them.To articulate their claims, Native peoples have resourcefully used the languages of cultural resources under environmental and historic preservation law; of sovereignty under treaty-based federal Indian law; and, increasingly, of Indigenous rights under international human rights law. Along the way, Native nations still draw on the rhetorical power of religious freedom to gain legislative and regulatory successes beyond the First Amendment.The story of Native American advocates and their struggle to protect their liberties, Defend the Sacred casts new light on discussions of religious freedom, cultural resource management, and the vitality of Indigenous religions today.

1

Religion as Weapon

THE CIVILIZATION REGULATIONS, 1883–1934

Introduction: Religion as Weapon

Religion has never been a neutral category when it comes to Native traditions, much less the legal contexts in which they happen. The category of religion, in fact, has been central in the dispossession, colonization, and regulation of Native peoples. While this book centers on more recent history and contemporary law, the roots of the discussion go deep into the nineteenth century, and so this initial chapter explores how the category of religion had been weaponized and used against Native American peoples in the dispossession of their lands, languages, and cultures. Although the story begins this way, in the end it was not simply their supposed lack of religion that authorized this dispossession; it came with an insistent spiritualization of Native cultural riches, an equally dehumanizing, if more insidious way of laying claim to Native goods and one that continues to haunt and undermine Indigenous claims today. Scholars have long analyzed the workings of the noble savage motif and the way the noble and the savage turn out to be two sides of the same Euro-American coin. More recently, historian Tisa Wenger has shown just how important were emerging notions of Native American religion that were, on the one hand, deployed to contain the reach of Native claims and, on the other, tweaked at the margins by Native people themselves to lay claim to their own traditions as religion. In this chapter, I owe a tremendous debt to the careful archival work of Wenger—as well as that of Thomas Maroukis on the history of Peyotism.¹ Here, I wish to build on Wenger’s analysis, paying closer attention still to the Code of Indian Offenses (1883–1934), also known commonly as the Religious Crimes Code or the Civilization Regulations, to explore how US policy deployed religion and how, in turn, Native peoples strategically engaged the language of religion in response.

It was not the distinctive shape of Native American religions, but their complete absence, that characterized early modern understandings of Native American cultures by explorers and later colonial administrators of various European powers. As the conquest and colonization process compelled moral and legal elaboration, this lack of “true religion,” like the lack of law, government, and other marks of so-called civilization, rendered Native peoples savage and properly subject to European domination and/or improvement.² The presumption originates with several fifteenth-century papal bulls that conferred the Church’s blessing on title to Christian sovereigns based on “discovery” of non-Christian lands.³ The Reformation obviously complicated the legal force of Vatican decrees, but British law had already incorporated the spirit. Under Henry VII, the doctrine of terra nullius gave legal justification for the English monarch’s absolute title to discovered lands not already in possession of a Christian monarch even if occupied by Indians according to their own customs but not in a way recognized by European law as valid. Legally, such lands were considered terra nullius, vacant land.

The legal Doctrine of Discovery hardwired this theological presumption that Europeans had religion and Native Americans didn’t to title and underwrote the dispossession of Native lands and livelihoods.⁴ European monarchs, by dint of their being Christian, enjoyed absolute title to the lands “discovered” in their name in what to them was the New World, and that peoples native to those lands enjoyed at best aboriginal rights of occupancy because of their lack of Christianity, their lack of “religion” in the parlance of the day. The doctrine was applied by Chief Justice John Marshall in a case before the Supreme Court in 1823, but tellingly the dispute was not between Native peoples and Euro-Americans. Johnson v. M’Intosh involved a title dispute between two white men, each having bought the same parcel of land in the Midwest.

As he lay the cornerstone of federal Indian law, Marshall wrote with a curious detachment about the doctrine he effectively called on to resolve the title dispute. “Conquest gives a title which the courts of the conqueror cannot deny,” Marshall wrote for the Court, “whatever the private and speculative opinions of individuals may be respecting the original justice of the claim which has been successfully asserted.”⁵ He used the term “conquest” not in reference to overt military victory but rather to the Law of Nations that had emerged to settle disputes among European states to newly “discovered” lands, assigning rights to Christian sovereigns of dominion and absolute title over non-Christian lands discovered in their name. Marshall reasoned that the British assertion of absolute title came with the “the exclusive right of extinguishing the title which occupancy gave to [Indians]. … It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”⁶

If Marshall made it sound like the Court’s hands were tied, he managed to argue from inherent Indian savagery that it was not entirely uncouth to turn to the theological reasoning of Christian discovery. “Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title,” Marshall wrote, “they may, we think, find some excuse if not justification, in the character and habits of the people whose rights have been wrested from them.”⁷ Even though the Native people in question led largely settled lives oriented around agriculture, representation trumped reality: they were “fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.” “To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.”⁸ Again, there was no one in the legal proceeding to argue the case of the Indian people whose title had just been legally gutted to that of occupancy, and who had in the stroke of a pen lost an ability even to sell rights to land to whomever they wished, guaranteeing the United States could dictate the price.⁹

The theological presumption about who has religion and who doesn’t later became embedded into official US Indian policy from the 1870s through the 1930s. Assimilation Policy is most widely known for the era’s boarding schools, with the forced removal of Indigenous children from their families for English-only reeducation in schools run on military discipline. Also well-known is the era’s allotment, a land policy that carved up communal lands on reservations secured by treaty into individually “owned” plots and that opened up surplus reservation land to non-Native settlement, resource extraction, and speculation. Our concern will be on the third prong of Assimilation Policy, the Civilization Regulations that outright criminalized Native religions for more than a half century. While their enforcement helped produce Indigenous resistance using the language of religious freedom, the regulations were crucial to government efforts to extract what was left of Native lands and lifeways. Traditions went underground, of course, and resilient peoples kept their sacred fires kindled out of view even as they took on religious freedom arguments for traditions they’d never viewed merely as religion.

The aim of this chapter is to make plain just how thoroughgoing and ramified was the outlawing of Native religious practices and to synthesize the scholarship in order to appreciate just how fraught is the category of religion and religious freedom for Native people. Acknowledging this history helps us appreciate even more fully the resourceful wherewithal of Native peoples who engaged the discourse then and now.

The criminalization of Native religions is so stunning because, as Wenger points out, it played out at the same time that Americans increasingly extolled the power and triumph of religious freedom at home and abroad.¹⁰ How could there be such blindness to the contradiction of this governmental treatment of Native American peoples in the land of religious freedom? Part of the answer surely emerges from an ideology: savagism is to civilization as heathenism is to Christianity as no religion is to religion.¹¹ But it is also a function of the practice of power, a point that requires rethinking our very categories of church and state. Paul Christopher Johnson, Pamela Klassen, and Winnifred Fallers Sullivan offer a helpful theoretical framework for considering the way that settler colonialism exerted a force at once religious and political. They coin the term churchstateness in an effort to get at what they see as a long-standing “twinning of church and state” in the Americas, “an ill-defined yet powerful churchstateness composed of the interpenetrating and mutually constitutive forces of religion, law, and politics.”¹² Johnson draws on Foucault’s attention to the capillary action of power in an analysis of colonial practices in Bahia, Brazil’s “indirect techniques of unmaking a people, rendering them expendable excess and legitimately sacrificeable.”¹³ In the capillary-like places where the edges of state power meet Indigenous peoples, state and church are not only blurred categories, sacramental and political power flows also as one in and through the bodies of subjects. Closer to home, Klassen examines the capillary action of churchstateness in the local workings of Canada’s 1876 Indian Act, which corresponds to concurrent policies of assimilation in the United States. Revisions to the 1876 act outlawed the Potlatch and the Sun Dance and other ceremonies, but in the doing denied they were actually outlawing religion; churchstateness could see to having that cake and eating it too. “Casting these ceremonies as heathenism,” Klassen writes, “as threatening to both the economic and political systems of Canada, the Indian Act sought to destroy Indigenous sovereignty in part through denial of ‘religion’ as an operative concept for Indigenous peoples.”¹⁴

As David Chidester shows in the case of Africa, the definitional questions that framed the contours of the early academic study of religion—what counts as religion, what doesn’t, and how—were deeply imbricated with the work of the colonization of Europe’s others.¹⁵ The study of Indigenous religions, Chidester makes clear, must account for the ramifications of dispossession and erasure enabled by the intellectual edifice of religion. At the same time, Indigenous others were no fools. In their resourceful struggles against, with, and through colonization, Native peoples have appropriated the discourse of religion as a useful means of self-assertion and of defending what they hold sacred. This chapter attends to both elements of this history.

Assimilation Policy

The period of treaty-making ended abruptly in 1871 by a unilateral act of Congress.¹⁶ Now, Indians were no longer formally considered members of nations but individuals whose assimilation to US political, economic, cultural, and religious life was seen as an educative and regulatory duty of government. But formal policies to assimilate Indians had already begun by 1869 under President Grant’s Peace Policy. In part because Christianization was seen as tantamount and necessary to the American civilization to which assimilation policies were directed; in part because policy reformers came largely from (especially Protestant) Christian churches, Grant’s policy relied on the leadership, not merely the cooperation, of Christian denominations. Grant created the Board of Indian Commissioners in 1869 to oversee the Indian Office, and he appointed to it officials representing the leading denominations. Grant also empowered regional church leaders to appoint Indian agents on reservations.¹⁷ In an effort to address widespread graft and corruption among local agents in their management of treaty annuities, Grant’s Peace Policy entangled churches in the work of government in a manner that baffles the imagination in a land with constitutional religious freedom.¹⁸

Denominational oversight of the Indian Office and appointment of Indian agents were discontinued when they ceased to be the silver bullet reformers expected, but the underlying churchstateness of Assimilation Policy strengthened in the ensuing decades. Indeed, the policy ideas were consistently incubated at annual Lake Mohonk conferences, which from 1884 to 1916 brought church elites together with philanthropists and government officials at an upstate New York resort as “Friends of the Indian.” Their good intentions notwithstanding, the policies that emerged, and the unholy alliance involving the churches, amounted to what has been broadly considered nothing short of cultural genocide.¹⁹

Assimilation Policy had three key components: allotment of communal lands, boarding school education, and the Civilization Regulations. My focus here will be on the Civilization Regulations, but it is important to note the interrelationships between these policies and their unifying churchstateness. In 1874, the commissioner of Indian Affairs spoke forthrightly of the importance of churches in accomplishing his federal agency’s work:

The Indians deepest need is that which the Government, through its political organization and operations, cannot well bestow. … No amount of appropriation and no governmental machinery can do much towards lifting an ignorant and degraded people, except as it works through the willing hands of men made strong and constant by their love for their fellow men. If therefore, it shall be possible to continue the sympathy and aid of the religious people in this work, and to rally for its prosecution the enthusiasm and zeal which belong to religion … every year will witness a steady decrease of barbarism.²⁰

Allotment and Boarding Schools

Allotment became a nationwide policy under the 1887 Dawes Act, carving up communally held reservation lands and assigning them to individuals (160 acres to male heads of household, eighty acres to single adults, forty acres to those under eighteen) as a blow to “tribalism” and under the agrarian notion that a sense of private ownership and working to “improve” a particular plot of land would promote civilization. As Jennifer Graber shows, allotment was no land policy alone. Missionaries and Lake Mohonk elites celebrated it as a breakthrough for Christianization, as many felt that private property and the plow would clear ground for the Christian faith.²¹

Not coincidentally, the division of vast reservation lands into a relatively small number parcels opened up sizeable amounts of “surplus” lands available for non-Native settlement. The theft of such lands reserved by treaties was conceived instead as educational, giving Native...