Religion as Weapon

This chapter offers crucial historical context and shows just how freighted the category of religion can be for Native peoples. Religion, or its absence, served as a key instrument in the legalization of the dispossession of North America, first through the legal Doctrine of Christian Discovery, which continues to inform federal Indian law, and second through the criminalization of traditional religions under the federal Indian Bureau's Civilization Regulations from 1883 to 1934. As devastating as the regulations and their assemblage of civilization with a thinly veiled Protestant Christianity were, affected Native people strategically engaged religious freedom discourse to protect those threatened practices that they increasingly argued were their “religions” and protected under religious liberty. Even as the government and missionary sought to curb Native religious practices thought to retard civilization, Euro-Americans began in earnest to fantasize about a Native spirituality that they could collect, admire, and inhabit. But while this awakened Euro-American appreciation for Native cultures served to help lift the formal confines of the Civilization Regulations in the 1930s, it has continued to beset Native efforts to protect collective traditions.

FROM SUBSTANTIAL BURDEN ON RELIGION TO DIMINISHED SPIRITUAL FULFILLMENT: THE SAN FRANCISCO PEAKS CASE AND THE MISUNDERSTANDING OF NATIVE AMERICAN RELIGION

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.

“Who Would Believe What We Have Heard?”: Christian Spirituality and Images from the Passion in Religious Art of New Spain

The colonial art of New Spain/Mexico provides the viewer with a locus of examination into the robust Christianity that emerged over time out of a native spirituality newly laden with the contours and images from the Old World theology of late medieval/early Catholic Reformation Spain. Franciscan and especially Jesuit missionaries, impelled by a devotional zealotry, championed an apocalyptic vision of hope and suffering that was well suited for artistic expression. Religious art, whether or not patronized by European colonizers, became an instrument for the missionaries to teach and for the native artists to interrogate religious doctrine, and some artists, consciously or not, created their art as a response to that catechesis, a subtle fusion of ancient passion with the dramatic intensity of the new Catholic faith. One array of images in particular, that of the dolorous Passion of the Christ, was especially vibrant in the imaginations of the native artists and in the contemplation of the European missionaries and patrons. The image of the Suffering Servant resonated in the hearts and in the daily lives of the people just as it humbled missionary ardor, and excited a spiritual enthusiasm that forged an art of stunning doctrinal intimacy.