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Defend the SacredNative American Religious Freedom beyond the First Amendment$
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Michael D. McNally

Print publication date: 2020

Print ISBN-13: 9780691190907

Published to Princeton Scholarship Online: September 2020

DOI: 10.23943/princeton/9780691190907.001.0001

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Religion as Collective Right

Religion as Collective Right

Legislating Toward Native American Religious Freedom

(p.171) 5 Religion as Collective Right
Defend the Sacred

Michael D. McNally

Princeton University Press

This chapter considers efforts to legislate Native American religious freedom in the American Indian Religious Freedom Act (AIRFA, 1978). Where courts and even common sense have seen AIRFA as a religious freedom statute—as an extension of the legal protections of the First Amendment into the distinctive terrain of Native American traditions—the chapter suggests a different view. If the legal force of “religious freedom” discourse has been only dimly effective for Native sacred claims in courts, this chapter is the one that most pointedly shows how Native peoples drew on the rhetorical power of the sacred and religious freedom to win significant legislative protections specific to Native peoples. It does so through interviews with Suzan Shown Harjo. These interviews show how the remarkable legislative accomplishment of AIRFA and, later, the Native American Graves Protection and Repatriation Act (1990), carry the rhetorical force of religious freedom into the legal shape of federal Indian law, with its recognition of treaty-based collective rights and the United States' nation-to-nation relationship with Native peoples.

Keywords:   American Indian Religious Freedom Act, AIRFA, First Amendment, religious freedom, legislative protections, collective rights, group rights, Suzan Shown Harjo, federal Indian law, nation-to-nation relationship

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