In his landmark essay, Nomos and Narrative, the late legal scholar Robert Cover wrote about the jurispathic function of courts—that is, its ability to quash other commitments and forms of interpretation when they are incompatible with national norms. Religious freedom cases brought before courts often highlight this ability. In such cases, courts assert one law, often the state’s, to the rejection of all others.
This fall, the Supreme Court of Canada (SCC) will hear an appeal involving the claim of the Ktunaxa First Nation that a proposed ski resort construction in a sacred mountain will cause the Great Spirit Bear to leave the area and thus render all their religious activities meaningless. The Ktunaxa asserts that, among others, the construction will violate their religious freedom under Section 2(a) of the Canadian Charter of Rights and Freedoms because it will effectively end the vitality of their religious community. The case is unique and unprecedented—the Canadian Constitution, after all, has distinct provisions that affirm and safeguard aboriginal rights, presumably including the protection of aboriginal spiritual beliefs and practices (Sections 25 and 35). So why claim general religious freedom protection under the Charter, and what are its benefits and drawbacks?
One easy answer is evidentiary. The doctrinal framework for resolving religious freedom claims under the Charter appears relatively simple: Pursuant to the SCC’s case law, one need only to establish sincerity of the religious belief on the part of the claimant, and that the disputed regulation results in a non-trivial interference with the right to religious exercise. The burden then shifts to the government, which has to show that such infringement or interference is justified. But applying that framework is far from straightforward. What is a nontrivial infringement? How do we balance public goals with private beliefs? After all, in our partisan climate over religion in the public square nowadays, the prevailing wisdom with regard to accommodation is that it is simply one more step on that slippery slope to making individuals become laws unto themselves.
The SCC is not without any comparative references. In 1988, the United States Supreme Court decided a case with similar facts in Lyng v. Northwest Indian Cemetery Protective Association, which held there was no coercion by the government in allowing a road to be built over a site considered sacred by Native Americans, and therefore, there was no violation of the Free Exercise Clause of the US Constitution. A major key to that conclusion was the definition of what constitutes a “burden” in order to be covered by the religious freedom guarantee of the Constitution. Because the US Supreme Court defined religious freedom to mean freedom from government coercion to act contrary to one’s belief, the fact that construction of a road would destroy a sacred site means it was not an infringement. To begin with, there is no legally cognizable burden: The Native Americans were not being forced to do or not to do certain things against their beliefs. In other words, it was unfortunate but not unconstitutional.
Determining what is and what is not a substantial burden (the Canadian analog is “infringement”) currently preoccupies the American legal and political milieu because of legal controversies surrounding its health-care statute. But defining what a burden is for the purpose of triggering legal protections for religious freedom has important consequences beyond a single issue.
A major critique of this view as the predominant frame for ferreting out cognizable claims is that “burden” is fundamentally flawed because it cannot cover all possible religious activities in the first place. It is akin to fitting a circle in a square peg. The concept of burden, insofar as it has developed in the Western legal tradition is inextricably bound to its Enlightenment pedigree, in which the individual conscience occupied a central role. John Locke, the quintessential theorist of the liberal tradition, made clear the association between conscience and the coercion-avoidance view of religious freedom in his Letter Concerning Toleration. It follows, then, that religious activities without the conscience at its nexus would have difficulty meeting the coercion threshold.
Indeed, this poses a formidable challenge for indigenous communities that come before courts to vindicate their legal rights, usually associated with their sacred tribal lands. After the Lyng decision was handed out, Congress stepped in and designated the land as protected wilderness. But the same problem remained. In 2009, the United States Court of Appeals for the Ninth Circuit ruled in favor of the US Forest Service by allowing the use of artificial snow containing treated sewage for the expansion of the Snowbowl ski resort in the San Francisco Peaks in northern Arizona. Members of the Navajo Indian nation argued that the use of recycled wastewater on the sacred mountain would spiritually contaminate the entire mountain and devalue their religious exercise. A three-judge panel had initially decided that the use of the sewage water would impose a substantial burden on the exercise of religion for the Navajo nation, but upon appeal to a full-member court, it was reversed on the same reasoning as Lyng: Substantial burden only occurs if the individual was forced to choose between following the tenets of one’s religion and receiving a government benefit, or being coerced to do something against one’s beliefs. The Navajo nation has since elevated their complaint against the United States government before the Inter-American Commission on Human Rights.
The critique rightly illustrates the rather impoverished view of what is covered by our current understandings of religious freedom. More saliently for the Ktunaxa First Nation, it is also the same reasoning that the British Columbia appellate court used in dismissing their claim. But there is no need to argue that indigenous spirituality is different and thus merit a distinctive constitutional treatment. Instead of emphasizing the divergence between the practices of these two spiritualities, it may be more useful to consider their similarities in terms of rituals, sacred spaces, and other respective performative aspects. If we succeed in establishing a kind of equivalency between these two, the Ktunaxa might be on to something in asserting a general constitutional rights claim after all.
It is often posited that belief is the defining feature of religion. As mentioned earlier, this draws from the particular experience of seventeenth century Western Europe. Not without criticism, the focus on the sanctity of the believer’s interiority has since spawned legal and policy frameworks. In reality, however, the state likewise protects the performative or external aspects of monotheistic, mainstream religions such as Christianity, Islam, and Judaism. For example, Israel has legislation in place that protects holy or sacred places such as the Western wall. Mount Athos in Greece is likewise protected. Numerous international declarations and United Nations resolutions have been issued to this effect. The wearing of hijabs in Europe, wearing of a ceremonial kirpan for Sikhs in Canada, and right to receive kosher meals or maintain a beard for prisoners in the United States are all protected aspects of religious practice and are legally guaranteed under the rubric of religious freedom without implicating conscience per se. It is true, of course, that while churches or mosques can be protected as private property of its adherents, sacred tribal lands are often public lands (such as the contested path of the Dakota Access pipeline which also encompasses sacred burial sites of the Standing Rock Sioux tribe) and thus subject to the needs of the government.
The point is that Native American or aboriginal spirituality need not be considered as wholly different from other kinds of religions. Christianity, for example, is not only limited to the Anglo-American Protestant variant. Early Christian practices—many vestiges of which are preserved in the rituals of the Eastern churches, such as that of the Greek or Bulgarian Orthodox churches—are oriented around the collective liturgy of communicating with God within a physical church building which becomes transformed into a sacred space. Various statutes against offending religious feelings are also rooted in freedom of religion even though there is no coercion involved. For example, when members of Pussy Riot performed the infamous “punk prayer” on the altar of Christ the Savior Cathedral in Moscow, while politically motivated, they were punished for offending the religious feelings of the congregation. The same logic is behind the antiblasphemy statutes still in the books in many places around the world.
It appears then that the problem is that there is an unexplained, and yet ingrained view, that aboriginal spirituality is somehow in a league of its own. But what is it? What is the real difference between Native Americans seeking to ingest peyote, a regulated drug, as part of their religious ceremonies, and that of Catholics drinking sacramental wine, exempted from the prohibition under the Volstead Act in 1920, as part of Mass? If we protect aspects of religious exercise of mainstream religions that does not involve coercion because to fail to do so would render meaningless or substantially diminish the practice of such religion, why would we, or the courts for that matter, conclude differently for indigenous religions? The claim is not that aboriginal spirituality is exactly the same as others but that it is not qualitatively different for legal purposes.
What that means is that courts can still recognize that a government act can “burden” or “infringe” exercise or practice of aboriginal religions or spirituality but still subject it to the same scrutiny and analysis as they do with other religions. It does not amount to a veto in the same way that other claims for religious accommodations do, and courts do not have to come up with new ways on how to deal with indigenous religions. To be sure, they can introduce context by noting the historically deplorable treatment of indigenous peoples (which is certainly the case in both the United States and Canada) in their particular societies and what aspects of such history should inform the ensuing constitutional analysis. But seeking to carve a distinctive sphere for Native American and First Nations’s religious freedom might end up to their detriment.