Introduction

Article 18 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Even among parties that fully commit to the principle of religious freedom for all as an aspect of respecting the human dignity of everyone, unexpected challenges can arise when religious traditions differ from what the dominant culture understands religion to be. This can cause difficulty for minority religious groups.

For example, for many indigenous peoples, the expression of religion ties very strongly into specific locations or pieces of land. When that land is interfered with, it can materially interfere with their expression of religious belief in ways that are not always immediately apparent to the dominant culture. This can lead to unknowing insensitivity even on the part of those who try to respect religious freedom for all.

Special Challenges for Indigenous Peoples:

• The religious beliefs, practices, and sacred spaces of indigenous peoples may be substantially different from the dominant culture, and are often tied strongly to place. This can lead to the dominant culture overlooking the legitimate and important expressions of religious beliefs by indigenous peoples.

Guiding Principles

“[H]uman dignity for everyone everywhere and at every level is threatened when the needs, interests, and rights of one group or individual are placed ahead of those of other groups and individuals." – Punta del Este Declaration on Human Dignity for Everyone Everywhere, Preamble

Often, the religious traditions of the dominant culture look different from how indigenous peoples express their religion and appreciation of the sacred. In particular, when indigenous people’s religious expression is deeply tied to particular locations and land that are considered sacred, it can be difficult for the majority culture to appreciate the importance of those particular sites to freedom of religion for indigenous peoples.

The International Covenant on Civil and Political Rights (ICCPR) addressed the importance of protecting the freedom and dignity of cultural minorities.

Members of cultural minorities "shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." – Civil and Political Rights Covenant, Article 27

However, because indigenous peoples found difficulty in securing their freedom of religion, despite the language in the Universal Declaration of Human Rights and the ICCPR, they began to work toward an international acknowledgement of their rights, including the right to freedom of religion, specifically as indigenous peoples.

In 2007, that work came to fruition in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP reaffirms the rights of indigenous peoples to the same human dignity as is guaranteed to all, in the context of respect for important cultural differences that deserve to be respected and protected.

“Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains." – United Nations Declaration on the Rights of Indigenous Peoples, Article 12.1

In 2012, the Organization of American States (OAS) set forth the Social Charter of the Americas, which reaffirms a commitment to the rights of all, including indigenous peoples.

“Every person has a right to enjoy cultural heritage and natural heritage. … Furthermore, states have the responsibility to promote respect for the beliefs, traditions, and values of peoples, communities, groups, and individuals." – Social Charter of the Americas, Chapter IV, Article 29

Topics

Indigenous peoples have the right to perpetuate their cultures and their traditional forms of religious expression, including the protection of their sacred spaces.

Illustrating the Challenges

In the United States, a good example of the unique challenges indigenous people face in the realm of religious freedom can be found in the United States Court decision in Lyng v. Northwest Indian Cemetery Association. An interesting point to note when considering this decision is that it came after the United States passed legislation known as the American Indian Religious Freedom Act (AIRFA), specifically intended to address ongoing problems with respect to religious freedoms for indigenous peoples in the United States.

In Lyng, the U.S. Forest Service proposed to build a road through a national forest in Northern California that would run through a site sacred to the native tribes in the area. A lawsuit was instituted to prevent desecration of the sacred sites. The Supreme Court, however, decided that the road would not prohibit the exercise of the tribes’ religion, because they would not be prohibited from accessing their sacred sites as usual. However, according to the beliefs of the indigenous peoples involved, the road would desecrate their sacred sites to the point of destroying their ability to practice their religion. Although the Court recognized that that was the situation from the tribes’ perspective, it nonetheless decided that this did not amount to prohibiting them from exercising their religious beliefs.

This was a controversial decision that included a strong dissent. Many scholars noted that this decision took all the teeth from AIRFA. The decision in Lyng illustrates how the dominant culture’s lack of understanding of how pivotal sacred land is to the actual practice of many indigenous religious beliefs can lead to misunderstandings that damage the ability of indigenous peoples to freely express their religious beliefs and continue and transmit their cultures.

In the aftermath of Lyng, Congress designated the disputed area a “wilderness” under the Wilderness Act which meant the land could not be developed. In that way the road was prevented after all. However, the Lyng precedent continues to exert an effect. For example, in 2008 a Court of Appeals in California ruled that a plan approved by the U.S. Forest Service, in which treated sewage effluent would be used to create artificial snow, could go ahead despite protests from numerous native tribes that their sacred sites would be irreparably polluted and desecrated by such action. Lyng was heavily cited in the decision.

Indigenous peoples across the world have faced obstacles to their exercise of full religious freedom based in similar lack of understanding by the dominant culture.

For example, in Australia, a controversy developed over a plan to build a bridge to Hindmarsh Island. Aboriginal groups were among the parties who objected. Specifically, a group of aboriginal women elders argued that the bridge would interfere with their sacred activities at the site. The activities in question, however, are held so sacred that the women could not reveal them to government officials. The disputed religious significance of the site became known in the controversy as “secret women’s business.” A commission was formed to investigate whether the claims of secret women business were fabricated. The claim of fabrication could itself be seen as a symptom of the dominant culture’s difficulty in understanding indigenous beliefs and placing them in the same conceptual space as the dominant religion and sects. In this case, the investigation was criticized for slipping into an investigation of the logical credibility of the aboriginal tribe’s beliefs, even though sincerity of religious belief has never been predicated on an evaluation of the “logic” involved. The bridge was built over the objections of the aboriginal tribe, although apologies were offered some time after the fact.

In Canada, a similar situation unfolded as that in the Lyng case in the United States. In Mount Currie Indian Band v. International Forest Products Ltd, an indigenous group in Canada sought to prevent logging development in an area sacred to them and which was reserved exclusively for those training to be medicine people. The court allowed the development to go ahead, reasoning that the area was still available for the purposes that the indigenous group wished to use it for. However, this missed the opportunity to show respect to the sacred nature of land as the indigenous people involved perceived it. The sanctity would be violated by the development and the admission of outsiders, even if technically it remained possible for the medicine people to use the land.

Positive Moves Toward All Religious Freedom in All Contexts

There have been positive movements toward respect of indigenous religions as well. For example, when a dam was proposed at Junction Waterhole in Australia, indigenous people there protested that the construction of the dam would desecrate a sacred site. In this instance, those appointed to investigate the matter held the beliefs of the protesters to be sincere and respected them as expressions of religious sentiment. The building of the dam was banned and continues to be banned despite continuing efforts by some who support the development.

In India, an indigenous tribe known as the Dongria Kondh was consulted when a powerful mining company wished to develop their sacred mountain in order to mine for bauxite. The indigenous people roundly rejected the proposal and indicated that the mountain was their god. Their objections were allowed to stand and the mountain has not been developed.

In the United States, some indigenous tribes have found alternative ways of protecting their sacred sites from appealing to the court system. The Pueblo of Jemez enacted a memorandum of understanding with the U.S. Forest Service, in which the two parties worked out a way to ensure sacred sites were respected while the Forest Service carried out management of the land.

Conclusion

Freedom of religion and belief is not complete if it is not extended to all. Respecting the sacred sites of indigenous peoples is a crucial aspect of protecting their freedom of religious expression.