Saving Qat’muk: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations )

Starting in 2012 with a petition to the Supreme Court of British Columbia, the Ktunaxa Nation appealed to “freedom of conscience and religion,” protected under section 2(a) of the Canadian Charter of Rights and Freedoms, in order to prevent the development of a ski resort in an area they call Qat’muk, sacred to them as the home of Grizzly Bear Spirit.Footnote ⁸ The choice of this legal avenue, over a section of the Canadian constitution that protects Aboriginal rights, was deliberate, motivated by the fact that Indigenous land claims relying primarily on spiritual, as opposed to economic, rights had not been successful in the past.Footnote ⁹ Section 35 of the Canadian Constitution Act states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed,” but it does not define these rights.Footnote ¹⁰ While Canadian courts have entertained cultural claims under this provision, they have used a test requiring Indigenous communities to establish that the practice, custom, or tradition they seek to protect is integral to their distinctive culture and continuous with pre-contact times. This test, established in R. v. Van der Peet,Footnote ¹¹ can pose a high bar, and claims that do manage to meet its criteria will still be weighed against the government’s right to dispose over Crown lands. The Ktunaxa’s choice of religious freedom meant, though, that factors uniquely pertaining to their status as an Indigenous nation were bracketed. The judgement of the British Columbia Court of Appeals stated: “it is important at the outset to note the Ktunaxa advance their s. 2(a) claim as a standalone right to be determined on the same basis as if it were asserted by a non-Aboriginal group.”Footnote ¹² Reasoning on this basis, the provincial court concluded that “constitutional protection of freedom of religion does not extend to restricting the otherwise lawful use of land” and, further, that preventing the development meant imposing constraints on others who do not share the Ktunaxa’s religious beliefs.Footnote ¹³

The case was then taken to the Supreme Court of Canada, which ruled against the Ktunaxa in 2017. The justices acknowledged that “[i]n many Indigenous religions, land is not only the site of spiritual practices; land itself can be sacred,” and “[a]s such, state action that impacts land can sever the connection to the divine, rendering beliefs and practices devoid of spiritual significance.” They reasoned, however, that “the Ktunaxa are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect the presence of Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it,” which could not be allowed.Footnote ¹⁴ The majority judged that the Ktunaxa’s right to freedom of conscience and religion was therefore not infringed. One judge dissented from this reasoning but argued that the infringement was justified because “[g]ranting the Ktunaxa a power to veto development over the land would effectively give the Ktunaxa a significant property interest in Qat’muk” and thereby the “power to exclude others from developing land that the public in fact owns.” In principle, “a religious group would therefore be able to regulate the use of a vast expanse of public land so that it conforms to its religious belief.”Footnote ¹⁵ Thus, the court concluded that the Crown’s right to dispose of property falling under its jurisdiction could not be overruled by the right to freedom of conscience and religion, treated as a generalizable right applying equally to all citizens.Footnote ¹⁶

The reasoning of the courts adjudicating the Ktunaxa’s claim proceeded in terms of the liberal framework underlying Canadian law, with its division between the religious and the secular, its ideas about property, its conceptions of nature and the human-nonhuman relationship, and its prioritization of economic development. The Ktunaxa Nation pointed out that they do not share the worldview in which this framework is rooted. In 2010, they delivered a declaration to the British Columbia legislature, in which they stated, “the Ktunaxa language does not translate well into other languages and consequently our spiritual relationship with Qat’muk may not be fully understood by others.” The declaration nonetheless is an effort at translation. It repeatedly employs the notion of stewardship, for instance, claiming at one point: “Qat’muk’s importance for the Grizzly Bear Spirit is inextricably interlinked with its importance for living grizzly bears now and in the future. The Ktunaxa have a stewardship obligation and duty to the Grizzly Bear Spirit and Qat’muk.”Footnote ¹⁷

The Ktunaxa’s relation to Qat’muk involves more than an ecological ethic, but it is clear from their words that a key aspect of the area’s spiritual significance for them involves a sense of responsibility for care of the land and the other living beings dependent on it. The declaration says the following about a word they use “for the law given to the Ktunaxa by the Creator”:

Although the Ktunaxa lost their legal cases, the proposed Jumbo Glacier Resort, as the development company seeking the permit had named it, was never built and will not be. The project was abandoned in the face of concerted opposition by the Ktunaxa, joined by nature conservation groups. These groups shared the Ktunaxa’s wish to prevent the construction, agreeing with the stewardship values the Ktunaxa had expressed. For example, Wildsight, one of the groups that allied with the Ktunaxa in the effort to protect Qat’muk, says on its website: “Wildsight’s vision is to inspire a shared community desire to protect our natural world for future generations. We envision extensive and connected wild spaces for wildlife—from grizzly bears to woodpeckers to trout. We envision clean air and clear water running from mountain watersheds to our lakes. We see thriving and sustainable communities made up of engaged and educated citizens.”Footnote ¹⁹

Development rights in the area have now been permanently extinguished, and the Ktunaxa, in collaboration with various levels of government and conservation groups, have established an Indigenous Protected and Conserved Area (widely known as an IPCA) covering Qat’muk. “An IPCA,” the Ktunaxa note, “is distinguished by Indigenous creation and founded on the Indigenous relationship to land.” This IPCA “will serve to protect both cultural values and biological diversity in part of the Central Purcell Mountains for all time.”Footnote ²⁰

Public Property and Indigenous Sovereignty

In the courts, the fundamental problem for the Ktunaxa was that their claim demanded authority over land within a legal system that regards all land as owned by some human individual or corporate entity, against the background of a colonial history where the land at issue had been established as not belonging to the claimants. Appeals to religious freedom, however, impel judges to balance rights without weighing in on the questions about historical dispossession, let alone the very idea of land ownership, that are at the heart of Indigenous sacred land claims such as that of the Ktunaxa. Howard Kislowicz and Senwung Luk write, “the Ktunaxa claim is challenging in part because it is based in the right to religious freedom but resembles a property claim.”Footnote ²¹ They point out that dominant religious groups do not face the same difficulty because they already own the land on which their sacred sites (churches, cemeteries) are located.Footnote ²² In the US context, John Rhodes acknowledges this as the reason why Indigenous peoples repeatedly lose sacred site litigation, observing that judges do not consider the history that led to these sites no longer being the domain of the Indigenous claimants in the first place.Footnote ²³ It is understandable and predictable, however, that judges are unwilling to deliver rulings about the scope of religious freedom that would effectively restrict the government’s rights, in perpetuity, over land under its jurisdiction. Writing on the Ktunaxa case prior to the Supreme Court’s ruling, Natasha Bakht and Linda Collins argue that “[s]ince economic and property interests are not enshrined in the constitution, freedom of religion should arguably be prioritized and afforded greater importance,”Footnote ²⁴ but property rights are deeply embedded in Western legal frameworks. It is significant that the one Supreme Court justice who concluded that the proposed construction would infringe on the Ktunaxa’s religious freedom nonetheless judged the infringement to be justified in view of the Canadian government’s jurisdiction over Crown lands. And this judgement is sound as long as neither existing jurisdiction nor the concept of property are being challenged.

The US Supreme Court reasoned in a similar manner in Lyng v. Northwest Indian Cemetery Protective Association, where it determined that building a logging road through a national forest containing sites sacred to several Native nations did not violate their constitutional right to free exercise of religion. Justice Sandra Day O’ Connor, delivering the opinion of the court, stated that “government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.”Footnote ²⁵ Lyng has been widely criticized for its conclusion that there is no constitutional remedy, even assuming that government action would “virtually destroy the Indians’ ability to practice their religion,”Footnote ²⁶ but the judges reasoned in terms of generalizable principles regarding religious freedom, as they are bound to do. Similar cases launched since the Lyng decision have been equally unsuccessful in US courts.Footnote ²⁷ In Navajo Nation v. U.S. Forest Service, for instance, an appeals court deciding against the Navajo and other nations cited Lyng while noting that “such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property.”Footnote ²⁸ This judgment is likewise premised on the assumption that decisions over state-owned lands are the prerogative of the government and cannot be overridden by protections for religious freedom.

Notice that the judges in the Ktunaxa case in Canada acknowledged the sacredness of land to Indigenous peoples. Yet they reached the same verdict as did the US court in Lyng, which concluded that “whatever rights the Indians may have to the use of the area … those rights do not divest the Government of its right to use what is, after all, its land.”Footnote ²⁹ The problem, in these cases, has been that courts will not overturn the current legal status of land in order to protect religious beliefs, and that is what the claimants are asking. It is what a holistic and genuinely fair adjudication of sacred land claims requires but for reasons that the legal paradigm of religious freedom sets aside. There is, first and foremost, the issue of political and territorial jurisdiction. Historically, in the not very distant past, jurisdiction over their societies and traditional territories was taken from Indigenous peoples by unjust means under the system of settler colonialism. The dissenting judge in Navajo Nation pointed this out: “In part, the majority justifies its holding on the ground that what it calls ‘public park land’ is land that ‘belongs to everyone.’ … There is a tragic irony in this justification. The United States government took this land from the Indians by force. The majority now uses that forcible deprivation as a justification for spraying treated sewage effluent on the holiest of the Indians’ holy mountains, and for refusing to recognize that this action constitutes a substantial burden on the Indians’ exercise of their religion.”Footnote ³⁰

John Borrows, discussing the Ktunaxa decision, rightly questions the court’s assumption that “the land under dispute is Crown land, when no treaties have been signed with any Indigenous Party in the region.”Footnote ³¹ We should notice that this assumption is not evidently in accord with the majority culture’s own longstanding principles of justice regarding territory and nationhood. On those principles, a relatively recent history of unjust dispossession is surely relevant to assessing what is owed to Indigenous peoples by the states in which they now reside, even if full restoration of sovereignty is no longer feasible, given intervening demographic shifts. Michael Walzer suggests that Indigenous peoples “stand somewhere between a captive nation and a national, ethnic, or religious minority,” where “something more than equal citizenship is due to them, some degree of collective self-rule.”Footnote ³² Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007, affirms a right to self-determination, in virtue of which Indigenous peoples “freely determine their political status and freely pursue their economic, social and cultural development.”Footnote ³³

Jeremy Waldron contends, on the other hand, that claims based on historical injustice can in principle be superseded and demands for full aboriginal restitution—the rare demand among Indigenous people for a return to precolonial conditions—fall in this category.Footnote ³⁴ But such demands are rare among Indigenous peoples. Arguing that many actual Indigenous claims can be justified using Waldron’s own principles, Kerstin Reibold points out the need to distinguish between different types of land. Undeveloped land can be fully restored to Indigenous peoples, she argues, as settlers are not living on it and “it is not crucial for securing decent living conditions for settler descendants.”Footnote ³⁵ After all, it is not as if Western nations currently distribute land according to need, with no regard for historical title. That Indigenous peoples did not enclose land or practice precisely the forms of settled agriculture that were the norm in Europe does not entail that they had no moral and political claim over their traditional territories. They did, and, as Margaret Moore writes, unilateral settlement arguably constitutes the central wrong of the colonial project in relation to Indigenous peoples.Footnote ³⁶ Moore notes that all people have an interest in control over the places where they live, which are preconditions for their plans of life and sites of emotional attachment.Footnote ³⁷ This interest is especially powerful in the case of Indigenous peoples, whose cultures, values, and lifeways are intimately linked to land.Footnote ³⁸

Under the system of settler colonialism, the bulk of their territories were taken from Indigenous peoples by force and through treaties often negotiated under unfair conditions. There was then no “discovery” of “wilderness,” as per popular settler colonial ideology, and so, John Borrows points out, citing a 1905 US Supreme Court case, “treaty rights are a grant of rights from the Indians, not to the Indians.”Footnote ³⁹ That nations have a right to self-determination and control over their territories was recognized in reasoning about political justice in European nations that were at the same time busy colonizing and enslaving non-white peoples. It is likely no coincidence that scientific racialist theories developed in Europe at the same time as universalist moral and political principles were being articulated by Enlightenment thinkers such as Immanuel Kant.Footnote ⁴⁰ Certainly, the treatment of Indigenous peoples by European settler colonists in the Americas, Australia, and New Zealand, including their removal from lands they had occupied for centuries, was heavily supported by racist typologies, needed to excuse its otherwise glaring hypocrisy.Footnote ⁴¹

In addition, as many scholars have noted, Indigenous peoples generally did not understand their rights over land in terms of a transfer of ownership, in part because they did not conceive of that land as “property.”Footnote ⁴² In his account of Indigenous legal traditions, Borrows explains that, under Anishinabek law, “land does not belong to a person or people in the sense that they have absolute discretion and control; land is provisionally held for present sustenance and for the sustenance of those yet unborn.”Footnote ⁴³ Cultural differences of this sort informed Indigenous interpretations of the treaties they signed, which they understood as agreements to share the land, not to transfer political authority over it.Footnote ⁴⁴ Gina Starblanket and Heidi Kiiwetinepinesik ask, responding to Borrows, “if Indigenous peoples were not ceding lands, as Indigenous knowledge posits, but instead creating a shared territory that would enable peaceful and mutually beneficial coexistence of separate nations, how must our understandings of treaty rights be transformed to account for these interpretations?”Footnote ⁴⁵

They must include commitment to sharing the land, rather than dividing up “property,” accompanied by recognition that Indigenous lifeways involve “a different way of relating to and with the world,” in Glen Coulthard’s words, with “ancestral obligations to protect the lands that are core to who we are as Indigenous peoples.”Footnote ⁴⁶ That is precisely what the Ktunaxa’s declaration on Qat’muk sought to communicate to the British Columbia court. Its language can be described as “religious” in that it refers to a creator, but its account of creation expresses a worldview, embedded in distinct lifeways, where people have a responsibility to look after the earth for current and future generations of the community belonging to this land. Borrows describes a common sense, across Indigenous communities in Canada, of the interrelatedness of plants, animals, and humans, with reciprocal duties of care, communicated through stories and enacted within rituals and ceremonies.Footnote ⁴⁷

Claims over sacred sites and areas must be situated within this context. McNally argues for “eliding what’s religious about Native claims to sacred lands, practices, ancestors, and material heritage into notions of sovereignty and peoplehood,”Footnote ⁴⁸ but doing so means that sacred land cases presenting themselves as protecting religious freedom are asking courts to reach decisions about what the law conceives as property rights. That is genuinely unreasonable, within the logic of settler law.Footnote ⁴⁹ Required, rather, is recognition of Indigenous sovereignty and the history of unjust dispossession, which is unique to Indigenous claims over sacred sites. Also required is understanding that the dispute involves a conflict between different worldviews and lifeways. The former falls outside the scope of religious freedom protections; the latter is positively distorted by the category of religion.

A Conflict of Worldviews

Benjamin Berger criticizes stories about law and religion that depend on “the conceit of law’s autonomy from culture, history and politics,” suggesting that “the paragon of this impulse is over-reliance on the concept of secularism.”Footnote ⁵⁰ Brian Burkhart likewise points out that “there is a common practice in the justifying of colonial power to turn what is based in particular and localized religious points of view into something that is described as ‘secular,’” where “the description of ‘secularity’ often veils coloniality of power and religious bigotry.”Footnote ⁵¹ To present Indigenous claims over sacred land as religion in the first place is to say that the beliefs on which these claims rest are of a different sort than the ones forming the basis for general—purportedly neutral and secular—laws. It means affirming that the claimants’ beliefs are the product of faith or some other nonrational basis and that they involve metaphysical commitments of a sort that liberal political reasoning sets aside. These implications obscure the extent to which the fundamental premises of Western legal regulations concerning land are equally the product of specific lifeways, values, and economies. They are not rational all the way down. Historically, they even have religious roots, although Western property law is no longer couched in theological language. The language of the sacred within which Indigenous relations to land are often expressed, including creation narratives and stories involving supernatural beings, reflects a contrasting relation to land that is misrepresented when Indigenous land claims are cast as demands for accommodation of religious belief within a legal framework whose foundation is supposedly not religious.

In their statement on Qat’muk to the British Columbia legislature, the Ktunaxa Nation explained that they live by a law grounded in the fact that “all things are connected and must be kept in balance,” and that their “covenant with the Creator” involves an obligation to protect the land that gives them the resources to survive. Indigenous activists and scholars have frequently underlined this clash between traditional Indigenous and dominant Western relations to “nature” (using a Western concept) when discussing sacred land claims.Footnote ⁵² Commenting on the Lyng decision, Vine Deloria Jr. notes the irreplaceable significance of specific sites at which traditional “world renewal” ceremonies were conducted by certain tribes, while also pointing out that these “were done on behalf of the earth and all forms of life.”Footnote ⁵³ Sacred places, he writes, “properly inform us that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires and wishes.”Footnote ⁵⁴ Deloria holds up this view as an antidote to the looming global ecological crisis, finding in it “a more mature view of the universe as a comprehensive matrix of life forms.”Footnote ⁵⁵

Winona Laduke writes, in a similar vein: “Teachings, ancient as the people who have lived on a land for five millennia, speak of a set of relationships to all that is around, predicated on respect, recognition of the interdependency of all beings, an understanding of humans’ absolute need to be reverent and to manage our behavior, and an understanding that this relationship must be reaffirmed through lifeways and through acknowledgement of the sacred.”Footnote ⁵⁶

At the same time, Laduke notes the difficulty of translating this understanding of the sacred into the language demanded by non-Indigenous courts: “Everywhere there are Indigenous people, there are sacred sites, there are ways of knowing, there are relationships. The people, the rivers, the mountains, the lakes, the animals, and the fish are all related. In recent years, US courts have challenged our ability to be in these places, and indeed to protect them. In many cases, we are asked to quantify ‘how sacred it is … or how often it is sacred.’ Baffling concepts in the spiritual realm.”Footnote ⁵⁷ Laduke thus expresses the frustration of trying to press this understanding of relationality through the sieve of a legal concept—religious freedom—that is the product of a very different culture from the one she represents as an Anishinabe activist.

The settler courts in which Indigenous defenses of sacred places must be presented adopt the default position that land is the property of some individual or corporate human entity and a resource for human industrial or recreational use, unless some overriding reason can be given, in terms of individual or collective rights, for why it should not be thus used in a particular instance. The bearers of those rights are exclusively human agents. The health of the environmentFootnote ⁵⁸ matters insofar as it affects them, but human beings are not regarded within this framework as forming a community with the more-than-human world, let alone responsible for safeguarding its elements and inhabitants. In liberal democracies descended from European cultures, that is the secular position. In his Letter Concerning Toleration, John Locke draws a division between the sacred and the secular that has become paradigmatic, consigning the sacred to a private sphere that is no business of the state and the secular to affairs of the commonwealth over which churches should have no power.Footnote ⁵⁹ At the same time, his conception of property provides a justification for the appropriation of Indigenous lands.Footnote ⁶⁰ Locke imagines that his views on property fall firmly on the secular side of the division, but his justifications for them appeal to a creation narrative: “God, when he gave the World in common to all Mankind, commanded Man also to labour, and the penury of his Condition required it of him. God and his Reason commanded him to subdue the Earth, i.e. improve it for the benefit of Life, and therein lay out something upon it that was his own, his labour. He that in Obedience to this Command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his Property, which another had no Title to, nor could without injury take from him.”Footnote ⁶¹

And yet now, in settler perceptions of Indigenous perspectives, if land is not seen as property serving human interests, the relation to it is deemed religious or spiritual, worthy perhaps, yet involving something other than a neutral, secular, rational view. What justifies this assumption that the human world is sharply distinct from the earth and that nonhuman entities as a whole are available for human subjects to utilize in accordance with their needs and wants? Lynn White’s 1967 essay, “The Historical Roots of Our Ecological Crisis,” was the first widely influential analysis arguing that the current ecological crisis has its roots in a view of the relation between humanity and the nonhuman world that finds expression in the Christian mythos, according to which humanity has dominion over all other beings.Footnote ⁶² White’s analysis is perhaps somewhat crude, and the idea of dominion can be interpreted in more than one way.Footnote ⁶³ Nevertheless, it remains significantly different from the sense of belonging to “an ecological system, of interacting humans, nonhuman beings (animals, plants, etc. and entities (spiritual, inanimate, etc.) and landscapes (climate regions, boreal zones, etc.)” reflected in many Indigenous traditions and narratives.Footnote ⁶⁴

Both perspectives constitute thick worldviews grounded in bedrock premises and sensibilities. Discussing the relation between religious and nonreligious language in ethical discourses, Maeve Cooke points to “the dependency of reasoning on what could be called collective lived experience or a socio-cultural vocabulary,” noting that all practical reasoning rests on a bedrock of core fundamental insights, for which no further reasons can be given.Footnote ⁶⁵ That is true whether the core insights are expressed in what Western discourses describe as religious language or they are not. Indigenous relations to sacred places do involve specific rites linked to ontologies referencing spiritual and supernatural beings. But these ontologies are not merely descriptive: they express a land ethic involving a fundamentally different relation to the earth and its inhabitants than the one embodied in systems of law descended from European ideas once linked to Christianity. Vine Deloria is right that “many Christian doctrines have now passed into the sphere of Western civilization’s general beliefs,”Footnote ⁶⁶ including the notion of a sharp divide between humanity and nature and the attribution of dignity and intrinsic worth only to human beings. That these ideas have been secularized, eliminating reference to creation myths and divine commands, tends to conceal the fact that they rest on core convictions belonging to a particular set of cultural traditions. Jeremy Waldron writes that “our theories of basic rights, of property and justice, of the respect due to the human person, are all rooted historically in theories of natural law and in conceptions that were specifically theistic and, indeed, Christian in approach,”Footnote ⁶⁷ without asking whether there might be alternative, morally respectable views that take a different shape, that do not conceive of land as property, for example, or that name human and other-than-human entities as interrelated kinds of people. The latter views, found across a range of Indigenous traditions, are no more or less religious than the ones descended from Christianity named by Waldron.Footnote ⁶⁸ And they are also dynamic, as all living traditions are, adapting and evolving in response to changing circumstances. In his argument for supersession, Waldron worries that “the fetishization of culture, including political culture can be a principled impediment to evolution and change”Footnote ⁶⁹ but never considers that the assumptions of the political and moral perspective he takes for granted are also culturally rooted.

Stressing the need for epistemic justice toward Indigenous peoples, Yann Allard-Tremblay complains that the categorization of Indigenous worldviews as religions “downgrades a cosmological difference to a cultural/religious one and thereby subsumes it under the rationalist worldview.”Footnote ⁷⁰ By “rationalist worldview,” he means a modern ontology that “proffers a radical difference between humans and the natural world,” where “without rational beings to value nature, it would be axiologically void.”Footnote ⁷¹ I would state the matter differently. This supposedly rational cosmology, the basis of settler law, is a historical construction, no less cultural and religious than the Indigenous worldviews Allard-Tremblay has in mind. The idea that nature acquires value only through rational beings was expressly formulated by Kant.Footnote ⁷² It is not justified through further reasons. It is a bedrock premise, a philosophical articulation of the relation between humanity and nature that the creation story in Genesis presents in the form of myth. Epistemic justice does not require setting reason aside but understanding the advantage of power in what passes for reason under conditions of historical and present inequality, while working to offer a fair and sympathetic hearing to disadvantaged voices.

At the social and consequently governmental levels, there is growing appreciation for Indigenous voices regarding land, as the political success of the Ktunaxa’s claim reveals. This outcome, the result of decades of activism by the Ktunaxa Nation, supported by conservationists and gaining public sympathy, is not an isolated one. The logging road at issue in Lyng was also not built, because the US government intervened while the case was pending to designate much of the area a protected wilderness, thereby diminishing the value of the road. After Lyng was decided, the government redesignated the area the Smith River National Recreation Area, putting a conclusive end to the logging road.Footnote ⁷³ Furthermore, a bill is currently before Congress to repeal the transfer of Oak Flat—a site sacred to the Western Apache—to Resolution Copper for the creation of a copper mine.Footnote ⁷⁴ In the main, support from conservationists and the wider non-Indigenous public in these cases is not motivated by protective attitudes toward religious freedom. Nor has it been entirely the result of increased sensitivity to justice for Indigenous peoples, although the latter plays a role. Rhodes suggests, writing in 1991, that the greatest judicial hurdle in cases where Indigenous communities assert sacred site claims is a cultural clash that makes it “impossible for some individuals to appreciate the existence of non-Western views of land.”Footnote ⁷⁵ Non-Indigenous people have come to appreciate those views, however, and that appreciation can move governments, as demonstrated by measures enacted in the wake of both Ktunaxa and Lyng.

The Lens of Culture

The basis of Western law concerning land rests on conceptualizations rooted in specific values and ways of life, and the positioning of Indigenous relations to land as religious in relation to this law misrepresents what is actually a cultural difference. Fair consideration of Indigenous claims requires unsettling sedimented ways of understanding that form the bedrock of settler property lawFootnote ⁷⁶ and that are perceived as evidently rational only because the culturally relative assumptions of majorities tend to be invisible to them.Footnote ⁷⁷ Granted, multiculturalism, as a political theory, fails Indigenous peoples by offering them “profoundly asymmetrical and non-reciprocal forms of recognition”Footnote ⁷⁸ and by not dealing with the absolutely central question of land.Footnote ⁷⁹ Nonetheless, it is the concept of culture, not religion, that captures the difference at issue when the vocabulary of the sacred is used in the course of articulating the contrast between Indigenous and settler relations to land.

Sensitive analyses of cases such as Ktunaxa and Lyng acknowledge that traditional Indigenous worldviews and lifeways do not translate well into the concept of religion used by Western courts. Shrubsole writes that “many Indigenous language systems do not possess adequate or equivalent terms for what ‘religion’ has come to represent,” which exacerbates the general difficulty that “religion and culture are intimately tied together, and the idea that religion can be distilled and separated from politics, economy, law, and even culture is part of the processes of the secular state that seeks to categorize and differentiate different aspects of human existence.”Footnote ⁸⁰ McNally likewise observes that the Ojibwe people with whom he has worked have no word for religion and that Native American peoples express “a shared reluctance to think of their having religion in the sense of a discrete aspect of life segmented off from other aspects of their traditional lifeways.”Footnote ⁸¹

Indeed, responding to (friendly) criticisms, McNally acknowledges that culture might be a better descriptor for what Indigenous peoples have a right to protect. Only, in the United States, he points out, the law protects religion:

As pointed out earlier, however, a problem in Canada has been that the dedicated constitutional protection for Indigenous peoples requires them to trace cultural rights to pre-colonial times, which significantly limits what can be considered for protection.Footnote ⁸³ This could have posed a problem for the Ktunaxa, had they sought to protect Qat’muk via Aboriginal rights. During the consultative process between them and the responsible government minister, they did not initially take the position that no proposed accommodations could be accepted. That position was adopted after an elder claimed to have experienced a revelation that no compromise was possible. Thus, it resulted from a process of ongoing interpretation, following Ktunaxa traditions, of what was required to preserve Qat’muk, this place to which their identity as a people is intimately connected and for which they feel responsible. Michael Carroll writes that Indigenous cultures follow a “web-of-interconnections” model, whose “ongoing role in creating newer and more precise understandings of the world” is overlooked by Canadian courts, as it “cannot be reduced easily to a particular ‘practice, custom or tradition.’”Footnote ⁸⁴ The process of “creating newer and more precise understandings of the world” is a characteristic of all cultures, though, and it always includes response to changing circumstances as well as intercultural dialogue. The problem, in this context, is the unreasonable demand that Indigenous cultures in particular remain static in order to receive legal protection.Footnote ⁸⁵

To be sure, Shrubsole and McNally are both offering pragmatic strategies within the parameters of current Canadian and US law. In the Preface to What Has No Place, Remains, Shrubsole says he will not “weigh in on prevailing discussions of whether to discard frameworks such as ‘religion’ or ‘religious freedom.’”Footnote ⁸⁶ McNally worries that “the distinctive rhetorical and legal force of the language of religious freedom in US law,” risks being lost if the claims are framed as culture and peoplehood.Footnote ⁸⁷ Yet, to date, it is the claims of culture and peoplehood that have been lost in cases where sacred land claims were advanced through the legal avenue of religious freedom, because the lens of religious freedom brackets the uniqueness of Indigenous claims involving territory, picturing the situation as one where claimants are asking for accommodation of beliefs in a way that could open the door to all manner of spiritual and faith-based petitions over public property. Yes, religion is a “power word” in the United States,Footnote ⁸⁸ but it is also a word that raises the specter of a potentially ungovernable multiplication of nonrational demands.

In his critique of special protections for religion, Brian Leiter asks why the state should ever grant “exemptions to general laws with neutral purposes” for beliefs that are “insulated from evidence and issue in categorical demands on action.”Footnote ⁸⁹ The question is a fair one in principle. But in the case of Indigenous communities approaching courts to preserve traditional lands, the supposed neutrality of general laws masks both the injustices of settler colonialism and the contestability of the law’s own cultural presuppositions, whose basic premises are no less categorical and insulated from empirical evidence than those of Indigenous claimants.Footnote ⁹⁰ The law is not neutral; it is “a culturally locatable order carried out by culturally positioned people,”Footnote ⁹¹ and these are “clashes of culture” between communities, “not simply conflicts between individual rights and government power.”Footnote ⁹² Recognition of cultural difference captures the situation more accurately, provided that it does not essentialize or freeze culture and, crucially, is accompanied by due recognition of Indigenous sovereignty.Footnote ⁹³

These are the factors that have been recognized in successes achieved outside the courts. There is in the United States and Canada a greater awareness among the non-Indigenous population of the historical injustices Indigenous peoples have suffered at the hands of colonial governments.Footnote ⁹⁴ Majority acceptance of Indigenous rights to sovereignty remains a work in progress (to put it mildly), but public sympathy for claims linked to stolen lands and deliberate attempts to destroy Indigenous cultures has increased. The other important direction of public support is rooted in the achievement of a partial consensusFootnote ⁹⁵ with Indigenous worldviews. The beliefs and identity attachments of Indigenous communities to particular regions are specific to them, but many non-Indigenous allies agree in considerable measure with expressed Indigenous views on responsibility for land communities that include more than human persons and extend to future generations. That involves in its own way a recognition of cultural difference in tandem with genuine dialogue, which always holds the possibility of learning and finding common ground. McNally expresses an understandable worry in this regard about perceptions that transmute tribe-specific Native American traditions into a “universal piety of nature religion” via the language of “spirituality.”Footnote ⁹⁶ It is true that romanticizing colonial views of the “noble savage” persist,Footnote ⁹⁷ and one should be careful not to homogenize Indigenous cultures or assume that all communities will make the same decisions when faced with choices about economic developments on traditional lands. Furthermore, Indigenous relations to sacred lands are “profoundly local—that is, profoundly tied to particular, specific places in complicated and sophisticated ways.”Footnote ⁹⁸ That said, many Indigenous peoples have sought dialogue and found common ground by expressing their sense that human beings form an interdependent community with other nonhuman inhabitants of a place and have a responsibility toward them and the shared land that sustains all. Although the Ktunaxa lost in court, they won their struggle. The creation of an Indigenous-led mode of governance for the newly protected area is an important development. It resembles, in both process and outcome, the creation of Bear Ears National Monument by the Obama government, described by McNally as “a new experiment in cooperation, even collaboration, between the United States and Native nations in safeguarding sacred lands.”Footnote ⁹⁹

I also question characterizations of non-Indigenous “spiritual” relations to nature and the activism that springs from them as motivated by a wish to preserve natural areas as sites of aesthetic enjoyment and subjective fulfillment. Responses to nature expressed through terms such as nature spirituality or eco-spirituality often involve a sense of connection, dependence, and responsibility.Footnote ¹⁰⁰ On Indigenous sacred places, McNally says that, although Indigenous traditions do not neatly fit the category of religion, “sacred is not such an ill-fitting term to describe the sense of duty and obligation to such places, the sense of reciprocity with those places, and the moral standing or spiritual subjectivity of the places themselves, or the plants and animals that people them.”Footnote ¹⁰¹ This description has much in common with the vision of Wildsight mentioned above, a group that allied with the Ktunaxa. Non-Indigenous people do not have the same relations to specific places, but many have come to agree with a core element of this sense of the sacred: the understanding, in Vine Deloria’s words, “that we are not larger than nature and that we have responsibilities to the rest of the natural world that transcend our own personal desires and wishes.”Footnote ¹⁰²

Following Burkhardt, I see no reason to call this religion any more (or less) than the belief that only human beings have intrinsic value is religion. Burkhardt describes creation stories expressing the intimate relation between Indigenous communities and specific areas as “merely the attempt to convey in English the epistemic practices of locality, the relationship that people have to land that is not constructed by people but constructs the people.”Footnote ¹⁰³ Indigenous relations to land and to the more-than-human world in these places embody a different worldview, with different fundamental sensibilities and judgments, than the one lying at the basis of Western systems of law. Justice requires unsettling those systems, which in turn means recognizing that they are also cultural, not neutral laws from which Indigenous peoples are asking for faith-based exemptions. At the same time, understanding that cultures are not static monads is critical. Dominant Western conceptions of nature have come under considerable internal strain over the last several decades, opening space for dialogue between Indigenous and Western philosophies.Footnote ¹⁰⁴ When Rhodes writes that Native Americans perceive an “interdependency between life forms” and see themselves as “caretakers of the earth, not as developers,”Footnote ¹⁰⁵ he is not so much communicating an alien worldview as presenting appealing alternatives to ideas with which a significant segment of non-Indigenous people are dissatisfied. The result has been partnerships between Indigenous peoples, environmentalists, and nature conservationists, a process that alarm over climate change has intensified. In fact, the realities of climate change mean that even granting jurisdictional claims over traditional territories will not suffice to enable Indigenous peoples to live by their own land ontologies as long as there is no change to “a settler ethnogeography which is inscribed into the legal, political, and economic system of settler states.” Footnote ¹⁰⁶