Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF

Here is the abstract:

From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.