Abstract
This paper argues that Indigenous peoples in the United States and Canada are subject to epistemic injustice in the law, particularly with regard to many Indigenous groups’ worldviews and relationship to land. Many Indigenous cultures share a sacred connection to the traditional homelands they lived on and with, sometimes for thousands of years before colonization interrupted this relationship. However, as expressed by seminal cases such as Johnson v. McIntosh and continuing into the present, the legal system has imposed a Western understanding of property onto Indigenous peoples’ understandings of land, which serves to invalidate and undermine Indigenous rights over land. This paper then tracks how underlying assumptions about property are transposed onto the courts’ understanding of religious freedom, which has largely failed to protect Indigenous sacred sites because spiritual claims relating to land are interpreted as property claims. In other words, these supposedly neutral laws contain a hermeneutic gap with fails to recognize land-based spiritualties, effectively excluding sacred sites from protection. Finally, this paper posits certain ways that legal system can better accommodate Indigenous relationships with land by becoming a better epistemic listener, but ultimately concludes that solutions will need to be defined by Indigenous peoples themselves.
