National Indian Law Library

NILL No. 010050/1991

Special Edition on Freedom of Religion: Today's Challenge

"Let me be a free man-free 10 travel, fr-ee 10 slop, free 10work,free 10 follow the trade where I choose, free to choose my ownteachers, free to follow the religion ofmy father, free to think,talk and act for myself, and I will obey every law or submit 10the penalty." ••• ChidJoseph

Editor's Prologue: Religious freedom is a protected liberty that mostAmericans take for granted. However, according to the Supreme Court,no protection exists for tribal religions ofNative Americans under the U.S.Constitution and laws. This lack of protection has created human rightsproblems in Indian country.

Bills will soon be introduced in COngress to protect Native religiousfreedom. One would think that passage should be a simple matter sincemost people appreciate the rich Native cultures and want them preserved.Who would disagree with 1978 House and Senate reports:

America does not need to violate the religions of her nativepeoples.._There Is room for and great value In cultural andreligious dlverslty••_We would be the poorer If these AmericanIndian religions disappeared from the face of the Earth. H.R.Rep. No. 1308, 95th Cong.., 2d Sess. 3 (1978); S. Rep. No. 709,95th Co~" 2d Sess. 3 (1978)

However, fewpeople--and apparently no federal agencies-are familiarwith the spiritual basis ofNative culture or understand the cultural conflictwhich has placed vulnerable tribal religions in a wholly unprotected classtoday. As Natives ask C.ongress to protect their religious freedom, itbecomes important for Americans to better understand how this humanrights problem arose in a society that prides itselfon protecting individualliberty.

This issue is devoted to explaining the nature ofa fundamental problemin society's relationship with Native Americans since the Pilgrims landedat Plymouth Rock. What are Sacred Sites? Whey are they so important?Why won't the government protect them? What is the impact of the

. emergingSupreme Court Free Exercise Doctrine upon Indian Tribes, andwhy is it important for society to protect Native religious liberty?

search for balance and harmony and through various ritualsin which birds, animals, and plants were participants, har­mony of life was achieved and maintained.

When the tribes were forcibly removed from theiraboriginal homelands and forced to live on restrictedsmaller reservations, many of the ceremonies wereprohibited by the Bureau of Indian Affairs, and the peoplewere forced to adopt various subterfuges so that ceremoniallife could continue. Some tribes conducted their most im­portant ceremonies on national holidays and Christian feastdays, explaining to curious whites that they were simplyhonoring George Washington and celebrating Christmasand Easter. Since many shrines and Holy Places wereisolated and rural parts of the continent were not beingexploited or settled, it was not difficult for small parties ofpeople to go into the mountains or to remote lakes andbuttes to conduct ceremonies without interference fromnon-Indians. Most Indians did not see any conflict betweentheir old beliefs and the new religions of the white man and,consequently, a surprising number ofpeople participated inthese ancient rituals while maintaining membership in aChristian denomination.

During this century, the expanding national population andthe introduction of corporate farming and more extensivemining and timber industry activities reduced the isolationof rural America. Development pressures on public and

SACRED LANDS AND RELIGIOUSFREEDOM

by Vine Deloria

Since time immemorial, Indian tribal Holy Men have goneinto the high places, lakes, and isolated sanctuaries to pray,receive guidance from the Spirits, and train younger peoplein the ceremonies that constitute the spiritual life of thetribal community. In these ceremonies, medicine men rep­resented the whole web of cosmic life in the continuing

Contents: Vol. 16, No.2Summer 1991

Sacred Lallds& Religous Freedom 1Legislative Call To Action 2LoopholesIII Religious Uberty 6Case Updates 12NARF Resources and Publications 13New Board Members 15

NARF Legal Review Summer 1991

The Honorable Daniel InouyeUnited States SenateWashington, D.C. 20510

Most people assumed that the Resolution marked aclarification of federal attitudes toward traditionalreligions, and it began to be cited in litigation involving theconstruction ofdams, roads, and the management of federallands. Almost unanimously, however, the federal courts

ruled that the Resolution contained nothing in it that wouldprotect or preserve the right of Indians to practice theirreligion and conduct ceremonies at sacred sites on publiclands. Some courts even hinted darkly that any recognitionof the tribal practices would be tantamount to establishinga state religion, an interpretation which upon analysis was adreadful misreading of American history and the Constitu­tion and may have been an effort to inflame anti-Indian­feelings.

Most troubling about the Supreme Court's decision was itsinsistence on analyzing tribal religions within the same con­ceptual framework as western organized religions. JusticeO'Connor observed that, "A broad range of governmentactivities -- from social welfare programs to foreign aid toconservation projects -- will always be considered essentialto the spiritual well-beingofsome citizens, often on the basisof sincerely held religious beliefs. Others will find the verysame activity deeply offensive, and perhaps incompatiblewith their own search for spiritual fulfillment and with thetenets of their religion." Thus, ceremonies and rituals per­formed for some thousands of years were treated as if theywere personal fads or matters of modern emotional per­sonal preference based upon the erroneous assumption thatbelief and behavior can be separated. Justice Brennan'sdissent vigorously attacked this line of reasoning but failedto gather support within the court. Most observers of theSupreme Court were simply confounded at the majority'sconclusion which suggested that destroying a religion didnot unduly burden it and that no constitutional protectionswere available to the Indians.

In 1988 the Supreme Court decided the Lyng v. NonhwestIndian Cemetery Protective Association case which involvedaccess to sacred sites high up in the Chimney Rock area ofthe Six Rivers National Forest in northern California. TheForest Service proposed to build a six-mile paved loggingroad that would have opened the high country to commer­ciallogging, destroying the isolation of the ceremonial sitesof three tribes and introducing new processes of environ­mental degradation. The lower federal courts prohibitedconstruction of the road on the grounds that it would havemade religious ceremonial use of the area impossible.Before the Supreme Court could hear the appea~Congresspassed the California Wilderness Act, thereby making thequestion almost moot. The Supreme Court, nevertheless,insisted on deciding the religious issues and ruled that eventhe Free Exercise clause did not prevent the governmentfrum using its property any way it saw fit.

When informed of the meaning of this decision, most peoplehave shown great sympathy for traditionally religiouspeople. At the same time, they have had great difficultyunderstanding why it is so important that ceremonies beheld, that they be conducted only at certain locations, andthat they be held under conditions of extreme secrecy andprivacy. These problems in understanding highlight thegreat gulf that exists between traditional western thinkingJ

The Honorable George MillerUnited States House of RespresentativesWashington, D.C. 20.515

For further information about ways to help, contactNARF Staff Attorney Walter Echo-Hawk at'Ul~/ll7_Sl7m Th"nlr ur",,.,"'·JI • •• ...... ........... ... ....-..,. ........... J --"

LEGISLATIVE CAItLTO ACTION

reservation lands made it increasingly more difficult fortraditionally religious people to conduct their ceremoniesand rituals. Since many of the sacred sites were on publiclands, traditional religious leaders were often able to workout informal arrangements with federal agencies to allowthem access to these places for religious purposes. But aspersonnel changed in state and federal agencies, a newgeneration of bureaucrats, fearful of setting precedents,~

began to restrict Indian access to sacred sites by establishingincreasingly narrow rules and regulations for managingpublic lands.

In 1978, in an effort to clarify the status of traditionalreligious practices and practitioners, Congress passed ajoint resolution entitled "The American Indian ReligiousFreedom Act" which declared that it was the policy ofCongress to protect and preserve the inherent right ofAmerican Indians to believe, express, and practice theirtraditional religions. The Resolution identified the prob­lem as one of a "lack of knowledge or the insensitive andinflexible enforcement of federal policies and regulations."Section 2 of the Resolution directed the President to havethe various federal departments evaluate their policies andprocedures and report back to Congress the results of thisinvestigation and any recommendations for legislative ac­tion.

You can help! Your personal and direct supp()rtfor federal legislation to protect Native Americanreligious freedom is needed. Send a short letter t<:>.the following members Of Congress--indudingmembers of Congress from your home state--witha copy to NARF. requesting that they introduceand support such legislation.

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A belief in the sacredness of lands in the non-Indian contextmay become a preferred belief of an individual or group ofnon-Indian individuals based on their experiences or onintensive study of preselected evidence. But this beliefbecomes the subject of intense criticism and does not, ex­cept under unusual circumstances, become an operativeprinciple in the life and behavior of the non-Indian group.The same belief, when seen in an Indian context, is anintegral part of the experiences of the people -- past,present, and future. The idea does not become a bone ofcontention among the people, for even if someone does nothave experience or belief in the sacredness of lands, he orshe accords tradition the respect that it deserves. Indianswho have never visited certain sacred sites neverthelessknow of these places from the general communityknowledge, and they feel them to be an essential part of theirbeing.

Justice Brennan, in countering the near-demagogic state­ment by Justice O'Connor, that recognition of the sacred­ness ofcertain sites would allow traditional Indian religionsto define the use of all public lands, suggested that theburden of proof be placed on traditional people todemonstrate whysome sites are central to their practice andother sites, while invoking a sense of reverence, are not asimportant. This requirement is not unreasonable, but itrequires a willingness on the part of non-Indians and thecourts to entertain different ideas which, until the present,have not been part of their experience or understanding.The subject is considerably more complex than most peopleexpect.

The first and most familiar sacred lands are those places towhich we attribute a sacredness, because the location is asite where, within our own history, regardless of our group,something of great importance took place. Unfortunately,many of these places are related to instances of humanviolence; Gettysburg National Cemetery is a good exampleof this kind of sacred land. Abraham Lincoln properlynoted that we cannot hallow the battlefield at Gettysburgbecause others, the men who fought there, had alreadyconsecrated it by giving "that last full measure of devotion."We generally hold these places sacred because there men

Ifwe were to subject the topic of the sacredness of lands toa western rational analysis, fully recognizing that such ananalysis is merely for our convenience in discussion anddoes not represent the nature of reality, we would probablyfind fow' major categories of description. Some of thesecategories certainly are overlapping in the sense that dif­ferent individuals and groups have already sorted out theirown beliefs so that they would not accept the classificationof certain sites in the categories in which Indians wouldplace them. Nevertheless, it is the principle of respect forthe sacred that is impohant.

did what \1/e mig...ltt one day be required to de ~- give cur livesin a cause we hold dear. Wounded Knee, South Dakota, issuch a place for many Indians.. The Lincoln Memorial in

Two contradictory responses seem to describe the non-In­dian attitudes toward traditional tribal religions: Somepeople want the medicine men and women to share theirreligious beliefs in the same manner that priests, rabbis andministers expound publicly the tenets of theirdenomina­tions; others feel that Indian ceremonials are remnants ofprimitive life and should be abandoned. Neither perspec­tive understands that Indian tribes are communities in fun­damental ways that other American communities andorganizations are not. Tribal communities are whollydefined by family relationships, whereas non-Indian com­munities are dermed primarily by residence or by agreementwith sets of intellectual beliefs. Ceremonial and ritualknowledge is possessed by everyone in the Indian com­munity, although only a few people may actually be chosento perform these acts. Authorization to performceremonies comes from higher spiritual powers and not bycertification by an institution or even by any formal or­ganization.

Justice Brennan attempted to make this difference clearwhen he observed that, "Although few tribal members ac­tually made medicine at the most powerful sites, the entiretribe's welfare hinges on the success of individual prac­titioners." More than that, however, the "World Renewal"ceremonies conducted by the tribes were done on behalf ofthe earth and all forms of life. To characterize theceremonies as if they were a matter of personal, emotionalor even communal aesthetic preferences, as was done byJustice 0' Connor, is to miss the point entirely. In effect,the court declares that Indians cannot pray for the planet orfor other people and other forms of life in the mannerrequired by their religion.

about religion and the Indian perspective. It is the dif­ference between individual conscience and commitment(western) and communal tradition (Indian), and these viewscan onlybe reconciled byexamining them in a much broaderhistorical and geographical context.

The Indian community passes knowledge along over thegenerations as a common heritage that is enriched by theexperiences of both individuals and groups of people in theceremonies. Both the ceremony and the people's inter­pretation of it change as new insights are gained. By con­trast the non-Indian communities establish educationalinstitutions which examine, clarify and sometimes radicallychange knowledge to fit their needs. Knowledge is thepossession of an exclusive group of people -- the scholarsand the professionals who deeply believe that the rank andfile of their communities are not intelligent enough to un­derstand the esoteric truths of their society. Basic truthsabout the world are not expected to change, regardless ofthe experiences of any generation, and "leading authorities"are granted infallibility based on their professional status

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r-washinglOn, D.C.m~' be an example O:oca'iOO with anonviolent background.

Every society needs these kinds ofsacred places. They helpto instill a sense ofsocial cohesion in the people and remindthem of the passage of the generations that have broughtthem to the present. A society that cannot remember itspast and honor it is in peril of losing its soul. Indians,because ofour considerably longer tenure on this continent,have many more of these kinds of sacred places than donon-Indians. Many different kinds of ceremonies can andhave been held at these locations, and there is both ex­clusivity and inclusiveness depending upon the occasionand the ceremony. In this classification the site is all-impor­tant, but it is sanctified each time ceremonies are held andprayers offered.

A second classification of sacred lands has a deeper, moreprofound sense of the sacred. It can be illustrated in OldTestament stories which have become the foundation oftwoworld religions. After the death of Moses, Joshua led theHebrews across the River Jordan into the Holy Land. Onapproaching the river with the Ark of the Covenant, thewaters of the Jordan "rose up" or parted and the people, ledby the Ark, crossed over on "dryground," which is to say theycrossed without difficulty. After crossing, Joshua selectedone man from each of the Twelve Tribes and told him tofmd a large stone. The twelve stones were then placedtogether in a monument to mark the spot where the peoplehad camped after having crossed the river successfully.When asked about this strange behavior, Joshua replied,"That this may be a sign among you, that when your childrenask their fathers in time to come, saying, 'What mean ye bythese stones?' Then you shall answer them: That the watersofJordan were cut offbefore the Ark of the Covenant of theLord; when it passed over Jordan." (Joshua 4:6-7)

In comparing this sacred site with Gettysburg, we mustunderstand a fundamental difference. Gettysburg is madesacred by the actions of men. It can be described as ex­quisitely dear to us, but it is not a location where we haveperceived that something specifically religious has hap­pened. In the crossing of the River Jordan, the sacredappeared in the lives of human beings; the sacred appearedin an otherwise secular situation. No matter how we mightattempt to explain this event in later historical, political oreconomic terms, the essence of the event is that the sacredhas become a part of our experience.

Some of the sites that traditional religious leaders visit areof a similar nature. Thus Buffalo Gap in the southeasternedge of the Black Hills ofSouth Dakota marks the locationwhere the buffalo emerged each spring to begin theceremonial year of the Plains Indians. It may indeed be thestarting point of the Great Race which determined theprimacy between the tWG- leggeds and four-leggeds at thebeginning of this world. Several mountains in New Mexicoand Arizona mark places where the Pueblo, Hopi, and

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Navajo peoples completed their migrations, were told tosettle, or were where they first established their spiritualrelationships with bear, deer, eagle and the other forms oflife who participate in the ceremonials. As we extend thecircle geographically, we must include the Apache, Ute,Comanche, Kiowa and other tribes. East of the Mississippi,even though many places have been nearly obliterated,people still have knowledge of these sacred sites.

In the religious world of most tribes, birds, animals andplants compose the "other peoples" of creation and,depending on the ceremony, various of these peoples par­ticipate in human activities. If Jews and Christians see theaction ofa single deity at sacred places and in churches andsynagogues, traditional Indian people see considerablymore activity as the whole of creation becomes an activeparticipant in ceremonial life. Since the relationship withthe "other peoples" is so fundamental to the human com­munity, most traditional practitioners are very reluctant toarticulate the specific elements of either the ceremony orthe location. And since some ceremonies involve the con­tinued good health and prosperity of the "other peoples,"discussing the nature of the ceremony would violate theintegrity of these relationships. Thus when traditionalpeople explain that these ceremonies are being held for "allour relatives," that explanation should be sufficient. It isthese ceremonies in particular that are now to be prohibitedunder the Supreme Court's rulings.

It is not likely that non-Indians have had many ofthese kindsof experiences, particularly since most churches andsynagogues have special rituals which are designed todenaturalize the buildings so that their services can be heldthere. Non-Indians have simply not been on this continentvery long; their families have moved constantly about so thatany kind of relationship that might have been possible forpeople has been forfeited. Additionally, non-Indians haveengaged in senseless killings of wildlife and utter destruc­tion of plant life, and it is unlikely that they would haveunderstood any effort byother forms oflife to communicate.But it is also a fact of human experience that some non-In­dians, who have lived in rural areas of relative isolation andwhose families have lived continuously in certain locations,tell stories about birds and animals not unlike the traditionsof many tribes.

The third kind of sacred lands are places of overwhelmingHoliness where Higher Powers, on their own initiative, haverevealed themselves to human beings. Again we can use anOld Testament narrative to illustrate this kind of location.Prior to his trip to Egypt, Moses spent his time herding hisfather-in-Iaws sheep on and near Mount Horeb. One dayhe took the flock to the far side of the mountain, and to hisamazement he saw a bush burning with fire but not beingconsumed. Approaching this spot with the usual curiosityof a person accustomed to the outdoor life, rvfoses wasstartled when the Lord spoke to him from the bush, warning,"Draw not hither; put off thy shoes from thy feet, for the

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Having used Old Testament examples to show the objectivepre-sense of the Holy, we can draw additional conclusionsabout the nature of these Holy Places from the story of theExodus. Moses did not make that particular location oftheburning bush an object of worship for his people, althoughthere was every reason to suppose that he could have doneso. Rather he obeyed and acted on the revelation which hereceived there. In the absence of further information, wemust conclude that this location was so holy that he couldnot reveal its secret to other people. Ifhe had been told toperform ceremonies at that location during specific days ortimes of the year, world history would have been entirelydifferent. In that case, the particular message received atthese locations becomes a definitive Divine command whichpeople must then follow. We have many tribal migrationstories that involve this particular kind of Divine commandand sacred sites which originate in the same revelation. Fortraditional Indian religious leaders who have been told toperform ceremonies as spiritual guardians of this continent,there is no question of obedience.

In denying the possibility of the continuing revelation of thesacred in our lives, federal courts, scholars and state andfederal agencies refuse to accord credibility to the testimony_f ...~J:"";_"t" J~~rI.nrl'" rln~~ ... A "",,.,.:,..10,..,.".0. t .... ,..,. ..,. ,...,0..·0--.."...... ' .......VL a ..........5.lV~ ..""'uu...... .lO>, UVUU,U..lU "'".l\.,I\o...u"'...... "'.ual. a \..-\..-l\..<U.lVUJ Ul

location has always been central to the belief and practicesof the tribe, and impose exceedingly rigorous standards on

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Illghe,' ,etention ,.'e because of 'heir planetary ~po:~I'tance. Ironically, traditional people have been forced to l,hold these ceremonies under various forms of subterfugeand have been abused and imprisoned for doing them. Yetthe ceremonies have very little to do with individual or tribalprosperity. Their underlying theme is one of gratitude ex­pressed by human beings on behalf of all forms of life andthey complete the largest possible cycle of life, ultimatelyrepresenting the cosmos, in its specific realizations, becom­ing thankfully aware of itself.

The second and third categories ofsacred lands result fromrevelations of the Holy at certain locations. The ceremoniesthat belong to these sacred sites involve a process of con­tinuous revelation and provide the people with the neces­sary information to enable them to maintain a balance intheir relationships with the earth and other forms of life.Because there are higher spiritual powers who are in com­munication with human beings, there has to be a fourthcategory of sacred lands. Human beings must always beready to receive new revelations at new locations. If thispossibilitydid not exist, all deities and spirits would be dead.Consequently, we always look forward to the revelation ofnew, sacred places and new ceremonies. Unfortunately,some federal courts have irrationally and arbitrarily cir­cumscribed this universal aspect of religion by insisting thattraditional religious practitioners restrict their identifica­tion ofsacred locations to those places that were historicallyvisited by Indians, implying that, at least for the federalcourts, God is Dead.

Among the duties which must be performed at these HolyPlaces are ceremonies which the people have been com­manded to perform in order that the earth itself and all itsforms of life might survive. Some evidence of this sacreddimension, and ofother sacred places, has come through inthe testimony of traditional people at various times in thiscenturywhen they have explained to non-Indians, in and outof court, that they must perform certain kinds ofceremonies, at certain times and places, in order that thesun may continue to shine, the earth prosper, and the starsremain in the heavens.

This tradition tells us that there are, on this earth, someplaces of inherent sacredness, sites that are Holy in and ofthemselves. Human societies come and go on this earth andany prolonged occupation of a geographical region willproduce shrines and sacred sites discerned by the occupyingpeople. One need only to look at the shrines of present-dayEurope and read the archaeology of the sites to understandthat long before Catholic or Protestant churches were builtin certain places, many other religions had established theirshrines and temples on those spots. These Holy Places arelocations where human beings have always gone to com­municate and be with higher spiritual powers. Thisphenomenon is world-wide and all religions find that theseplaces regenerate people and fill them with spiritualpowers. In the western hemisphere these places, with somefew exceptions, are known only by American Indians. BearButte, Blue Lake and the High Places of the Lyng case areall well-known locations which are sacred in and of them­selves.

place whereon thou standest is holy ground." (Exodus 3:5,emphasis added)

Skeptical non-Indians and representatives ofother religionsseeking to discredit tribal religions have sometimesdeliberately violated some of these Holy Places with no illeffects. They have thereupon come to believe that they havedemonstrated the false nature of Indian beliefs. Theseviolations reveal a strange non-Indian belief in a form ofmechanical magic that is touchingly adolescent, a belief thatan impious act would or could trigger an immediateresponse from the higher spiritual powers. Surely theseimpious acts suggest the concept ofa deity who spends timerecording minor transgressions as some Protestant sectshave envisioned God. It would be impossible for thethoughtless acts of one species to have a drastic effect onthe earth. The cumulative effect of continuous secularity,however, poses an entirely different kind of danger, andprophecies tell us of the impious people who would comehere, defy the Creator, and bring about the massive destruc­tion of the planet. Many traditional people believe that weare now quite near that time.

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ticed at the time of contact with non-Indians, ceremoniesderived from or related to these Holy Places have the

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purport to protect certain kinds oflands and resources fromthe very developers who now seek to exclude Indianreligious people from using public lands. <The Wild andScenic Rivers Act, the Wilderness Act, the National En­vironmental Protection Act, the Clean Air Act, the NationalHistoric Preservation Act, and several other statutes all takedcfinite stcps to protect and preserve the environment in amanner more reminiscent of traditional Native Americanreligion than that of uncontrolled capitalism or the domina­tion of land expounded by the world religions. No realprogress can be made in environmental law unless some ofthe insights into the sacredness of land derived from tradi­tional tribal religions become basic attitudes of the largersociety. . .

At present, legal remedies for Indian religioUS practitionersare limited to those procedures provi~~d.byvarious en­vironmental and historic preservationla~~hich, in somecircumstances, may provide an indirectll1~~nsfor protec­tion of sites. The only existing law dir~tlyaddressing thisissue, the American Indian Religious FreC<l()m Act of 1978,is simply a policy statement with "no teeth."'While it has ledto some administrative regulations and policies providingfor limited additional opportunities for input, it provides nolegal cause of action to aggrieved practitioners.

Examples of sacred sites currently threatened are: (1) theMedicine Wheel in Wyoming, where the Forest Serviceproposed (and is now reconsidering after protest) construc­tion of a parking lot and observation platform at the site ofthe ancient Wheel which is sacred to many tribes in Mon­tana, Wyoming, Oklahoma and South Dakota; (2) BadgerTwo Medicine in Montana, where oil drilling is proposed ina pristine area sacred to the Blackfeet and other tribes; and(3) Mt.Graham in Arizona where telescopes are proposedwhich would not only destroy an Apache sacred site but alsocause the extinction of an endangered species of squirrel.

As a result, the Religious Freedom Coalition (Associationon American Indian Affairs, Native American Rights Fundand National Congress of American Indians), as well astribes and other Indian organizations, are seeking legisla­tion which will provide for a legal cause of action whensacred sites may be impacted by governmental action.Proposed legislation would also provide for more extensivenotice to and consultation with tribes and affected partiesin such circumstances. The legislation would ensure thatthe principle of religious freedom (rightfully urged upon therest of the world by the United States) truly incorporatesand applies to the unique needs of Indian religions. (VineDeloria, Jr" is a member of the Standing Rock Sioux Tribe...As a noted author, theologian, historian and attorney he isuniquely qualifiedto address Native religiousfreedom issues.)

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Indians who appear before them. This practice does exactlywhat the Supreme Court avows is not to be done -- it allowsthe courts to rule on the substance of religious belief andpractice. In other words, courts will protect a religion if itshows everysymptom ofbeing dead but will severely restrictit if it appears to be alive.

Today a major crisis exists in Indian country because of theLyng decision. As the dissent noted, there is no real protec­tion for the practice of traditional religions within theframewo~'k of American constitutional or statutory law.Courts usually automatically dismiss Indian petitionswithout evidentiary hearings and at the same time insist thattraditional people identify the "central belief" of the tribalreligion. Presumably this demand is benign and made withthe hope that byshowing centrality for the site or ceremony,courts will be able to uphold some form of constitutionalprotection on some future occasion.

As human beings we live in time and space and receive mostof our signals about proper behavior primarily from eachother. Under these circumstances, both the individual and

<the group must have some kind of sanctity ifwe are to havea social order at all. By recognizing the sacredness of landsin the many aspects we have described, we place ourselvesin a realistic context in which individuals and the groups cancultivate and enhance the experience of the sacred. Recog­nizing the sacredness of lands on which previous genera­tions have lived and died is the foundation of all othersentiments. Instead of denying this aspect of our lives, weshould be setting aside additional places which havetranscendent meaning.

Sacred sites which higher powers have chosen for manifes­tation enable us to focus our concerns on the specific formof our lives. These places remind us of our unique relation­ship with spiritual forces and call us to fulfill our religiousvocations. These kinds ofexperiences have shown us some­thing of the nature of the universe by an affirmative manifes­tation of themselves, and this knowledge illuminateseverything else that we know.

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The struggle by American Indians to protect their sacredsites and to have access to them for traditional ceremoniesis a movement in which all peoples should become involved.The federal agencies charged with managing public lands,who argue that to give recognition to any form of traditionaltribal religion is to establish that religion, have raised a falseissue. No other religion in this country speaks to the issueof the human relationship with the rest of the universe in thismanner. The alternative use ofland proposed by the ForestService, the Bureau of Land Management and the NationalPark Service is the rapid exploitation of natural resourcesby a few favored private clients -- a wholly secular and

i destructive use of the lands.

I The truly ironic aspect of modern land use is that during theLas, 'h'ce_decades, Co°tlf= has passe:oy la:~hkh

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That Christianity and federal interests were oftenidentical became an article offaith in every branchof the govemment and this pervasive attitude in­itiatedthe contemporaryperiodofreligiouspersecu­tion ofthe Indian religions. It was not, to be certaina direct attack on Indian tribal religions because oj Itheirconflict with Christianity, but an oblique attack ,Ion the Indian wtry oflife that had as its by-productthe transformation oj' Indians into Americancitizens. Had a Christian denomination or sect, or Ithe Jewish community been subjected to the same Irequirements prior to receiving affirmation of their "legalandpoliticalrights, the outcry would have been 'tremendous. 4

which ~as been enshrined in the First Amendment by theFoundlDg Fathers, those values were disregarded in thefederal government's treatment of American Indians. Thathistory provides a backdrop for understanding the presentcrisis in Native religious freedom.

In 1979, the Secretary of the Interior submitted a report toCongress that recounts the historic treatment of Nativereligion by the federal government? One cornerstone offederal Indian policy was to convert the "savage" Indiansinto Christian citizens and separate them from their tradi­tional ways of life. President Jackson's Indian removalpolicy was justified in the name of converting and civilizingthe Indians? Christian missionaries, hired as governmentIndian agents, were an integral part of the federal Indianpol~cy for over one hundred years. The government placedentIre reservations and Indian Nations under the ad­ministrative control of church denominations. Indian landswere conveyed to missionary groups in order to convert the !Indians and separate them from their traditions. I

Separation of ch...ch and state""" d;"'egarded in the ,government's treatment of Indians. The Secretary's report "to Congress found as follows: !

By the 1890s, after tribes were placed on reservationsgovernment treatment of their religions took a darker turn:In that decade, U.S. troops were called in to stamp out theGhost Dance religion of the tribes who were confmed onreservations. In 1890, Sioux Ghost Dance worshippers wereslaughtered at Wounded Knee. In 1892, Pawnee GhostDance leaders were arrested in Oklahoma. And soon thatr~ligion ceased to exist as it was suppressed among othertnbes. In 1892, the BIA outlawed the Sun Dance religionand banned other ceremonies which were declared "Indianoffenses" and made punishable by withholding of rations or30 days imprisonment.S

~orm~ government rules prohibiting tribal religions con­tmued mto the 1930s. In 1904, BIA Court of Indian Offen­ses regulations stated in very stark terms:

by Walter Echo-Hawk

LOOPHOLES IN RELIGIOUSLIBERTY: THE NEED FOR A

FEDERAL LAW TO PROTECTFREEDOM OF WORSHIP FOR

NATIVE PEOPLE

'7he Indian plays much the same role In our Americansociety that the Jews played In Germany. Like the miner'scanary, the Indian marks the shift rrom rresh air to polsongas In our political atmosphere; and our treatment or In­dians, even more than our treatment or olher minorlllesmarks the rise and rail or our democratic raUb."

--Felix Cohen, the Falher of Federal Indian Law

INTRODUCfION

Two recent Supreme Cowt cases have created a crisis inreligious liberty for Native Americans.! These cases heldthat the First Amendment does not protect tribal religiouspractices and referred the task ofprotecting Native worshipto Con~·ess. Stripped of any constitutional or statutoryprotections under American law, Indian religion has be­come the "miner's canary." In excluding traditional Indianworship from the First Amendment, the court has so nar­rowed the scope, meaning and protections of the FreeExercise Clause that it has seriously weakened religiousliberty for all Americans.

Historic Suppression of Native Religion

This article examines the impact of the new Supreme Courtdoctrine--which has been described by constitutional lawscholars as "the rise and fall ofthe Free Exercise Clause"--onNative religious freedom. Felix Cohen's words areprophetic when one views the resurgence of racism censor­ship, intolerance, and the growing trend toward r;strictingother civil liberties during a time when American Indianworship has been excluded from constitutional protection.If ow' legal system cannot protect basic freedoms of eventhe weakest among us, does it lack sufficient vitality toprotect the rest of society? As Native Americans ask Con­gre~s to protect the "miner's canary", this may test thenation's "democratic faith" and commitment to underlyingvalues of the Bill of Rights.

I Since Columbus' arrival almost 500 years ago, a basic fea-1 ture of society's relationship with American Indians has

'

I been government insensitivity to Native religious beliefs andpr~cti~s: At times gover~ment insensitivity included for­

~ mal pOlICIes (0 suppress trlbai reiigion and cuiture in orderLto "civili"," Indian,. Even thongh the Pilg,im, and othe,

.-=.:I~~:~~~:::.~o~:~:ericain search of religious .f_r_e_ed_o_m _

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r-r---·--·-"·_-"-~"--·-·-·--·,-------~---_._.._-,.'"_..__..__._-----

FOUlth. The "sun dance", and all other similardances and so-called religious ceremonies, shall beconsidered "Indian offenses~ and any Indian foundguilty ofbeing a participant in anyone or more ofthese offenses shall . .. be punished by withholdingfrom him his rations for a period ofnot exceedingten days; and if found guilty of any subsequentoffense under this rule, shall be punished by with­holding his rations for a period not less than fifteendays nor more than thirty days, or by incarcerationin the agencyprison for a period not exceeding thirtydays.

* * * *

Sixth. The usual practices of so-called "medicinemen" shall be considered "Indian offenses" ...[punishable by confinement] in the agencyguardhousefor a tenn not less than ten days, oruntilsuch time as he shallproduce evidence satisfactoryto the court, and approved by the agent, that he willforever abandon all practices styled Indian offenseunder this rule. 6

Though Indians were not granted citizenship until 1924,7this does not justify the outright government ban on theirright to worship which was in effect until 1934.8

Serious problems in Native religious freedom persisted intothe 1970s, with numerous arrests of traditional Indians forpossession of tribal sacred objects such as eagle feathers,criminal prosecutions for the religious use of peyote, denialof access to sacred sites located on federal lands and inter­ference with religious ceremonies at sacred sites. Afterhearings held in 1978, Congress recognized the need toprotect Indian religious fl'eedom, including worship atsacred sites and the use and possession of sacred objects.The hearings revealed that much of the problem resultedflom a simple government lack of knowledge about tradi­tional religious practices.

To remedy the problem, Congress enacted the AmericanIndian Religious Freedom Act of 1978 (AIRFA). AlRFAestablished a federal policy to protect and preserve the tradi­tional religions ofnative people, including worship at sacredsites. Though AIRFA was considered a landmarkbreakthrough at the time, in the intervening 1.3 years, tribesfound that its policy has no teeth and has meant nothing tofederal agencies.

The treatment of Native worship by the Supreme Court inLyng and Smith, analyzed below, is especially troublingwhen considered in the context of the above history. It is atestament to the vitality of tribal religion that it has persist­ed, despite a long history of government suppression that isunprecedented for any other religion in this country. Butwhether these unique religions can survive without anyAmerican legal protection is highly doubtful.

NARF Legal Review 8

The Lyng Decision:Need for Federal Sacred Sites Legislation

All world religions share a unifying dependence, in varyingdegrees, upon sacred sites, including the indigenousreligions of American Indian tribes, Native Hawaiians andNative Alaskans. Indeed, worship at sacred sites is a basicattribute-of religion itself.

However, when thinking of sacred sites, most Americansthink only of well-known Middle Eastern sites familiar tothe Judeo-Christian tradition such as Mecca, the WailingWall, Mount Sinai or Bethlehem. In the recent war againstIraq, our government and its allies took special care not todestroy sensitive religious areas. None doubt that theseimportant Middle East religious sites are entitled to strin­gent legal protections for the practitioners of those faiths.Indeed, the laws ofIsrael do just that. Israel's Protection ofHoly Places Law of 5727 (1967) (Sefer ha-Chukim, 1967)states:

1. The Holy Places shallbeprotectedfrom desecra­tion and any other violation from anything likely toviolate the freedom ofaccess ofthe members ofthedifferent religions to the places sacred to them ortheirfeelings with regard to those places.

2. (a) 'Whosoever desecrates or'otherwise violates aHoly Place shall be liable to imprisonment for atenn ofseven years.

(b) 'Whosoever does anything likely to violate thefreedom of access of the members of the differentreligions to theplacessacredto them ortheirfeelingswith regard to those places shall be liable to im­prisonment for a tenn offive years.

Unfortunately, American law and social policy overlookthat our own landscape is dotted with equally importantAmerican Indian religious sites that have served ascornerstones for indigenous religions since time im­memorial. As Representative Morris Udall stated on thefloor of Congress in 1978:

For many tribes, the land is filled with physical sitesof religious and sacred significance to them. Canwe not understand that? Our religions have theirlerusalems, Mount Calvarys, Vaticans and Meccas.We holdsacred Bethlehem, Nazareth, the Mount ofOlives and the Wailing Wall Bloody wars havebeen fought because ofthese religious sites.

Traditional Native American religious sites--some of whichrank among the most beautiful and breath-taking naturalwonders left in America--serve a variety of important rolesin tribal religion which should be readily understandable tomost people. See, Vine Deloria, "Sacred Lands andReligious Freedom," supra.

Summer 1991

IIII

When Congress passed AIRFA in 1978, there was hope thatprotection of Native worship at sacred sites would be incor­porated into American lawand social policy, since Congressrecognized the need to protect such worship at that time.Since 1978, however, federal land managing agencies suchas the Forest Service and the Park Service have repeatedlybeen allowed by the courts to destroy irreplaceable Nativesacred sites. The courts have consistently been unwilling tofind an~ protections under the First Amendment or anystatute. Finally, the struggle in the courts culminated in1988, when the Supreme Court ruled in Lyng that Indiansstand outside the purview of the First Amendment entirelywhen it comes to protecting tribal religious areas on federallands for worship purposes.

In Lyng, a sharply divided court denied First Amendmentprotection to tribal worship at a sacred site in NorthernCalifornia that would admittedly be destroyed by aproposed Forest Service logging road. One troublingaspect of the court's refusal to protect worship at this an­cient holy area was that the court withheld protection know­ing that "the threat to the efficacy of at least some religiouspractices is extremely grave":

472. He described the clear need for a federal law to protectthe Native worship at sacred sites:

Today, the Court holds that a federal land-usedecision that promises to destroy an entire religiondoes not burden the practice ofthat faith in a man­nerrecognized by the Free Exercise Clause. Havingthus stripped respondents and all other NativeAmericans ofany constitutionalprotection againstperhaps the most serious threat to their age-oldreligious practices,and indeed to their entire way oflife, the Court assures us that nothing in itsdecision "should be read to encourage governmen­tal insensitivity to the religious needs ofany citizen.. ." Given today's mling that religious freedomamounts to nothing more than the right to believethat the religion will be destroyed. The safeguardingofsuch a hollowfreedom not onlymakes a mockeryof the "policy of the United States to protect andpreserveforAmerican Indians theirinherent right offreedom to believe, express, and exercise their tradi­tional religions, "[quotingAIRFA], it fails utterly toaccord with the dictates ofthe First Amendment.

Summer 1991

We both know apoint ofview the same asyours hasbeen arguedbefore the U.S. Supreme Court andtheydecided that while a government action may sig­nificantly affect aperson's ability to pursue spiritualfulfillment, the govemment's action doesn't coerceindividuals into violating their religious beliefs. 10

As a result ofLyng, there are no legal safeguards for Nativeworship at sacred sites under the U.S. Constitution andlaws, laying bare a basic attribute of religion itself. This legalanomaly has frightening implications for remaining tribalreligions struggling to survive. In 1991, for example, thetraditional Blackfeet Indians of the Crazy Dog Society, whoare attempting to protect their place of worship fromdestruction by the Forest Service, stand without any legalprotections in American jurisprudence. The Crazy DogSociety recently received an ominous Forest Service letterthreatening:

From a policy standpoint, no religious group should bestripped of First Amendment protections in a democraticsociety so that its ability to worship is made wholly depend­ent upon administrative whim.. This is especially true forunpopular or despised minority religious groups, such asAmerican Indians, who have suffered a long history ofgovernment religious suppression..

Even ifwe assume that we should accept the NinthCircuit's prediction, according to which the G-ORoad will "virtually destroy the Indians' ability topractice their religion," ... the Constitution simplydoes not provide a principle that could justifyupholding respondents' claim.

485 U.S. at 452-53. In short, the government may destroyan entire Indian religion under Lyng with constitutionalimpunity, unless it goes further and punishes the Indians orforces them to violate their religion. The court reached thisharsh result by construing the Free Exercise Clause in themost narrow terms possible: holding that Free Exerciseprotections arise on~y in those rare instances when govern­mentpunishes a person for practicing religion orcoerces oneinto violating his religion. Because it is hard to imagine rareinstances in which that will happen, the court's narrowinterpretation renders the Free Exercise Clause a virtualnullity. This crabbed reading should deeply concern allcitizens who cherish religious freedom principles. UnderLyng, United States law guarantees less religious freedomthan most other democracies and some non-democraticnations.

As to the Indians in the Lyng case, the court disclaimedjudicial responsibility to safeguard their religious freedomfrom government infringement, stating that any protectionfor them "is for the legislatures and other institutions." Id The inability ofexisting American law, as interpreted by the

Supreme Court, to protect sacred sites is symptomatic of aFormer Justice Brennan's dissent noted the "cruelly surreal larger failure of American jurisprudence to address andresult" produced by the majority decision whereby, incorporate indigenous values and needs into the legal sys-"governmeniai action that will virtually destroy a religion is tern that is intended to protect aU citizens. Certainly, if thisnevertheless deemed not to 'burden' that religion" Id. at country contained holy ground considered important to theL_.._. · J_U_d_e_o_-c_h_ri_s_ti_an_t_ra_d_i_ti_o_n_,_A_m_e_r_ica_n_la_w_a_n_d__s_o_c_ia_l_p_o_li_CY_....J

NARF Legal Review 9

The Smith Case:Free Exercise Decline and the Miner's Canary

One way to start correcting the result of the Lyng decisionis for society to respect Native sacred sites for what they are.The concept of religious worship at sacred sites is notunique to American tribal religions nor is it difficult tounderstand. Hopefully, society will com~ct this injustice. Itis moral(y intolerable for society to condone government infr­ingement upon worship that predates the founding of thisnation withoutproviding Native Americans with some lawful

, means to safeguard basic human rights.

In 1990, the Supreme Court denied constitutional protec­tion for an entire Indian religion of pre-Columbian antiquitywhich involves sacramental use of a cactus plant namedpeyote against state criminal prohibition of peyote use.HFor Indians who lost constitutional protection for worshipin the name of the "Drug War", Smith was devastating. Forthe rest of society, Smith caused an outcry because itdramatically departs from First Amendment law, weakensthe Free Exercise Clause and religious liberty, and makes iteasier for government to intrude upon freedom of worship.

t

Iii!

I

upholding the First Amendment right of Indians to practicethis age-old religion, one court noted:

Iii my view, today's holding drGrnatica!(;' departs :Ifrom well settled First Amendment jurispmdence, I

appears unnecessary to resolve the qU,_e_s_ti_o_n JSummer 1991

In Smith, the high court was asked to protect the FirstAmendment rights of members of the Native AmericanChurch who were fired from their jobs for off duty religioususe of peyote. Oregon asserted the First Amendmentshould not protect this form of worship because state lawmade peyote use illegal and contained no exemption forNative religious use.

/TJhe nght to free religious expression embodies aprecious heritage ofour history. In a mass society,which presses at everypoint toward confonnity, theprotection ofa self-expression, however unique, ofthe individualandgroup becomes evermore impor­tant. The varying currents of the subcultures thatflow into the mainstream ofournational life give itdepth and beauty. We preserve a greater value thanan ancient tradition when weprotect the rights oftheIndians who honestly practiced an old religion inusingpeyote one nightat a meetingin a desert hogannear Needles, California. 14

Prompted by "Drug War" fear and speculation promoted byOregon, the court went to great lengths to deny protectionfor the Indian Peyote Religion, even though peyotism is farremoved from the nation's drug problem. First, the courtthrew out the traditional "compelling state interest" test;15then it exempted an entire body of law--criminallaw--fromFirst Amendment limitation altogether;16 and finally it sug­gested that Free Exercise rights may not be entitled toprotection unless some other constitutional right is alsoimpaired by government action.

... leaving accommodation to the politicalprocesswillplace at a relative disadvantage those religiouspractices that are not widely engaged in; but thatunavoidable consequence fl democratic govern­ment must be preferred . .."

The court discarded the First Amendment test which hadbeen applied for decades in religious cases, because itbelieved that the test too strictly protected religious liberty.Stating that AmeI'ica's religious diversity is a "luxury" thatour pluralistic society "cannot afford",17 the court leftreligious accommodation up to the legislative politicalprocess instead of the courts and the Bill of Rights, despitean admitted hardship upon unpopular or minority faiths:

Justice O'Connor joined in the result and, as such, was notconcerned about impacts of the decision upon Nativereligion. However, for the rest of society she expresseddeep concern:

10

would undoubtedly accord s~ringent protections. Becauseimportant Judeo-Christian sites are located in other na­tions, it is understandable that as American law developedin the United States it never addressed this aspect ofreligious freedom. Thus, when Native religious prac­titioners petitioned the courts, they found the law surpris­ingly ill-equipped to protect their religious liberty.However, if the purpose of law is to fairly protect all fun­damental interests of our diverse and pluralistic society,then it must someday address the needs of indigenouspeople.

Peyote is a cactus plant that grows in parts of the RioGrande River valley of Northern Mexico and SouthernTexas. Native religious use of peyote predates the foundingof the United States. Peyotism is a spiritually profoundreligion and way of life that ranks among the oldest, largestand most continuouslt practiced tribal religions of theWestern Hemisphere. 2 It is so interwoven with Nativeculture that contemporary tribal culture cannot be com­pletely understood without knowledge of the long history ofpeyote worship.

Though harmless, peyotism is controversial because thecactus has psychedelic qualities and its ingestion is unlawfulin most states. Although some states prosecuted Indianreligious use earlier in this century, today the federalgovernment and 28 states exempt the religious use ofpeyote by American Indians from drug laws. Many havedone so for almost 30 years without experiencing any as­sociated law enforcement or other problems. Nor has asingle health problem among Indians ever been docu­mented throughout centuries of sacramental use. In

,I...-..__••~----- ••••• " ••

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• ~:e~ted, and is incompalible with ou, Nation',f ~~~lmitment to individual religious liberty. 19

She decried the inherent danger of making individualfreedoms dependent upon politics, quoting Barnette:

The very purpose of the Bill of Rights was towithdraw certain subjects from the vicissitudes ofpolitical controversy. .. One's right to life, liberty,andproperty, to free speech, a free press, freedom ofworship and assembly, and other fundamentalrights maynot be submitted to vote; they depend onthe outcome ofno elections.20

Mourning the declining role of the Bill of Rights in protect­ing religious freedom, Justice O'Connor warned about hardtimes ahead in the political arena, where Native citizens nowfmd themselves:

[TJhe First Amendment was enacted precisely toprotect the rights ofthose whose religious practicesare not shared by the majority and may be viewedwith hostility. The history of our free exercisedoctrine amply demonstrates the harsh impactmajoritarian rulehas hadon unpopularoremergingreligious groups . .. "21

Today, in the wake ofSmith other re~ousgroups are beingtreated like Indians by the courts. The Eighth Circuitobserved that Smith "does not alter the rights of prisoners;it simply brings the free exercise rights of private citizenscloser to those of prisoners."23 While some courts haveexpanded the Smith doctrine into the civil area, othersreluctantly apply it with "deep" or "profound regret".24

Entire segments of the population are experiencing adverseeffects of the new doctrine:

Smith cut back, possibly to minute dimensions, thedoctrine that requiresgovernment to accommodate,at some cost, minority religious preferences: thedoctrine on which all the prison religion cases arefounded. zs

Indian religion is the "miner's canary." Its shameful treat­ment signals danger to American religious life.

Conclusion

Since 1831, the United States has maintained a trust respon­sibility for Indian tribes that has been continuously recog­nized by the Supreme Court and Congress.26 That federaltrust duty includes a duty to freserve Native communities"as distinct cultural entities." 7 It is time for Congress to"fulfill its constitutional role as protector of tribal NativeAmpri("~nc;"28 ::Inri Ipcric:btp tn nrntprt rpJimnnc: th::lt ::Irp- ----------- --- --0-....---- - ..... r- ..... ---- ----o- .....~ ----- ---'crucial to the cultural survival of the tribes. Congress has

,---- ._---------------_._----...,...--...,

ample constitutional authority for such legislation under theIndian trust doctrine.29

There is a need for our legal system to protect both sacredland and the endangered religions ofNative people. We canonly regret the enormous loss of our nation's heritagecaused by a long history ofgovernment suppression of tribalreligions. It is not enough, however, for our generation tomourn that loss. Rather, our challenge is to safeguard whatlittle remains. After 500 years since the arrival ofColumbus,the time is long overdue for his descendants to come toterms with those who were here first. Such is the nature ofAmerica's "Unfinished Business" as our maturing societyobserves its approaching quincentennial. (Walter Echo­Hawk is a NARF staffattorney in the Boulder, CO office.)

ENDNOTES

1. Employment Div., Dept. ofHuman Resources ofOregon v.Smith, _ U.S._, 108 L.Ed.2d 876 (1990); Lyng v. NorthwestIndian Cemetery Assn., 485 U.S. 439 (1988).

2. See,American Indian Religious Freedom Act Report P.L.95-341, Federal Agencies Task Force, Secretary of the In­terior (Department of the Interior, August 1979). Thisreport was submitted to Congress as required by Section 2of the American Indian Religious Freedom Act, 42 USC1996.

3. Id. at 4.

4. Id. at 3.

5. Id. at 6.

6. See, Regulations of the Indian Office, effective April 1,1904, Secretary of the Interior (Washington: GovernmentPrinting Office, 1904) at 102-03.

7. Citizenship Act of 1924,8 USC 1401(b).

8. AIRFA Report, supra at 6.

9. See, Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983) (Hopiand Navajo sacred site and shrines on San Francisco Peakdestroyed by U.S. Forest Service to make room for a newski lift); Fools Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983)(Intrusions on Sioux vision questing at Bear Butte by U.S.Park Service); Badoni v. Higginson, 638 F.2d 172 (10th Cir.1980) (Destruction ofNavajo sacred site at Rainbow Bridgeand intrusions upon Navajo ceremonies by U.S. Park Ser­vice and Bur. of Rec. upheld);Sequoyah v.. Tennessee ValleyAuthority, 620 F.2d 11.59 (6th Cir. 1980) (Cherokee sacredsite flooded by TVA); Inupiat Community ofArtie Slope v.U.S., 548 F. Supp.. 182 (D. Ala. 1982) (Eskimo religiousactivities on ice disrupted by federally-permitted off-shoredrilling). See also, United States v.. Mean:>, 858 F.2d 404, 407(8th Cir. 1988); Havasupai Tribe v. U.S., 752 F.Supp. 1471(DAr., 1990); Dedman v. Hawaii Bd. ofNatural Resources,740 P.2d 28 (Haw. 1987) (Destruction of Volcano sacredsite by geothermal development upheld).

10. March 28, 1991 Letter from John Gorman, Forest Su­pervisor to Ronald West at 2.

Summer 1991NARF Legal Review'-----------------,"---_..,-_.._-_..._-----_....

11

Summer 1991

Case Updates

(D.N.M., 1978), affd, 601 F.2d 111:~1O~:Ci<.1979:=lden.,444 U.S. 870 (1979). I

IErnest v. Parisien v. Twin City Construction Company or- IFargo I

Ii

On May 19, 1991, the Tribal Court of the Turtle MountainChippewa Tribe in North Dakota held that the Tribal Courthas the authority to resolve a contract dispute between atribal member who lives on the reservation and a non-Indianconstruction company that lives off but was doing businesson the reservation. The case required the Tribal Court tointerpret an amended tribal law that clarifies the TribalCourt's authority. The Tribal Court also determined thatno federal law bars it from hearing the case. It is expectedthat the construction company will appeal to the TribalCourt of Appeals. The case can also be reviewed by thefederal courts. NARF represents the tribal member.

Northern Cheyenne Water Rights Settlement

The State of Montana and the Northern Cheyenne Tribehave approved a compact that settles the Tribe's reservedwater rights claims. The State and Tribe have been innegotiations for the past several years to resolve the waterclaim. The approved compact provides for the administra­tion of the tribe's water rights and the rehabilitation, repairand enlargement of the Tongue River Dam that sits abovethe reservation. NARF represents the Tribe in the matter.

Larsen Bay Human Remains

NARF recently received notification from SecretaryAdams, head of the Smithsonian Institution, that all theremains that were taken from the Larsen Bay Tribal Coun­cil, Kodiak Island, Alaska, will be returned, as well asassociated burial offerings. This marks the conclusion of atwo-and one-half-year' effort to reclaim the remains andofferings .

These dead represented the single largest "collection" ofAlaskan remains held by the Smithsonian. The Smithsoniandisputed the Village's right to obtain these remains basedupon what the Smithsonian saw as insufficient scientificevidence. NARF demonstrated that the remains were cul­turally connected with the Larsen Bay Tribal Council andthat the remains had to be returned pursuant to federallegislation which NARF helped to obtain. Repatriation isexpected to occur in [all 1991.

12

11 Employment Division v. Smith, supra, 108 L.Ed.2d 876(1990).

12. See, Orner Steward, Peyote Religion a History(Univ.Okla Press, 1987).

13. The constitutionality of the federal and Texas religiousexemption was recently upheld in Peyote Way Church ofGod v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991).

14. People v. Woody, 394 P.2d 813, 821-22 (Ca., 1964)

1.5. The court limited the test to unemployment compensa­tion cases and gives no hint as to what judicial test shouldbe applied to civil statutes that remain subject to FirstAmendment limitations. Id. at 888-893.

16. According to the Supreme Court, the First Amendmentshould really read, "Congress shall make no law, exceptcriminal laws, prohibiting the free exercise of religion."

17. Id. at 892.

18. Id. at 893.

19. Id. at 893.

20. Id. at 901-02.

21. Id. at 901.

22. See, Intercommunity Center for Justice and Peace v.I.N.S., 910 F.2d 4~ (2nd Cir. 1990); Salvation Anny v. NJ.Dept. of Community Affairs, 919 F.2d 183, 194-95 (3rd Cir.1990); South Ridge Baptist Church v. Indus. Com 'n ofOhio,911 F.2d 1203, 1213 (6th Cir. 1990); Cornerstone BibleChurch v. City of Hastings, Mich., 740 F.Supp. 654, 669-70(D. Mich., 1990); Montgomery v. County of Clinton, Mich.,743 F.Supp.1253, 1259 (W.O. Mich., 1990); Yangv. Sturner,750 F.Supp. 558, 559 (D.R.I. 1990).

23. Salaam v. Lockhart, 905 F.2d 1168, 1171 n.l (8th Cir.1990). In 1987, the Supreme Court in O'lone v. Estate ofShabazz, 482 U.S. 342, carved out prisoners from meaning­ful First Amendment protection through its "judicialdeference to prison wardens" exception to the First Amend­ment, abandoning these citizens to our country's most rigidauthoritarian institutions without adequate constitutionalprotections. In the past twelve months alone, NARF hasreceived numerous requests from Native Americanprisoners seeking protection for their religious practices.

24. Yang v. Sturner, supra at 558-59. In Yang the courtwondered "what is left of Free Exercise jurisprudence"?

NARF Legal Review

25. Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990).

26.. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17(1831).

27. Togiak v. United States, 470 F.Supp. 423, 428 (D.D.C.1979). That duty was recognized by Congress in the 1978passage of AIRFA. Frank v. Alaska 604 P.2d 1068, 1073 n.9(Alaska 1979).

28. Peyote Way Church ofGod v. Thornburgh, supra at 1217.

i 29. See, Peyote Way Church of God v. Thornburgh, supra atL1214--19. See also, Uwngston ~_'E_~~4:F.SUPP.825, 831 _. . .... .

13

Nebraska State Historical Society v. Pawnee Tribe of Ok­lahoma

The Nebraska District Court ordered the Nebraska StateHistorical Society (NSHS) to comply with the state publicrecords law and provide historical documents requested bythe Pawnee Tribe of Oklahoma.

The Tribe had requested documents under the publicrecords law to determine how the NSHS was complyingwith a Pawnee tribal repatriation request filed pursuant tothe Unmarked Human Burial Sites and Skeletal RemainsProtection Act. In response, NSHS filed suit against theTribe claiming it was not subject to the state public recordslaw. The Nebraska Attorney General intervened on theside ofthe Pawnee Tribe on behalfof the State ofNebraska.NARF represents the Pawnee Tribe in the case.

NSHS argued unsucessfully that it was a non-profit or­ganization not subject to the public records law. The courtruled that the NSHS is a state agency and ordered it tocomply with the state public records law.

United States and Klamath Tribe v. Oregan

NARF represents the Klamath Tribe in this action to deter­mine the State of Oregon's jurisdiction to quantify itsfederally-reserved water rights. On March 4, 1991, thefederal court issued a preliminary injunction haltingOregon's water adjudication of federal and tribal waterrights.

NARF RESOURCES ANDPUBLICATIONS

THE NATIONAL INDIAN LAW LIBRARY

The National Indian Law Library (NILL) has developed arich and unique collection of legal materials relating toFederal Indian law and the Native American. Since itsfounding in 1972, NILL continues to meet the needs of

NARF Legal Review

NARF attorneys and other practitioners of Indian law. TheNILL collection consists of standard law library materials,such as law review materials, court opinions, and legaltreaties, that are available in well-stocked law libraries. Theuniqueness and irreplaceable core of the NILL collection iscomprised of trial holdings and appellate materials of im­portant cases relating to the development of Indian law.Those materials in the public domain, that is non­copyrighted, are available from NILL on a per-page-costplus postage. Through NILL's dissemination of informationto its patrons, NARF continues to meet its commitment tothe development of Indian law.

AVAILABLE FROM NILL

The NILL Catalogue

One ofNILL's major contributions to the field ofIndian lawis the creation of the National Indian Law LibraryCatalogue: An Index to Indian Legal Materials and Resour­ces. The NILL Catalog lists all of NILL's holdings andincludes a subject index, an author-title table, a plaintiff­defendant table and a numerical listing. This reference toolis probably the best current reference tool in this subjectarea. It is supplemented periodically and is designed forthose who want to know what is available in any particulararea ofIndian law. (1,000 + pgs. Price: $75) (1985 Supple­ment $10; 1989 Supplement $30).

Bibliography on Indian Economic Development

Designed to provide aid on the development of essentiallegal tools for the protection and regulation of commercialactivities on Indian reservations. This bibliography providesa listing of articles, books, memoranda, tribal codes, andother materials on Indian economic development. 2nd edi­tion (60 pgs. Price: $30). (NILL No. 005166)

Indian Claims Commission Decisions

This 47-volumeset reports all of the Indian Claims Commis­sion decisions. An index through volume 38 is also available.The index contains subject, tribal and docket number list­ing. (47 volumes. Price $1,175). (Index priced separately at$25). (Available from the National Indian Law Library).

Prices subject to change

AVAILABLE FROM THE INDIAN LAW SUPPORTCENTER

A Manual for Protecting Indian Natural Resources.Designed for lawyers who represent Indian tribes or tribalmembers in natural resource protection matters, the focusof this manual is on the protection of fish, game, water,timber, minerals, grazing lands, and archaeological andreligious sites. Part I discusses the application of federaland common la.w to protect Indian natural resources. Part

Summer 1991

II consists of practice pointers: questions to ask whenanalyzing resource protection issues; strategy considera­tions; and the effective use of law advocates in resourceprotection. (151 pgs. Price $25).

A Manual on Tribal Regulatory Systems. Focusing on theunique problems faced by Indian tribes in designing civilregulatory ordinances which comport with federal andtribal law, this manual provides an introduction to the lawof civil regulation and a checklist of general considerationsin developing and implementing tribal regulatory schemes.It highlights those laws, legal principles, and unsettled issueswhich should be considered by tribes and their attorneys indeveloping civil ordinances, irrespective of the particularsubject matter to be regulated. (110 pgs. Price $25).

A Self Help Manual for Indian Economic Development.This manual is designed to help Indian tribes and organiza­tions on approaches to economic development which canensure participation, control, ownership, and benefits toIndians. Emphasizing the difference between tribaleconomic development and private business development,this manual discusses the task of developing reservationeconomies from th~ Indian perspective. It focuses on someof the major issues that need to be resolved in economicdevelopment and identifies options available to tribes. Themanual begins with a general economic developmentperspective for Indian reservations: how to identify oppor­tunities, and how to organize the internal tribal structw'e tobest plan and pursue economic development of the reser­vation. Other chapters deal with more specific issues thatrelate to the development ofbusinesses undertaken by tribalgovernment, tribal members, and by these groups with out­siders. (Approx. 300 pgs. Price $35).

Handbook of Federal Indian Education Laws. This hand­book discusses provisions of major federal Indian educationprograms in terms of the legislative history, historicproblems in implementation, and current issues in this radi­cally changing field. (130 pgs. Price $20).

1986 Update to Federal Indian Education Law Manual($30) Price for manual and update ($45).

A Manual On the Indian Child Welfare Act and Law Af·fecting Indian Juveniles. This fifth Indian Law SupportCenter Manual is now available. This manual focuses on asection-by-section legal analysis of the Act, its applicability,policies, findings, interpretations, and definitions. With ad­ditional sections on post-trial matters and the legislativehistory, this manual comprises the most comprehensiveexamination of the Indian Child Welfare Act to date. (373pgs. Price $35).

PUBLICATIONS

ANNUAL REPORT. This is NARPs major report on itsprograms and activities. The Annual Report is distributedto foundations, major contributors, certain federal and stateagencies, tribal clients, Native American organizations, andto others upon request.

THE NARF LEGAL REVIEW is published by the NativeAmerican Rights Fund. Third class postage paid atBoulder, Colorado. Ray Ramirez, Editor. There is nocharge for subscriptions.

Tax Status. The Native American Rights Fund is a non­profit, charitable organization incorporated in 1971 underthe laws of the District of Columbia. NARF is exempt fromfederal income tax under the provisions of Section 501 (c)(3) of the Internal Revenue Code, and contributions toNARF are tax deductible. The Internal Revenue Servicehas ruled that NARF is not a "private foundation" as definedin Section 509(a) of the Internal Revenue Code.

Main Office: Native American Rights Fund, 1506 Broad­way, Boulder, Colorado 80302 (303-447-8760).

D.C. Office: Native American Rights Fund, 1712 N Street,N.W., Washington,D.C. 20036 (202-785-4166).

Alaska Office: Native American Rights Fund, 310 K Street,Suite 708, Anchorage, Alaska 99501 (907-276-0680).

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L ,." ,,,"_"__"__'~_ .. ,NARF Legal Review 14 Summer 1991

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Willie Kasayulie, Richard G. Hill and Evelyn Stevenson were elected to NARFs Board of Directors during the fallBoard of Directors meeting.

Richard Hill, a member of the Oneida Tribe of Indians of Wisconsin, currently serves as the Tribe's chairman. He hashad a wide range ofexperience in tribal affairs working in areas of economic development, environmental concerns, gamingand finance.

Willie Kasayulie is a Yupik Eskimo from the Akiachak Native Community in Alaska. He is the Chief Executive Officerof the Akiachak Indian Reorganization Act Council and also serves as the Chairman of the Association of Village CouncilPresidents.

Evelyn Stevenson is a member of the Confederated Salish and Kootenai Tribes of the Flathead Reservation ofMontana.She is presently the attorney for the Tribes and was very involved in the development of the Tribal Court System.

r-, New Board Members Named

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NARF Legal Review 15 Summer 1991

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Native Arnerican Rights Fund

The Native American Rights Fund is a nonprofit or­ganization specializing in the protection of Indian rights.The priorities of NARF are (I) thc preservation of tribalexistence; (2) the protection of tribal natural resources; (3)the promotion of human rights; (4) the accountability ofgovernments to Native Americans: and (5) the developmentof Indian law.

Our work on behalf of thousands of America's Indiansthroughout the country is supported in large part by yourgenerous contributions. Your participation makes a bigdifference in our ability to continue to meet ever-increasingneeds of impoverished Indian tribes, groups and in­dividuals. The support needed to sustain our nationwideprogram requires your continued assistance .. Requests forlegal assistance, contributions, or other inquiries regardingNARF's services may be addressed to NARF's main office:l506 Broadway, Boulder, Colorado 80302 Telephone (303)447-8760.BOARD OF OlRI'£rORSRichard (Skip) Hayward, Chairman Mashantucket PequotAnthony L. Strong, Vice-chair" . Tlingit-KlukwanLionel Bordeaux" , , Ro~bud SiouxRick Hill. , " " " , ,.. " , , , ....•.. " "OneidaJohn R. Lewis- "" . , Mohave/PimaMahealani Kamauu ,.., .. Native HawaiianWillie Kasayulie.,. , ,,, .. ,, ..••..• ,,. YupikWilma Mankiller,. , " , " , , ••.••. CherokeeTwila Martin·,Kekahbah,,,,,,, " .. ". ., .. Turtle Mountain ChippewaCalvin Peters, , . Squaxin IslandE\'elyn Slevenson , , , "Salish-KootenaiEddie Tullis".", ,.", ,Poarch Band of CreeksVerna Williamson, .. ,... ,., , ". ,... ,. Isleta PuebloExecuthe Direclor: John E. Echohawk (Pawnee)Deputy Direclor: Ethel Abeila (Laguna Pueblo)

NARF Legal Review1506 Broadway

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