I. No Word for Religion: The Distinctive Contours of Native American Religions A. Fundamental Diversity We often refer to Native American religion or spirituality in the singular, but there is a fundamental diversity concerning Native American religious traditions. In the United States, there are more than five hundred recognized different tribes, speaking more than two hundred different indigenous languages, party to nearly four hundred different treaties, and courted by missionaries of each branch of Christianity. With traditional ways of life lived on a variety of landscapes, riverscapes, and seascapes, stereotypical images of buffalo-chasing nomads of the Plains cannot suffice to represent the people of Acoma, still raising corn and still occupying their mesa-top pueblo in what only relatively recently has come to be called New Mexico, for more than a thousand years; or the Tlingit people of what is now Southeast Alaska whose world was transformed by Raven, and whose lives revolve around the sea and the salmon. Perhaps it is ironic that it is their shared history of dispossession, colonization, and Christian missions that is most obviously common among different Native peoples. If “Indian” was a misnomer owing to European explorers’ geographical wishful thinking, so too in a sense is “Native American,”a term that elides the differences among peoples of “North America” into an identity apparently shared by none at the time the continents they shared were named for a European explorer. But the labels deployed by explorers and colonizers became an organizing tool for the resistance of the colonized. As distinctive Native people came to see their stock rise and fall together under “Indian Policy,” they resourcefully added that Native or Indian identity, including many of its symbolic and religious emblems, to their own tribal identities. A number of prophets arose with compelling visions through which the sacred called peoples practicing different religions and speaking different languages into new identities at once religious and civil. Prophetic new religious movements, adoption and adaptation of Christian affiliation, and revitalized commitments to tribal specific ceremonial complexes and belief systems alike marked religious responses to colonialism and Christian missions. And religion was at the heart of negotiating these changes. “More than colonialism pushed,” Joel Martin has memorably written, “the sacred pulled Native people into new religious worlds.”(Martin) Despite centuries of hostile and assimilative policies often designed to dismantle the structures of indigenous communities, language, and belief systems, the late twentieth century marked a period of remarkable revitalization and renewal of Native traditions. Built on centuries of resistance as well as strategic accommodations, Native communities from the 1960s on have vigorously pressed their claims to religious self-determination. B. “Way of Life, not Religion” In all their diversity, people from different Native nations hasten to point out that their respective languages include no word for “religion”, and maintain an emphatic distinction between ways of life in which economy, politics, medicine, art, agriculture, etc., are ideally integrated into a spiritually-informed whole. As Native communities try to continue their traditions in the context of a modern American society that conceives of these as discrete segments of human thought and activity, it has not been easy for Native communities to accomplish this kind of integration. Nor has it been easy to to persuade others of, for example, the spiritual importance of what could be construed as an economic activity, such as fishing or whaling. C. Oral Tradition and Indigenous Languages Traversing the diversity of Native North American peoples, too, is the primacy of oral tradition. Although a range of writing systems obtained existed prior to contact with Europeans, and although a variety of writing systems emerged from the crucible of that contact, notably the Cherokee syllabary created by Sequoyah and, later, the phonetic transcription of indigenous languages by linguists, Native communities have maintained living traditions with remarkable care through orality. At first glance, from the point of view of a profoundly literate tradition, this might seem little to brag about, but the structure of orality enables a kind of fluidity of continuity and change that has clearly enabled Native traditions to sustain, and even enlarge, themselves in spite of European American efforts to eradicate their languages, cultures, and traditions. In this colonizing context, because oral traditions can function to ensure that knowledge is shared with those deemed worthy of it, orality has proved to be a particular resource to Native elders and their communities, especially with regard to maintaining proper protocols around sacred knowledge. So a commitment to orality can be said to have underwritten artful survival amid the pressures of colonization. It has also rendered Native traditions particularly vulnerable to exploitation. Although Native communities continue to privilege the kinds of knowledge kept in lineages of oral tradition, courts have only haltingly recognized the evidentiary value of oral traditions. Because the communal knowledge of oral traditions is not well served by the protections of intellectual property in western law, corporations and their shareholders have profited from indigenous knowledge, especially ethnobotanical and pharmacological knowledge with few encumbrances or legal contracts. Orality has also rendered Native traditions vulnerable to erosion. Today, in a trend that linguists point out is global, Native American languages in particular are to an alarming degree endangered languages. In danger of being lost are entire ways of perceiving the world, from which we can learn to live more sustainable, balanced, lives in an ecocidal age. D. “Religious” Regard for the Land In this latter respect of being not only economically land-based but culturally land-oriented, Native religious traditions also demonstrate a consistency across their fundamental diversity. In God is Red,Vine Deloria, Jr. famously argued that Native religious traditions are oriented fundamentally in space, and thus difficult to understand in religious terms belonging properly tothe time-oriented traditions of Christianity and Judaism. Such a worldview is ensconced in the idioms, if not structures, of many spoken Native languages, but living well on particular landscapes has not come naturally to Native peoples, as romanticized images of noble savages born to move silently through the woods would suggest. For Native peoples, living in balance with particular landscapes has been the fruit of hard work as well as a product of worldview, a matter of ethical living in worlds where non human life has moral standing and disciplined attention to ritual protocol. Still, even though certain places on landscapes have been sacred in the customary sense of being wholly distinct from the profane and its activity, many places sacred to Native peoples have been sources of material as well as spiritual sustenance. As with sacred places, so too with many sacred practices of living on landscapes. In the reckoning of Native peoples, pursuits like harvesting wild rice, spearing fish or hunting certain animals can be at once religious and economic in ways that have been difficult for Western courts to acknowledge. Places and practices have often had both sacred and instrumental value. Thus, certain cultural freedoms are to be seen in the same manner as religious freedoms. And thus, it has not been easy for Native peoples who have no word for “religion” to find comparable protections for religious freedom, and it is to that troubled history we now turn. II. History of Native American Religious and Cultural Freedom A. Overview That sacred Native lifeways have only partly corresponded to the modern Western language of “religion,” the free exercise of which is ostensibly protected by the First Amendment of the U.S. Constitution, has not stopped Native communities from seeking protection of their freedom to exercise and benefit from those lifeways. In the days of treaty making, formally closed by Congress in 1871, and in subsequent years of negotiated agreements, Native communities often stipulated protections of certain places and practices, as did Lakota leaders in the Fort Laramie Treaty when they specifically exempted the Paha Sapa, subsequently called the Black Hills from land cessions, or by Ojibwe leaders in the 1837 treaty, when they expressly retained “usufruct” rights to hunt, fish, and gather on lands otherwise ceded to the U.S. in the treaty. But these and other treaty agreements have been honored neither by American citizens nor the United States government. Native communities have struggled to secure their rights and interests within the legal and political system of the United States despite working in an English language and in a legal language that does not easily give voice to Native regard for sacred places, practices, and lifeways. Although certain Native people have appealed to international courts and communities for recourse, much of the material considered in this website concerns Native communities’ efforts in the twentieth and twenty-first century to protect such interests and freedoms within the legal and political universe of the United States. B. Timeline 1871 End of Treaty Making
Congress legislates that no more treaties are to be made with tribes and claims “plenary power” over Indians as wards of U.S. government. 1887-1934 Formal U.S. Indian policy of assimilation
dissolves communal property, promotes English only boarding school education, and includes informal and formalized regulation and prohibition of Native American ceremonies. At the same time, concern with “vanishing Indians” and their cultures drives a large scale effort to collect Native material culture for museum preservation and display. 1906 American Antiquities Act
Ostensibly protects “national” treasures on public lands from pilfering, but construes Native American artifacts and human remains on federal land as “archeological resources,” federal property useful for science. 1921 Bureau of Indian Affairs
Continuing an administrative trajectory begun in the 1880’s, the Indian Bureau authorized its field agents to use force and imprisonment to halt religious practices deemed inimical to assimilation. 1923 Bureau of Indian Affairs
The federal government tries to promote assimilation by instructing superintendents and Indian agents to supress Native dances, prohibiting some and limiting others to specified times. 1924 Pueblos make appeal for religious freedom protection
The Council of All the New Mexico Pueblos appeals to the public for First Amendment protection from Indian policies suppressing ceremonial dances. 1924 Indian Citizenship Act
Although uneven policies had recognized certain Indian individuals as citizens, all Native Americans are declared citizens by Congressional legislation. 1928 Meriam Report
Declares federal assimilation policy a failure 1934 Indian Reorganization Act
Officially reaffirms legality and importance of Native communities’ religious, cultural, and linguistic traditions. 1946 Indian Claims Commission
Federal Commission created to put to rest the host of Native treaty land claims against the United States with monetary settlements. 1970 Return of Blue Lake to Taos Pueblo
After a long struggle to win support by President Nixon and Congress, New Mexico’s Taos Pueblo secures the return of a sacred lake, and sets a precedent that threatened many federal lands with similar claims, though regulations are tightened. Taos Pueblo still struggles to safeguard airspace over the lake. 1972 Portions of Mount Adams returned to Yakama Nation
Portions of Washington State’s Mount Adams, sacred to the Yakama people, was returned to that tribe by congressional legislation and executive decision. 1978 American Indian Religious Freedom Act
Specifies Native American Church, and other native American religious practices as fitting within religious freedom. Government agencies to take into account adverse impacts on native religious freedom resulting from decisions made, but with no enforcement mechanism, tribes were left with little recourse. 1988 Lyng v. Northwest Indian Cemetery Protective Association
Three Calif. Tribes try to block logging road in federal lands near sacred Mt. Shasta Supreme Court sides w/Lyng, against tribes. Court also finds that AIRFA contains no legal teeth for enforcement. 1990 Employment Division, Department of Human Resources v. Smith
Oregon fires two native chemical dependency counselors for Peyote use. They are denied unemployment compensation. They sue. Supreme Court 6-3 sides w/Oregon in a major shift in approach to religious freedom. Scalia, for majority: Laws made that are neutral to religion, even if they result in a burden on religious exercise, are not unconstitutional. Dissent identifies this more precisely as a violation of specific congressional intent to clarify and protect Native American religious freedoms 1990 Native American Graves and Repatriation Act (NAGPRA)
Mandates return of human remains, associated burial items, ceremonial objects, and “cultural patrimony” from museum collections receiving federal money to identifiable source tribes. Requires archeologists to secure approval from tribes before digging. 1990 “Traditional Cultural Properties”
Designation created under Historic Preservation Act enables Native communities to seek protection of significant places and landscapes under the National Historic Preservation Act. 1993 Religious Freedom Restoration Act
Concerning Free Exercise Claims, the burden should be upon the government to prove “compelling state interest” in laws 1994 Amendments to A.I.R.F.A
Identifies Peyote use as sacramental and protected by U.S., despite state issues (all regs must be made in consultation with reps of traditional Indian religions. 1996 President Clinton’s Executive Order (13006/7) on Native American Sacred Sites
Clarifies Native American Sacred Sites to be taken seriously by government officials. 1997 City of Bourne v. Flores
Supreme Court declares Religious Freedom Restoration Act unconstitutional 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA)
Protects religious institutions’ rights to make full use of their lands and properties “to fulfill their missions.” Also designed to protect the rights of inmates to practice religious traditions. RLUIPA has notably been used in a number of hair-length and free-practice cases for Native inmates, a number of which are ongoing (see: Greybuffalo v. Frank). III. Contemporary Attempts to Seek Protection Against the backdrop, Native concerns of religious and cultural freedoms can be distinguished in at least the following ways.
- Issues of access to, control over, and integrity of sacred lands
- Free exercise of religion in public correctional and educational institutions
- Free Exercise of “religious” and cultural practices prohibited by other realms of law: Controlled Substance Law, Endangered Species Law, Fish and Wildlife Law
- Repatriation of Human Remains held in museums and scientific institutions
- Repatriation of Sacred Objects/Cultural Patrimony in museums and scientific institutions
- Protection of Sacred and Other Cultural Knowledge from exploitation and unilateral appropriation (see Lakota Elder’s declaration).
In their attempts to press claims for religious and cultural self-determination and for the integrity of sacred lands and species, Native communities have identified a number of arenas for seeking protection in the courts, in legislatures, in administrative and regulatory decision-making, and through private market transactions and negotiated agreements. And, although appeals to international law and human rights protocols have had few results, Native communities bring their cases to the court of world opinion as well. It should be noted that Native communities frequently pursue their religious and cultural interests on a number of fronts simultaneously. Because Native traditions do not fit neatly into the category of “religion” as it has come to be demarcated in legal and political languages, their attempts have been various to promote those interests in those languages of power, and sometimes involve difficult strategic decisions that often involve as many costs as benefits. For example, seeking protection of a sacred site through historic preservation regulations does not mean to establish Native American rights over access to and control of sacred places, but it can be appealing in light of the courts’ recently narrowing interpretation of constitutional claims to the free exercise of religion. Even in the relative heyday of constitutional protection of the religious freedom of minority traditions, many Native elders and others were understandably hesitant to relinquish sacred knowledge to the public record in an effort to protect religious and cultural freedoms, much less reduce Native lifeways to the modern Western terms of religion. Vine Deloria, Jr. has argued that given the courts’ decisions in the 1980s and 1990s, especially in the Lyng and Smith cases, efforts by Native people to protect religious and cultural interests under the First Amendment did as much harm as good to those interests by fixing them in written documents and subjecting them to public, often hostile, scrutiny. A. First Amendment Since the 1790s, the First Amendment to the Constitution has held that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The former of the amendment’s two clauses, referred to as the “establishment clause” guards against government sponsorship of particular religious positions. The latter, known as the “free exercise” clause, protects the rights of religious minorites from government interference. But just what these clauses have been understood to mean, and how much they are to be weighed against other rights and protections, such as that of private property, has been the subject of considerable debate in constitutional law over the years. Ironically, apart from matters of church property disposition, it was not until the 1940s that the Supreme Court began to offer its clarification of these constitutional protections. As concerns free exercise jurisprudence, under Chief Justices Warren and Burger in the 1960s and 1970s, the Supreme Court had expanded free exercise protection and its accommodations considerably, though in retrospect too few Native communities were sufficiently organized or capitalized, or perhaps even motivated, given their chastened experience of the narrow possibilities of protection under U.S. law, to press their claims before the courts. Those communities who did pursue such interests experienced first hand the difficulty of trying to squeeze communal Native traditions, construals of sacred land, and practices at once economic and sacred into the conceptual box of religion and an individual’s right to its free exercise. By the time more Native communities pursued their claims under the free exercise clause in the 1980s and 1990s, however, the political and judicial climate around such matters had changed considerably. One can argue it has been no coincidence that the two, arguably three, landmark Supreme Court cases restricting the scope of free exercise protection under the Rehnquist Court were cases involving Native American traditions. This may be because the Court agrees to hear only a fraction of the cases referred to it. In Bowen v. Roy 476 U.S. 693 (1986), the High Court held against a Native person refusing on religious grounds to a social security number necessary for food stamp eligibility. With even greater consequence for subsequent protections of sacred lands under the constitution, in Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988), the High Court reversed lower court rulings which had blocked the construction of a timber road through high country sacred to California’s Yurok, Karok and Tolowa communities. In a scathing dissent, Harry Blackmun argued that the majority had fundamentally misunderstood the idioms of Native religions and the centrality of sacred lands. Writing for the majority, though, Sandra Day O’Connor’s opinion recognized the sincerity of Native religious claims to sacred lands while devaluing those claims vis a vis other competing goods, especially in this case, the state’s rights to administer “what is, after all, its land.” The decision also codified an interpretation of Congress’s legislative protections in the 1978 American Indian Religious Freedom Act as only advisory in nature. As of course happens in the U.S. judical system, such decisions of the High Court set new precedents that not only shape the decisions of lower courts, but that have a chilling effect on the number of costly suits brought into the system by Native communities. What the Lyng decision began to do with respect to sacred land protection, was finished off with respect to restricting free exercise more broadly in the Rehnquist Court’s 1990 decision in Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990). Despite nearly a century of specific protections of Peyotism, in an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be Peyote ingesting members of the Native American Church, a religious organization founded to secure first amendment protection in the first place, the court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists. Writing for the majority, Justice Scalia’s opinion reframed the entire structure of free exercise jurisprudence, holding as constitutional laws that do not intentionally and expressly deny free exercise rights even if they have the effect of the same. A host of minority religious communities, civil liberties organizations, and liberal Christian groups were alarmed at the precedent set in Smith. A subsequent legislative attempt to override the Supreme Court, the Religious Freedom Restoration Act, passed by Congress and signed into law in 1993 by President Clinton was found unconstitutional in City of Bourne v. Flores (1997), as the High Court claimed its constitutional primacy as interpreter of the constitution. i. Sacred Lands In light of the ruling in Lyng v. Northwest Cemetery Protective Association (1988) discussed immediately above, there have been few subsequent attempts to seek comparable protection of sacred lands, whether that be access to, control of, or integrity of sacred places. That said, three cases leading up to the 1988 Supreme Court decision were heard at the level of federal circuit courts of appeal, and are worthy of note for the judicial history of appeals to First Amendment protection for sacred lands. In Sequoyah v. Tennessee Valley Authority, 19800 620 F.2d 1159 (6th Cir. 1980), the court remained unconvinced by claims that a proposed dam’s flooding of non-reservation lands sacred to the Cherokee violate the free excersice clause. That same year, in Badoni v. Higginson, 638 F. 2d 172 (10th Cir. 1980), a different Circuit Court held against Navajo claims about unconstitutional federal management of water levels at a am desecrating Rainbow Arch in Utah. Three years later, in Fools Crow v. Gullet, 760 F. 2d 856 (8th Cir. 1983), cert. Denied, 464 U.S.977 (1983), the Eighth Circuit found unconvincing Lakota claims to constitutional protections to a vision quest site against measures involving a South Dakota state park on the site. ii. Free Exercise Because few policies and laws that have the effect of infringing on Native American religious and cultural freedoms are expressly intended to undermine those freedoms, the High Court’s Smith decision discouraged the number of suits brought forward by Native communities under constitutional free exercise protection since 1990, but a number of noteworthy cases predated the 1990 Smith decision, and a number of subsequent free exercise claims have plied the terrain of free exercise in correctional institutions. Employment Division, State of Oregon v. Smith (1990)
- Prison:Sweatlodge Case Study
- Eagle Feathers: U.S. v. Dion
- Hunting for Ceremonial Purposes:Frank v. Alaska
iii. No Establishment As the history of First Amendment jurisprudence generaly shows (Flowers), free exercise protections bump up against establishment clause jurisprudence that protects the public from government endorsement of particular traditions. Still, it is perhaps ironic that modest protections of religious freedoms of tiny minorities of Native communities have undergone constitutional challenges as violating the establishment clause. At issue is the arguable line between what has been understood in jurisprudence as governmental accommodations enabling the free exercise of minority religions and government endorsement of those traditions. The issue has emerged in a number of challenges to federal administrative policies by the National Park Service and National Forest Service such as the voluntary ban on climbing during the ceremonially significant month of June on what the Lakota and others consider Bear Lodge at Devil’s Tower National Monument. It should be noted that the Mountain States Legal Foundation is funded in part by mining, timbering, and recreational industries with significant money interests in the disposition of federal lands in the west. In light of courts’ findings on these Native claims to constitutional protection under the First Amendment, Native communities have taken steps in a number of other strategic directions to secure their religious and cultural freedoms. B. Treaty Rights In addition to constitutional protections of religious free exercise, 370 distinct treaty agreements signed prior to 1871, and a number of subsequent “agreements” are in play as possible umbrellas of protection of Native American religious and cultural freedoms. In light of the narrowing of free exercise protections in Lyng and Smith, and in light of the Court’s general broadening of treaty right protections in the mid to late twentieth century, treaty rights have been identified as preferable, if not wholly reliable, protections of religious and cultural freedoms.
Mille Lacs Case C. Intellectual Property Law Native communities have occasionally sought protection of and control over indigenous medicinal, botanical, ceremonial and other kinds of cultural knowledge under legal structures designed to protect intellectual property and trademark. Although some scholars as committed to guarding the public commons of ideas against privatizing corporate interests as they are to working against the exploitation of indigenous knowledge have warned about the consequences of litigation under Western intellectual property standards (Brown), the challenges of such exploitation are many and varied, from concerns about corporate patenting claims to medicinal and agricultural knowledge obtained from Native elders and teachers to protecting sacred species like wild rice from anticipated devastation by genetically modified related plants (see White Earth Land Recovery Project for an example of this protection of wild rice to logos (Washington Redskins controversy) and images involving the sacred Zia pueblo sun symbol and Southwest Airlines to challenges to corporate profit-making from derogatory representations of Indians (Crazy Horse Liquor case). D. Other Statutory Law A variety of legislative efforts have had either the express purpose or general effect of providing protections of Native American religious and cultural freedoms. Some, like the Taos Pueblo Blue Lake legislation, initiated protection of sacred lands and practices of particular communities through very specific legislative recourse. Others, like the 1990 Native American Graves Protection and Repatriation Act, enacted broad protections of Native American religious and cultural freedom [link to Troost case]. Culminating many years of activism, if not without controversy even in Native communities, Congress passed the American Indian Religious Freedom Act, signed into law in 1978 and amended in 1993, in order to recognize the often difficult fit between Native traditions and constitutional protections of the freedom of “religion” and ostensibly to safeguard such interests from state interference. Though much heralded for its symbolic value, the act was determined by the courts (most notably in the Lyng decision upon review of the congressional record to be only advisory in nature, lacking a specific “cause for action” that would give it legal teeth. To answer the Supreme Court’s narrowing of the scope of free exercise protections in Lyng and in the 1990 Smith decision, Congress passed in 2000 the Religious Land Use and Institutionalized Persons Act (RLUIPA) restoring to governments the substantial burden of showing a “compelling interest” in land use decisions or administrative policies that exacted a burden on the free exercise of religion and requiring them to show that they had exhausted other possibilities that would be less burdensome on the free exercise of religion. Two other notable legislative initiatives that have created statutory protections for a range of Native community religious and cultural interests are the 1966 National Historic Preservation Act and the Native American Language Act legislation beginning to recognize the significance and urgency of the protection and promotion of indigenous languages, if not supporting such initiatives with significant appropriations. AIRFA 1978
NAGPRA 1990 [see item h. below]
Native American Language Act
Religious Land Use and Institutionalized Persons Act (RLUIPA) 2000
National Historic Preservation Act [see item g below] E. Administrative and Regulatory Policy and Law As implied in a number of instances above, many governmental decisions affecting Native American religious and cultural freedom occur at the level of regulation and the administrative policy of local, state, and federal governments, and as a consequence are less visible to those not locally or immediately affected. F. Federal Recognition The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who know clearly who they are but who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination enacted through such laws as the 1975 Indian Self Determination and Education Act, which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally recognized the authority of recognized tribal governments to engage in casino gaming in cooperation with the states. Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies, and as a consequence numerous Native communities have stepped forward to apply for federal recognition in a lengthy, laborious, and highly-charged political process overseen by the Bureau of Indian Affairs, Office of Federal Acknowledgment. Some communities, like Michigan’s Little Traverse Band of Odawa have pursued recognition directly through congressional legislation. As it relates to concerns of Native American religious and cultural freedom, more is at stake than the possibility to negotiate with states for the opening of casinos. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act (item H. below).
G. Historic Preservation Because protections under the National Historic Preservation Act have begun to serve as a remedy for protection of lands of religious and cultural significance to Native communities, in light of first amendment jurisprudence since Lyng, it bears further mention here. Native communities seeking protections through Historic Preservation determinations are not expressly protecting Native religious freedom, nor recognizing exclusive access to, or control of sacred places, since the legislation rests on the importance to the American public at large of sites of historic and cultural value, but in light of free exercise jurisprudence since Lyng, historic preservation has offered relatively generous, if not exclusive, protection. The National Historic Preservation Act as such offered protection on the National Register of Historic Places, for the scholarly, especially archeological, value of certain Native sites, but in 1990, a new designation of “traditional cultural properties” enabled Native communities and others to seek historic preservation protections for properties associated “wit cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” The designation could include most communities, but were implicitly geared to enable communities outside the American mainstream, perhaps especially Native American communities, to seek protection of culturally important and sacred sites without expressly making overt appeals to religious freedom. (King 6) This enabled those seeking recognition on the National Register to skirt a previous regulatory “religious exclusion” that discouraged inclusion of “properties owned by religious institutions or used for religious purposes” by expressly recognizing that Native communities don’t distinguish rigidly between “religion and the rest of culture” (King 260). As a consequence, this venue of cultural resource management has served Native interests in sacred lands better than others, but it remains subject to review and change. Further it does not guarantee protection; it only creates a designation within the arduous process of making application to the National Register of Historic Places.
Nine Mile Canyon H. Repatriation/Protection of Human Remains, Burial Items, and Sacred Objects Culminating centuries of struggle to protect the integrity of the dead and material items of religious and cultural significance, Native communities witnessed the creation of an important process for protection under the 1990 Native American Graves and Repatriation Act. The act required museums and other institutions in the United States receiving federal monies to share with relevant Native tribes inventories of their collections of Native human remains, funerary objects, sacred objects, and objects of “cultural patrimony” (that is objects that were acquired from individuals, but which had belonged not to individuals, but entire communities), and to return them on request to lineal descendants or federally recognized tribes (or Native Hawaiian organizations) in those cases where museums can determine cultural affiliation, or as often happens, in the absence of sufficiently detailed museum data, to a tribe that can prove its cultural affiliation. The law also specifies that affiliated tribes own these items if they are discovered in the future on federal or tribal lands. Finally, the law also prohibits almost every sort of trafficking in Native American human remains, burial objects, sacred objects, and items of cultural patrimony. Thus established, the process has given rise to a number of ambiguities. For example, the law’s definition of terms gives rise to some difficulties. For example, “sacred objects” pertain to objects “needed for traditional Native American religions by their present day adherents.” Even if they are needed for the renewal of old ceremonies, there must be present day adherents. (Trope and Echo Hawk, 143). What constitutes “Cultural affiliation” has also given rise to ambiguity and conflict, especially given conflicting worldviews. As has been seen in the case of Kennewick Man the “relationship of shared group identity” determined scientifically by an archeologist may or may not correspond to a Native community’s understanding of its relation to the dead on its land. Even what constitutes a “real” can be at issue, as was seen in the case of Zuni Pueblo’s concern for the return of “replicas” of sacred Ahayu:da figures made by boy scouts. To the Zuni, these contained sacred information that was itself proprietary (Ferguson, Anyon, and Lad, 253). Disputes have arisen, even between different Native communities claiming cultural affiliation, and they are adjudicated through a NAGPRA Review Committee, convened of three representatives from Native communities, three from museum and scientific organizations, and one person appointed from a list jointly submitted by the other six.
I. International Law and Human Rights Agreements At least since 1923, when Haudenosaunee Iroqois leader Deskaneh made an appeal to the League of Nations in Geneva, Native communities and organizations have registered claims and concerns about religious and cultural freedoms with the international community and institutions representing it in a variety of ways. Making reference to their status as sovereign nations whose treaties with the U.S. have not been honored, frustrated with previous efforts to seek remedies under U.S. law, concerned with the capacity for constitutional protection of what are typically “group” and not individual rights, and sometimes spurned by questions about the rightful jurisdiction of the U.S., Native organizations have sought consideration of their claims before the United Nations and engaged in its consultations on indigenous rights. After years of such appeals and efforts, a nearly unanimous United Nations General Assembly passed the United Nations Declarations on the Rights of Indigenous Peoples The 1996 Declaration of the Rights of Indigenous Peoples includes reference [article 12] to the “right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects,; and the right to the repatriation of human remains.” Importantly, the Declaration does not exclude those communities whose traditions have been interrupted by colonization. Indigenous peoples are recognized as having “the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.” Also specified are their rights to their languages. An offshoot of the American Indian Movement, the International Indian Treaty Council is one such organization that has shifted its attention to the international arena for protections of indigenous rights, including those of religious and cultural freedom.]]
J. Negotiated Agreements and Private Transactions Many if not most Native claims and concerns related to religious and cultural freedoms have been and will continue to be raised and negotiated outside the formal legal and regulatory structures outlined above, and thus will seldom register in public view. In light of the career of Native religious and cultural freedoms in legislative and legal arenas, Vine Deloria, Jr., has suggested the possibilities of such agreements to reach Native goals without subjecting Native communities to the difficulties of governmental interference or public scrutiny of discreet traditions (Deloria 1992a). Still, the possibilities for Native communities to reach acceptable negotiated agreements often owe to the legal and political structures to which they have recourse if negotiations fail. The possibilities of such negotiated agreements also can be shaped by the pressures of public opinion on corporate or governmental interests.
Valley of the Shields/Weatherman’s Draw IV. Selected Past Native American Religious and Cultural Freedom Court Cases A. Land
Sequoyah v. Tennessee Valley Authority 620 F. 2d 1159 (6th Cir. 1980).
Dam’s Destruction of Sacred River/Land
Badoni v. Higginson 638 F 2d 172 (10th Cir. 1980).
Desecration of Rainbow Arch, Navajo Sacred Spot in Utah
Fools Crow v. Gullet 706 F. 2d. 856 (8th Cir. 1983), cert. Denied, 464 U.S. 977 (1983).
State Park on top of Vision Quest site in S. Dakota
Wilson v. Block 708F. 2d 735 (D.C. Cir. 1983); Hopi Indian Tribe v. Block; Navajo Medicine Men Assn’ v. Block
Expansion of Ski Area in San Francisco Peaks, sacred to Navaho and Hopi
Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988)
Logging Road in lands sacred to Yurok, Karok, and Tolowa B. Free Exercise
Bowen v. Roy 476 U.S. 693 (1986)
Native refusal of Social Security Number
U.S. v. Dion 476 U.S. 734
Sacramental Eagle Hunt contra Endangered Species Act
Frank v. State 604 P. 2d 1068 (Alaska 1979)
Taking moose out of season for potlatch
*Native American Church v. Navajo Tribal Council 272 F 2d 131 (10th Cir. 1959)
Peyotists vs. Tribal Gov’t Prohibiting Peyotism
People v. Woody 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964)
Groundbreaking recognition of Free Exercise exemption from State Ban.
Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990)
Denial of Peyotist’s unemployment compensation held constitutional C. Prison cases involving hair
*Standing Deer v. Carlson 831 F. 2d 1525 (9th Cir. 1987).
*Teterud v. Gilman 385 F. Supp. 153 (S. D. Iowa 1974) & New Rider v. Board of Education 480 F. 2d 693 (10th Cir. 1973), cert. denied 414 U.S. 1097, reh. Denied 415 U.S. 939
*Indian Inmates of Nebraska Penitentiary v. Grammar 649 F. Supp. 1374 (D. Neb. 1986) D. Human Remains/Repatriation
*Wana the Bear v. Community Construction, Inc. 180 Cal Rptr. 423 (Ct. App. 1982).
Historic Indian cemetery not a “cemetery.”
*State v. Glass 273 N.E. 2d 893 (Ohio Ct. App. 1971).
Ancient human remains not “human” for purposes of Ohio grave robbing statute
E. Treaty Rights Pertaining to Traditional/Sacred Practices
*U.S. v. Washington 384 F. Supp. 312 (W.D. Wash. 1974) aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976).
Boldt Decision on Salmon Fishing
*Lac Court Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F. 2d 341 (7th Cir.) Cert. denied, 464 U.S. 805 (1983) 653 F. Supp. 1420;
Fishing/Ricing/Gathering on Ceded Lands
Minnesota v. Mille Lacs Band of Chippewa Indians 124 F 3d 904 affirmed. (1999)
Fishing/Ricing/Gathering on Ceded Lands V. References & Resources Brown, Michael, Who Owns Native Culture (Cambridge, Mass: Harvard University Press, 2003). Burton, Lloyd Worship and Wilderness: Culture, Religion, and Law in the Management of Public Lands and Resources (Madison: University of Wisconsin Press, 2002). Deloria, Vine, Jr., “Secularism, Civil Religion, and the Religious Freedom of American Indians,” American Indian Culture and Research Journal 16:9-20 (1992).[a] Deloria, Vine, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,”in The State of Native America: Genocide, Colonization, and Resistance, ed. M. Annette Jaimes (Boston: South End Press, 1992).[b] Echo Hawk, Walter, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided (Fulcrum Publications, 2010). Fine-Dare, Kathleen, Grave Injustice: The American Indian Repatriation Movement and NAGPRA (Lincoln: University of Nebraska Press, 2002). Ferguson, T.J., Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems,” in Repatriation Reader, ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000) pp. 239-265. Gordon-McCutchan, R.C., The Taos Indians and the Battle for Blue Lake (Santa Fe, New Mexico: Red Crane Books, 1991). Gulliford, Andrew, Sacred Objets and Sacred Places: Preserving Tribal Traditions (Boulder: University Press of Colorado, 2000). Johnson, Greg, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007). King, Thomas F., Places that Count: Traditional Cultural Properties in Cultural Resource Management (Walnut Creek, Calif: Altamira Press, 2003). Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University of Kansas Press, 2001). Maroukis, Thomas A., Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010)Martin, Joel, The Land Looks After Us: A History of Native American Religion (New York: Oxford University Press, 2001). McLeod, Christopher (Producer/Director), In Light of Reverence, Sacred Lands Film Project, (Earth Image Films, La Honda Calif. 2000). McNally, Michael D., “Native American Religious Freedom Beyond the First Amendment,” in After Pluralism ed. Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010).
Mihesuah, Devon A., ed., Repatriation Reader: Who Owns American Indian Remains (Lincoln: University of Nebraska Press, 2000). Nabokov, Peter, A Forest of Time: American Indian Ways of History (New York: Cambridge University Press, 2002). Sullivan, Robert, A Whale Hunt (New York: Scribner, 2000). Trope, Jack F., and Walter Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader, ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000), pp. 123-168. Wenger, Tisa, We Have a Religion:The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009).