REVIEW

National Indian Law Library b

LEC~O'_O:4/1993

"I do not see a delegationfor the four-footed. I seeno seat for the eagles. Weforget and we considerourselves superior. But weare after all a mere part ofthe Creation. And, wemust consider tounderstand where we are.And, we stand somewherebetween the mountain andthe ant. Somewhere andonly there as part andparcel of the Creation."

Chief Oren LyonsOnondaga Faithkeeper 1977

and as to why the United Statesgovernment must be legally andmorally committed to preservingAmerican Indian, Eskimo, Aleut,and Native Hawaiian religiousrights and culture.

DISCRIMINATIONAND NATIVEAMERICAN

RELIGIOUS RIGHTSby Senator Daniel K. Inouye

I. IntroductionMankind has a dark side-the

age-old tendency to discriminateagainst others who are different.This Article shares my perspective asa United States Senator on the prob­lem of discrimination and how itaffects Native American humanrights issues under the jurisdiction ofthe Senate Select Committee onIndian Affairs.

A pressing human rights concernof the Committee at this time is thespecter of renewed religious discrimi­nation against American Indiantribal religion in the wake of thedramatic retreat from First Amend­ment protection by the SupremeCourt in Employment Div, Dept. ofHuman Resources of Oregon v.Smith. I This case is a noteworthyexample of the Court's denial ofprotection for a traditional AmericanIndian religion that predates inantiquity the writing of the FirstAmendment itself.

The unique cultures of America'sNative peoples are inseparable fromtheir religions.2 Religion pervadesthe traditional way of life of Ameri­can Indians,,3 These religions havebeen historically suppressed by theUnited States government in waysunprecedented for other religions,Siniih seriously weakened religiousfreedom in general by discardinglong-standing First Amendmentstandards .. This resulted in the

Summer1993

Volume 18, No.2

ContentsDiscrimination

and NativeAmericanReligious Rights 1

The Repressionof IndianReligiousFreedom 9

Native AmericanFree Exercise ofReligion Act of1993 S.I021:Backgroundand Call toAction 14

AmeriCan IndianReligious FreedomCoalition 16

Case Updates 17Available From NILL 17Available from the

Indian Law SupportCenter 18

NARF AttorneyResume 19

SECOND SPECIALEDITION ON

FREEDOM OFRELIGION: A TIME

FOR JUSTICE"Injustice anywhere is a threat

to justice everywhere. "Martin Luther King, Jr.

Editors Prologue: Guaranteedrights to religious freedom underthe First Amendment ofthe UnitedStates Constitution should haveprecluded the need for legislativeprotection for religious freedomfor American Indians. However,the Government's past discrim­inatory policies perpetuated thenation's ignorance of and preju­dices against Indian religions andtradition. With the passage of theAmerican Indian Religious Free­dom Act (AIRFA) in 1978, theUnited States resolved" ... toprotect and preserve for AmericanIndians their inherent right offreedom to believe, express andexercise the traditional religionsof the American Indian, Eskimo,Aleut, and Native Hawaiians,including but not limited to ac­cess to sites, use and possessionof sacred objects, and freedom toworship through ceremonials andtraditional rites." Since the pas­sage of AIRFA, the United Statesgovernment and its agencies haveapplied a limited and inconsistentinterpretation and application ofthe Act which has in turn gener­ated ineffective judicial protectionfor American Indian religions, aswitnessed by the recent SupremeCourt decisions.

This special issue of the~ARF Legal Review seeks toeducate the reader as to whyCongressional protection is needed

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immediate banding together ofchurch groups and religious organ­izations in a move to restore theFirst Amendment balancing test.4

The proposed legislation whichresulted, however, does not addressunique, historical Indian religiousdiscrimination problems. Thereremains a need for separate legis­lation to protect free exercise rightsof Native Americans, as well as toensure these citizens the guaranteedprotection of all other constitution­al provisions.

This Article first discusses thecompelling government interest ineliminating discrimination and thenecessity for all three branches of thefederal government to act togetherto combat intolerance and prejudice.Secondly, it focuses on the problemof religious discrimination againstNative Americans, which has inten­sified in the wake of recent decisionsof the Supreme Court. The issue ofreligious intolerance and discrimina­tion has been a serious human rightsproblem for indigenous peoples sinceChristopher Columbus set foot inthe New World. Congress has nowbeen relegated the responsibility tolegislatively grant statutory protectionfor our original inhabitants.5

II. The Government'sInterest In EradicatingDiscrimination

A. The Evils ofDiscriminationThe human spirit is a wonderful

thing. At its best, the good qualitiesof our fellow citizens may serve asan example to inspire us to live up toour lofty ideals and goals. Unfor­tunately, however, mankind had itsfr'ailties" The history of our speciesis fraught with instances whereunwarranted hatred and fear hasprecipitated great misery upon theinnocent.. Much of this darkness inthe human heart is manifestedby discrimination.

Discrimination is defined as"[u]nfair treatment or denial ofnormal privileges to persons becauseof their race, age, sex, nationality orreligion" 6 When effected throughthe machinery of the state, it canhave devastating impacts uponpeople, ranging flom deep psycho­logical scars upon young school­children,? to a separation of theraces,8 to the extreme of racial orcultural genocide" For victims of

discrimination, it matters littlewhether these impacts result frominvidious state action, or whetherthey are inflicted by less obviousapplications of facially neutral rules.9

In the United States, discriminationis illegal. It is prohibited by the Fifthand Fourteenth Amendments to theConstitution as well as by numerousfederal laws. Unfortunately, despiteour commitment to these EqualProtection ideals, discrimination hashad a long and troubling history inthis country. The manner in whichAmerica, the world's leadingdemocracy, treats our own racismand prejudice reveals much to theinternational community concerningour attitude about individual free­dom and human rights. Thiscountry's challenge in the waragainst discrimination is an on-goingone, as seen from the present resur­gence ofracism and intolerance. It isa continual struggle to eradicatediscrimination-a struggle thatrequires vigilant commitment fromall three branches of government.

Presently there is a disturbingtrend in many areas of our countryin the direction of intolerance andracism. Especially objectionable is anapparent lack of leadership by allthree branches of our government incombating this menace to our society.When the executive branch weakensits resolve to enforce civil rights

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laws, or the judiciary retreats flomprior rules of law and dilutes funda­mental freedoms enshrined in theBill of Rights, it falls upon theCongress to increase its vigilancein opposing discriminationthrough legislation.

History teaches the importance inevery society of preventing the oc­currence of outbreaks of discrimina­tory acts and practices and of theneed to vigorously enforce humanrights guarantees. In those nationswhich have permitted equal rightsfor all its citizens to lapse due to lackof government enforcement, serioushuman violations have quicklyappeared. Almost universally, theseviolations have had rippling effectsinfringing on the rights of all citi­zens. Once minority groups fellvictim to officially sanctioned dis­crimination, it was not long beforedeath camps arose in nations such asCambodia, Nazi Germany and theU.S.S.R. In many newly-establishednations that formerly were colonies,while freedom for the majority wasachieved, the indigenous populationwas excluded from the body politic.Widespread cultural and racialgenocide was the consequence. Thisis presently evident in some Centraland South American nations, as wellas in South Afdca.

If America is to provide strongmoral leadership in the world todayas a much needed beacon for free­dom, our indigenous policies need tobe vastly different from countriessuch as South Africa, which havequestionable standing in the inter­national community as a result ofmistreatment of their originalinhabitants. Like us, many nationsare former colonies, and the way inwhich they treat their indigenouspopulations reflects their intrinsicvalues. Even if constitutional rightsare ensured for a majority of society,a denial of constitutional protectionfor indigenous people is a heavymoral weight that may cloud ademocracy's human rightsforeign policy.,

America's treatment of its nativepeople is especially important, fordomestic and international reasons"Domestically, it is true that all racesand ethnic groups have historicallyfaced various forms of discriminationin the United States, but the manner

in which our country treats its in­digenous native peoples provides ageneral barometer of our overallcommitment to justice and freedom.As Felix S. Cohen, the "father" ofFederal Indian law aptly stated in1953, "[l]ike the miner's canary, theIndian marks the shifts from freshair to poison gas in our politicalatmosphere; and our treatment ofIndians, even more than our treat­ment of other minorities, reflects therise and fall in our democratic faith.•••"10 Cohen realized that unless ourgovernment institutions and socialpolicy can protect America's smallest,poorest and weakest minority groupfrom discrimination and injustice,they may also lack the strength andwill to accord equal protection forthe rest of society. What may be atrickling stream when one consti­tutional right is lost or the rights ofone group are taken away, maybecome a tidal wave when otherrights are also denied.

Cohen's "miner's canary" concernhas proven true in the area of re­ligious freedom, where the SupremeCourt recently stripped NativeAmericans of free exercise rights inboth Lyng v. Northwest IndianCemetery Protective Associationll

and Smith. 12 These troubling casesnot only pave the way for uncheckedreligious discrimination againstNative Americans who have alreadysuffered a long and shameful historyof government religious suppression,but they also seriously weakenreligious liberty for all Americans..

B. The Equal Protection RemedyThe Fourteenth Amendment to

the United States Constitution13

guarantees that states will not denyindividuals either due process or theequal protection of the law. TheFifth Amendmentl4 binds the federalgovernment to those same assurances.Equal protection of the law assuresthat persons who are similarlysituated will be treated in a similarmanneLIS The Founding Fathers ofour nation perceived that, under ourdemocratic system, there existed areal danger of oppression to whichminority groups would be su~jected

by the rule of the majority" Thecreation of the Equal ProtectionClause was seen as a way to elimi-

nate this threat and conespondinglyprotect the rights of minorities.

Although the Fifth and Four­teenth Amendments were created toprotect minority freedoms, it wasnot until recently that the courtshave construed the Equal ProtectionClause in a manner consistent withthis original intent. A pertinentexample of the narrow interpretationthe judiciary has taken in this regardoccurred in 1896 when the SupremeCourt approved the "separate butequal" doctrine in Plessy v. Fer­gusOn. 16 That antiquated doctrineauthorized invidious racial segrega­tion and discrimination againstAfrican Americans to exist as amatter of basic social policy. Thisfostered immeasurable harm to

minorities and demonstrated thatsometimes even a revered institutionsuch as the United States SupremeCourt cannot rise above prevailingsocial prejudices of the day. TheCourt justified the "separate butequal" doctrine with only thinly­veiled judicial sophistry.

We consider the underlyingfallacy of the plaintiff'S ar­gument to consist of theassumption that the enforcedseparation of the two racesstamps the coloredraces witha badge of inferiority. If thisbe so, it is not by reason ofanythingfoundin the act, butsQlely because the coloredrace chose to put that con­struction upon it. 17

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The soul-crushing racism of the"separate but equal" doctrine con­tinued unabated in the United States,without question from the executiveand legislative branches until 1953.In that year Thurgood Marshallargued and won the landmark caseof Brown v. Board ofEducation. ISIn Brown, the Supreme Courtrecognized that segregation ofschoolchildren on the basis of race"generates a feeling of inferiority asto their status in the community thatmay affect their hearts and minds ina way unlikely ever to be undone"19and held that "in the field of publiceducation the doctrine of 'separatebut equal' has no place. Separateeducational facilities are inherent-ly unequal.''20

It is difficult today for us tocontemplate how our SupremeCourt ever resolved to deny impor­tant human rights safeguards tomany of our citizens, so repugnant isthe former interpretation of theEqual Protection Clause to contem­porary beliefs. The harm suffered bymillions of people was real andremains a permanent scar in the livesof many Americans today. For thesake of those victims and any pos­sible future victims, we must bevigilant against future confusion inaffording equal treatment for allcitizens under the law.

Other examples demonstrate thatbreaches in equal protection prin­ciples, although they be of briefduration, may have lasting adverseaffects upon the casualties ofdiscrimination. At the beginning ofWorld War II, the United Statesgovernment removed about 120,000Japanese-Americans from theirhomes and placed them in intern­ment camps. This mass confinementwas a serious curtailment of the civilrights of this minority group,effected solely on the basis of raceand without regard for the constitu­tional rights of American citizens.The United States Congress author­ized this unjust policy, and it was inturn implemented by the executivebranch of our government. It wasreviewed and approved by theSupreme Court in Mirabayashi v.United States21 and in Korematsu v.United States. 22 Although it is shock­ing for us today to realize that an

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entire ethnic group was incarcerated,at one time in our history, for noreason other than its racial affili­ation, it was not until one generationlater, in 1988, that this miscarriageof justice was rectified when Con­gress acted to grant reparations tothe internees~23

Traditionally, in analyzing equalprotection challenges, the Courtapplies a two-tier level of review.24

The extent to which a law mustsatisfy the Equal Protection Clauseis dependent upon a determinationof the purpose that was intended bythe legislation and the relationshipthat the different treatment has toachieving the particular governmen­tal aim.25

The mere rationality level ofreview is applied to classificationsmade on the basis of economics orother social legislation. Such lawsare su~ject only to very limitedreview. There is a presumption thatthe law is valid. A challenger mustshow that the law has no rationalrelationship to any legitimategovernment objective.26

C. The EqualProtectionStandard ofReview

and the American Indian

When a law affects a suspectclassification or places a significantburden on the exercise of a funda­mental right, it will be strictlyscrutinized and upheld only if it isnecessary to achieve a compellingstate o~jective and no less burden­some means are available to achievethat endP There is no longer apresumption of constitutionality,requiring the government to satisfy aheavy and difficult burden. Classi­fications based upon race andnational origin have been held to besuspect, requiring this stringent typeof review.. 28

Suspect classes are determined byconsidering factors such as a historyof pervasive discrimination againstthe class, the stigmatizing effect ofthe classification, the fact that theclassification is based on an im­mutable characteristic beyond aperson's ability to control, and theconsideration that the discriminationis against a discrete and insularminority.29 In order to qualify as a

suspect class, the group of personsaffected by the classification must besomehow disadvantaged because ofprior discriminatory treatment.30

Recently the Court has reviewedseveral cases in which the judiciarydeclined to treat with deferencelegislative determinations creatingthe affected classifications. Anintermediate level of review appearsto have been employed-suchclassifications must be substantiallyrelated to an important governmentinterest.31 This standard of reviewhas been applied to classificationsaffecting gender and illegitimacy.32

It cannot be disputed that theAmerican Indian is entitled to betreated the same as other UnitedStates citizens under the Consti­tution. Early Supreme Court de­cisions such as Yick Wo v. Hopkins33

and Wong Wing v. United States34

clearly established that the guaran­tees of the Equal Protection Clauseapplied universally "to all personswithin the teuitorial jurisdiction ofthe United States. ''35 Yet in con­sidering equal protection challengesin cases affecting Indians, theanalysis used by the courts differsfrom the traditional equal protectionstandard of review, regardless ofwhether these claims are broughtunder the United States Constitutionor the Indian Civil Rights Act,36

Legislation affecting the AmericanIndian is enacted to deal with the"so-called 'Indian problem.' [W]eoften talk about the 'Indian problem'as if it were a disease..... ,''37 Earlyequal protection cases establishedthat legislation affecting Indians \vasconstitutionally valid as long as itwas based, not on race, but insteadon "the political or ancestral affili-

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ation of an individual to a tribe. Ifthat affiliation were severed, theindividual would no longer beconsidered an Indian within themeaning of the legislation. ''38

Modern federal court decisionshave analyzed equal protection as itapplies to Indians in an unusualmanner. Rather than consideringsuch legislation as classificationsbased on race, such laws are heldto intend to promote the "trustresponsibility" that the federalgovernment has toward Indians whoeither are members of tribes that fallwithin the United States' trustrelationship, or who have ancestralties to persons who are tribalmembers. Courts then test this typeof legislation with a standard ofreview that is not applied to otherclassifications.. Laws are valid if theyar'e "rationally" related to achievingCongress' "unique" obligationtoward Indians.39

My personal opinion is that aslong as we profess to strive to main­tain democratic principals and seekto provide leadership for the freeworld, we must not acquiesce to theexistence of discrimination againstany group within our society, andespecially not against our originalinhabitants. As stated by one com­mentator: "What is needed is a newperception of the Indian, a percep­tion of the Indian not as a problemto be corrected, but as peoples withrights, duties, and powers,"40

III. RELIGIOUSDISCRIMINATIONAGAINST NATIVEAMERICANS

A. History

Religious intolerance andsuppression of tribal religions ofNative Americans in the UnitedStates is not new.. In fact, this formof discrimination has characterizedthe relationship between our indige­nous population and newcomersfrom Europe for the past 500 years,On his first day in the WesternHemisphere, Christopher Columbusref~e~ted ~he prevailing view ofrehglolis Intolerance "when he pennedhis impression of the Indians heencountered: "I believe that theywould easily be made Christians

because it seemed to me that theyhad no religion. "41 In the minds ofEuropeans, tribal religions of theNew World were inferior.

When white men first wit­nessed Indians impersonat­ing animal spirits in costumeand dance, and worshippingrocks and rainbows, theyfailed to see this as a deepform of religious worship. Totheir Christian minds, thesewere deplorable pagan rites.Worship of more than onedeity, and sacrificial offer­ings, directed at the naturalworld, stamped Indians as amisguided, lesser form ofmankind. Here were Christ­less heathens crying to berescued from eternal dam­nation.42

Thus, it is not surprising­especially given Europe's ownheritage of religious discriminationamong unpopular Christian denomi­nations and against non-Christianworld religions-that intolerancebecame a basic feature in thePilgrims' and other colonists' rela­tionship with the Indians. Indeed,although early settlers came toAmerica to escape religious perse­cution, Old World prejudices weretransplanted in the Colonies, wherereligious discrimination soonbecame commonplace.43

The Establishment Clause of theFirst Amendment44 was intended tocurb these abuses of the colonists'religious freedom by preventingmajoritarian support for popularreligious denominations.45 From thebeginning, the federal government'seffort to convert Indians to Chris­tianity became a cornerstone of itsfederal Indian policy.46 As onecommentator noted:

The government and the re­ligious societies were inter­twined in their efforts tocivilize and Christianize theIndians throughout the nine­teenth Century. The govern­ment supported missionaries

with funds, assigned agenciesto religious societies, andprovided land for the buildingof churches. The question iswhether this interminglingconstituted an establishmentof religion.47

As may be expected, governmentviolation of Indian religious freedomsin respect to the EstablishmentClause was soon followed by anincursion on these freedoms alter­natively protected by the FreeExercise Clause, which prohibitsgovernmental intrusion on thepractice of religion. Outright pro­hibition of tribal religions by thefederal government began in the1890's. Federal troops slaughteredIndian practitioners of the GhostDance at Wounded Knee, andsystematically suppressed this tribalreligion on other Indian Reserva­tions. In 1892 and 1904, federalregulations outlawed the practiceof tribal religions entirely, andpunished Indian practitioners byeither confinement in the agencyprisons or by withholding rations,,48

This ban was not lifted until 1934,more than one generation later.Unfortunately, our government stillpersisted in infringing upon tribalreligious practices. Federal agentsaIIested Indians for possession ofsacred o~jects such as peyote, eaglefeathers, and the cut hair of Indianchildren. By authority of the federalgovernment, these agents alsoprohibited schoolchildren fromspeaking their native languages,prevented native access to holyplaces located on public lands,destroyed Indian sacred sites, andinterfered with tribal ceremonies.49

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In 1978, Congress sought toreverse this history by creating aresolution establishing a federalpolicy to preserve and protect NativeAmerican religious freedom.5o TheCommittees responsible for thismeasure stated: "America does notneed to violate the religions of hernative people. There is room for andgreat value in cultural and religiousdiversity. We would all be the poorerif these American Indian religionsdisappeared from the face ofthe Earth. "51

However, it requires cooperationfrom all three branches of govern­ment in our system to effectivelyimplement a Congressional policy.Unfortunately, such support was notforthcoming, and the enlightenedattitudes expressed in the Act inregard to Indian religious freedomhave never been effectuated.52 Thefederal courts have since ruled thatthis policy has no mechanism ofenforcement.53 As a result of recentdecisions denying Native Americansreligious freedom guaranteed by theFirst Amendment, it appears that weare regressing to a dark period whereonce again our government is allow­ing religious discrimination againstour indigenous citizens togo unchecked.

B. The Lyng and SmithDecisions

Alarmingly, the Supreme Courthas of late exhibited a growing in­sensitivity toward Native Americanreligious freedom. In Lyng v. North­west Indian Cemetery ProtectiveAssn,54 the Court allowed the ForestService to virtually destroy anancient Indian sacred site located onfederal land. The Court arrived atthis abominable decision by con­struing the Free Exercise Clause inthe most naITOW way imaginable,holding that this First Amendmentguarantee only provides protectionagainst laws which coerce citizens toviolate their religion or punishesthem for practicing their beliefs.55

As a result of Lyng, a growingnumber of iITeplaceable tribal sacredsites are no longer under governmentproteciion and are cUITentiy beingdestroyed. The desecration of Indianholy places causes great concern by

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those citizens interested in thecultural survival of the Indiannations, and distressed at what thisloss would mean to our nation'scultural heritage in general.However, the retreat from FirstAmendment religious protectionsignified by Lyng went largelyunnoticed, probably because theworship of the land, includingmountain tops and waterfalls, is apractice unique in our country toNative Americans.56

It was not until its 1990 decisionin Smith 57 that the Supreme Court'sinsensitivity to Native religiousrights came to the attention of thegeneral public. In that case, theCourt affirmed the decision of anOregon Employment Appeals Boarddenying unemployment compensa­tion to two Native Americans whowere terminated from their employ­ment as counselors with a substanceabuse rehabilitation center becauseof their participation in a sacra­mental peyote ceremony.

Peyote, used for centuries byIndians in religious ceremonies, is acactus plant that grows only alongthe Rio Grande River, near theTexas and Mexican border. Today,this religion is among the mostancient, largest and most con­tinuously practiced indigenousreligions in the Western Hemi­sphere.58 As found in Peoplev. Woody:59

Peyotism discloses a long his­tory. A reference to the re­ligious use of peyote inMexico appears in Spanishhistorical sources as early as1560. Peyotism spread fromMexico to the United Statesand Canada: American an­thropologists describe it aswell established in this coun­try during the latter part ofthe nineteenth century. To­day, Indians of many tribespractice Peyotism..60

Peyote is used as a sacrament, butit is considered by Native Americansto be more important in theirreligion than the use of wine inChristian services. The court inWooc1y stated: "Although peyote

serves as a sacramental symbolsimilar to bread and wine in certainChristian churches, it is more than asacrament. Peyote constitutes initself an object of worship; prayersare devoted to it much as prayers aredevoted to the Holy Ghost. "61

Federal law and twenty-eightstates have permitted the religioususe of peyote by Native Americansfor decades through statutory,administrative, or judicially-createdreligious exemptions from drug laws,and there has been no discerniblelaw enforcement, public safety orhealth problem created as a result ofthis policy. Although the state law ofOregon does not allow for such anexemption, the Supreme Court ofOregon determined that the decisionto disallow unemployment benefitsto two Native American rehabili­tation counselors could not with­stand federal constitutional scrutiny,,62

~==1Prior to Smith, it was settled

constitutional law that a two-partbalancing test would be used todetermine the validity of a law whichincidentally burdened religion. Onceparties challenging legislationdemonstrated that their belief wassincere and that the state actionimposed a substantial burden ontheir religious practice, the govern­ment was required to show that thelaw was enacted to achieve a com­pelling state interest by the leastrestrictive means available.63However, in Smith, the Court brokewith precedent and rejected thetraditional balancing test. Theprotection of the diversity ofminority religions in our countrywas found to be a "luxury"and theextension of First Amendmentguarantees to unpopular faithswould be "courting anarchy.''64

The decision also suggested thatthe Free Exercise Clause may notprotect religious adherents againstgovernment intrusion unless someother right guaranteed by the FirstAmendment was also affected.65 In aconcurTing opinion, Justice O'Connornevertheless strongly criticized themajority opinion for not applying the

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traditional standard of review in thiscase.66 Justice Blackmun wrote astrong dissent, joined by JusticesMarshall and Brennan.

For Indians, the decision in Smithcreates the frightening specter of areturn to the era when tribal peoplecould be imprisoned for practicingtheir religion. In the wake of Smith,the State of Oklahoma is cUrTentlyprosecuting an elderly, life-longmember of the Native AmericanChurch for possession of peyote. Asa result of the decisions in Smith andLyng, all of our indigenous inhabi­tants who wish to worship accordingto the dictates of their conscience arein danger. As Peterson Zah, Presi­dent of the Navajo Nation, in aplea for Indian religious libertyrecently stated:

Indians do not have the samereligious freedoms as otherAmericans, even thoughtheir ceremonies developedthousands of years beforeEuropeans-many of themfleeing religious persecu­tion-settled in the UnitedStates. . .. Respect shouldbe given to a religion thatdoes not involve going tochurch one day a week, butwhich is based on animals,the world and the universe,and whose church IS themountains, rivers, cloudsand sky ..... 67

After Cohen's allegorical "miner'scanary" was in effect snuffed out bythese decisions, religious organi­zations and constitutional scholarsfinally rose up to call to publicattention the fact that a cherishedconstitutional right was in danger ofbeing extinguished. As stated in arecent Time cover story:

For all the rifts among re­ligious and civil-libertariangroups, this decision broughta choir of outrage singingfull-voice. A whole clause ofthe Bill of Rights had beenabolished, critics charged,and the whole concept ofreligious freedom was nowimperiled. "On the reallysmall and odd religiousgroups," said University ofTexas' Laycock, "it's justopen season.. ''68

As federal courts are now con­strained to follow Smith, we canexpect a rash of decisions denyingcitizens who are not members ofmainstream Judeo-Christianreligions the protection of the FirstAmendment.69 Although the SolarzBill,70 proposed for the purpose ofrestoring the "compelling stateinterest" balancing test, is intendedto redress this situation, it does notdeal with concerns unique to thepractice of Native American re­ligions. Also, there is no guaranteethat the courts will not attempt toweaken this legislation in futureIndian religion cases.

IV. CONCLUSIONThe treatment of Native American

religious freedom and our govern­ment's attitudes toward their civilrights as citizens has been a long­standing problem. Today, 500 yearsafter Columbus arrived on thiscontinent, it is intolerable that our

Senator DanielK. Inouye, D-Hawaii.Member of u.s. Senate, Jan. 3, 1963­Jan. 3, 1993. Member of u.s. House ofRepresentatives, Aug. 21, 1959-Jan. 3,1963. Committees: Chairman,Committee on Indian Affairs; Appro­priations; Commerce; Science &Transportation; Rules & Administration.A.B., University ofHawaii; J.D., GeorgeWashington University. Member of theHawaii Bar.

~~1. Employment Div.. v. Smith, 110 S. Ct. 1595

(1990).2. See the findings of Congress in the American

Indian Religious Freedom Act of 1978, 92 Stat. 469(August 11, 1978), codified at 42 U.S"C.A.. 1996.

3. In Wisconsin v. Yoder, 406 U.s., 205,216-17 (1972) the Court found religion to be apervasive part oflife in the Amish society. I hisprinciple applies to the American Indian as well.

4.. See The Religious Freedom Restoration Act of1991 (H.R. 2797) sponsored inter alia by Represen­tative Stephen J. Solarz.

5. See Lyng v. Northwest Indian CemeteryProtective Association, 485 U.S. 439, 452-53;Smith, 110 S. Ct" at 1606.

6. Black's Law Dictionary 420 (5th ed. 1979)" InThe Random House Dictionary Of The EnglishLanguage (unabr" ed .., Random House, New York,1983), discrimination is defined to mean treatmentof a person based on the group, class, or categoryto which that person ...... belongs rather than onindividual merit: racial and religiou. intoleranceand discrimination. (emphasis added)"

7, Brown v" Board of Education, 347 U,S.. 483,494 (1953).

8" See Plessy v.. Fergeson, 163 U.S.. 539 (1896)(establishing the "separate but equal" doctrine)

9. See, e,.g., Yick Wo v. Hopkins, 118 U,S., 356(1885), where a facially neutral ordinance madelaundry businesses illegal in San Francisco, withcertain exceptions,. Though fair and impartial onits face, it was declared unconstitutional, because

original inhabitants are still hottreated as the equal of other citizensunder the Constitution. At thisjuncture in history, we are finallybecoming aware that the curtailmentof freedoms enshrined in the Bill ofRights in respect to certain minoritygroups may also affect the rights ofall citizens.

Because of the failure of thejudicial and executive branches ofgovernment in this regard, it is nowincumbent upon Congress to beginto focus on this serious human rightsproblem in our country, with a viewtowards redressing religious discrimi­nation against Native Americans.. Itis imperative that we guarantee thattheir freedom of worship is protected"This is mandated not only by theConstitution, but also by the trustrelationship between the federalgovernment and the Indian Tribalgovernments, which has beenhonored by all three branches of

the ordinance disparately impacted Chineseresidents and was administered discriminatorily ..

Though the law be fair on its face andimpartial in its appearance, yet, if it isapplied and administered by publicauthority with an evil eye and an unequalhand, so as practically to make unjust andillegal discriminations between persons insimilar circumstances, material to theirrights, the denial of equal justice is stillwithin the prohibition of the Constitution.

/d, at 373-74,Discrimination through facially neutral rules is

perhaps more invidious than overt discrimination,because it is harder to prove as racially motivatedand thus more difficult to ferret out. For example,a rule requiring English only in public schoolsseems fair and neutral on its face unless it isenforced, as it was in Lau v. Nichols, 414 U.S. 563(1974) in a school attended predominantly byChinese speaking students,

10.. Felix Cohen, Handbook Of Federal IndianLaw (The Michie Co., 1982 ed.).

11 .. Lyng, 485 U.S. at 439.12.. Smith, 110 S. Ct. at 1595.13. The Fourteenth Amendment provides in

pertinent part, "nor shall any State deprive anyperson of life, liberty, or property, without dueprocess of law; nor deny to any person within itsJurisdiction the equal protection of the laws," U.S.Const. amend. XlV..

14.. The Fifth Amendment provides in pertinentpart, "nor be deprived of life, liberty, or property,without due process of law." U.S.. Const. amend. V"

15. Royster Guano Co. v. Virginia, 253 U,S.. 412(1920). See also, Joseph Tussman and JacobustenBroek, The Equal Protection of the Laws, 37Cal. L. Rev. 341, 344 (1949).

16. Plessy, 163 U.S. at 538,l7./d, at 55t.i8, Brown, 347 U,S.. at 483,19" /d at 494.20./d at 494-95.21. Mirabayashi v, United States, 320 U.S,. 81

(1943),

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government since the 1830's.Today, there is a need for our

society to rededicate itself toallowing equal protection of the la\\for all citizens. With the collapse ofcommunism, historic opportunitiesexist for us to provide freedom andequality throughout the world" Thatinternational challenge cannot bemet if America's commitment toliberty for all is not strong. We musttake a stand to r~ject racism,discrimination and prejudice. It isnow time for us to accord respectand equality to American Indians,especially in regard to their right toworship in the manner that theirancestors have for centuries beforethem. If the First Americans cannotbe secure in such freedom, theliberty of all Americans standsin danger. (This article is reprintedwith permission from the Universityof Jfest Los Angeles Law Review,Volume 23, 1992.)

22. Korematsu v. United States, 323 U.S.. 214(1944).

23. Japanese Reparations Act, 50 U..S.C 1989(1988).. Many question the equity of this remedialact,.

24, Gerald Gunther, The Supreme Court /97/Term Forward:' /n Search ofEvolving Doctrine ona Changing Court" A Modelfor a Newer EqualProtection, 86 Harv. L. Rev. 1 (1972),

25.. Chicago Police Dept. v. Moseley, 408 U.S, 91(1972).

26. McGowan v. Maryland, 366 U.S. 425, 426(1961).

27.. This standard of review was applied in Shellyv,. Kramer, 334 U.S,. 1 (1948) where enforcement ofa racially restrictive covenant by state court,pursuant to the state's policy for enforcing suchagreements, constituted state action for the purposeof the Fourteenth Amendment.

28,. See, eg.., Koremat.u, 323 U.S. at 216(classifications involving race); Hernandez v,. Texas,347 U.S. 475 (1954) (classifications involvingnational origin); Sugarman v. Dougall, 413 U.S.624 (1973) (classifications involving alienage).

29. See United States v.. Carolene Product Co.,304 U.S. 144 (1938). Justice Stone stated thatcourts must protect certain "discrete and insularminorities," who are made victims of prejudicialattitudes and so are denied access to the "politicalprocesses ordinarily to be relied upon to protectminorities,." /d at 152 n..4" The Justice explainedthat legislation enacted that affects this type ofminority group must be "subjected to moreexacting judicial scrutiny under the generalprohibition of the 14th Amendment than are mostother types of legislation,." /d

30, San Antonio School District v,. Rodriguez,411 U.S. 1,28 (197.3) (one of the criteria to qualifyas a suspect class is that the particular class be"subjected to such a history of purposeful unequaltreatment, or relegated to such a position ofpolitical powerlessness as to command extra­ordinary protection from the majoritarian politicalprocess''),./d

7

8

31. See Trimble v. Gordon, 430 U.S. 762 (1977);Craig v. Boren, 429 U.S. 190 (1976).

32. See, e.g., Reed v. Reed, 404 U.S. 71 (1971)(gender); Trimble, 430 U.S. at 762 (illegitimacy);Weber v. Aetna Casualty & Surety Co., 406 U.S.164 (1972) (illegitimacy); Levy v. Louisiana, 391U.S. 68 (1968) (illegitimacy).

33. Yick Wo, 63 U.S. at 356 (equal protectionguarantees contained in the Fourteenth Amend­ment to the Constitution extend to all personswithin the territorial jurisdiction of the UnitedStates "without regard to any differences of race,or color, or of nationality.") Id. at 369.

34. Wong Wmg v. United States, 163 U.S. 223(1896) ("(A)JI persons within the territory of theUnited States are entitled to the protectionguaranteed by those amendments, and that evenaliens shall not be held to answer for a capital orother infamous crime, unless of a presentment to agrand jury, nor be deprived of life, Iiherty orproperty without due process oflaw.")ld. at 238.

35. Plyler v. Doe, 457 U.S. 202, 210-12 (1982).36. Ralph W. Johnson and E. Susan Crystal,

Inditms andEqualProtection, 54 WASH. L. REV.587, 588 (1979). The Indian Civil Rights Act iscodified at 25 U.S.C.1301-1341 (1976).

37. Rennard Strickland, Indian Law and Policy:The Historian's Viewpoint, 54 WASH. L. REV. 475(1979).

38.ld. at 594 (noting early cases such asMontoya v. United States, 180 U.S. 261 (1901) andUnited States v. Rogers, 45 U.S. (4 How.) 572(1846». The author notes that these cases referredto Indians as a "race," although more contem­porary cases do not. The contemporary concept ofthe race oflndians includes Indians from theCaribbean, Latin America and Canada, none ofwhom enjoy a special status under United Stateslaw. In addition, there are United States citizenswho, although racially Indian, do not share thespecial status. Reasons for that lack of statusinclude: (1) the tribe is one with which the UnitedStates has never assumed a trust relationship; (2)the tribe has been terminated by Congress, .see, e"g"25 U.S.C. § 564 (1976); and (3) the individual hassevered his or her tribal ties, see Standing Bear v.Crook, 25 F. Cas. 695 (C.C.D. Neb. 1879) (No.14,891).ld.

39. Johnson and Crystal, ,supra note 36, at 607.The authors state that this standard of review is"somewhat" greater than the mere rationality levelofreview, although it seemS to be closer to that testthan to strict scrutiny. Id.

40. Strickland, ,supra note 37, at 478.41. K. Sale, The Conquest Of Paradise, 96·97

(1990).42. P. Nabakov, Native American Testimony: An

~~~~)~Ogy Of Indian And White Relations, 60

43. See Everson v. Board of Education, 330 U.S.1,8·12 (1946).

44. The First Amendment provides: "Congressshall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; orabri~ging the freedom of speech, or of the press; orthe nght of the people to peaceably assemble, andto petition the Government for the redress ofgrievances." (emphasis added).. U.S" Const..amend. I..

45. Laurence H. Tribe, American ConstitutionalLaw, § 14-3 at 1158-61 (2d ed. 1988).

46. See, e"g.., Quick Bear v. Leupp, 210 U.S.. 50(1908) (government's use of federal funds toestablish a Catholic church on the RosebudIndian Reservation did not violate theEstablishment Clause).

47. The American Indian Religious Freedom ActReport, Federal Agencies Task Force, Secretary ofthe Interior (Department of the Interior, August,1979) at 3-6. This report recounts the history ofgovernment treatment oflndian religions and waspart of a study mandated by Section 2 of theAmerican Indian Religious Freedom Act (AIRFA),Pub. L. No. 95-34 1, Section 1, 92 Stat. 469 (1978)..See also, Martin, Constitutional Rights and IndianRites", An Uneasy Balance, in 3 Western LegalHistory 245, 246-252.

48. American Indian Religious Freedom ActReport, supra note 47, at 22; Regulations of theIndian Office, effective April 1, 1904, Secretary ofthe Interior (Washington: Government PrintingOffice, 1904) at 102-3.

49. See, Articles by Vine Deloria, Jr. and WalterEcho-Hawk in Special Edition On ReligiousFreedom: Today's Challenge, Vol.. 16, NativeAmerican Rights Fund Legal Review, (No.2,Summer 1991)..

50. AIRFA, supra note 47..51. H.R. Rep. No. 1308, 95th Cong", 2d. Sess. 3

(1978); S. Rep. No.. 709, 95th Cong.., 2d. Sess" 3(1978).

52 .. See generally, S. Moore, Sacred Sites andPublic Lands, in Handbook Of American Indian

NARF LEGALREVIEW

Religious Freedom 81-89 (Christopher Vesceyed..,I991).

53. See, e.g", Wilson v. Block, 708 F. 2d 735, 745­47 (D.C. Cir. 1983). "Thus AIRFA requires federalagencies to consider, but not necessarily to defer toIndian religious values. It does not prohibitagencies from adopting all land uses that conflictwith traditional Indian religious beliefs orpractices." Id, at 747.

54" Lyng, 485 U.S. at 439.55. /d. at 547.56. For an explanation of the role oC sacred sites

in American Indian tribal religions, ,see VineDeloria, Jr. SacredLands andReligious Freedom,Vol. 16 Native American Rights Fund LegalReview, 1, 1-6 (No.2, Summer 1991).

57. Smith, 110 S. Ct. at 1595.58.. Orner C. Stewart, Peyote Religion: A History

(Univ. of Okla. Press, 1987).59. People v. Woody, 394 P. 2d 813,817 (1964).60.ld.61.ld.62. Black v. Employment Div., 301 Or. 221, 721

P.2d 451 (1986); Smith v. Employment Div., 301Or. 209, 721 P. 2d 445 (1986).

63. Ronald D. Rotunda, Et AJ., Treatise OnConstitutional Law, Substance And Procedure, §21.8 at 401402 (1986). See Hobble v.Unemployment Appeals Comm'n, 480 U.S. 136(1987); Thomas v. Review Board, 450 U.S. 707(1981); Wisconsin v. Yoder, 406 U.S. 205 (1972);Sherbert v. Verner, 374 U.S. 398, 402-403 (1963).

64. Smith, 110 S. Ct. at 1605.65.ld, at 1601.66.ld. at 1610-11.67. ALBUQUERQUE JOURNAL, Nov. 23,

1991, at 1.68. TIME, Dec. 9, 1991, at 68.69. See, Hunafa v. Murphy, 907 F.2d 46, 48 (7th

Cir. 1990); International Center for Justice andPeace v. I.N.S", 910 F. 2d 42 (2d Cir. 1990);Salvation Army v. NJ. Dept. oC CommunityAffairs, 919 F.2d 183, 194-95 (3rd Cir. 1990);Salam v. Lockhart, 905 F.2d 1168, 1171 n.l (8thCir. 1990); South Ridge Baptist Church v. Indus"Comm'n of Ohio, 911 F.2d 1203, 1213 (6th Cir"1990); Cornerstone Bible Church v. City ofHastings, Mich., 740 F. Supp 654, 669-70 (D.Mich. 1990); Montgomery v. County of Clinton,743 F. Supp. 1253, 1259 (W.D. Mich" 1990); Yangv" Sturner, 750 F. Supp. 558, 559 (D. R.L 1990).

70.. Solarz, .supra note 4..

SACRED GROUND

eagles disappear into the sunsurrounded by light from the face of Creationthen scream their way home ,

with burning messages ofmystery and power

some are given to snake doctors and ants and turtles and salmonto heal the world

with order and patience

some are given to cardinals and butte~fliesand yellow medicine flowersto heal the world

with joy

some are given to bears and buffalo and human peoplesto heal the world

with courage and prayer

messagesfor holy placesin the heart ofMother Earthdeep inside the Old Stone Woman

whose wrinkles are canyonsin the roaring waters and clear blue streamsand bottomless lakes

who take what they needin the forests ofgrandfather cedarsand mountains ofgrandmother sentinel rocks

who counsel 'til dawn

messages for ho~y placeswhere snow thunder warnsand summer winds whisper

this is Sacred Ground

Sacred Ground at Spirit Fallswhere the small round stones have secrets

that clear-cutters can never discover

Sacred Ground at Mount Grahamwhere Apaches pray for a peaceful world

invisible through the vatican telescope

Sacred Ground at Bear Buttewhere Cheyennes and Lakotas hide from touriststo dress the trees in ermine tails and red-tail hawk feathers

and ribbons ofprayers to the life-givers

Sacred Ground at the San Francisco Peakswhere Navajos and Hopis dodge ski-bums and bottlesIto settle the spirits

where they walk

Sacred Ground at Badger Two Medicine and Red Butte and Crazy Mountainwhere miners have drillsfor arms

and gold in their eyes

Sacred Ground at Chotawhere even Tellico sdam engineers hear Tsalagee voices

through the burial waters

Sacred Ground at the Medicine Wheeland all the doors to the passages oftimeto Sacred Ground ofother worlds

where suns light the wayfor eagles to carry messagesforjires on

Sacred Ground

by: suzan shown harjo

NARF LECALREVIEW

HE REPRESSION OFINDIAN RELIGIOUS

FREEDOMby Patricia Nelson Limerick, Ph.D

In the 1890's, Captain A. E.oodson brought remarkable energy

to his job as an Indian agent. Whenhe arrived at the Cheyenne andArapaho reservation in Oklahomahe found the Indians "indulging inthe grass dance and enjoying themedicine feasts without moles­tation." Accordingly, his "first actwas to forbid dances and feasts ..."Once begun, Woodson launchedhimself wholeheartedly into thebusiness of forbidding. He undertookto prohibit the practices of medicinemen or shamans, the custom ofsharing goods with relatives, tradi­tional forms of marriage, and visitsto other reservations. When theCheyenne and Arapaho peopleresisted his interference in their lives,their defiance only convinced Wood­son that he was in the right. "Anagent must sacrifice any desire to bepopular," Woodson wrote, "if he beinspired to do his whole duty."1

Captain Woodson's enthusiasm forthe exercise of power, his reports tothe Commissioner of Indian Affairsshow, was unending and unquench­able. When the Cheyenne andArapaho people resisted his ordersand hired another white man topursue his removal, Woodson wroteto the Department of the Interior,explaining his struggle with hischarges. The Indians, he said,showed "a rebellious spirit inopposition to the methods whichhave been inaugurated with thesanction and approval of your office. . ." This resistance had gone as faras "an open expression ofdisapproval

, of my regime, which is distasteful tothe old men who are wedded tobarbarous customs ...." Woodsonhad simply "endeavored to institutenewer, and in my opinion, bettermethods tending to the improvementof the condition of these people ..."

~ The Department's response was, for" Woodson, very gratifying. The. Indians had to be restrained "hom

;k'the indull!ence in anv oractices which.; tend to c~ntinue the~'in barbarism.~.... ," Woodson's "efforts have met~,~with the full sympathy and approval

,l~f this office." Indeed, Woodson was

9

IO

empowered to "inform these Indiansthat your efforts to control them in amore civilized method of life· meetsthe approval of this office ...."2

"Let [the Indians] know that thepower of Government is behindyou," the officials in Washingtontold their agent in Oklahoma.3

Those words make it impossible todismiss Captain Woodson as apeculiar, eccentric, or anomalousindividual. He was, instead, adelegated agent of his nation,attacking religious freedom ongovernment orders.

The contradictions betweenAmerican ideals and Americanpractices form a familiar theme inour national history. Everyoneknows that many of the founders ofthe American nation, who demandedtheir natural right of freedom andwho complained about their "en­slavement" to the British king, werethemselves slaveowners. Everyoneknows that much of national history,from the Thirteenth Amendmentending slavery down to the CivilRights Acts of our time, has beendriven by a campaign to bring idealsand practices into a closer harmony.But the national contradictionrepresented by Captain A. E.Woodson has received much less inthe way of public attention or effortsto provide a remedy. A nation,dedicated to freedom and committedto the separation of church andstate, imposed on Indian people aformal policy of the prohibition ofNative religions and forcedChristianization. Adopted in 1791,the First Amendment declares that"Congress shall make no lawrespecting an establishment ofreligion, or prohibiting the freeexercise thereot" For most of thetwo centuries of this country'shistory, the First Amendment hasbeen held suspended, waiting for afull and active application to thereligious rights of Indian people.

From the origins of the BritishEmpire in North America, colonistsassumed that civilization andChristianity were inseparable partsof the same package. As thedistinguished r.J.storian of Indianpolicy, Francis Paul Prucha, hasnoted, while English civilization andthe Christian religion "could beseparated in theory, in practice they

were nearly always combined." OneEnglish writer put the case in anutshell: "We give the savages whatthey most need. Civilitie for theirbodies. Christianitie for their soules."The founding of the United Statesleft this premise virtually unchanged.As Father Prucha Sums it up, "It wasthe goal of the United States tocivilize, Christianize, and educate theIndians so that they could ultimatelybe absorbed into the mainstream ofAmerican society." Accordingly, theUnited States "set about to changethe fundamental cultural patterns ofthe Indians in a self-righteouspaternal manner."4

As waves of Christian religiousenthusiasm swept the United Statesin the nineteenth century, a mission­ary movement gained both influenceand eager workers. As Protestantchurch groups worried about thesouls of heathens in Mrica, Asia,Hawaii, and North America, thefederal government fully welcomedthe missionaries as partners inIndian policy. In Prucha's words,"The United States governmentaccepted as allies in its work ofcivilization the Christian churches ofthe land," with "the two processes,civilizing and Christianizing, . . .inextricably mixed." Federal fundsfor Indian education provided partialsupport for missi<mary schools; thegovernment, for instance, sometimesconstructed the schoolhouses thatChristian missionaries would teachin. For government officials as muchas for missionaries, Christianity wasso manifestly the right religion­indeed, the only religion with a claimon truth-that the question ofreligious liberty for Indians neverentered their minds. To nineteenthcentury white Americans, the FirstAmendment protected the exerciseof religion, while what the Indianspracticed was superstition, primitiverites, and peculiar customs-prac­tices that, to the nineteenth centuryAnglo American mind, did notdeserve the First Amendment'sguarantees of liberty.5

Over the course of the nineteenthcentury, the partnership betweenchurch an.d state became morepronounced and more official. Theterms of President Ulysses S" Grant'sPeace Policy hinged on "the con­scious intent of the government to

NARF LEGALREVIEW

tum to religious groups andreligious-minded men for the for­mulation and administration ofIndian policy." And, "building onthe long history of close relationsbetween the federal government andthe missionary groups in Indianmatters," Father Prucha writes, "thenation now went far beyond simplecooperation of church and state ineducational matters. It welcomedofficial church societies and church­related individuals into fuller part­nership; and to a large extent thesegroups came to dominate officialgovernment policy and administra­tion of Indian affairs...."6

As these "government functionswere handed over to the churches,"did anyone raise the questions ofreligious fl:'eedom and of the sep­aration of church and state thatseem so obvious to us today? Indeed,as Father Prucha notes, "[m]uch wasmade of the question of religiousliberty," but not at all in the termswe might expect. The question wasentirely one of religious libertybetween and among Christianchurches" "By religious freedom," theChristians "meant liberty of actionon the reservations for their ownmissionary activities ...." and they"made no move to grant as much asa hearing to the Indian religions. ''7

In the early l880s, Secretary ofInterior Henry Teller furthertightened the already very narrowmeaning of religious freedom. InDecember of 1882, Teller wrote theCommissioner of Indian Mfmrs, to"call your attention to what I regardas a great hinderance to the civili­zation of the Indians, viz.. , the

continuance of the old heathenishdances . . ." If, Teller said, theIndians "are not willing to discon­tinue them, the agents should beinstructed to compel such dis­continuance." Teller found, as well,in the "influence of the medicinemen," a second "great hindrance tothe civilization of the Indians." Themedicine men used "their conjurers'arts to prevent the people fromabandoning their heathenish ritesand customs." "Steps should betaken," the Secretary of the Interiorsaid, "to compel these impostors toabandon this deception and discon­tinue their practices," practices thatwere "without benefit" and "posi­tively injurious." Similarly, Tellerlamented the irregularity of tradi­tional mauiage customs, and theIndian's "very general custom ofdestroying or distributing hisproperty on the death of a memberof his family." Here, too, thegovernment should "formulatecertain rules that shall restrict andultimately abolish these practices."8

"If it is the purpose of theGovernment to civilize the Indians,"Teller argued, "they must becompelled to desist from the savageand barbarous practices that arecalculated to continue them insavagery." To put an end to the"pernicious influence of theseheathenish practices," Teller createda system of Courts of IndianOffenses. Agents would assemble"tT'ihllnal~" of three Indian iudges.~--- - ------ -- ---- - - ----- -" oJ ....... ~

who would, in much of theiractivities, investigate, convict, andpunish offenders who persisted infollowing their Native religions.

Created by an executive action 'fromthe Department of the Interior, thesecourts were of doubtful legality.They did not derive their authorityfrom a constitutional provision, norfrom an act of Congress. Instead, theauthority behind them rested on awidespread Anglo American beliefthat Christianity was the only truereligion, and Indian religions weresimply variations on superstitionand barbarism.9

When codified, the "requirements"that the Courts of Indian offenseswere charged with enforcing madereligious practices a central target."The 'sun-dance' and all othersimilar dances and so-called religiousceremonies," read one requirement,"shall be considered 'Indian offen­ses.' " "[A]ny Indian found guilty ofbeing a participant" would, on a firstoffense, be "punished" by the "with­holding of his rations for not morethan ten days." For a repeatedoffense, the penalty would be thewithholding of "rations for fifteen tothirty days, or incarceration in anagency prison for a period notexceeding thirty days." The range ofpunishable offenses included "anyplural marriage hereafter contrac­ted"; the destruction of property inmourning for a lost relative; "thepractice of bands of Indians makingor returning visits to other Indians";and "the usual practice of so-called'medicine men.' " If a medicine man"resort[ed] to any artifice or deviceto keep the Indians under his influ­ence," "adopt[ed] any means toprevent the attendance of children atthe agency schools," or use[d] any ofthe arts of a conjurer to prevent theIndians from abandoning theirheathenish rites and customs," hewas to be "confined in the agencyguardhouse until such time as heshall produce evidence satisfactoryto the court, and approved by theagent, that he will forever abandonall practices styled Indian offensesunder this rule."10

To get out of prison, by require­ment of the United States govern­ment, an Indian religious leader hadto renounce his faith and declare hisintention to stop practicing itsrituals. Every religious leader didnot, of course, suffer this fate.Federal agents on reservations variedconsiderably in the vigor with which

1\TJ\D~ LEGALJ. Y'1Ur REVIEW

they followed their orders, andIndian people developed effectivestrategies of offering an appearanceof submission, while maintainingtheir customs in secret. Even if it wasunevenly enforced, the suppressionof Indian religious liberty stood asformal, official United States policy.In the nation's long-running cam­paign to bring its practices intoharmony with its ideals, this storydemands the attention of the Ameri­can public and its elected leaders.

"I am satisfied," wrote D. C.Govan from the Tulalip Agency inWashington, "that the greatestobstacle to progress and to theadvancement of the young Indians isthe old Indian. He still clings to hisold superstitions and cherishessecretly the old traditions andteachings of his savage ancestors."It was "cruelty," thought W. N.Hailmann, Superintendent of IndianSchools, to hand the Indian youngover to "the savagery of the oldIndians." The federal governmenthad to act "to protect the youngIndian against the old."11

The campaign against Indianreligions was, at its core, a campaignagainst the Indian family. Tiesholding parents to children, grand­parents to grandchildren, uncles andaunts to nephews and nieces, eldersto juniors, knit tribal societiestogether. In those terms, it is hard toimagine a better way of shaking,eroding, and fragmenting identityand morale than the agents' cam­paign to discredit Indian elders.How, one wonders, did the officialsthink that they could put a societyback together again, after the federalgovernment had-purposefully,consciously, intentionally-torn thegenerations apart? Federal officialsheld to a remarkable faith that onecould remodel a society with theprecision of a surgical operation,cutting off the influence of the oldergeneration and leaving the youngergeneration not only intact, butcapable of achieving a coherent,balanced life with a suddenlychanged economy, religion, andfamily structure,

The campaign against family tieswent beyond the effort to pit olderpeople and younger people againsteach other. Many tribal people feltobligated, often by tenets of their

II

12

religions, to share their materialpossessions with relatives. Thisgenerosity drove the federal officialsto distraction. "Another vice," saidCaptain John G. Bourke, "is theircare for their relations. They areentirely too fond of their relations.They will do anything for them ifthey are poor." "We must smother(the Indian's) inherited propensityfor hospitality," proclaimed Agent A.E. Woodson.I2

"The most common and per­nicious custom" among the Indians,Woodson said, "is the habit of visit­ing their relatives and friends andeating their substance. All foodsupplies are common property."Why not tolerate, even celebrate,this generosity? Agent Woodsonsupplied the answer, with hischaracteristic directness: "Theirlavish hospitality militates againstthe accumulation of wealthby individuals. "13

Woodson's remark calls ourattention to the economic compo­nent of the federal officials' objec­tions to Indian religions: Nativecustoms of sharing, of hospitality, offeasting, or of sacrifice of propertyin mourning ceremonies, interferedwith the accumulation of propertyand the pursuit of profit. While theagents' assumption that Christianitywas the only legitimate faith wasclearly a religious prejudice, it was apn:judice solidly reinforced by prac­tical, economic considerations. Onesees this factor clearly at work in thedisapproval of dancing.. Because ofdancing, Joseph Clements wrote, theSantee Indians "neglect their work.

" ,," Because of the dances at theCrow Creek Reservation, AgentFred Treon said, the Indians had"but little time to attend their stockand farms. "14

For these nineteenth centuryAnglo-Americans, forcing theIndians to adopt the habits ofmaterialistic, profit-minded whiteAmerican society was as essential atask as forcing them to adopt thehabits of Christianity; indeed, thetwo sets of habits appeared to thefederal officials as mutually inter­dependent and equally necessary.The enterprise of demanding devo­tion to a new work ethic and theenterprise of demanding devotion to

a new deity were inextricablyintertwined.

"Christianity," declared I. J.Wootten in 1895, "is the calciumlight of civilization, quickens the loveof justice and morality, and is, aboveall, the most powerful agent that canbe used to obliterate the practice ofthe degrading and superstitious ritesof the medicine man held in rever­ence by all Indians." Wootten wasnot, of course, a missionary himself;he was a prime example of a federalemployee acting as an officialadvocate of one religion's right tosubordinate another. In his hostilitytoward the practices of medicinemen or shamans, Wootten wastypical of the agents of his time. Thepractice of traditional healingceremonies was, in other words,transformed into a crime; as GeorgeB. McLaughlin, agent at theBlackfeet Reservation in Browning,Montana, reported, "I have alreadybegun punishing 'doctors' for theseoffenses, and hope in time to breakup their barbarous custom. "15

The attack on the medicine menundertook to loosen the tight con­nections between religious practiceand physical health, between spirituallife and material life. It was, as well,part of the attack on the authority ofelders in tribal societies. The defeatof old religious practices, the agentsrecognized without regret, wouldrequire breaking the power of theleaders of Indian societies.

These struggles of power rested,finally, on physical force. By the1890s, the wars of conquest wereofficially over; but the power politicsof conquest remained unsettled. Theactual battles were, in many ways,only a prelude to this campaign onthe part of the agents to convince theIndians that, in Lt.. V.E.. Stottler'swords, agent for the MescaleroApache, "the Government issupreme, and will do what it pleaseswith them or theirs.. " Perhaps thePine Ridge Agency in South Dakotashowed this condition of conquest­in-progress most clearly. The PineRidge Reservation had been a centerof the Ghost Dance, the religiousmovement that promised a return ofgood times and a retreat of whiteconquest. Panic and alarm on thepart of agents facing this movement

~T}\DV LEGAL1Y'U."U' REVIEW

had triggered the events that led tothe killing at Wounded Knee inDecember of 1890.16

In this context, the suppression ofreligious freedom carried down-to­earth meanings of power anddominance. To the agents of the1890s, religion could rebuild aconquered people's morale; religioncould make them defiant; religioncould make them hard to rule. Inthose terms, suppressing religion wasas vital a part of conquest as sendingtroops out to engage in direct mili­tary combat.

But Indians possessed a greatconstant. Persistent enthusiasm fortheir own religions marked all oftheir dealings with the officialrepresentatives of the Americannation. And yet it was the Anglo­American custom to reserve theword "religion" for "Christianity,"and to assign the words like "super­stition" or "barbaric customs" toIndian faiths. "Gross superstitions ofthe worst kind are rampant," Rev. A.B. Shelly told the Board of IndianCommissioners in 1895, describingthe religion of the Hopi Indians. TheOmaha, their agent Wm. H. Beckreported, "claim that they have aright to their religious observances,which are in fact the barbaric customsof their progenitors. " These habits oflanguage, of course, connect to im­portant and down-to-earth conse­quences; the First Amendment, afterall, guarantees protection of religionnot for "barbaric customs," "super­stitions" or "heathenish practices. "17

In the century since the l890s,that policy has softened, and in someways, reversed itself. The AmericanIndian Religious Freedom Act of1978 declared a national regret overa history of direct, blatant repressionof Indian freedom. And yet, by theterms of the 1988 Supreme Court'sdecision in the Lyng case, the 1978act has been reduced to a minorrequirement that federal landmanagement agencies, planning adisruption of a site sacred to Indianreligions, must consult with Indianpeople. After having consulted, theagencies are fI:'ee to discount thepriority of the Indian claim.

Despite repeated, public declara­tions of regret over the patterns ofthe past, one might argue that thechange consists of an increasedsubtlety in the pressures put onIndian religious practice. In thel890s, Captain A. E. Woodson was,at the least, direct and unambiguousin his determination to crush Indianreligions. In the 1990s, people likeCaptain Woodson are comparativelyrare creatures. But another, moresubtle form of opposition to nativereligions has entered the picture, asfederal agents who are simply intenton other goals entirely-resourcedevelopment on public lands, forinstance-rank Indian religiouspractices second to mainstreamAmerican social or economic goals.Instead of Captain Woodson'scharacteristic bluntness, the 1990sversion of opposition to Indianreligious freedom can speak a muchmore subtle language. Instead of thedirect orders of Captain Woodson,the challenge to Indian religionstoday can come in the form of along, detailed report from a federalland management agency, advo­cating development of a particularsite, and treating an Indian religiousceremony, centered on that site, as aquaint, colorful but dismissable relicof a lost time. Undramatic andindirect as this bureaucratic behaviormay seem, its effect on religiouspractices can be nearly as destructiveas the direct attacks of the latenineteenth century.

While public attention has focusedon the Indian wars, actual militaryengagements were only a small partof the process of conquest.. Less

"colorful" and seemingly lessdramatic than the fighting at theWashita or Little Big Horn, theagents' fight for control on reserva­tions-eontrol of Indian people'seconomic, political, social, family,and religious lives-was just ascrucial a part of the story as were thebattles waged by the Army. Therefusal to recognize the right to thefree exercise of religious belief andpractice was an essential componentin the conquest of native people.

A denial of Indian religious libertyis an undeniable part of our inheri­tance from the nineteenth century.But this inheritance is not a matterof fate, forced upon us against ourwill. Some of the injuries of the pastare irreversible, beyond repair orredemption. But on this question,there ar'e meaningful choices still tobe made. We can continue thepatterns of injustice that have theirroots in the conditions of conquest.Or we can, in the most concrete way,profit from the lessons of historyand break from the track of pastinjustice. "Let [the Indians] knowthat the power of Government isbehind you," the officials inWashington told Captain Woodsonwhen he launched his campaign toprohibit their religion. A centurylater, one can imagine a differentmessage fl:om Washington, amessage more in harmony withAmerican ideals. Let the Indiansknow, the new message would read,that the power of Government nowstands behind them, and behind

NARF LEGALREVIEW

their right to religious fIeedom.(Patricia Nelson Limerick is a Profes­

sor ofHistory at the University ofColorado, Boulder, Colorado, and is along-time supporter ofNARF.)

1. Captain A. E. Woodson, Report of theCommissioner ofIndian Affairs 1895, p. 229, andCommissioner 1898, p.. 234..

2. Report of the Commissioner ofIndian Affairs1896, pp.. 250-251.

3. Ibid., p. 251.4. Francis Paul Prucha, The Great Father: The

United States Government and the AmericanIndians (Lincoln: University of Nebraska Press,1984), pp. 9, 30-31, 33.

5. I quote Prucha's insightful passage at greaterlength: "When missionaries went among theIndians, they went to educate and to convert, and itwould be difficult to tell where one activity endedand the other began. Nor did it matter to thegovernment, which came to depend upon thechurch societies for civilizing work among theIndians without intending to promote anyparticular religion.••• It was quietly understood,by government officials as well as by churchleaders, that the American civilization offered tothe Indians was Christian civilization, and thatChristianity was a component of civilization andcould not and should not be separated from it •.•The missionary's goal .•• differed little from thegoal of Washington, Jefferson, and other publicstatesmen." Ibid., pp. 145-146.

6.. Ibid.., p. 482.7. Ibid., pp. 482, 524-525.8. Henry Teller, Report of November 1, 1883, in

House Executive Document No.1, part 5, vol.. I, 48Congress, 1 session, serial 2190, pp. xx-xxii.

9. Ibid .. pp. xx-xxii.10. Regulations of the Indian Office, 1904.11. Beck, Commissioner 1894, pp. 189-190;

Campbell, Commissioner 1895, p. 201; Govan,Commissioner 1895, p. 319; Hailmann,Commissioner 1895, p. 343 and Board1895, p. 31.

12. Bourke, Board1894, p. 128; Woodson,Commissioner 1897, p.225.

13. Woodson, Commissioner 1895, p. 143.14.. Clements, Commissioner 1894, p. 192; Treon,

Commissioner 1894, p. 276; Woodson,Commissioner 1895, p. 243; Beck, Commissioner1896, p. 198.

15. Wootten, Nevada Agency, Commissioner1895, p: 211; Bourke, Board1894, p. 129; Williams,Navajo Agency, Commissioner 1895, p. 119;Brentano, Commissioner 1895, p. 267-268;McLaughlin, Commissioner 1897, p. 163. The"ringleaders" among the Hopi that Williamsdescribed were arrested and sent into"conf"mement" at Alcatraz Island.

16. Penney, Commissioner 1894, p.. 289..17. Commissioner 1896, p. 241; Shelly,Board

189.5, p. 90; Beck, Commissioner 1896, p. 198.

13

14

NATIVE AMERICANFREE EXERCISE OF

RELIGION ACT OF 1993S. 1021: BACKGROUNDAND CALL TO ACTION

WHAT IS THE STATUS OFS. 1021? On May 25, 1993, SenatorDaniel Inouye, Chairman of theSenate Committee on Indian Affairs,introduced the Native American FreeExercise of Religion Act of 1993(S. 1021). Original co-sponsors are:Senators Max Baucus (D-MT), BenNighthorse Campbell (D-CO), RussellFeingold (D-WI), Tom Harkin (D-IA),Mark Hatfield (R-OR), ClaibornePell (D-RI), and Paul Wellstone(D-MN).A hearing on S. 1021 by SenatorInouye's Committee is expected tooccur on June 24, 1993, which willinitiate a long legislative processthroughout the 103rd Congress.

WHAT WILL S. 1021 DO? S. 1021does five things to put clear, legallyenforceable "teeth" into Congress'Native American religious freedompolicy: 1) protects Native Americansacred sites; 2) protects religious useof peyote by Indians in NativeAmerican Church services; 3) protectsreligious rights of Native prisoners tothe same extent as prisoners of otherreligious faiths; 4) streamlines theexisting federal permit system forIndian religious use of eagle feathersand assesses recommended allocationof other surplus plant and animalparts in possession of the federalgovernment for Native Americanreligious use; and 5) restores the"compelling state interest test" (dis­carded by the Supreme Court inSmith) as the legal standard forprotecting Native religious freedomin all other instances not other-wise specified.

WHO DOES S. 1021 PROTECT? S.1021 protects religious rights of: 1)members of Indian tribes; 2) AlaskaNatives; and 3) Native Hawaiians.

WHO CAN ENFORCE THE BILL?J.A),. private civil cause of action for in.".junctive relief to enforce the provisionsof the bill is given to an "aggrievedparty," which is defined as any Native

American practitioner, Native Ameri­can traditional leader, Indian tribe, orNative Hawaiian organization asdefined by the Act. Criminal sanctionsare provided for damage to sacredsites and for violating the bill'sconfidentiality provisions.

HOW DOES THE BILL PROTECTSACRED SITES? Procedural andsubstantive protection are given forany "federal undertaking" that mayaffect a Native American sacred site.The procedural requirements aresimilar to existing federal culturalresource and environmental protec­tion laws. Procedurally, notice mustbe given by the agency involved torelevant Indian tribes, NativeHawaiian organizations and NativeAmerican traditional leaders that theundertaking may impact the site; andconsultation is required and a writtenimpact statement prepared analyzingimpacts on the site. Substantively,legal standards (enforceable as aprivate cause of action) would protectsacred sites under a two-tieredbalancing test derived from the"compelling state interest" test.Special provisions are included tomeet unique Native Hawaiian needsand the needs of Indian Tribes withreligions that prohibit disclosure ofsacred information. S.. 1021 is notdirected at Indian tribes, which canregulate protection of sites under theirjurisdiction.. Thus, activities of Indiantribes are not defined as "federalundertakings," and tribal authority toprotect sacred sites located on Indianlands is confirmed.

HOW DOES THE BILL PROTECTRELIGIOUS USE OF PEYOTE BYINDIANS? An existing DEA regu­lation (21 CFR 1307..31) exemptsreligious use of peyote by NativeAmericans from the ControlledSubstances Act.. The bill wouldessentially codify this regulation andmake it uniform in all 50 states bydeclaring the use, possession andtransportation of peyote by Indiansfor ceremonial purposes lawful, andthat such use not be prohibited byfederal or state governments. Fur­ther no Indian shall be discriminatedagai~st on the basis of such use. Theeiisting DEA regulatory system andauthority will continue undisturbed

NARF LEGALREVIEW

HOW DOES THE BILL PROTECTRELIGIOUS RIGHTS OF NATIVEAMERICAN PRISONERS? Nativeprisoners shall have, on a regularbasis comparable to that afforded toprisoners who practice Judeo­Christian religioQ.s, access to: 1)Native American traditional religiousleaders, 2) sacred objects; 3) religiousfacilities. (Access to peyote is excludedfrom this section.) Further, traditionalhairstyles are allowed under pre-Smithlegal standards of cases such as1eterud v. Burns. A commission isestablished to investigate the status ofreligious rights of Native prisoners inAmerican prisons.

HOW DOES THE BILL PROTECTRELIGIOUS USE OF EAGLEFEATHERS AND OTHERANIMAL PARTS? Existing federallaw (16 USC 668a) allows Indianreligious use of eagle feathers under aU.S. Fish and Wildlife Service permitsystem. The bill requires USFWS,within one year, to streamline thepermit system in consultation withIndian tribes and Native Americantraditional leaders. Where dead eaglesare found on tribal lands, the tribe~ay regulate the disposition of partsfor religious purposes under a tribalpermit system. Finally, within oneyear a plan will be developed todispose of other surplus animal orplant parts by federal agencies.

WHAT DOES THE PRIVATECAUSE OF ACTION DO? It allowsaggrieved parties to: 1) enforceprovisions of the bill; and 2) all other

traditional religious beliefs andpractices not specifically mentionedelsewhere in the bill are protectedunder First Amendment legalstandards in effect prior to the 1990Smith case, when an aggrieved partysatisfies the balancing test and thegovernment fails to sustain its burdenof proof.

WHO SUPPORTS FEDERALLEGISLATION TO PROTECTNATIVE AMERICAN RELIGIOUSFREEDOM? Members of the large,historic Coalition to develop andsupport appropriate Native Americanreligious freedom legislation are listedelsewhere in this publication. TheCoalition played a key role in devel­oping S. 1021 and is working closelywith congressional members and staffas Congress considers the bill.

WHAT CAN I DO TO HELP?1) If they are not already co-sponsors(listed above), write a letter to yourSenators asking them to co-sponsorS. 1021. 2) Write a letter to eachmember of the Senate Indian MfairsCommittee asking them to supportand advance S. 1021: DennisDeConcini (D-AZ), Thomas DascWe(D-SD), Kent Conrad (D- ND), HarryReid (D-NY), Paul Simon (D-ILL),Dan Akaka (D-HAW), Paul Wellstone(D- MN), Ben Nighthorse Campbell(D-CO), Byron Dorgan (D-ND), JohnMcCain (R-AZ), Frank Murkowski(R-AK), Thad Cochran (R-MS),Slade Gorton (R-WA), Pete Domenici(R-NM), Nancy Kassebaum (R-KS),Don Nickles (R-OK). Letters shouldbe addressed to: The Honorable_______ , United StatesSenate, Washington, D.C. 20510.

TO LEARN MORE ABOUT THELEGISLATIVE EFFORT: Contact:1) NARF Staff Attorneys: RobertPeregoy (202/7854166) or WalterEcho-Hawk (303/447-8760); 2) Execu­tive Director, National Congress ofAmerican Indians (202/546-9404);3) Jack Trope, counsel for Associationon American Indian Mfairs (908/253­9191); or 4) Patricia Locke, CoalitionCoordinator (202/546-9404).

Kifaru Productions has produced 3new video programs concerning theamendments to the American IndianReligious Freedom Act: The PeyoteRoad; Understanding A.I.R.F.A.; and,Traditional Use of Peyote. For moreinformation call Kifaru Productions at(415) 381-6560.

by: Archie BlackowlUniversity of Oklahoma Collections

1\TJ\CD LEGAL1vu.U" REVIEW

15

AMERICAN INDIANRELIGIOUS FREEDOM COALITION

FOR THE AMENDMENTSTO THE AMERICAN INDIANRELIGIOUS FREEDOM ACT*

~MEMBERS

American Anthropological AssociationAmerican Baptist Churches, .D.S.A.American Civil Liberties UnionAmerican Ethical Union,

Washington Ethical Action OfficeAmerican Friends Service CommitteeAmerican Indian Anti-Defamation

CouncilAmerican Indian Law CenterAmerican Indian Science & Engineering

SocietyAmerican Indian Ritual O~ject

Repatriation FoundationAmerican Jewish CommitteeAmericans for Indian OpportunityApache Survival CoalitionAssociation on American Indian AffairsCoalition for Indian EducationColorado Council of ChurchesConfederated Salish and Kootenai

Tribes, Flathead Reservation,Montana

Congressional Human RightsFoundation

Conservation InternationalCoquille Indian TribeCouncil for American Indian Ministry,

United Church of ChristCouncil of Native American Ministry,

National Council of ChurchesCrow Indian Peyote Ceremonies (CIPC)Crow Tribal CouncilCultural ConservancyCultural SurvivalEco-ActionECO, Earth Communications OfficeEpiscopal Council of Indian MinistriesFlathead Reservation Human Rights

CoalitionFriends Committee on National

LegislationFriends of the EarthGreenpeace

Heart of the Earth Survival School/Prison Program

High Plains Society for AppliedAnthropology

Hollywood Policy Center FoundationHollywood Women's Political

CommitteeHonor Our Neighbors Origins & Rights

(HONOR)Jesuit Social Ministries, National OfficeKeepers of the TreasuresKIFARU Productions - San FranciscoLearning Circle, TheLutheran Office for Governmental

Affairs, Evangelical Lutheran Churchin America

Maryknoll Fathers and Brothers,Justice and Peace Office

Medicine Wheel CoalitionMennonite Central Committee, U.S.Michael Chapman & AssociatesMorning Star InstituteNational Audubon $ocietyNational Conference of Christians

and Jews, Inc. - Minnesota-DakotasRegion

National Congress of American IndiansNational Indian Education AssociationNational Parks and Conservation

AssociationNative American Church, Half~Moon

Fireplace, State of Wisconsin, Inc.Native American Church of NavajolandNative American Church of

North AmericaNative American Church of OklahomaNative American Church of

Omaha TribeNative American Church of the

State of South DakotaNative American Church,

Uintah & Ouray Reservation,Northern Ute Tribe

Native American Church of WyomingNative American Language InstituteNative American Prisoners'

Rehabilitation Research ProjectNative American Religious Freedom

Pr~ject of the Native AmericanChurch

Native American Rights FundNative Lands InstituteNative Spiritual Cultural Councils, Inc.Natural Resources Defense CouncilNavajo Corrections Pr~ject

Navajo Nation (Support in principle)Nimii'pu (Nez Perce) TribeOmaha Tribe of Nebraska and IowaPauma Indian ReservationPirtle, Morriset, Schlossur & AyerPresbyterian Church U.S.A.Robinson Rancheria Citizens Business

CouncilSan Juan Southern Paiute TribeSealaska CorporationSeventh Generation FundSierra ClubSierra Club, Native American Sites

CommitteeSpiritual Alliance for Native PrisonersStudent Environmental Action CoalitionTimbisha Shoshone TribeUnitarian Universalist Association of

Congregations, Washington OfficeUnited Church of Christ, Office for

Church in SocietyUnited Methodist Church, General

Board of Church and SocietyWalapai TribeWalk of the Warriors (Native American

Veterans)Wilderness SocietyWinds of LifeWisconsin Tribal Judges AssociationWomen's International League for Peace

and FreedomWriters Guild of America, West

16

* Coalition name has not yet been changed to reflect the Native American Free Exercise of Religion Act of 1993 (S. 1021)Iwhich replaces the amendments to AIRFA.

l\TJ\ DD LEGAL1 Y'U.U" REVIEW

CASE UPDATESAlabama':Coushatta v. United States

NARF represents the Alabama­Coushatta Tribe of Texas in itslawsuit against the United Statesfor breach of trust. In Alabama­Coushatta v. U.S., the Tribe is suingthe United States for its failure toprotect the Tribe's possession of its9 million acres of aboriginal terri­tory. Oral argument was held onMarch 3, 1993. On April 8, 1993, theUnited States Claims Court issuedits opinion ruling in favor of theTribe on most issues, finding that theTribe did establish aboriginal title by1830. However, on the critical issueof the extent of the Tribe's aboriginalterritory, the court found that theTribe only held aboriginal title to avery limited area due to the presenceof the other tribes. The Tribe will filea notice of appeal and wait for theestablishment of a briefing schedule.

Catawba v. United StatesThe Catawba Tribe filed suit

against the United States to recoverthe value of those lands which theTribe is barred from claiming as theresult of the 1986 Supreme Courtdecision in the Catawba land claim.In late 1992, the Court of Appealsfor the Fourth Circuit affirmed thedistrict court's dismissal of most ofthe parcels of land on whichSummary Judgment had beensought. NARF filed a Petition for aWrit of Certiorari in the UnitedStates Supreme Court; that petitionwas denied. In January 1993, theCourt of Appeals for the FederalCircuit affirmed the Claims Court'sdismissal of the Tribe's breach oftrust and contract claims against theUnited States. NARF once againfiled a Petition for a Writ ofCertiorari in the United StatesSupreme Court on April 6, 1993.

Cheyenne-Arapaho Tribesof Oklahoma v. United States& Woods Petroleum Corp.

NARF represents the Cheyenne­Arapaho Tribe in its suit to overturnthe Bureau of Indian Affairs decisionto extend the term of tribal oil andgas leases without tribal consent,and at below market value rates. InJune 1992, a Tenth Circuit Panel

ruled in the Tribe's favor on three ofthe four disputed oil and gas leases.The Panel's disposition of the fourthlease was unclear. The full TenthCircuit Court declined to rehear thePanel's decision on any of the leases.Both NARF, in the Tribe's behalf,and the oil company filed separatepetitions for Writ of Certiorari in theUnited States Supreme Courtseeking review of the Tenth Circuit'srulings. On March 29, 1993, theSupreme Court denied certiorari onboth petitions.

Masayesva v. Zah v. James andNavajo Tribe v. United Statesv. San Juan Southern Paiute Tribe

The United States District Courtin Phoenix entered a final judgmenton all issues pertaining to the SanJuan Southern Paiute and Hopi landclaims in December of 1992. Thecase is now on appeal to the NinthCircuit Court of Appeals.

NARF RESOURCESAND PUBLICATIONS

The National Indian LawLibrary

The National Indian Law Library(NILL) has developed a rich andunique collection of legal materialsrelating to federal Indian law andthe Native American. Since itsfounding in 1972, NILL continues tomeet the needs of NARF attorneysand other practitioners of Indianlaw.. The NILL collection consists ofstandard law library materials, suchas law review materials, court opin­ions, and legal treaties, that areavailable in well-stocked law libraries..The uniqueness and irreplaceablecore of the NILL collection is com­prised of trial holdings and appellate

1\.TADV LEGAL1Y1lU" REVIEW

materials of important cases relatingto the development of Indian law..Those materials in the public domainthat are non-eopyrighted are avail­able from NILL on a per-page-eostplus postage. Through NILL'sdissemination of information to itspatrons, NARF continues to meet itscommitment to the development ofIndian law.

Available from NILLThe NILL Catalogue

One of NILL's major contribu­tions to the field of Indian law is thecreation of the National Indian LawLibrary Catalogue: An Index toIndian Legal Materials and Resources.The NILL Catalog lists all of NILL'sholdings and includes a subject index,an author-title table, a plaintiff­defendant table and a numericallisting. This reference tool is prob­ably the best current reference toolin this subject area. It is supplementedperiodically and is designed for thosewho want to know what is availablein any particular area of Indian law.(1,000+ pgs. Price: $75) (1985 Sup­plement $10; 1989 Supplement $30).

Bibliography on Indian EconomicDevelopment

Designed to provide aid in thedevelopment of essential legal toolsfor the protection and regulation ofcommercial activities on Indianreservations, this bibliography pro­vides a listing of articles, books,memoranda, tribal codes, and othermaterials on Indian economicdevelopment. 2nd edition (60 pgs.Price: $30). (NILL No. 005166)

Indian ClaimsCommission Decisions

This 47-volume set reports all ofthe Indian Claims Commissiondecisions. An index through volume38 is also available. The index con­tains subject, tribal and docketnumber listing. (47 volumes. Price$1,175). (Index priced separatelyat $2.5) ..

PRICES SUBJECT TO CHANGE

17

18

AVAILABLE FROM THEINDIAN LAW SUPPORT CENTER

A Manual for Protecting Indian Natural Resources. Designed for lawyers whorepresent Indian tribes or tribal members in natural resource protection matters,the focus of this manual is on the protection of fish, game, water, timber, minerals,grazing lands, and archaeological and religious sites. Part I discusses theapplication of federal and common law to protect Indian natural resources.Part II consists of practice pointers: questions to ask when analyzing resourceprotection issues; strategy considerations; and the effective use of law advocatesin resource protection. (151 pgs. Price $25).

A Manual on Tribal Regulatory Systems. Focusing on the unique problemsfaced by Indian tribes in designing civil regulatory ordinances which comportwith federal and tribal law, this manual provides an introduction to the lawof civil regulation and a checklist of general considerations in developing andimplementing tribal regulatory schemes. It highlights those laws, legal principles,and unsettled issues which should be considered by tribes and their attorneysin developing civil ordinances, irrespective of the particular subject matter tobe regulated. (110 pgs. Price $25)..

A Self Help Manual for Indian Economic Development. This manual is designedto help Indian tribes and organizations on approaches to economic developmentwhich can ensure participation, control, ownership, and benefits to Indians.Emphasizing the difference between tribal economic development and privatebusiness development, this manual discusses the task of developing reservationeconomies from the Indian perspective. It focuses on some of the major issuesthat need to be resolved in economic development and identifies options availableto tribes. The manual begins with a general economic development perspectivefor Indian reservations: how to identify opportunities, and how to organize theinternal tribal structure to best plan and pursue economic development of thereservation. Other chapters deal with more specific issues that relate to thedevelopment of businesses undertaken by tribal governments, tribal members,and by these groups with non-Indian entities. (Approx. 300 pgs. Price $35).

Handbook of Federal Indian Education Laws. This handbook discussesprovisions of major federal Indian education programs in terms of the legislativehistory, historic problems in implementation, and current issues in this radicallychanging field. (130 pgs. Price $20).

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

A Manual On the Indian Child Welfare Act and Law Affecting Indian Juveniles.This fifth Indian Law Support Center Manual is now available. This manualfocuses on a section-by-section legal analysis of the Act, its applicability, policies,findings, interpretations, and definitions .. With additional sections on post-trialmatters and the legislative history, this manual comprises the most comprehensiveexamination of the Indian Child Welfare Act to date.. (373 pgs. Price $35)..

ANNUAL REPORT. This is NARF's major report on its programs and activities.The Annual Report is distributed to foundations, major contributors, certainfederal and state agencies, tribal clients, ~~ative American organizations, andto others upon request.

NARF LEGALREVIEW

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).

NARF ATTORNEYLawrence A. Aschenbrenner has

been on the NARF stafffor over 14years and has served as the DirectingAttorney of the Alaska office for thepast 8 years. Larry has over 35 yearsoflitigation experience and previouslyserved as the Directing Attorney forNARF's Washington, D.C. office.He is a graduate of the University ofOregon Law School and did hisundergraduate work there as well.

Prior to joining NARF's staff,Larry served in a number of legalcapacities, including Acting Associ­ate Solicitor for Indian Affairs andAssistant Solicitor for Indian Affairsin the Department of Interior from1974 through February 1977. Inaddition, he has been the DeputyAttorney General for the NavajoNation 1982-84; Chief Counsel forthe Lawyer's Committee for CivilRights Under Law in Jackson,Mississippi, 1967-69; a partner in apublic interest law firm in Oregon;the first Public Defender for theState of Oregon; and DistrictAttorney for Josephine County,Oregon" Larry's legal responsibilitiesin Indian law have related primarilyto issues and cases involving tribaljurisdiction, lands, minerals, huntingand fishing rights, water rights, andthe environment.

Lawrence A. AschenbrennerNARF Attorney

THE NARF LEGAL REVIEW is published by the Native American RightsFund. Third class postage paid at Boulder, Colorado. Ray Ramirez, Editor.There is no charge for subscriptions.

Main Office: Native American Rights Fund, 1506 Broadway, Boulder, Colorado80302 (303-447-8760).

Tax Status. The Native American Rights Fund is a nonprofit, charitableorganization incorporated in 1971 under the laws of the District of Columbia.NARF is exempt from federal income tax under the provisions of Section 501(c) (3) of the Internal Revenue Code, and contributions to NARF are taxdeductible. The Internal Revenue Service has ruled that NARF is not a "privatefoundation" as defined in Section 509(a) of the Internal Revenue Code.

1\.TJ\DV LEGAL1W"1UC REVIEW

19

Native American Rights FundThe Native American Rights Fund is a nonprofit organization specializing

in the protection of Indian rights. The priorities of NARF are: (1) thepreservation of tribal existence; (2) the protection of tribal natural resources;(3) the promotion of human rights; (4) the accountability of governmentsto Native Americans; and (5) the development of Indian law.

Our work on behalf of thousands of America's Indians throughout thecountry is supported in large part by your generous contributions. Yourparticipation makes a big difference in our ability to continue to meet ever­increasing needs of impoverished Indian tribes, groups and individuals. Thesupport needed to sustain our nationwide program requires your continuedassistance. Requests for legal assistance, contributions, or other inquiriesregarding NARF's services may be addressed to NARF's main office: 1506Broadway, Boulder, Colorado 80302. Telephone (303) 447-8760.

BOARD OF DIRECTORSRichard (Skip) Hayward, Chairman....... . Mashantucket PequotAnthony L. Strong, Vice-chair 17ingit-KlukwanLionel Bordeaux. . . . . . . .. .. . . . . . . .. . .. .. . .. . . . .. .. . . . . .. . . .. .. . .. . . .. Rosebud SiouxMildred Cleghorn. . . . . . . . . .. . .. . . . . . .. . . .... Fort Sill ApacheRick Hill . . . . .. . . .. . . . . . .. . .. . . .. . . . .. . . . . . . . . . .. . . . . .. OneidaMahealani Kamauu .... ..Native HawaiianWillie Kasayulie . .. .. .. . .. .. . . .. .. . YupikJohn R. Lewis. .. . Mohavej PimaTwila Martin-Keka~bah . . Turtle Mountain ChippewaCalvin Peters . . .. . .. . .. . . . .. .. . . Squaxin IslandEvelyn Stevenson........ .. . Salish-KootenaiEddie Tullis. . .. . .. .. . . .. .. . . . . . .. . . . . .. .. . .Poarch Band of CreeksVerna Williamson .. . . . .. . . . . . . . . . . .. . lsleta PuebloExecutive Director: John E. Echohawk ..... Pawnee

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