Ais 102 American Indians and the U. S. Political System Fall 2004



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Religious Freedom

American Indian religions vary significantly from other western religions such as Christianity. Traditional religion was not historically classified as a religion subject to protection by the First Amendment to the U.S. Constitution. One of the goals in the 1800s was to “Christianize” Indians and lead them to civilization. As late as 1921, the Commissioner of Indian Affairs stated that “The sun-dance, and all other similar dances and so-called religious ceremonies are considered ‘Indian offences’ under existing regulations, and corrective penalties are provided.”

In modern America, there are still problems encountered by followers of American Indian traditional religions. One of these problems is that traditional religions are connected to the land. Some ceremonies must be practiced in specific sacred areas at specific times of the year. In 1978, Congress passed the Native American Religious Freedom Act (42 U.S.C. section 1996) to protect access to sites. The Act states:

That henceforth it shall be the policy of the United States to protect and preserve for American Indians their right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rights.

Three tribes in Northern California have sacred sites in the Six Rivers National Forest, which have been traditionally used for ceremonial purposes. The Forest Service proposed to build a road through the forest linking two towns. In Lyng v. Northwest Indian Cemetery Protective Association, the court found that the ceremonies were an integral part of traditional religious belief. The ceremonies could be practiced only at the particular sites in the national park and disturbing the natural state of the land would make the ceremonies virtually impossible. What did the court decide? The court said that the government can use its own land any way that it sees fit, regardless of whether or not Indians are negatively impacted, as long as the government doesn’t coerce individuals into violating their religious beliefs or penalize their religious activity, so the Indians lost in this case. The major problem with the American Indian Religious Freedom Act is that it is only a declaration of policy. It contains no remedy for violations of the law.

There is federal land in Wyoming, known as Devils Tower National Monument. Devil’s Tower is a sacred site for a number of tribes. It also provides some of the best rock climbing in the country. The Dept. of the Interior tried to balance these competing interests. The most significant tribal ceremonial activities at Devil’s Monument occur during the month of June, so the National Park Service closed Devil’s Tower National Monument to commercial rock climbers during the month of June. A group of rock climbers sued the National Park Service claiming that the June closures violated the First Amendment by favoring Indian religions over other religions. How do you think the court decided in this case?

The court found that the closure violated the First Amendment to the constitution in that it supported American Indian religion, so the National Park Service posted a notice asking climbers to voluntarily refrain from rock climbing during the month of June. The climbers sued once again claiming that the voluntary notice favored American Indian religions. What do you think the court decided this time? The climbers pushed it too far this time. The court said that the voluntary request did not violate the climbers’ constitutional rights.

Courts have also rejected Indian attempts to prevent the federal government from building dams and flooding sacred places and refused to block the development of a ski area on a sacred mountain.

The American Indian Religious Freedom Act contains a provision that directs the President to require federal agencies to review their policies and procedures and identify changes needed to comply with the federal policy stated in the American Indian Religious Freedom Act. From 1978-1979, a task force identified 522 instances, affecting 70 tribes, where changes needed to be made. None of the task force’s recommendations have been adopted.

There are also a number of cases in recent years regarding prisoners’ rights to religious freedom. Courts have decided that prisoners have no right to use sweat lodges, since the use of sweat lodges must be balanced against the need for prison security. It is up to each prison administration to determine if they want to allow or prohibit the use of sweat lodges.

Peyote use is another area of religious freedom that has been addressed by Congress and the courts. The Native American Church has religious ceremonies that include peyote use. There was a case in 1990 in which two drug and alcohol counselors were members of the Native American Church and ingested peyote during religious ceremonies. Word got back to their employers and they were fired. Oregon law classified peyote as a controlled substance and provided for criminal penalties for its use and possession. (The case originated in Oregon). The men applied for unemployment but were denied unemployment benefits, so they sued – not for being fired, but to receive unemployment benefits. The Supreme Court held that employees could be denied state benefits, including unemployment compensation, for using peyote on their own time in religious ceremonies.

Congress reacted to this case by passing the Religious Freedom Restoration Act. The act specifically stated that it was being passed in response to the Supreme Court’s decision and granted protection for sacramental peyote use by Indians. The law provided that Indians ingesting peyote during church ceremonies were not subject to criminal drug penalties for such use. The Supreme Court had the final say; however, and in 1997, the court declared the act unconstitutional, so the court’s opinion in Employment Division, Dept. of Human Resources of Oregon v. Smith is the current law regarding this subject.





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