Native Americans and Religious Liberty

There is no single Native-American religion. Religions beliefs and practices vary considerably among the hundreds of Indian tribes in the United States. Yet, many Native-American religions share common features that distinguish them from non–Native-American religions. These distinctive features of Native-American religions have not been fully protected by the laws that have provided more complete religious liberty to more mainstream religions. While the religion clauses of the First Amendment apply in theory with full force to government actions affecting Native-American religions, and while some legislation has been enacted specifically to promote Native-American religious practices, the application of these provisions has often resulted in little actual protection for those religions.

The way in which traditional First Amendment and legislative standards have failed adequately to protect some of the distinctive, and yet essential, features of many Native-American religions is illustrated by the manner in which the courts and Congress have dealt with Native-American sacred sites, Native- American peyote use, and the holistic nature of many Native-American religions.

Unlike most mainstream religions in the United States, many Native-American religions view land as a living, sacred thing, and consider specific sites not only as the necessary location for important religious rites and ceremonies, but holy in and of themselves. Such lands can fulfill their full religious functions only if access to, and use of, the lands are carefully controlled. Otherwise, others may use the lands in ways that desecrate them or disturb those who use them for religious purposes. Unfortunately, Native Americans often do not possess the property rights to these lands, most of which are federal lands. Native Americans are, therefore, often unable to control use of the lands through the property law scheme, and they can preserve their religious connection to them only if they either convince federal land managers to control the lands in a manner that protects their sacred nature or persuade courts that the free exercise clause of the First Amendment requires the land managers to do so.

Native Americans’ ability to do the latter was severely curtailed by the U.S. Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Association (1988), when the Court rejected a free exercise challenge to a federal government plan to construct a road through an area considered sacred by several northern California tribes. Even though the Court conceded that the construction and use of the road might ‘‘virtually destroy the Indians’ ability to practice their religion,’’ it concluded that because the plan did not coerce the tribal members into acting contrary to their religious beliefs, the plan did not violate the constitution. Relying on its earlier ruling in Bowen v. Roy (1986), the Court concluded that the Native Americans’ religious liberty interests were outweighed by the government’s right to structure its own internal affairs and property. Thus, Native Americans’ distinctive view of the nature of sacred lands, along with their lack of property rights in those lands, have combined to make it difficult for them to obtain full protection of their religious practices in judicial proceedings.

Native Americans have had more success in convincing federal land managers and those who direct them to adopt land use policies that are sensitive to Native-American religious needs. In 1996, President Clinton issued an executive order directing federal agencies to ‘‘accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners.’’ Some federal agencies have adopted plans asking visitors to voluntarily refrain from secular activities on certain federal lands considered sacred by local tribes (such as the Bear Lodge or Devil’s Tower in Wyoming) in order to facilitate Native- American religious practices at certain times. Moreover, Congress itself has provided protection for Native-American religious activities in some specific locations, at times by placing the lands in trust for the tribe, thereby allowing the tribe considerable control over use and access to the sacred areas (such as the Blue Lake in New Mexico), and in other instances by authorizing federal land managers to close some lands to the general public, from time to time, to allow Native-American religious activities to be carried out in private (such as the El Malpais National Monument in another part of New Mexico). Furthermore, the Religious Land Use and Institutionalized Persons Act (RLUIPA) may provide some additional protection for Native-American sacred sites, as it limits the federal government’s authority to enforce land use regulations ‘‘in a manner that imposes a substantial burden’’ on religious activities.

However, legislation that would have provided broader protection for all sacred sites on federal lands was rejected in the 1990s, and many of the accommodating actions taken by the political branches have given rise to claims that these actions violate the Establishment Clause by preferring or promoting Native-American religions. Although these claims have by and large been rejected by lower federal courts, the challenges themselves further evidence the difficulty that Native Americans face when relying on traditional First Amendment tools to protect their distinctive religious views and practices.

A similar pattern—lack of success in the judicial arena, followed by gains in the political arena, which are then challenged in court—is found in the development of the law with respect Native-American religious use of peyote. Although many Native-American religions do not attach any religious significance to peyote, others, particularly those with roots in the Southwest, view peyote as not only an essential sacramental object, but as an object of worship itself. As the California Supreme Court explained in People v. Woody (Ca. 1964), in traditional peyote religions, ‘‘prayers are devoted to [peyote] much as prayers are devoted to the Holy Ghost’’ in Christian religions. Thus, for many Native Americans, the religious use of peyote is the sine qua non of their religion, and lower courts (including the court in Woody) initially indicated that such use was protected from governmental interference by the free exercise clause. However, in Employment Division of Oregon v. Smith (1990), the Supreme Court held that the State of Oregon did not violate the free exercise clause by criminalizing the religious use of peyote by Native Americans, nor by denying unemployment benefits to employees who were dismissed for violating that law. Thus, while there were some early judicial victories, Native Americans using peyote for religious purposes have ultimately received little judicial assistance in their quest for religious liberty.

As has been the case with protection for sacred sites, Native Americans who use peyote for religious purposes have had more success with the political branches of the federal government. However, in like fashion, these accommodations have themselves given rise to judicial challenges. In part as a response to Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for federal or state actions that ‘‘substantially burden’’ a person’s free exercise rights, thereby providing more protection not only for the religious use of peyote by Native Americans, but also for a wide variety of religious practices by all persons. However, in City of Boerne v. Flores (1997), the Supreme Court held that Congress’s effort to apply this test to state action was itself unconstitutional. How that ruling will apply to RFRA’s application to federal actions (which are typically the source of problems for Native American religions) is somewhat unclear, although early lower court decisions have upheld the act in this respect.

Congress also enacted a more specific response to Smith when it enacted a post-Smith amendment to the American Indian Religious Freedom Act (AIRFA), which provided an express exemption from federal and state drug laws for the ‘‘use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion.’’ However, once again, the Native Americans’ success in obtaining protection from the political branches of government has prompted judicial challenges, in this case by non–Native Americans who claim that the exception violates both the Establishment Clause of the First Amendment and the equal protection clause of the Fourteenth Amendment because it prefers Native Americans and their unique religious practices over the religious practices of others. Those claims have not yet been definitively resolved.

Another distinctive feature of many Native American religions that has proven to be a problem under traditional First Amendment jurisprudence is the common Native-American view that religion permeates all aspects of life. Unlike many mainstream religions that separate, both geographically and temporally, religious activities from secular pursuits, many Native American religions are more holistic. For many Native Americans, religion informs every aspect of life; there is no such thing as nonreligious activity. Thus, even seemingly day-to-day tasks, such as hunting, fishing, or preparing food, are religious activities infused with sacred meaning. Failing to understand this factor, some lower courts have refused to provide constitutional protection to Native- American religious practices because the courts concluded that the activities were merely manifestations of tribal culture, which like most secular activities can be regulated extensively, rather than religious activities entitled to First Amendment protection. Moreover, in cases involving the possession of eagle feathers and other objects that some Native Americans gather and use for religious purposes, the quest for religious liberty is made even more complicated by society’s interest in preserving endangered species, which some (although not all) lower courts have found outweighs the Native Americans’ right to exercise their religion free from government constraint.

Even some features of Native American religious beliefs and practices that are not as distinctive as use of sacred sites or peyote use have not fared well under traditional jurisprudence despite initial signs of promise. In 1978, Congress enacted the AIRFA, which committed the United States to the policy of ‘‘protect[ ing] and preserve[ing] for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indians.’’ However, the statute has had little practical impact because the U.S. Supreme Court in Lyng concluded that AIRFA created no judicially enforceable rights. Similarly, following some initial success in lower court decisions by Native-American prisoners who claimed that prison regulations concerning hair length violated their sincerely held religious beliefs, lower courts began to apply a less favorable test (developed by the Supreme Court in Turner v. Safley (1987) in a non–Native-American, non–religious liberty context) and, as a result, began more consistently to deny Native-American prisoners the right to wear long hair or headbands, to possess religious objects (such as pipes or medicine bags), and to have access to sweat lodges and other Native-American religious ceremonies. Native-American hopes that courts would be more accommodating to such claims after the enactment of RFRA proved largely unfounded, and, following the invalidation of that statute’s application to state action (including state prisons), Congress enacted RLUIPA, which in addition to changing the rules for land-use planning decisions, revived the strict scrutiny test for government activities that substantially burden the religious activities of persons incarcerated in federal or state prisons. The extent to which this statute will provide meaningful protection to Native- American prisoners, as well as the constitutionality of the statute, has yet to be fully determined.

KEVIN J. WORTHEN

References and Further Reading

• Deloria, Vine Jr. God Is Red: A Native View of Religion. 2nd ed., Golden, CO: North American Press, 1992.
• Dussias, Allison M., Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, Stanford Law Review 49 (1997): 4:773–852.
• Epps, Garrett. To an Unknown God: Religious Freedom on Trial. New York: St. Martin’s Press, 2001.
• Martin, Joel W. The Land Looks After Us: A History of Native American Religion. New York: Oxford University Press, 1999.
• Stewart, Omer C. Peyote Religion: A History. Norman: University of Oklahoma Press, 1987.
• Winslow, Anastasia P., Sacred Standards: Honoring the Establishment Clause in Protecting Native American Sacred Sites, Arizona Law Review 38 (1996): 1291–343.

Cases and Statutes Cited

• Bowen v. Roy, 476 U.S. 693 (1986)
• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)
• Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
• People v. Woody, 394 P.2d 813 (Ca. 1964)
• Turner v. Safley, 482 U.S. 78 (1987)

See also Bowen v. Roy, 476 U.S. 693 (1986); City of Boerne v. Flores, 521 U.S. 507 (1997); Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990); Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Religious Freedom Restoration Act; Religious Land Use and Institutionalized Persons Act of 2000; Turner v. Safley, 482 U.S. 78 (1987)