National Indian Law Library
NILL No. 010050/1991
Special Edition on Freedom of Religion: Today's Challenge
"Let mebe a free man-free 10 travel, fr-ee 10 slop, free 10 work, search for balance and harmonyand through various rituals free 10 follow the trade where I choose, free to choose myown teachers, free to follow the religion ofmy father, free to think, in which birds, animals, and plants were participants, har talk and act for myself, and I will obey every law or submit 10 mony oflife was achieved and maintained. the penalty." ••• ChidJoseph When the tribes were forcibly removed from their Editor's Prologue: Religious freedom is a protected liberty that most aboriginal homelands and forced to live on restricted Americans take for granted. However, according to the Supreme Court, smaller reservations, many of the ceremonies were noprotectionexists for tribal religionsofNative Americans underthe U.S. prohibited by the Bureau ofIndian Affairs, and the people Constitution and laws. This lack ofprotection has created human rights problems in Indian country. were forced to adopt various subterfuges so that ceremonial Bills will soon be introduced in COngress to protect Native religious life could continue. Some tribes conducted their most im freedom. One would think that passage should be a simple matter since portantceremonies onnational holidays and Christian feast most people appreciate the rich Native cultures and want them preserved. days, explaining to curious whites that they were simply Who would disagree with 1978 House and Senate reports: honoring George Washington and celebrating Christmas America does not need to violate the religions of her native peoples.._There Is room for and great value In cultural and and Easter. Since many shrines and Holy Places were religiousdlverslty••_We would be the poorerIf these American isolated and rural parts of the continent were not being Indian religions disappeared from the face oftheEarth. H.R. exploited or settled, it was not difficult for small parties of Rep. No. 1308, 95th Cong.., 2d Sess. 3 (1978); S. Rep. No. 709, people to go into the mountains or to remote lakes and 95th Co~" 2d Sess. 3 (1978) However, fewpeople--and apparently no federal agencies-are familiar buttes to conduct ceremonies without interference from with thespiritual basis ofNativecultureorunderstand theculturalconflict non-Indians. Most Indians did not see anyconflict between which has placed vulnerable tribal religions in a wholly unprotected class their old beliefs and the new religions ofthe white man and, today. As Natives ask C.ongress to protect their religious freedom, it consequently, a surprising number ofpeople participated in becomes important for Americans to better understand how this human rights problem arose in a society that prides itselfon protecting individual these ancient rituals while maintaining membership in a liberty. Christian denomination. This issue is devoted to explaining the nature ofa fundamental problem in society's relationship with Native Americans since the Pilgrims landed During this century, the expanding national population and at Plymouth Rock. What are Sacred Sites? Whey are they so important? the introduction of corporate farming and more extensive Why won't the government protect them? What is the impact of the . emergingSupremeCourt Free Exercise Doctrine upon Indian Tribes, and mining and timber industry activities reduced the isolation why is it important for society to protect Native religious liberty? of rural America. Development pressures on public and
SACRED LANDS AND RELIGIOUS Contents: Vol. 16, No.2 FREEDOM Summer 1991 Sacred Lallds by Vine Deloria & Religous Freedom 1 Legislative Call To Action 2 Since time immemorial, Indian tribal Holy Men have gone Loopholes into the high places, lakes, and isolated sanctuaries to pray, III Religious Uberty 6 receive guidance from the Spirits, and train younger people Case Updates 12 in the ceremonies that constitute the spiritual life of the NARF Resources and Publications 13 tribal community. In these ceremonies, medicine men rep New Board Members 15 resented the whole web of cosmic life in the continuing
NARF Legal Review Summer 1991 reservation lands made it increasingly more difficult for ruled that the Resolution contained nothing in it that would traditionally religious people to conduct their ceremonies protect or preserve the right of Indians to practice their and rituals. Since many of the sacred sites were on public religion and conduct ceremonies at sacred sites on public lands, traditional religious leaders were often able to work lands. Some courts even hinted darkly that any recognition out informal arrangements with federal agencies to allow of the tribal practices would be tantamount to establishing them access to these places for religious purposes. But as a state religion, an interpretation which upon analysis was a personnel changed in state and federal agencies, a new dreadful misreading ofAmerican history and the Constitu generation of bureaucrats, fearful of setting precedents,~ tion and may have been an effort to inflame anti-Indian began to restrict Indian access to sacred sites by establishing feelings. increasingly narrow rules and regulations for managing public lands. In 1988 the Supreme Court decided the Lyng v. Nonhwest Indian Cemetery Protective Association case which involved In 1978, in an effort to clarify the status of traditional access to sacred sites high up in the Chimney Rock area of religious practices and practitioners, Congress passed a the Six Rivers National Forest in northern California. The joint resolution entitled "The American Indian Religious Forest Service proposed to build a six-mile paved logging Freedom Act" which declared that it was the policy of road that would have opened the high country to commer Congress to protect and preserve the inherent right of ciallogging, destroying the isolation ofthe ceremonial sites American Indians to believe, express, and practice their of three tribes and introducing new processes of environ traditional religions. The Resolution identified the prob mental degradation. The lower federal courts prohibited lem as one of a "lack of knowledge or the insensitive and construction of the road on the grounds that it would have inflexible enforcement of federal policies and regulations." made religious ceremonial use of the area impossible. Section 2 of the Resolution directed the President to have Before the Supreme Court could hear the appea~ Congress the various federal departments evaluate their policies and passed the California Wilderness Act, thereby making the procedures and report back to Congress the results ofthis question almost moot. The Supreme Court, nevertheless, investigation and any recommendations for legislative ac insisted on deciding the religious issues and ruled that even tion. the Free Exercise clause did not prevent the government frum using its property any way it saw fit. Most people assumed that the Resolution marked a clarification of federal attitudes toward traditional Most troubling about the Supreme Court's decision was its religions, and it began to be cited in litigation involving the insistence on analyzing tribal religions within the same con construction ofdams, roads, and the management offederal ceptual framework as western organized religions. Justice lands. Almost unanimously, however, the federal courts O'Connor observed that, "A broad range of government activities -- from social welfare programs to foreign aid to conservation projects -- will always be considered essential LEGISLATIVE CAItLTO ACTION to the spiritual well-beingofsomecitizens, oftenon the basis ofsincerely held religious beliefs. Others will find the very same activity deeply offensive, and perhaps incompatible You can help! Your personal and direct supp()rt with their own search for spiritual fulfillment and with the for federal legislation to protect Native American tenets of their religion." Thus, ceremonies and rituals per religious freedom is needed. Send a short letter t<:>. formed for some thousands ofyears were treated as if they the following members Of Congress--induding were personal fads or matters of modern emotional per members of Congress from your home state--with sonal preferencebased upon the erroneous assumption that a copy to NARF. requesting that they introduce belief and behavior can be separated. Justice Brennan's and support such legislation. dissent vigorously attacked this line ofreasoning but failed to gather support within the court. Most observers of the The Honorable Daniel Inouye Supreme Court were simply confounded at the majority's United States Senate conclusion which suggested that destroying a religion did Washington, D.C. 20510 not unduly burden it and that no constitutional protections were available to the Indians. The Honorable George Miller United States House of Respresentatives When informed ofthe meaning ofthis decision, most people Washington, D.C. 20.515 have shown great sympathy for traditionally religious people. At the same time, they have had great difficulty Forfurther information about ways to help, contact understanding why it is so important that ceremonies be NARF Staff Attorney Walter Echo-Hawk at held, that they be conducted only at certain locations, and 'Ul~/ll7_Sl7m Th"nlr ur", ,.,"'·JI • •• ...... -..,...... J --" that they be held under conditions of extreme secrecy and privacy. These problems in understanding highlight the I J great gulf that exists between traditional western thinking "'-"',._--'_._._---_.""---."--_..,,,.,.,,," ,-- -~...,,"._,--j NARF Legal Review 2 Summer 1991 .. , ,'.'.. -:;. -'-"--'-1 j ! A beliefin the sacredness oflands in the non-Indian context I T about religion and the Indian perspective. It is the dif I ference between individual conscience and commitment may become a preferred belief of an individual or group of I (western) and communal tradition (Indian), and these views non-Indian individuals based on their experiences or on can onlybereconciled by examiningthem in a much broader intensive study of preselected evidence. But this belief historical and geographical context. becomes the subject of intense criticism and does not, ex cept under unusual circumstances, become an operative Justice Brennan attempted to make this difference clear principle in the life and behavior of the non-Indian group. when he observed that, "Although few tribal members ac The same belief, when seen in an Indian context, is an tually made medicine at the most powerful sites, the entire integral part of the experiences of the people -- past, tribe's welfare hinges on the success of individual prac present, and future. The idea does not become a bone of titioners." More than that, however, the "World Renewal" contention among the people, for even if someone does not ceremonies conducted by the tribes were done on behalfof have experience or belief in the sacredness of lands, he or the earth and all forms of life. To characterize the she accords tradition the respect that it deserves. Indians ceremonies as if they were a matter ofpersonal, emotional who have never visited certain sacred sites nevertheless
or even communal aesthetic preferences, as was done by know of these places from the general community 1 Justice 0' Connor, is to miss the point entirely. In effect, knowledge, and they feel them to bean essential partoftheir ! the court declares that Indians cannot pray for the planet or being. for other people and other forms of life in the manner I required by their religion. Justice Brennan, in countering the near-demagogic state ment by Justice O'Connor, that recognition of the sacred I Two contradictory responses seem to describe the non-In ness ofcertain sites would allow traditional Indian religions dian attitudes toward traditional tribal religions: Some to define the use of all public lands, suggested that the people want the medicine men and women to share their burden of proof be placed on traditional people to I religious beliefs in the same manner that priests, rabbis and demonstratewhy some sites are central to their practice and I ministers expound publicly the tenets of theirdenomina other sites, while invoking a sense of reverence, are not as tions; others feel that Indian ceremonials are remnants of important. This requirement is not unreasonable, but it primitive life and should be abandoned. Neither perspec requires a willingness on the part of non-Indians and the tive understands that Indian tribes are communities in fun courts to entertain different ideas which, until the present, damental ways that other American communities and have not been part of their experience or understanding. organizations are not. Tribal communities are wholly Thesubject is considerably more complex than most people defined by family relationships, whereas non-Indian com expect. munities aredermed primarilyby residence orby agreement with sets of intellectual beliefs. Ceremonial and ritual Ifwe were to subject the topic of the sacredness oflands to knowledge is possessed by everyone in the Indian com a western rational analysis, fully recognizing that such an munity, although only a few people may actually be chosen analysis is merely for our convenience in discussion and to perform these acts. Authorization to perform does not represent the nature ofreality, we would probably ceremonies comes from higher spiritual powers and not by find fow' major categories of description. Some of these certification by an institution or even by any formal or categories certainly are overlapping in the sense that dif ganization. ferent individuals and groups have already sorted out their own beliefs so that they would not accept the classification The Indian community passes knowledge along over the of certain sites in the categories in which Indians would generations as a common heritage that is enriched by the place them. Nevertheless, it is the principle of respect for experiences ofboth individuals and groups ofpeople in the the sacred that is impohant. ceremonies. Both the ceremony and the people's inter pretation of it change as new insights are gained. By con The first and most familiar sacred lands are those places to trast the non-Indian communities establish educational which we attribute a sacredness, because the location is a institutions which examine, clarify and sometimes radically site where, within our own history, regardless of our group, change knowledge to fit their needs. Knowledge is the something ofgreat importance took place. Unfortunately, possession of an exclusive group of people -- the scholars many of these places are related to instances of human and the professionals who deeply believe that the rank and violence; Gettysburg National Cemetery is a good example file of their communities are not intelligent enough to un of this kind of sacred land. Abraham Lincoln properly derstand the esoteric truths of their society. Basic truths noted that we cannot hallow the battlefield at Gettysburg about the world are not expected to change, regardless of because others, the men who fought there, had already the experiences ofany generation, and "leading authorities" consecrated it by giving "that last full measure of devotion." are granted infallibility based on their professional status We generally hold these places sacred because there men did what \1/e mig...ltt one day be required to de ~- give cur lives in a cause we hold dear. Wounded Knee, South Dakota, is L _. such a place for many Indians.. The Lincoln Memorial in NARF Legal Review 3 Summer 1991 _.....1- ._.__...• _
-washinglOn, D.C. m~' be an example O:oca'iOO with a Navajo peoples completed their migrations, were told to nonviolent background. settle, or were where they first established their spiritual relationships with bear, deer, eagle and the other forms of rEvery society needs these kinds ofsacred places. They help life who participate in the ceremonials. As we extend the f to instill a sense ofsocial cohesion in the people and remind circle geographically, we must include the Apache, Ute, I them of the passage of the generations that have brought Comanche, Kiowa and other tribes. East ofthe Mississippi, them to the present. A society that cannot remember its even though many places have been nearly obliterated, I past and honor it is in peril of losing its soul. Indians, people still have knowledge ofthese sacred sites. I because ofourconsiderablylonger tenure on this continent, f have many more of these kinds of sacred places than do In the religious world of most tribes, birds, animals and ! non-Indians. Many different kinds of ceremonies can and plants compose the "other peoples" of creation and, i have been held at these locations, and there is both ex depending on the ceremony, various of these peoples par i clusivity and inclusiveness depending upon the occasion ticipate in human activities. IfJews and Christians see the t and the ceremony. In this classification the site is all-impor action ofa single deity at sacred places and in churches and { tant, but it is sanctified each time ceremonies are held and synagogues, traditional Indian people see considerably prayers offered. more activity as the whole of creation becomes an active I participant in ceremonial life. Since the relationship with I A second classification ofsacred lands has a deeper, more the "other peoples" is so fundamental to the human com profound sense of the sacred. It can be illustrated in Old munity, most traditional practitioners are very reluctant to Testamentstories which have become the foundation oftwo articulate the specific elements of either the ceremony or world religions. After the death of Moses, Joshua led the the location. And since some ceremonies involve the con Hebrews across the River Jordan into the Holy Land. On tinued good health and prosperity of the "other peoples," approaching the river with the Ark of the Covenant, the discussing the nature of the ceremony would violate the waters ofthe Jordan "rose up" or parted and the people, led integrity of these relationships. Thus when traditional by the Ark, crossed over on "dryground," which is to say they people explain that these ceremonies are being held for "all crossed without difficulty. After crossing, Joshua selected our relatives," that explanation should be sufficient. It is one man from each of the Twelve Tribes and told him to these ceremonies in particular that are now to be prohibited fmd a large stone. The twelve stones were then placed under the Supreme Court's rulings. together in a monument to mark the spot where the people had camped after having crossed the river successfully. Itis not likely that non-Indians have had manyofthese kinds When asked about this strange behavior, Joshua replied, of experiences, particularly since most churches and "That this may bea sign among you, that when your children synagogues have special rituals which are designed to ask their fathers in time to come, saying, 'What mean ye by denaturalize the buildings so that their services can be held these stones?' Then you shall answer them: That the waters there. Non-Indians have simply not been on this continent ofJordanwere cut offbefore the Ark ofthe Covenant ofthe very long; their families have moved constantlyabout so that Lord; when it passed over Jordan." (Joshua 4:6-7) any kind of relationship that might have been possible for people has been forfeited. Additionally, non-Indians have In comparing this sacred site with Gettysburg, we must engaged in senseless killings of wildlife and utter destruc understand a fundamental difference. Gettysburg is made tion of plant life, and it is unlikely that they would have sacred by the actions of men. It can be described as ex understood any effort by otherforms oflife to communicate. quisitely dear to us, but it is not a location where we have But it is also a fact of human experience that some non-In perceived that something specifically religious has hap dians, who have lived in rural areas ofrelative isolation and pened. In the crossing of the River Jordan, the sacred whose families have lived continuously in certain locations, appeared in the lives ofhuman beings; the sacred appeared tell stories about birds and animals not unlike the traditions in an otherwise secular situation. No matter how we might of many tribes. attempt to explain this event in later historical, political or economic terms, the essence ofthe event is that the sacred The third kind of sacred lands are places of overwhelming has become a part of our experience. Holiness where Higher Powers, on their own initiative, have revealed themselves to human beings. Again we can use an Some of the sites that traditional religious leaders visit are Old Testament narrative to illustrate this kind of location. of a similar nature. Thus Buffalo Gap in the southeastern Prior to his trip to Egypt, Moses spent his time herding his edge of the Black Hills ofSouth Dakota marks the location father-in-Iaws sheep on and near Mount Horeb. One day where the buffalo emerged each spring to begin the he took the flock to the far side ofthe mountain, and to his ceremonial year ofthe Plains Indians. It may indeed be the amazement he saw a bush burning with fire but not being starting point of the Great Race which determined the consumed. Approaching this spot with the usual curiosity primacy between the tWG- leggeds and four-leggeds at the of a person accustomed to the outdoor life, rvfoses was beginning of this world. Several mountains in New Mexico startled when the Lord spoke to him from the bush, warning, and Arizona mark places where the Pueblo, Hopi, and "Draw not hither; put off thy shoes from thy feet, for the
NARF Legal Review 4 Summer 1991 -,...._-,-_...._-~-----,_.,'---_._---
place whereon thou standest is holy ground." (Exodus 3:5, Illghe,' ,etention ,.'e because of 'heir planetary ~po:~I' emphasis added) tance. Ironically, traditional people have been forced to l, hold these ceremonies under various forms of subterfuge and have been abused and imprisoned for doing them. Yet j This tradition tells us that there are, on this earth, some I places of inherent sacredness, sites that are Holy in and of the ceremonies have very little to dowith individual or tribal I themselves. Human societies come and go on this earth and prosperity. Their underlying theme is one of gratitude ex any prolonged occupation of a geographical region will pressed by human beings on behalf of all forms of life and produceshrines andsacredsitesdiscerned by the occupying they complete the largest possible cycle of life, ultimately people. One need only to look at the shrines ofpresent-day representing the cosmos, in its specific realizations, becom I Europe and read the archaeology ofthe sites to understand ing thankfully aware ofitself. f that long before Catholic or Protestant churches were built in certain places, many other religions had established their Having used Old Testament examples to show the objective shrines and temples on those spots. These Holy Places are pre-sense of the Holy, we can draw additional conclusions locations where human beings have always gone to com about the nature of these Holy Places from the story ofthe I municate and be with higher spiritual powers. This Exodus. Moses did not make that particular location ofthe phenomenon is world-wide and all religions find that these burning bush an object of worship for his people, although places regenerate people and fill them with spiritual there was every reason to suppose that he could have done powers. In the western hemisphere these places, with some so. Rather he obeyed and acted on the revelation which he I few exceptions, are known only by American Indians. Bear received there. In the absence of further information, we Butte, Blue Lake and the High Places ofthe Lyng case are must conclude that this location was so holy that he could all well-known locations which are sacred in and of them not reveal its secret to other people. Ifhe had been told to selves. perform ceremonies at that location during specific days or times of the year, world history would have been entirely Among the duties which must be performed at these Holy different. In that case, the particular message received at Places are ceremonies which the people have been com these locations becomes a definitive Divine commandwhich manded to perform in order that the earth itself and all its people must then follow. We have many tribal migration forms of life might survive. Some evidence of this sacred stories that involve this particular kind ofDivine command dimension, and ofothersacred places, has come through in and sacred sites which originate in the same revelation. For the testimony of traditional people at various times in this traditional Indian religious leaders who have been told to centurywhen theyhave explained to non-Indians, in and out perform ceremonies as spiritualguardians ofthis continent, of court, that they must perform certain kinds of there is no question ofobedience. ceremonies, at certain times and places, in order that the sun may continue to shine, the earth prosper, and the stars The second and third categories ofsacred lands result from remain in the heavens. revelations ofthe Holy at certain locations. Theceremonies that belong to these sacred sites involve a process of con Skeptical non-Indians andrepresentatives ofother religions tinuous revelation and provide the people with the neces seeking to discredit tribal religions have sometimes sary information to enable them to maintain a balance in deliberately violated some of these Holy Places with no ill their relationships with the earth and other forms of life. effects. Theyhave thereupon come to believe that they have Because there are higher spiritual powers who are in com demonstrated the false nature of Indian beliefs. These munication with human beings, there has to be a fourth violations reveal a strange non-Indian belief in a form of category of sacred lands. Human beings must always be mechanical magic that is touchingly adolescent, a beliefthat ready to receive new revelations at new locations. If this an impious act would or could trigger an immediate possibilitydid not exist, all deities and spirits would bedead. response from the higher spiritual powers. Surely these Consequently, we always look forward to the revelation of impious acts suggest the concept ofa deity who spends time new, sacred places and new ceremonies. Unfortunately, recording minor transgressions as some Protestant sects some federal courts have irrationally and arbitrarily cir have envisioned God. It would be impossible for the cumscribed this universal aspect ofreligion by insisting that thoughtless acts of one species to have a drastic effect on traditional religious practitioners restrict their identifica I the earth. The cumulative effect of continuous secularity, tion ofsacred locations to those places that were historically however, poses an entirely different kind of danger, and visited by Indians, implying that, at least for the federal I prophecies tell us of the impious people who would come courts, God is Dead. here, defy the Creator, and bring about the massive destruc I tion of the planet. Many traditional people believe that we In denying the possibility ofthe continuing revelation ofthe are now quite near that time. sacred in our lives, federal courts, scholars and state and federal agencies refuse to accord credibility to the testimony nf -.=.11 tJ,.o t .."::'A;t;,,"~l ,...or.o~n";PC" p.vt-.,nt "':JnA .,,...t;,,.ol,, _r.,,.._ _f ... ~J:"";_"t" J~~rI.nrl'" rln~~ ... A "",,.,.:,..10,..,.".0. t .... ,..,. ..,. ,...,0..·0--.."...... ' ...... !, ""a -..... "' ...... "' .. u...... "'..v ....u,a """"'...... V.l...l...... ;> ...... A"'U.l&\. u..u,y u ...... \. .. ,,"".} pau."", VL a ...... 5.lV~ ..""'uu...... lO>, UVUU,U..lU "'".l\.,I\o... u"'...... "'.ual. a \..-\..-l\.. NARF Legal Review 5 Summer 1991 r---·----.- ... -.··-~--·· ..-··· .. ···-·----- ..·--..-··~·-·· ..... Indians who appearbefore them. This practice does exactly purport to protect certain kinds oflands and resources from t what the Supreme Court avows is not to be done -- it allows the very developers who now seek to exclude Indian the courts to rule on the substance of religious belief and religious people from using public lands. .. -._-.,.- .." ..• _'---_._------_. NARF Legal Review 6 Summer 1991 which ~as been enshrined in the First Amendment by the LOOPHOLES IN RELIGIOUS FoundlDg Fathers, those values were disregarded in the LIBERTY: THE NEED FORA federal government's treatment ofAmerican Indians. That FEDERAL LAW TO PROTECT history provides a backdrop for understanding the present FREEDOM OF WORSHIP FOR crisis in Native religious freedom. NATIVE PEOPLE In 1979, the Secretary of the Interior submitted a report to Congress that recounts the historic treatment of Native religion by the federal government? One cornerstone of by Walter Echo-Hawk federal Indian policy was to convert the "savage" Indians into Christian citizens and separate them from their tradi '7he Indian plays much the same role In our American tional ways of life. President Jackson's Indian removal society that the Jews played In Germany. Like the miner's policy was justified in the name ofconverting and civilizing canary, the Indian marks the shift rrom rresh air to polson the Indians? Christian missionaries, hired as government gas In our political atmosphere; and our treatment or In Indian agents, were an integral part of the federal Indian dians, even more than our treatment or olher minorllles pol~cy marks the rise and rail orour democratic raUb." for over one hundred years. The government placed entIre reservations and Indian Nations under the ad ministrative control of church denominations. Indian lands --Felix Cohen, the Falher of Federal Indian Law were conveyed to missionary groups in order to convert the ! Indians and separate them from their traditions. I INTRODUCfION Separation of ch...ch and state""" d;"'egarded in the , government's treatment ofIndians. The Secretary's report " Two recent Supreme Cowt cases have created a crisis in to Congress found as follows: ! religious liberty for Native Americans.! These cases held that the First Amendment does not protect tribal religious That Christianity and federal interests were often practices and referred the task ofprotecting Native worship identical became an article offaith in every branch to Con~·ess. Stripped of any constitutional or statutory of the govemment and this pervasive attitude in protections under American law, Indian religion has be itiatedthe contemporaryperiodofreligious persecu come the "miner's canary." In excluding traditional Indian tion ofthe Indian religions. It was not, to be certain worship from the First Amendment, the court has so nar a direct attack on Indian tribal religions because oj rowed the scope, meaning and protections of the Free I theirconflict with Christianity, but an oblique attack ,I Exercise Clause that it has seriously weakened religious on the Indian wtry oflife that had as its by-product liberty for all Americans. the transformation oj' Indians into American citizens. Had a Christian denomination or sect, or This article examines the impact ofthe new Supreme Court I the Jewish community been subjected to the same doctrine--which has been described by constitutional law I scholars as "the rise and fall ofthe Free Exercise Clause"--on requirements prior to receiving affirmation oftheir " legal andpoliticalrights, the outcry would have been ' Native religious freedom. Felix Cohen's words are tremendous. 4 propheticwhen one views the resurgence ofracism censor ship, intolerance, and the growing trend toward r;stricting By the 1890s, after tribes were placed on reservations other civil liberties during a time when American Indian government treatment of their religions took a darker turn: worship has been excluded from constitutional protection. In that decade, U.S. troops were called in to stamp out the If ow' legal system cannot protect basic freedoms of even Ghost Dance religion of the tribes who were confmed on the weakest among us, does it lack sufficient vitality to reservations. In 1890, Sioux Ghost Dance worshippers were protect the rest ofsociety? As Native Americans ask Con slaughtered at Wounded Knee. In 1892, Pawnee Ghost gre~s to protect the "miner's canary", this may test the Dance leaders were arrested in Oklahoma. And soon that nation's "democratic faith" and commitment to underlying r~ligion ceased to exist as it was suppressed among other values of the Bill of Rights. tnbes. In 1892, the BIA outlawed the Sun Dance religion and banned other ceremonies which were declared "Indian Historic Suppression of Native Religion offenses" and made punishable by withholding ofrations or 30 days imprisonment.S I Since Columbus' arrival almost 500 years ago, a basic fea- 1 ture of society's relationship with American Indians has ~orm~ government rules prohibiting tribal religions con been government insensitivity to Native religious beliefs and I tmued mto the 1930s. In 1904, BIA Court ofIndian Offen pr~cti~s: At times gover~ment insensitivity included for ses regulations stated in very stark terms: ~ mal pOlICIes (0 suppress trlbai reiigion and cuiture in order L' to "civili"," Indian,. Even thongh the Pilg,im, and othe, .-=.:I~~:~~~:::.~o~:~:ericain search of religious .f_r_e_ed_o_m _ NARF Legal Review------····· ..·,,-·· 7 Summer 1991 ,------~---_._ .. r-r---·--·-"·_-"-~"--·-·-·--· .._-,.'"_ __..__._----- FOUlth. The "sun dance", and all other similar The Lyng Decision: dances andso-calledreligious ceremonies, shall be Need for Federal Sacred Sites Legislation considered "Indian offenses~ andany Indian found guilty ofbeing a participant in anyone or more of All world religions share a unifying dependence, in varying these offenses shall . .. bepunished by withholding degrees, upon sacred sites, including the indigenous from him his rations for a period ofnot exceeding religions ofAmerican Indian tribes, Native Hawaiians and ten days; and if found guilty of any subsequent Native Alaskans. Indeed, worship at sacred sites is a basic offense under this rule, shall be punished by with attribute-of religion itself. I holdinghis rations for a period not less than fifteen days normore than thirty days, or by incarceration However, when thinking of sacred sites, most Americans I in the agencyprison for a periodnotexceeding thirty think only of well-known Middle Eastern sites familiar to days. the Judeo-Christian tradition such as Mecca, the Wailing Wall, Mount Sinai or Bethlehem. In the recent war against I **** Iraq, our government and its allies took special care not to destroy sensitive religious areas. None doubt that these Sixth. The usual practices ofso-called "medicine important Middle East religious sites are entitled to strin men" shall be considered "Indian offenses" ... gent legal protections for the practitioners of those faiths. I [punishable by confinement] in the agency Indeed, the laws ofIsrael dojust that. Israel's Protection of guardhousefora tenn notless than ten days, oruntil Holy Places Law of 5727 (1967) (Sefer ha-Chukim, 1967) such time as he shallproduce evidence satisfactory states: to the court, and approved by the agent, that he will forever abandon allpractices styled Indian offense 1. The Holy Places shallbeprotectedfrom desecra under this rule. 6 tion andany other violation from anything likely to violate thefreedom ofaccess ofthe members ofthe Though Indians were not granted citizenship until 1924,7 different religions to the places sacred to them or this does not justify the outright government ban on their theirfeelings with regard to those places. right to worship which was in effect until 1934.8 2. (a) 'Whosoever desecrates or' otherwise violates a Serious problems in Native religious freedom persisted into Holy Place shall be liable to imprisonment for a the 1970s, with numerous arrests of traditional Indians for tenn ofseven years. possession of tribal sacred objects such as eagle feathers, criminal prosecutions for the religious use of peyote, denial (b) 'Whosoever does anything likely to violate the ofaccess to sacred sites located on federal lands and inter freedom ofaccess ofthe members ofthe different ference with religious ceremonies at sacred sites. After religions totheplacessacredtothem ortheirfeelings hearings held in 1978, Congress recognized the need to with regard to those places shall be liable to im protect Indian religious fl'eedom, including worship at prisonmentfor a tenn offive years. sacred sites and the use and possession of sacred objects. The hearings revealed that much of the problem resulted Unfortunately, American law and social policy overlook flom a simple government lack of knowledge about tradi that our own landscape is dotted with equally important tional religious practices. American Indian religious sites that have served as cornerstones for indigenous religions since time im To remedy the problem, Congress enacted the American memorial. As Representative Morris Udall stated on the Indian Religious Freedom Act of 1978 (AIRFA). AlRFA floor of Congress in 1978: established a federal policy to protect andpreserve the tradi tional religions ofnative people, including worship at sacred Formanytribes, the landisfilled with physicalsites sites. Though AIRFA was considered a landmark ofreligious and sacred significance to them. Can breakthrough at the time, in the intervening 1.3 years, tribes we not understand that? Our religions have their found that its policy has no teeth and has meant nothing to lerusalems, Mount Calvarys, Vaticans andMeccas. federal agencies. We holdsacred Bethlehem, Nazareth, the Mount of Olives and the Wailing Wall Bloody wars have The treatment of Native worship by the Supreme Court in been fought because ofthese religious sites. Lyng and Smith, analyzed below, is especially troubling when considered in the context of the above history. It is a Traditional Native American religious sites--some of which testament to the vitality of tribal religion that it has persist rank among the most beautiful and breath-taking natural ed, despite a long history ofgovernment suppression that is wonders left in America--serve a variety of important roles unprecedented for any other religion in this country. But in tribal religion which should be readily understandable to whether these unique religions can survive without any most people. See, Vine Deloria, "Sacred Lands and American legal protection is highly doubtful. Religious Freedom," supra. NARF Legal Review 8 Summer 1991 When Congress passed AIRFA in 1978, therewas hope that 472. Hedescribed the clear need for a federal law to protect protection ofNative worship at sacred sites would be incor the Native worship at sacred sites: poratedinto American law and social policy, since Congress recognized the need to protect such worship at that time. Today, the Court holds that a federal land-use Since 1978, however, federal land managing agencies such decision that promises to destroy an entire religion as the Forest Service and the Park Service have repeatedly does not burden the practice ofthat faith in a man been allowed by the courts to destroy irreplaceable Native nerrecognized by the Free Exercise Clause. Having sacred sites. The courts have consistently been unwilling to thus stripped respondents and all other Native find an~ protections under the First Amendment or any Americans ofany constitutionalprotection against statute. Finally, the struggle in the courts culminated in perhaps the most serious threat to their age-old 1988, when the Supreme Court ruled in Lyng that Indians religious practices,and indeed to their entire way of stand outside the purview of the First Amendment entirely life, the Court assures us that nothing in its when it comes to protecting tribal religious areas on federal decision "should be read to encourage governmen lands for worship purposes. tal insensitivity to the religious needs ofany citizen. . ." Given today's mling that religious freedom In Lyng, a sharply divided court denied First Amendment amounts to nothing more than the right to believe protection to tribal worship at a sacred site in Northern that the religion will be destroyed. The safeguarding California that would admittedly be destroyed by a ofsuch a hollowfreedom notonly makes a mockery proposed Forest Service logging road. One troubling of the "policy of the United States to protect and aspect of the court's refusal to protect worship at this an preserveforAmerican Indians theirinherent right of cient holy areawas that the court withheld protection know freedom to believe, express, and exercise their tradi ing that "the threat to the efficacy ofat least some religious tional religions, "[quoting AIRFA], itfails utterly to practices is extremely grave": accord with the dictates ofthe First Amendment. Even ifwe assume that we should accept the Ninth As a result ofLyng, there are no legal safeguards for Native Circuit's prediction, according to which the G-O worship at sacred sites under the U.S. Constitution and Road will "virtually destroy the Indians' ability to laws, laying bare a basicattribute ofreligion itself. Thislegal practice their religion," ... the Constitution simply anomaly has frightening implications for remaining tribal does not provide a principle that could justify religions struggling to survive. In 1991, for example, the upholding respondents' claim. traditional Blackfeet Indians ofthe Crazy DogSociety, who are attempting to protect their place of worship from 485 U.S. at 452-53. In short, the government may destroy destruction by the Forest Service, stand without any legal an entire Indian religion under Lyng with constitutional protections in American jurisprudence. The Crazy Dog impunity, unless it goes further and punishes the Indians or Society recently received an ominous Forest Service letter forces them to violate their religion. The court reached this threatening: harsh result by construing the Free Exercise Clause in the most narrow terms possible: holding that Free Exercise We both know apoint ofview the same as yours has protections arise on~y in those rare instances when govern been argued before the U.S. Supreme Court andthey mentpunishes a person for practicingreligion orcoerces one decided that while a government action may sig into violating his religion. Because it is hard to imagine rare nificantly affect aperson's ability to pursue spiritual instances in which that will happen, the court's narrow fulfillment, the govemment's action doesn't coerce interpretation renders the Free Exercise Clause a virtual individuals into violating their religious beliefs. 10 nullity. This crabbed reading should deeply concern all citizens who cherish religious freedom principles. Under From a policy standpoint, no religious group should be Lyng, United States law guarantees less religious freedom stripped of First Amendment protections in a democratic than most other democracies and some non-democratic society so that its ability to worship is made wholly depend nations. ent upon administrative whim.. This is especially true for unpopular or despised minority religious groups, such as As to the Indians in the Lyng case, the court disclaimed American Indians, who have suffered a long history of judicial responsibility to safeguard their religious freedom government religious suppression .. from government infringement, stating that any protection for them "is for the legislatures and other institutions." Id The inability ofexisting American law, as interpreted by the Supreme Court, to protect sacred sites is symptomatic of a Former Justice Brennan's dissent noted the "cruelly surreal larger failure of American jurisprudence to address and result" produced by the majority decision whereby, incorporate indigenous values and needs into the legal sys- "governmeniai action that will virtually destroy a religion is tern that is intended to protect aU citizens. Certainly, if this nevertheless deemed not to 'burden' that religion" Id. at country contained holy ground considered important to the L_.._. · J_U_d_e_o_-c_h_ri_s_ti_an_t_ra_d_i_ti_o_n_,_A_m_e_r_ica_n_la_w_a_n_d__s_o_c_ia_l_p_o_li_CY_....J NARF Legal Review 9 Summer 1991 would undoubtedly accord s~ringent protections. Because upholding the First Amendment right ofIndians to practice important Judeo-Christian sites are located in other na this age-old religion, one court noted: tions, it is understandable that as American law developed in the United States it never addressed this aspect of /TJhe nght to free religious expression embodies a religious freedom. Thus, when Native religious prac precious heritage ofour history. In a mass society, titioners petitioned the courts, they found the law surpris which presses at every point toward confonnity, the ingly ill-equipped to protect their religious liberty. protection ofa self-expression, however unique, of However, if the purpose of law is to fairly protect all fun the individualandgroup becomes ever more impor damental interests of our diverse and pluralistic society, tant. The varying currents ofthe subcultures that then it must someday address the needs of indigenous flow into the mainstream ofournational life give it people. depth and beauty. We preserve a greater value than an ancient tradition when weprotect the rights ofthe One way to start correcting the result of the Lyng decision Indians who honestly practiced an old religion in is for society to respect Native sacred sites for what they are. usingpeyote one night at a meetingin a desert hogan The concept of religious worship at sacred sites is not near Needles, California. 14 unique to American tribal religions nor is it difficult to understand. Hopefully, society will com~ct this injustice. It In Smith, the high court was asked to protect the First is moral(y intolerable for society to condone government infr Amendment rights of members of the Native American t ingement upon worship that predates the founding of this Church who were fired from theirjobs for offduty religious nation without providing Native Americans with some lawful use of peyote. Oregon asserted the First Amendment I , means to safeguard basic human rights. should not protect this form of worship because state law i i made peyote use illegal and contained no exemption for ! The Smith Case: Native religious use. Free Exercise Decline and the Miner's Canary Prompted by "Drug War" fear andspeculation promoted by In 1990, the Supreme Court denied constitutional protec Oregon, the court went to great lengths to deny protection tion for anentireIndian religion ofpre-Columbian antiquity for the Indian Peyote Religion, even though peyotism is far which involves sacramental use of a cactus plant named removed from the nation's drug problem. First, the court peyote against state criminal prohibition of peyote use.H threw out the traditional "compelling state interest" test;15 For Indians who lost constitutional protection for worship then it exempted an entire body oflaw--criminallaw--from in the name of the "Drug War", Smith was devastating. For First Amendment limitation altogether;16 and finally it sug the rest of society, Smith caused an outcry because it gested that Free Exercise rights may not be entitled to dramatically departs from First Amendment law, weakens protection unless some other constitutional right is also the Free Exercise Clause and religious liberty, and makes it impaired by government action. I easier for government to intrude upon freedom ofworship. The court discarded the First Amendment test which had Peyote is a cactus plant that grows in parts of the Rio been applied for decades in religious cases, because it Grande River valley of Northern Mexico and Southern believed that the test too strictly protected religious liberty. Texas. Native religious use ofpeyote predates the founding Stating that AmeI'ica's religious diversity is a "luxury" that of the United States. Peyotism is a spiritually profound our pluralistic society "cannot afford",17 the court left religion and way oflife that ranks among the oldest, largest religious accommodation up to the legislative political and most continuousl practiced tribal religions of the process instead ofthe courts and the Bill of Rights, despite Western Hemisphere.t2 It is so interwoven with Native an admitted hardship upon unpopular or minority faiths: culture that contemporary tribal culture cannot be com pletely understood without knowledge ofthe long history of ... leaving accommodation to the politicalprocess peyote worship. will place at a relative disadvantage those religious practices that are not widely engaged in; but that Though harmless, peyotism is controversial because the unavoidable consequence fl democratic govern cactus has psychedelic qualities and its ingestion is unlawful ment must be preferred . .." in most states. Although some states prosecuted Indian religious use earlier in this century, today the federal Justice O'Connor joined in the result and, as such, was not government and 28 states exempt the religious use of concerned about impacts of the decision upon Native peyote by American Indians from drug laws. Many have religion. However, for the rest of society she expressed done so for almost 30 years without experiencing any as deep concern: sociated law enforcement or other problems. Nor has a single health problem among Indians ever been docu Iii my view, today's holding drGrnatica!(;' departs : I mented throughout centuries of sacramental use. In from well settled First Amendment jurispmdence, I appears unnecessary to resolve the qU,_e_s_ti_o_n J , I...-.. __••~----- ••••• " •• NARF Legal Review 10 Summer 1991 ,----._------_._----...,...--..., • ~:e~ted, and is incompalible with ou, Nation', ample constitutional authorityfor such legislation under the 29 f ~~~lmitment to individual religious liberty. 19 Indian trust doctrine. She decried the inherent danger of making individual There is a need for our legal system to protect both sacred freedoms dependent upon politics, quoting Barnette: land and the endangered religions ofNative people. We can only regret the enormous loss of our nation's heritage The very purpose of the Bill of Rights was to caused by a long history ofgovernment suppression oftribal withdraw certain subjects from the vicissitudes of religions. It is not enough, however, for our generation to political controversy. .. One's right to life, liberty, mourn that loss. Rather, our challenge is to safeguard what andproperty, tofree speech, afree press, freedom of little remains. After500 years since the arrival ofColumbus, worship and assembly, and other fundamental the time is long overdue for his descendants to come to rights maynotbe submitted to vote; they depend on terms with those who were here first. Such is the nature of the outcome ofno elections. 20 America's "Unfinished Business" as our maturing society observes its approaching quincentennial. (Walter Echo Mourning the declining role ofthe Bill ofRights in protect Hawk is a NARFstaffattorney in the Boulder, CO office.) ing religious freedom, Justice O'Connorwarned about hard times ahead inthepolitical arena, where Native citizens now ENDNOTES fmd themselves: 1. Employment Div., Dept. ofHuman Resources ofOregon v. [TJhe First Amendment was enacted precisely to Smith, _ U.S._, 108 L.Ed.2d 876 (1990); Lyng v. Northwest protect the rights ofthose whose religious practices Indian Cemetery Assn., 485 U.S. 439 (1988). are not shared by the majority and may be viewed 2. See,American Indian Religious Freedom ActReportP.L. with hostility. The history of our free exercise 95-341, Federal Agencies Task Force, Secretary of the In doctrine amply demonstrates the harsh impact terior (Department of the Interior, August 1979). This majoritarian rulehashadon unpopularoremerging report was submitted to Congress as required by Section 2 religious groups . .."21 of the American Indian Religious Freedom Act, 42 USC 1996. Today, in thewake ofSmith other re~ousgroups are being 3. Id. at 4. treated like Indians by the courts. The Eighth Circuit observed that Smith "does not alter the rights of prisoners; 4. Id. at 3. it simply brings the free exercise rights of private citizens 5. Id. at 6. closer to those of prisoners."23 While some courts have expanded the Smith doctrine into the civil area, others 6. See, Regulations of the Indian Office, effective April 1, reluctantly apply it with "deep" or "profound regret".24 1904, Secretary of the Interior (Washington: Government Printing Office, 1904) at 102-03. Entiresegments ofthe population are experiencing adverse 7. Citizenship Act of 1924,8 USC 1401(b). effects of the new doctrine: 8. AIRFA Report, supra at 6. Smith cut back, possibly to minute dimensions, the 9. See, Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983) (Hopi doctrine thatrequiresgovernmenttoaccommodate, and Navajo sacred site and shrines on San Francisco Peak at some cost, minority religious preferences: the destroyed by U.S. Forest Service to make room for a new doctrine on which all the prison religion cases are ski lift); Fools Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983) founded. zs (Intrusions on Sioux vision questing at Bear Butte by U.S. Park Service); Badoni v. Higginson, 638 F.2d 172 (10th Cir. Indian religion is the "miner's canary." Its shameful treat 1980) (Destruction ofNavajo sacred site at Rainbow Bridge ment signals danger to American religious life. and intrusions upon Navajo ceremonies by U.S. Park Ser vice and Bur. ofRec. upheld);Sequoyah v.. Tennessee Valley Conclusion Authority, 620 F.2d 11.59 (6th Cir. 1980) (Cherokee sacred site flooded by TVA); Inupiat Community ofArtie Slope v. Since 1831, the UnitedStates has maintained a trust respon U.S., 548 F. Supp.. 182 (D. Ala. 1982) (Eskimo religious sibility for Indian tribes that has been continuously recog activities on ice disrupted by federally-permitted off-shore nized by the Supreme Court and Congress.26 That federal drilling). See also, United States v.. Mean:>, 858 F.2d 404, 407 trust duty includes a duty to freserve Native communities (8th Cir. 1988); Havasupai Tribe v. U.S., 752 F.Supp. 1471 "as distinct cultural entities." 7 It is time for Congress to (DAr., 1990); Dedman v. Hawaii Bd. ofNatural Resources, "fulfill its constitutional role as protector of tribal Native 740 P.2d 28 (Haw. 1987) (Destruction of Volcano sacred Ampri("~nc;"28 ::Inri Ipcric:btp tn nrntprt rpJimnnc: th::lt ::Irp ------0-.... ---- - ..... r- ..... ------o- ..... ~ ------' site by geothermal development upheld). crucial to the cultural survival of the tribes. Congress has 10. March 28, 1991 Letter from John Gorman, Forest Su pervisor to Ronald West at 2. '------,"---_..,-_ .._-_... _-----_.... NARF Legal Review 11 Summer 1991 11 Employment Division v. Smith, supra, 108 L.Ed.2d 876 (D.N.M., 1978), affd, 601 F.2d 111:~1O~: Ci<.1979:=l (1990). den.,444 U.S. 870 (1979). I 12. See, Orner Steward, Peyote Religion a History (Univ.Okla Press, 1987). 13. The constitutionality of the federal and Texas religious Case Updates exemption was recently upheld in Peyote Way Church of I God v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). Ernest v. Parisien v. Twin City Construction Company or- I 14. People v. Woody, 394 P.2d 813, 821-22 (Ca., 1964) Fargo I 1.5. The court limited the test to unemployment compensa tion cases and gives no hint as to what judicial test should On May 19, 1991, the Tribal Court of the Turtle Mountain be applied to civil statutes that remain subject to First ChippewaTribe in North Dakota held that the Tribal Court Amendment limitations. Id. at 888-893. has the authority to resolve a contract dispute between a I tribal memberwho lives on the reservation and a non-Indian i 16. According to theSupreme Court, the First Amendment construction company that lives off but was doing business should really read, "Congress shall make no law, except on the reservation. The case required the Tribal Court to criminal laws, prohibiting the free exercise of religion." interpret an amended tribal law that clarifies the Tribal 17. Id. at 892. Court's authority. The Tribal Court also determined that 18. Id. at 893. no federal law bars it from hearing the case. It is expected that the construction company will appeal to the Tribal 19. Id. at 893. Court of Appeals. The case can also be reviewed by the 20. Id. at 901-02. federal courts. NARF represents the tribal member. 21. Id. at 901. Northern Cheyenne Water Rights Settlement 22. See, Intercommunity Center for Justice and Peace v. I.N.S., 910 F.2d 4~ (2nd Cir. 1990); Salvation Anny v. NJ. The State of Montana and the Northern Cheyenne Tribe Dept. ofCommunity Affairs, 919 F.2d 183, 194-95 (3rd Cir. have approved a compact that settles the Tribe's reserved 1990); South Ridge Baptist Church v. Indus. Com'n ofOhio, water rights claims. The State and Tribe have been in 911 F.2d 1203, 1213 (6th Cir. 1990); Cornerstone Bible negotiations for the past several years to resolve the water Church v. City ofHastings, Mich., 740 F.Supp. 654, 669-70 claim. The approved compact provides for the administra (D. Mich., 1990); Montgomery v. County ofClinton, Mich., tion ofthe tribe's water rights and the rehabilitation, repair 743 F.Supp.1253, 1259 (W.O. Mich., 1990); Yangv. Sturner, and enlargement of the Tongue River Dam that sits above 750 F.Supp. 558, 559 (D.R.I. 1990). the reservation. NARF represents the Tribe in the matter. 23. Salaam v. Lockhart, 905 F.2d 1168, 1171 n.l (8th Cir. 1990). In 1987, the Supreme Court in O'lone v. Estate of Larsen Bay Human Remains Shabazz, 482 U.S. 342, carved out prisoners from meaning ful First Amendment protection through its "judicial NARF recently received notification from Secretary deference to prison wardens" exception to the First Amend Adams, head of the Smithsonian Institution, that all the ment, abandoning these citizens to our country's most rigid remains that were taken from the Larsen Bay Tribal Coun authoritarian institutions without adequate constitutional cil, Kodiak Island, Alaska, will be returned, as well as protections. In the past twelve months alone, NARF has associated burial offerings. This marks the conclusion ofa received numerous requests from Native American two-and one-half-year' effort to reclaim the remains and prisoners seeking protection for their religious practices. offerings . 24. Yang v. Sturner, supra at 558-59. In Yang the court These dead represented the single largest "collection" of wondered "what is left of Free Exercise jurisprudence"? Alaskan remains held by the Smithsonian. The Smithsonian 25. Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990). disputed the Village's right to obtain these remains based upon what the Smithsonian saw as insufficient scientific 26.. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-17 evidence. NARF demonstrated that the remains were cul (1831). turally connected with the Larsen Bay Tribal Council and 27. Togiak v. United States, 470 F.Supp. 423, 428 (D.D.C. that the remains had to be returned pursuant to federal 1979). That duty was recognized by Congress in the 1978 legislation which NARF helped to obtain. Repatriation is passage ofAIRFA. Frank v. Alaska 604 P.2d 1068, 1073 n.9 expected to occur in [all 1991. (Alaska 1979). 28. Peyote Way Church ofGod v. Thornburgh, supra at 1217. i 29. See, Peyote Way Church ofGod v. Thornburgh, supra at ~_'E_~~ L1214--19. See also, Uwngston 4:F.SUPP.825,831 _...... NARF Legal Review 12 Summer 1991 Nebraska State Historical Society v. Pawnee Tribe ofOk NARFattorneys and other practitioners ofIndian law. The lahoma NILL collection consists of standard law library materials, such as law review materials, court opinions, and legal The Nebraska District Court ordered the Nebraska State treaties, that are available in well-stocked law libraries. The Historical Society (NSHS) to comply with the state public uniqueness and irreplaceable core ofthe NILLcollection is records law and provide historical documents requested by comprised of trial holdings and appellate materials of im the Pawnee Tribe ofOklahoma. portant cases relating to the development of Indian law. Those materials in the public domain, that is non The Tribe had requested documents under the public copyrighted, are available from NILL on a per-page-cost records law to determine how the NSHS was complying plus postage. Through NILL's dissemination ofinformation with a Pawnee tribal repatriation request filed pursuant to to its patrons, NARF continues to meet its commitment to the Unmarked Human Burial Sites and Skeletal Remains the development of Indian law. Protection Act. In response, NSHS filed suit against the Tribe claiming it was not subject to the state public records AVAILABLE FROM NILL law. The Nebraska Attorney General intervened on the side ofthe PawneeTribe on behalfofthe State ofNebraska. The NILL Catalogue NARF represents the Pawnee Tribe in the case. One ofNILL'smajor contributions to the field ofIndianlaw NSHS argued unsucessfully that it was a non-profit or is the creation of the National Indian Law Library ganization not subject to the public records law. The court Catalogue: An Index to Indian Legal Materials and Resour ruled that the NSHS is a state agency and ordered it to ces. The NILL Catalog lists all of NILL's holdings and comply with the state public records law. includes a subject index, an author-title table, a plaintiff defendant table and a numerical listing. This reference tool is probably the best current reference tool in this subject United States and Klamath Tribe v. Oregan area. It is supplemented periodically and is designed for those who want to know what is available in any particular NARFrepresents the Klamath Tribe in this action to deter area ofIndian law. (1,000 + pgs. Price: $75) (1985 Supple mine the State of Oregon's jurisdiction to quantify its ment $10; 1989 Supplement $30). federally-reserved water rights. On March 4, 1991, the federal court issued a preliminary injunction halting Bibliography on Indian Economic Development Oregon's water adjudication of federal and tribal water rights. Designed to provide aid on the development of essential legal tools for the protection and regulation ofcommercial activities on Indian reservations. This bibliographyprovides a listing of articles, books, memoranda, tribal codes, and other materials on Indian economic development. 2nd edi NARF RESOURCES AND tion (60 pgs. Price: $30). (NILL No. 005166) PUBLICATIONS Indian Claims Commission Decisions THE NATIONAL INDIAN LAW LIBRARY This 47-volumeset reports all ofthe Indian Claims Commis sion decisions. An index throughvolume 38 is also available. The National Indian Law Library (NILL) has developed a The index contains subject, tribal and docket number list rich and unique collection of legal materials relating to ing. (47 volumes. Price $1,175). (Index priced separately at Federal Indian law and the Native American. Since its $25). (Available from the National Indian Law Library). founding in 1972, NILL continues to meet the needs of Prices subject to change AVAILABLE FROM THE INDIAN LAW SUPPORT CENTER A Manual for Protecting Indian Natural Resources. Designed for lawyers who represent 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 the application of federal and common la.w to protect Indian natural resources. Part NARF Legal Review 13 Summer 1991 II consists of practice pointers: questions to ask when PUBLICATIONS analyzing resource protection issues; strategy considera tions; and the effective use of law advocates in resource ANNUAL REPORT. This is NARPs major report on its protection. (151 pgs. Price $25). programs and activities. The Annual Report is distributed to foundations, major contributors, certain federal and state A Manual on Tribal Regulatory Systems. Focusing on the agencies, tribal clients, Native American organizations, and unique problems faced by Indian tribes in designing civil to others upon request. regulatory ordinances which comport with federal and tribal law, this manual provides an introduction to the law THE NARF LEGAL REVIEW is published by the Native ofcivil regulation and a checklist ofgeneral considerations American Rights Fund. Third class postage paid at in developing and implementing tribal regulatory schemes. Boulder, Colorado. Ray Ramirez, Editor. There is no Ithighlights thoselaws, legal principles, and unsettled issues charge for subscriptions. which should be considered by tribes and their attorneys in developing civil ordinances, irrespective of the particular Tax Status. The Native American Rights Fund is a non subject matter to be regulated. (110 pgs. Price $25). profit, charitable organization incorporated in 1971 under the laws ofthe District ofColumbia. NARF is exempt from A Self Help Manual for Indian Economic Development. federal income tax under the provisions of Section 501 (c) This manual is designed to help Indian tribes and organiza (3) of the Internal Revenue Code, and contributions to tions on approaches to economic development which can NARF are tax deductible. The Internal Revenue Service ensure participation, control, ownership, and benefits to has ruled that NARFis not a "private foundation" as defined Indians. Emphasizing the difference between tribal in Section 509(a) ofthe Internal Revenue Code. economic development and private business development, this manual discusses the task of developing reservation Main Office: Native American Rights Fund, 1506 Broad economies from th~ Indian perspective. It focuses on some way, Boulder, Colorado 80302 (303-447-8760). of the major issues that need to be resolved in economic development and identifies options available to tribes. The D.C. Office: Native American Rights Fund, 1712 N Street, manual begins with a general economic development N.W., Washington,D.C. 20036 (202-785-4166). perspective for Indian reservations: how to identify oppor tunities, and how to organize the internal tribal structw'e to Alaska Office: Native American Rights Fund, 310 K Street, best plan and pursue economic development of the reser Suite 708, Anchorage, Alaska 99501 (907-276-0680). vation. Other chapters deal with more specific issues that relate to the development ofbusinesses undertaken by tribal government, tribal members, and by these groups with out siders. (Approx. 300 pgs. Price $35). Handbook of Federal Indian Education Laws. This hand bookdiscusses provisionsofmajor federal Indian education programs in terms of the legislative history, historic problems in implementation, and current issues in this radi cally changing field. (130 pgs. Price $20). 1986 Update to Federal Indian Education Law Manual ($30) Price for manual and update ($45). A Manual On the Indian Child Welfare Act and Law Af· fecting Indian Juveniles. This fifth Indian Law Support Center Manual is now available. This manual focuses on a section-by-section legal analysis ofthe Act, its applicability, policies, findings, interpretations, and definitions. With ad ditional sections on post-trial matters and the legislative history, this manual comprises the most comprehensive examination of the Indian Child Welfare Act to date. (373 pgs. Price $35). \ l L ,." ,,,"_"__"__'~_ .. , NARF Legal Review 14 Summer 1991 r- , New Board Members Named : Willie Kasayulie, Richard G. Hill and Evelyn Stevenson were elected to NARFs Board of Directors during the fall Board of Directors meeting. Richard Hill, a member ofthe Oneida Tribe ofIndians ofWisconsin, currently serves as the Tribe's chairman. He has had a wide range ofexperience in tribal affairs working in areas ofeconomic development, environmental concerns, gaming and finance. Willie Kasayulie is a Yupik Eskimo from the Akiachak Native Community in Alaska. He is the ChiefExecutive Officer i ofthe Akiachak Indian Reorganization Act Council and also serves as the Chairman of the Association ofVillage Council I Presidents. i i Evelyn Stevenson is a member ofthe Confederated Salish and Kootenai Tribes ofthe Flathead Reservation ofMontana. I ! She is presently the attorney for the Tribes and was very involved in the development of the Tribal Court System. ! I I ,I ':,:., .~g~other tribes to ~iUPPOli :·"F/,i"~.;:·l'i:fi'J!!:t:·;'(·-:·· £~?tt· ~ L.f _ j NARF Legal Review 15 Summer 1991 , , Native Arnerican Rights Fund The Native American Rights Fund is a nonprofit or ganization specializing in the protection of Indian rights. The priorities of NARF are (I) thc preservation of tribal existence; (2) the protection of tribal natural resources; (3) the promotion of human rights; (4) the accountability of governments to Native Americans: and (5) the development of Indian law. Our work on behalf of thousands of America's Indians throughout the country is supported in large part by your generous contributions. Your participation makes a big difference in our ability to continue to meet ever-increasing needs of impoverished Indian tribes, groups and in dividuals. The support needed to sustain our nationwide program requires your continued assistance .. Requests for legal assistance, contributions, or other inquiries regarding NARF's services may be addressed to NARF's main office: l506 Broadway, Boulder, Colorado 80302 Telephone (303) 447-8760. BOARD OF OlRI'£rORS Richard (Skip) Hayward, Chairman Mashantucket Pequot Anthony L. Strong, Vice-chair" . Tlingit-Klukwan Lionel Bordeaux" ,, Ro~bud Sioux Rick Hill. ,""",,.. ",,, ....•.. " "Oneida John R. Lewis- ""., Mohave/Pima Mahealani Kamauu ,.., .. Native Hawaiian Willie Kasayulie.,. , ,,, .. ,, ..••..• ,,. Yupik Wilma Mankiller,. ,", ",, ••.••. Cherokee Twila Martin·,Kekahbah,,,,,,, " .. ". ., ..Turtle Mountain Chippewa Calvin Peters, ,. Squaxin Island E\'elyn Slevenson , ,, "Salish-Kootenai Eddie Tullis".", ,.", ,Poarch Band of Creeks Little Chief, Arapaho [1898] Verna Williamson, .. ,... ,., , ". ,... ,. Isleta Pueblo Executhe Direclor: John E. Echohawk (Pawnee) Western History Collections Deputy Direclor: Ethel Abeila (Laguna Pueblo) University ofOklahoma Library NARF Legal Review Non-profit Org. 1506 Broadway U.S. POSTAGE Boulder, CO 80302 PAID Boulder, Colorado Permit No. 589