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AUTHOR Ramirez, Ray. Ed. TITLE Freedom of Religion: A Time for Justice. Second Special Edition. INSTITUTION Native American Rights Fund, Boulder, CO. PUB DATE 93 NOTE 22p. PUB TYPE Collected Works Serials (022) Historical Materials (060) Legal/Legislative/Regulatory Materials (090) JOURNAL CIT NARF Legal Review; v18 n2 Sum 1993

EDRS PRICE MF01/PC01 Plus Postage. DESCRIPTORS Alaska Natives; *American Indian Culture; American Indian History; American Indians; *Civil Liberties; Civil Rights Legislation; Court Litigation; *Federal Indian Relationship; Federal Legislation; Hawaiians; Religion; *Religious Discrimination IDENTIFIERS *Native Americans; *Religious Freedom;Supreme Court

ABSTRACT This special theme issue outlines the historyof discrimination against traditional Native Americanreligions, including recent Supreme Court decisions."Discrimination and Native American Religiou3 Rights," by Senator DanielK. Inouye, discusses the compelling government interest in eradicatingdiscrimination and describes two Supreme Court decisions denyingconstitutional protection of tribal sacred sites and the practicesof ininority religions. "The Repression of Indian ReligiousFreedom," by Patricia Nelson Limerick, examines the history of.federalpolicies suppressing Indian religious liberty. Public policylong assumed that the "civilization" of the Indians and their conversionto Christianity were inseparable. During the 19th century,a missionary movement swept through the United States, and federalfunds for Indian education provided partial support for missionaryschools. The question of religious libertywas viewed as a matter among Christian churches and not applicable to Indian spiritualpractices. In the 1880s, the Department of the Interiorcreated courts of Indian offenses, which targeted both religious practicesand customs that were considered antithethical to the work ethic (suchas sharing property). The campaign against Indianreligions was ultimately a campaign against the Indian family because itsought to assimilate the younger generation by removing the influenceof the elders. This issue also includes an explanation of the NativeAmerican Free Exercise of Religion Act of 1993, introducedby Senator Inouye, and a list of publications on federal Indianeducation laws, tribal government, and tribal economic development. (SV)

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FREEDOM OF RELIGION: A TIME OF JUSTICE SECOND SPECIAL EDITION

NATIVE AMERICAN RIGHTS FUND

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2 r i. '4ET ,A4ip LEGAL Native American Rights Fund REVIEW SECOND SPECIAL and as to why the United States Volume 18, No. 2 Summer 1993 government must be legally and EDITION ON morally committed to preserving FREEDOM OF Contents American Indian, Eskimo, Aleut, RELIGION: A TIME Discrimination and Native Hawaiian religious and Native rights and culture. FOR JUSTICE American Religious Rights "Injustice anywhere is a threat 1 DISCRIMINATION to justice everywhere." The Repression of Indian AND NATIVE Martin Luther King, Jr. Religious AMERICAN Editors Prologue: Guaranteed Freedom 9 Native American RELIGIOUS RIGHTS rights to religious freedom under bySenator Daniel K. Inouye the First Amendment of the United Free Exercise of Religion Act of I. Introduction States Constitution should have 1993 S.I021: precluded the need for legislative Background Mankind has a dark side--the protection for religious freedom and Call to age-old tendency to discriminate for American Indians. However, Action 14 against others who are different. the Government's past discrim- American Indian This Article shares my perspective as inatory policies perpetuated the Religious Freedom a United States Senator on the prob- nation's ignorance of and preju- Coalition 16 lem of discrimination and how it dices against Indian religions and Case Updates 17 affects Native American human tradition. With the passage of the Available From NI LL 17 rights issues under the jurisdiction of American Indian Religious Free- Available from the the Senate Select Committee on dom Act (A1RFA) in 1978, the Indian Law Support Indian Affairs. Center 18 A pressing human rights concern United States resolved "... to NA RF Attorney of the Committee at this time is the protect and preserve for American Resume 19 Indians their inherent right of specter of renewed religious discrimi- freedom to believe, express and nation against American Indian exercise the traditional religions tribal religion in the wake of the dramatic retreat from First Amend- of the American Indian, Eskimo, do not see a delegation ment protection by the Supreme Aleut, and Native Hawaiians, for the four-footed. I see Court in Employment Div. Dept. of including but not limited to ac- Human Resources of Oregon v. cess to sites, use and possession no seat for the eagles. We Smith.1 This case is a noteworthy of sacred objects, and freedom to forget and we consider example of the Court's denial of worship through ceremonials and protection for a traditional American traditional rites." Since the pas- ourselves superior. But we Indian religion that predates in sage of AIRFA, the United States are after all a mere part of antiquity the writing of the First government and its agencies have Amendment itself. applied a limited and inconsistent the Creation. And, we 4' I The unique cultures of America's interpretation and application of must consider to Native peoples are inseparable from the Act which has in turn gener- understand where we are. their religions.2 Religion pervades ated ineffective judicial protection the traditional way of life of Ameri- for American Indian religions, as And, we stand somewhere can Indians.3 These religions have witnessed by the recent Supreme betvieen the mountain and been historically suppressed by the Court decisions. United States government in ways This special issue of the the ant. Somewhere and unprecedented for other religions. NARF Legal Review seeks to only there as part and Smith seriously weakened religious educate the reader as to why parcel of the Creation." freedom in general by discarding Congressional protection is needed long-standing First Amendment Chief Oren Lyons standards. This resulted in the Onondaga Faithkeeper 1977

NARFLEGAL REVIEW immediate banding together of discrimination, it matters little laws, or the judiciary retreats from church groups and religious organ- whether these impacts result from prior rules of law and dilutes funda- izations in a move to restore the invidious state action, or whether mental freedoms enshrined in the First Amendment balancing test.4 they are inflicted by less obvious Bill of Rights, it falls upon the The proposed legislation which applications of facially neutral rules.9 Congress to increase its vigilance resulted, however, does not address In the United States, discrimination in opposing discrimination unique, historical Indian religious is illegal. It is prohibited by the Fifth through legislation. discrimination problems. There and Fourteenth Amendments to the History teaches the importance in remains a need for separate legis- Constitution as well as by numerous every society of preventing the oc- lation to protect free exercise rights federal laws. Unfortunately, despite currence of outbreaks of discrimina- of Native Americans, as well as to our commitment to these Equal tory acts and practices and of the ensure these citizens the guaranteed Protection ideals, discrimination has need to vigorously enforce human protection of all other constitution- had a long and troubling history in rights guarantees. In those nations al provisions. this country. The manner in which which have permitted equal rights This Article first discusses the America, the world's leading for all its citizens to lapse due to lack compelling government interest in democracy, treats our own racism of government enforcement, serious eliminating discrimination and the and prejudice reveals much to the human violations have quickly necessity for all three branches of the international community concerning appeared. Almost universally, these federal government to act together our attitude about individual free- violations have had rippling effects to combat intolerance and prejudice. dom and human rights. This infringing on the rights of all citi- Secondly, it focuses on the problem country's challenge in the war zens. Once minority groups fell of religious discrimination against against discrimination is an on-going victim to officially sanctioned dis- Native Americans, which has inten- one, as seen from the present resur- crimination, it was not long before sified in the wake of recent decisions gence of racism and intolerance. It is death camps arose in nations such as of the Supreme Court. The issue.of a continual struggle to eradicate Cambodia, Nazi Germany and the religious intolerance and discrimina- discriminationa struggle that U.S.S.R. In many newly-established tion has been a serious human rights requires vigilant commitment from nations that formerly were colonies, problem for indigenous peoples since all three branches of government. while freedom for the majority was Christopher Columbus set foot in Presently there is a disturbing achieved, the indigenous population the New World. Congress has now trend in many areas of our country was excluded from the body politic. been relegated the responsibility to in the direction of intolerance and Widespread cultural and racial legislati-vtly grant statutory protection racism. Especially objectionable is an genocide was the consequence. This for our orig:nal inhabitants.5 apparent lack of leadership by all is presently evident in some Central three branches of our government in and South American nations, as well II. The Government's as in South Africa. Interest In Eradicating combating this menace to our society. When the executive branch weakens If America is to provide strong Discrimination its resolve to enforce civil rights moral leadership in the world today A. The Evils of Discrimination as a much needed beacon for free- The human spirit is a wonderful dom, our indigenous policies need to thing. At its best, the good qualities be vastly different from countries of our fellow citizens may serve as such as South Africa, which have an example to inspire us to live up to questionable standing in the inter- our lofty ideals and goals. Unfor- rmional community as a result of tunately, however, mankind had its mistreatment of their original frailties. The history of our species inhabitants. Like us, many nations is fraught with instances where are former colonies, and the way in unwarranted hatred and fear has which they treat their indigenous precipitated great misery upon the populations reflects their intrinsic innocent. Much of this darkness in values. Even if constitutional rights the human heart is manifested are ensured for a majority of society, by discrimination. a denial of constitutional protection Discrimination is defined as for indigenous people is a heavy "[u]nfair treatment or denial of moral weight that may cloud a normal privileges to persons because democracy's human rights of their race, age, sex, nationality or foreign policy. religion. 6 When effected through America's treatment of its native the machinery of the state, it can people is especially important, for have devastating impacts upon domestic and international reasons. people, ranging from deep psycho- Domestically, it is true that all races logical scars upon young school- and ethnic groups have historically children,7 to a separation of the faced various forms of discrimination races,8 to the extreme of racial or in the United States, but the manner cultural genocide. For victims of

NARFLEGAL REVIEW in which our country treats its in- nate this threat and correspondingly The soul-crushing racism of the digenous native peoples provides a protect the rights of minorities. "separate but equal" doctrine con- general barometer of our overall Although the Fifth and Four- tinued unabated in the United States, commitment to justice and freedom. teenth Amendments were created to without question from the executive As Felix S. Cohen, the "father" of protect minority freedoms, it was and legislative branches until 1953. Federal Indian law aptly stated in not until recently that the courts In that year Thurgood Marshall 1953, "Mike the miner's canary, the have construed the Equal Protection argued and won the landmark case Indian marks the shifts from fresh Clause in a manner consistent with of Brov n v. Board of Education.'8 air to poison gas in our political this original intent. A pertinent In Bri_ vim, the Supreme Court atmosphere; and our treatment of example of the narrow interpretation recognized that segregation of Indians, even more than our treat- the judiciary has taken in this regard schoolchildren on the basis of race ment of other minorities, reflects the occurred in 1896 when the Supreme "generates a feeling of inferiority as rise and fall in our democratic faith. Court approved the "separate but to their status in the community that ..."I0 Cohen realized that unless our equal" doctrine in Plessy v. Fer- may affect their hearts and minds in government institutions and social guson.'6 That antiquated doctrine a way unlikely ever to be undone",9 policy can protect America's smallest, authorized invidious racial segrega- and held that "in the field of public poorest and weakest minority group tion and discrimination against education the doctrine of 'separate from discrimination and injustice, African Americans to exist as a but equal' has no place. Separate they may also lack the strength and matter of basic social policy. This educational facilities are inherent- will to accord equal protection for fostered immeasurable harm to ly unequal."20 the rest of society. What may be a It is difficult today for us to trickling stream when one consti- contemplate how our Supreme tutional right is lost or the rights of Court ever resolved to deny impor- one group are taken away, may tant human rights safeguards to become a tidal wave when other many of our citizens, so repugnant is rights are also denied. the former interpretation of the Cohen's "miner's canary" concern Equal Protection Clause to contem- has proven true in the area of re- porary beliefs. The harm suffered by ligious freedom, where the Supreme millions of people was real and Court recently stripped Native remains a permanent scar in the lives Americans of free exercise rights in of many Americans today. For the both Lyng v. Northwest Indian sake of those victims and any pos- cemetery Protective Association! I sible future victims, we must be and Smirh.12 These troubling cases vigilant against future confusion in not only pave the way for unchecked affording equal treatment for all religious discrimination against citizens under the law. Native Americans who have already Other examples demonstrate that suffered a long and shameful history breaches in equal protection prin- of government religious suppression. ciples, although they be of brief but they also seriously weaken minorities and demonstrated that duration, may have lasting adverse religious liberty for all Americans. sometimes even a revered institution affects upon the casualties of B. The Equal Protection Remedy such as the United States Supreme discrimination. At the beginning of Court cannot rise above prevailing The Fourteenth Amendment to World War II, the United States social pr judices of the day. The government removed about 120,000 the United States Constitutionu Court justified the "separate but guarantees that states will not deny Japanese-Americans from their equal" doctrine with only thinly- homes and placed them in intern- individuals either due process or the veiled judicial sophistry. equal protection of the law. The ment camps. This mass confinement Fifth AmendmentI4 binds the federal was a serious curtailment of the civil rights of this minority group, government to those same assurances. We consider the underlying Equal protection of the law assures fallacy of the plaintiff's ar- effected solely on the basis of race that persons who are similarly and without regard for the constitu- gument to consist of the tional rights of American citizens. situated will be treated in a similar assumption that the enforced manner.I5 The Founding Fathers of separation of the two races The United States Congress author- ized this unjust policy, and it was in our nation perceived that, under our stamps the colored races with democratic system, there existed a a badge of inferiority. If this turn implemented by the executive real danger of oppression to which be so, it is not by reason of branch of our government. It was reviewed and approved by the minority groups would be subjected anything found in the act, but by the rule of the majority. The solely because the colored Supreme Court in Mirabayashi v. creation of the Equal Protection race chose to put that con- United States21 and in Koretnatsu v. Clause was seen as a way to elimi- struction upon it.] 7 United States.22 Although it is shock- ing for us today to realize that an

3 NARFLEGALREVIEW entire ethnic group was incarcerated, ation of an individual to a tribe. If at one time in our history, for no that affiliation were severed, the reason other than its racial affili- individual would no longer be ation, it was not until one generation considered an Indian within the later, in 1988, that this miscarriage meaning of the legislation."38 of justice was rectified when Con- Modern federal court decisions gress acted to grant reparations to have analyzed equal protection as it the internees.23 applies to Indians in an unusual Traditionally, in analyzing equal manner. Rather than considering protection challenges. the Court such legislation as classifications applies a two-tier level of review.24 based on race, such laws are held The fxtent to which a law must to intend to promote the "trust satisfy the Equal Protection Clause responsibility" that the federal is dependent upon a determination government has toward Indians who of the purpose that was intended by either are members of tribes that fall the legislation and the relationship suspect class, the group of persons within the United States' trust that the different treatment has to affected by the classification must be relationship, or who have ancestral achieving the particular governmen- somehow disadvantaged because of ties to persons who are tribal tal aim.25 prior discriminatory treatment.30 members. Courts then test this type of legislation with a standard of The mere rationality level of Recently the Court has reviewed review that is not applied to other review is applied to classifications several cases in which the judiciary classifications. Laws are valid if they made on the basis of economics or declined to treat with deference are "rationally" related to achieving other social legislation. Such laws legislative determinations creating Congress' "unique" obligation arc subject only to very limited the affected classifications. An review. There is a presumption that intermediate level of review appears toward Indians.39 the law is valid. A challenger must to have been employedsuch My personal opinion is that as show that the law has no rational classifications must be substantially long as we profess to st rive to main- relationship to any legitimate related to an important government tain democratic principals and seek government objective.26 interestm This standard of review to provide leadership for the free has been applied to classifications world, we must not acquiesce to the C. The Equal Protection affecting gender and illegitimacy.32 existence of discrimination against Standard of Review It cannot be disputed that the any group within our society, and and the American Indian American Indian is entitled to be especially not against our original treated the same as other United inhabitants. As stated by one com- When a law affects a suspect States citizens under the Consti- mentator: "What is needed is a new classification or places a significant tution. Early Supreme Court de- perception of the Indian, a percep- burden on the exercise of a funda- cisions such asYick 1.4b v.Hopkins:33 tion of the Indian not as a problem mental right, it will be strictly andWong Wing v. UnitedStates34 to be corrected, but as peoples with scrutinized and upheld only if it is clearly established that the guaran- rights, duties, and powers."49 necessary to achieve a compelling tees of the Equal Protection Clause state objective and no less burden- applied universally "to all persons III. RELIGIOUS some means are available to achieve within the territorial jui isdiction of DISCRIMINATION that end.27 There is no longer a the United States."35 Yet in con- AGAINST NATIVE presumption of constitutionality, sidering equal protection challenges AMERICANS requiring the government to satisfy a in cases affecting Indians, the heavy and difficult burden. Classi- analysis used by the courts differs A. History fications based upon race and from the traditional equal protection Religious intolerance and national origin have been held to be standard of review, regardless of suppression of tribal religions of suspect, requiring this stringent type whether these claims are brought Native Americans in the United of review.28 under the United States Constitution States is not new. In fact, this form Suspect classes are determined by or the Indian Civil Rights Act.36 of discrimination has characterized considering factors such as a history Legislation affecting the American the relationship between our indige- of pervasive discrimination against Indian is enacted to deal with the nous population and newcomers the class, the stigmatizing effect of "so-called 'Indian problem.' [Me from Europe for the past 500 years. the classification, the fact that the often talk about the 'Indian problem' On his first day in the Western classification is based on an im- as if it were a disease. ..."37 Early Hemisphere, Christopher Columbus mutable characteristic beyond a equal protection cases established reflected the prevailing view of person's ability to control, and the that legislation affecting Indians was religious intolerance when he penned consideration that the discrimination constitutionally valid as long as it bis impression of the Indians he is against a discrete and insular was based, not on race, but instead encountered: "I believe that they minority.29 In order to qualify as a on "the political or an_estral affili- would easily be made Christians

4 NARFLEGALREVIEW because it seemed to me that they In 1978, Congress sought to had no religion."11 In the minds of reverse this history by creating a Europeans, tribal religions of the resolution establishing a federal New World were inferior. policy to preserve and protect Native American religious freedom.50 The Committees responsible for this When white men first wit- measure stated: "America does not nessed Indians impersonat- need to violate the religions o; her ing animal spirits in costume native people. There is room for and and dance, and worshipping great value in cultural and religious rocks and rainbows, they diversity. We would all be the poorer failed to see this as a deep if these American Indian religions form of religious worship. To disappeared from the face of their Christian minds, these the Earth."51 were deplorable pagan rites. However, it requires cooperation with funds, assigned agencies Worship of more than one from all three branches of govern- deity, and sacrificial offer- to religious societies, and ment in our system to effectively ings, directed at the natural provided land for the building implement a Congressional policy. world, stamped Indians as a of churches. The question is whether this intermingling Unfortunately, such support was not misguided, lesser form of forthcoming, and the enlightened constituted an establishment mankind. Here were Christ- attitudes expressed in the Act in less heathens crying to be of religion:17 regard to Indian religious freedom rescued from eternal dam- have never been effectuated.52 The nation:12 federal courts have since ruled that As may be expected, government this policy has no mechanism of violation of Indian religious freedoms enforcement.53 As a result of recent Thus, it is not surprising in respect to the Establishment decisions denying Native Americans especially given Europe's own Clause was soon followed by an religious freedom guaranteed by the heritage of religious discrimination incursion on these freedoms alter- First Amendment, it appears that we among unpopular Christian denomi- natively protected by the Free are regressing to a dark period where nations and against non-Christian Exercise Clause, which prohibits once again our government is allow- world religionsthat intolerance governmental intrusion on the ing religious discrimination against became a basic feature in the practice of religion. Outright pro- our indigenous citizens to Pilgrims' and other colonists' rela- hibition of tribal religions by the go unchecked. tionship with the Indians. Indeed, federal government began in the although early settlers came to 1890's. Federal troops slaughtered B. The Lyng and Smith America to escape religious perse- Indian practitioners of the Ghost Decisions cution, Old World prejudices were Dance at Wounded Knee, and transplanted in the Colonies, where systematically suppressed this tribal Alarmingly, the Supreme Court religious discrimination soon religion on other Indian Reserva- has of late exhibited a growing in- became commonplace.13 tions. In 1892 and 1904, federal sensitivity toward Native American The Establishment Clause of the regulations outlawed the practice religious freedom. In Lyng v. North- of tribal religions entirely, and First Amendment41 was intended to west Indian Cemetery Protective punished Indian practitioners by curb these abuses of the colonists' Ass )7,54 the Court allowed the Forest either Lonfinement in the agency religious freedom by preventing Service to virtually destroy an prisons or by withholding rations.48 majoritarian support for popular ancient Indian sacred site located on religious denominations.15 From the This ban was not lifted until 1934, federal land. The Court arrived at beginning, the federal government's more than one generation later. this abominable decision by con- effort to convert Indians to Chris- Unfortunately, our government still struing the Free Exercise Clause in tianity became a cornerstone of its persisted in infringing upon tribal the most narrow way imaginable, federal Indian policy:16 As one religious practices. Federal agents holding that this First Amendment commentator noted: arrested Indians for possession of guarantee only provides protection sacred objects such as peyote, eagle against laws which coerce citizens to feathers, and the cut hair of Indian violate their religion or punishes children. By authority of the federal them for practicing their beliefs.55 The government and the re- government, these agents also ligious societies were inter- As a result of Lyng, a growing prohibited schoolchildren from number of irreplaceable tribal sacred twinedintheir efforts to speaking their native languages, civilize and Christianize the sites are no longer under government prevented native access to holy protection and are currently being Indians throughout the nine- places located on public lands, teenth Century. The govern- destroyed. The desecration of Indian destroyed Indian sacred sites, and holy places causes great concern by ment supported missionaries interfered with tribal ceremonies.49

5 NARFLEGALREVIEW those citizens interested in the serves as a sacramental symbol traditional standard of review in this cultural survival of the Indian similar to bread and wine in certain case.66 Justice Blackmun wrote a nations, and distressed at what this Christian churches, it is more than a strong dissent, joined by Justices loss would mean to our nation's sacrament. Peyote constitutes in Marshall and Brennan. cultural heritage in general. itself an object of worship; prayers For Indians, the decision inSmith However, the retreat from First are devoted to it much as prayers are creates the frightening specter of a Amendment religious protection devoted to the Holy Ghost."61 return to the era when tribal people signified byLyngwent largely Federal law and twenty-eight could be imprisoned for practicing unnoticed, probably because the states have permitted the religious their religion. In the wake ofSmith, worship of the land, including use of peyote by Native Americans the State of Oklahoma is currently mountain tops and waterfalls, is a for decades through statutory, prosecuting an elderly, life-long practice unique in our country to administrative, or judicially-created member of the Native American Native Americans.56 religious exemptions from drug laws, Church for possession of peyote. As It was not until its 1990 decision and there has been no discernible a result of the decisions inSmithand inSmith57 that the Supreme Court's law enforcement, public safety or Lyng,all of our indigenous inhabi- insensitivity to Native religious health problem created as a result of tants who wish to worship according rights came to the attention of the this policy. Although the state law of to the dictates of their conscience are general public. In that case, the Oregon does not allow for such an in danger. As Peterson Zah, Presi- Court affirmed the decision of an exemption, the Supreme Court of dent of the Navajo Nation, in a Oregon Employment Apreals Board Oregon determined that the decision plea for Indian religious liberty denying unemployment compensa- to disallow unemployment benefits recently stated: tion to two Native Americans who to two Native American rehabili- Indians do not have the same were terminated from their employ- tation counselors could not with- religious freedoms as other ment as counselors with a substance stand federal constitutional scrutiny.62 Americans, even though abuse rehabilitation center because their ceremonies developed of their participation in a sacra- thousands of years before mental peyote ceremony. Europeans-- many of them Peyote, used for centuries by fleeing religious persecu- Indians in religious ceremonies. is a tion--settledin the United

cactus plant that grows only along States. . .. Respect should the Rio Grande River. near the Prior toSmith,it was settled be given to a religion that Texas and Mexican border. Today, constitutional law that a two-part does not involve going to this religion is among the most balancing test would be used to church one day a week, but ancient, largest and most con- determine the validity of a law which which is based on animals, tinuously practiced indigenous incidentally burdened religion. Once the world and the universe, religions in the Western Herni- parties challenging legislation and whose churchisthe sphere.58 As found inPeople demonstrated that their belief was mountains, rivers, clouds v. Kbody:5" sincere and that the state action and sky .. 6' imposed a substantial burden on After Cohen's allegorical "miner's their religious practice, the govern- canary" was in effect snuffed out by Peyotism discloses a long his- ment was required to show that the tory. A reference to the re- these decisions, religious organi- ligious use of peyote in law was enacted to achieve a com- zations and constitutional scholars pelling state interest by the least finally rose up to call to public Mexico appears in Spanish restrictive means available.63 historical sources as early as attention the fact that a cherished However, inSmith,the Court broke constitutional right was in danger of 1560. Peyotism spread from with precedent and rejected the Mexico to the United States being extinguished. As stated in a traditional balancing test. The recentTimecover story: and Canada: American an- protection of the diversity of thropologists describe it as minority religions in our country For all the rifts among re- well established in this coun- was found to be a "luxury"and the ligious and civil-libertarian try during the latter part of extension of First Amendment groups, this decision brought the nineteenth century. To- guarantees to unpopular faiths a choir of outrage singing day. Indians of many tribes would be "courting anarchy."64 full-voice. A whole clause of practice Peyotism.6° the Bill of Rights had been The decision also suggested that abolished, critics charged, the Free Exercise Clause may not and the whole concept of Peyote is used as a sacrament, but protect religious adherents against religious freedom was now it is considered by Native Americans government intrusion unless some imperiled. "On the really to be more important in their other right guaranteed by the First small and odd religious religion than the use of wine in Amendment was also affected.65 In a groups," said University of Christian services. The court in concurring opinion, Justice O'Connor Texas' Laycock, "it's just Woodystated: "Although peyote nevertheless strongly criticized the majority opinion for not applying the open season."68

NARFLEGAL REVIEW As federal courts are now.con- original inhabitants are still not government since the 1830's. strained to follow Smith, wc can treated as the equal of other citizens Today, there is a need for our expo.: a rash of decisions denying under the Constitution. At this society to rededicate itself to citizens who are not members of juncture in history, we arc finally allowing equal protection of the laws mainstream Judeo-Christian becoming aware that the curtailment for all citizens. With the collapse of religions the protection of the First of freedoms enshrined in the Bill of' communism, historic opportunities Amendment." Although the Solarz Rights in respect to certain minority exist for us to provide freedom and Bill,70 proposed for the purpose of groups may also affect the rights of equality throughout the world. That restoring the "compelling state all citirens. international ehaHenge cannot be interest" balancing test, is intended Because of the failure of the met if America's commitment to to redress this situation, it does not judicial and executive branches of liberty for all is not strong. We must deal with concerns unique to the government in this regard, it is now take a stand to reject racism, practice of Native American re- incumbent upon Congress to begin discrimination and prejudice. It is ligions. Also, there is no guarantee to focus on this serious human rights now time fbr us to accord respect that the courts will not attempt to problem in our country. with a view and equality to American Indians. weaken this legislation in future towards redressing religious discrimi- especially in regard to their right to Indian religion cases. nation against Native Americans. It worship in the manner that their IV. CONCLUSION is imperative that we guarantee that ancestors have for centuries before their freedom of worship is protected. The treatment of Native American them. If the First Americans cannot This is mandated not only by the he secure in such freedom, the religious freedom and our govern- Constitution, but also by the trust ment's attitudes toward their civil lilwrty of all Americans stands relationship between the federal in danger. (This article is reprinted rights as citizens has been a long- government and the Indian Tribal standing problem. Today, 500 years with permission from the University governments, which has been Hi,st Los Angeles Law Review, after Columbus arrived on this honored by all three branches of continent, it is intolerable that our ligume 23, 1992.)

Senator Daniel K. Inouye, D-Hawaii. Member of U.S. Senate, Jan. 3, 1963- Jan. 3, 1993. Member of U.S. House of Representatives, Aug. 21, I959-Jan. 3, the ordinance disparately imimeted Chinese 22. Korematsu s. United States, 323 1 .S. 214 1963. Committees: Chairman, residents and was administered discriminatorily, (1944). Committee on Indian Affairs; Appro- bough the law be fair on its face and 23. Japanese Reparations Act, 50 1*.S.0 1989 priations; Commerce; Science & impartial in its appearance. yet, ifitis (1988). Many question the equity of this remedial applied and administered by public act. Transportation; Rules & Administration. authority v...h an evil eye and an unequal 24. Gerald Gunther,he Supreme Court 1971 A.B., University of Hawaii; J.D., George hand, so as practically to make unjust and Term POrivard: In Search of Evolving Doctrine on Washington University. Member of the illegal discriminations between persons in o Changing Court: .4 Model for a .Vewer Equal Hawaii Bar. simlar circumstances, material to their Protection, 86 lIarv. 1.. Rel. 1 (1972). rights. the denial of equal justice is still 25. Chicago Police Dept. v. Moseley. 408 U.S. 91 within the prohibition of the Constitution. (1972). Id. at 373-74. 26. McGowan v. Maryland, 366 U.S. 425. 42(, VA, Discrimination through facially neutral rules is (1960. I. Employment Dix. v. Smith, 110 S. Ct. 1595 perhaps more invidious than overt discrimination. 27. This standard of rev levy was applied in Shelly (1990). because it is harder to prove as racially moth aled N. Kramer, 334 U.S. 1 (1948) where enforcement of 2. See the findings of Congress in the American and thus more difficult to ferret out. For example, a racially restrictive covenant by state court, Indian Religious Freedom Act of 1978, 92 Stat. 469 a rule requiring English only in public schools pursuant to the state's policy for enforcing such (August 11, 1978), codified at 42 U.S.C.A. 1996. seems fair and neutral on its face unless it is agreements, constituted state action for the purpose 3, In Wisconsin v. Yoder, 406 U.S. 205, enforced, as it :vas in Lau v. Nichols, 414 U.S. 563 of the Fourteenth Amendment. 216-17 (1972) the Court found religion to be a (1974) in a school attended predominantly by 28. See, eg., korematsu, 323 U.', at 216 pervasive part of life in the Arnish society. This hinese speaking students. (classifications ins olving race): Ilernandei v. Texas, principle applies to the Anterican Indian as well. 10. Felix Cohen, Handbook Of Federal Indian 347 U.S. 475 (1954) (classifications involving 4. See The Religious Freedom Restoration Act of Law (The Michie ('o., 1982 ed.). national origin); Sugarman s. Dougall, 413'.S. 1991 (H.R. 2797) sponsored inter alma by Represen- II. Lyng. 485 U.S. at 439. 624 (1973) (classifications involving alienage). tative Stephen .1. Solar,. 12. Smith, 119 S. Ct. at 1595. 29..Vee United States N. Carotene Product Co., 5. See Lyng v. Northwest Indian C emetery 13. 1 he Fourteenth Amendment provides in 304 U.S. 144 (1938). Justice Stone stated that Protective Association, 485 U.S. 439, 452-53: pertinent part, "nor shall any State deprive any courts must protect certain "discrete and insular Smith, 110 S. Ct. at 1606. person of life, liberty, or property, without due minorities," who are made victims of prejudicial 6. Black's Law Dictionary 420 (5th ed. 1979). In process of lasN; nor deny to any person within its attitudes and so are denied access to the "political The Random House Dictionary Of The English Jurisdiction the equal protection of the laws." U.S. processes ordinarily to be relied upon to protect Language (unabr. ed., Random (louse, New York, Const. amend. XIV. minorities." M. at 152 n.4. The Jusike explained 1983), discrimination is defined to mean treatment 14. The Fifth Amendment pro:ides in pertinent thst legislation enacted that affects this tpe of of a person based on the group, class, or category part, "nor he deprived of life, liberty., or property. minority group must he "subjected to more tu which that person ... belongs rather than on without due process of law." U.S. Const. amend. V. exacting judicial scrutiny under the general individual merit: racial and religious intolerance 15. Royster Guano Co. s. Virginia, 253 U.S. 412 prohibition of the 14th Amendment than are most and discrimination. (emphasis added). (1920). See also, Joseph Tussman and .lacobus other types of legislation."Id. 7. Brown v. Board of Education, 347 U.S. 483, tenBrock, The Equal Protection of the Laws, 37 30. San Antonio School District v. Rodriguec. 494 (1953). Cal. 1,. Rev. 341. 344 (1949). 411 U.S. I, 28 (1973)(one of the criteria to qualify 8. See Messy v. Fergeson, 163 U.S. 539 (1896) 16. Pleskv, 163 U.S. at 538. as a suspect class is that the particular class he (establishing the "separate but equal" doctrine). 17.M. at 551. "subjected to such a history of purposeful unequal 9. See, e.g., Vick Wo v. Hopkins, 118 U.S. 356 18. Brown, 347 U.S. at 483. treatment, or relegated to such a position of (1885), where a facially neutral ordinance made 19.1d. at 494. political powerlessness as to command extra- laundry businesses illegal in San Francisco, with 20.M. at 494-95. ordinary protection from the majoritarian political certain exceptions. Though fair and impartial on 21. Mirabayashi v. United States. 320 U.S. 81 process"). Id. its face, it was declared unconstitutional, because (1943).

NARFLEGAL 7 REVIEW Religious Freedom 81-89 (Christopher Vescey 31, See Trimble v. Gordon, 430 U.S. 762 (1977); 40. Strickland, supra note 37, at 478. ed., 1991). Craig v. Boren, 429 U.S. 190 (1976). 41. K. Sale, The Conquest Of Paradise, 96-97 53. See, e.g., Wilson v. Block, 708 F. 2d 735, 745. 32. See, e.g., Reed v. Reed, 404 U.S. 71 (1971) (1990). 4, (D.('. Cir. 1983). "Thus Al RM requires federal (gender); 'nimble, 430 U.S. at 762 (illegitimacy); 42. P. Nahakov, Native American Testimony: An agencies to consider, hut not necessarily to defer to Weber v. Aetna Casualty & Surety Co., 406 1.S. Anthology Of Indian And White Relations, 60 Indian religious values, It does not prohibit 164 (1972) (illegitimacy); Levy v. Louisiana, 191 (1978). agencies front adopting all land uses that conflict U.S. 68 (1968) (illegitimacy). 43. See Everson v. Board of Education, 330 U.S. with traditional Indian religious beliefs or 33. Vick Ffb, 63 U.S. at 356 (equal protection 1, 8.12 (1946). practices."Id. at 747. guarantees contained in the Fourteenth Amend- 44. The First Amendment provides; "Congress 54. Lyng, 485 U.S. at 439. ment to the Constitution extend to all persons shall make no law respecting an establishment of within the territorial jurisdiction of the United religion, or prohibiting the free exercise thereof; or 55. N. at 547. 56. For an explanation of the role of sacred sites Slates "without regard to any differences of race, abridging the freedom of speech, or of the press; or in American Ind)an tribal religions, see Vine or color, or of nationality.") Id. at 369. the right of the people to peaceably assemble, and Deloria, Jr. Sacred Lands and Religious Freedom, 34. Wong Wing v. United States, 163 U.S. 223 to petition the Coserntnent for the redress of Vol. 16 Native American Rights Fund Legal (1896) (1A ill persons withio the territory of the grievances." (emphasis added). U.S. Const. Review, 1, 1.6 (No.2, Summer 1991). United States are entitled to the protection amend. I. 57. Smith, 110 S. Ct. at 1595. guaranteed by those amendments, and that nen 45. Laurence H. Tribe, American Constitutional 58. Omer C. Stewart, Peyote Religion: A History aliens shall not be held to answer for a capital or I.aw, § 14-3 at 1158..61 (2d ed. 1988). other infamous crime, unless of a presentment to a 46. See, e.g., Quick Bear v. Leupp, 210 U.S. 50 (Univ. of (Ala. Press, 1987). 59. People v. Woody, 394 P. 2d 813, 817 (1964), grand Jury, nor be deprived of life, liberty or (1908) (government's use of federal funds to 60, Id. property without due process of law.") Id. at 238. establish a Catholic church on the Rosebud 35. Plyler v. Doe, 457 U.S. 202, 210-12 (1982). Indian Reservation did not violate (he 61. Id. 62. Black v. Employ ment Dis ., 301 Or. 221, 721 36. Ralph W. Johnson and E. Susan Crystal, Establishment Clause). P.2d 451 (19861; Smith v. Employment Div., 301 Indians and Equal Protection, 54 WASH. I,. REV. 47. The American Indian Religious Freedom Act Or. 209, 721 P. 2d 445 (1986). 587, 588 (1979). The Indian Civil Rights Act is Report, Federal Agencies Task Force, Secretary of codified at 25 U.S.C. 1301-1341 (1976). the Interior (Department of the Interior. August, 63. Ronald 0. Rotunda, Et Al., Treatise On Constitutional Law, Substance And Procedure. § 37. Rennard Strickland, Indian Law and Policy: 1979) at 3-6. This report recounts the history of 21.8 at 401.402 (1986). See Hobble V. The Historian's Viewpoint, 54 WASH. L. REV. 475 government treatment of Indian religions and was Unemployment Appeals Comm'n, 480 U.S. 136 (1979). part of a study mandated by Section 2 of the American Indian Religious Freedom Act (AIM:A), (1987): Thomas v. Review Board, 450 U.S. 707 38. Id. at 594 (noting early cases such as (1981); Wisconsin 'Voder, 406 U.S. 205 (1972): Pub. I.. No. 95-34 1, Section 1, 92 Stat. 469 (1978). Montoya v. United States, 180 U.S. 261 (1901) and Sherbert v. Verner. 374 U.S. 398, 402-403 (1963). See also, Martin, Constitutional Rights and Indian United States v. Rogers, 45 U.S. (4 How.) 572 64. Smith, 110 S. Ct. at 1605. Rites: An Uneasy Balance, In 3 Western Legal (1846)). The author notes that these cases referred 65. Id. at 1601. History 245, 246-252. to Indians as a "race," although more contem- 66.Id. at 1610-11. 48. American Indian Religious Freedom Act porary cases do not. The contemporary concept of 67. ALBUQUERQUE JOURNA1.. Nos. 23, the race of Indians includes Indians from the Report, supra note 47, at 22; Regulations of the Indian Office, effective April 1. 1904, Secretary of 1991, at I. Caribbean, Latin America end Canada. none of 68. TIME, Dec. 9, 1991, at 68. the Interior (Washington: Government Printing whom enjoy a special status under United States 69. See, Hunsfa v. Murphy, 907 F.2d 46, 48 (7th law. In addition, there are United States citizens Office, 1904) at 102.3. 49. See, Articles by Vine Deloria, Jr. and Walter Cir. 199(t); International (enter for Justice and who, although racially Indian, do not share the Peace v. I.N.S., 910 F. 2d 42 (2d (ir. 1990); Echo-Hawk in Special Edition On Religious special status. Reasons for that lack of status Salvation Army v, N.J. Dept. of Community Freedom: Today's Challenge, Vol. 16, Native include: (1) the tribe is one with which the United Affairs, 919 F.2d 183. 194.95 (3rd ('ir. 1990); American Rights Fund 1.egal Review, (No.2, States has never assumed a trust relationship; (2) Sulam s, Lockhart, 905 1...2d 1 168, 1171 n.1 (8111 Summer 1991). the tribe has been terminated by Congress, see, e.g., ('ir. 1990); South Ridge Baptist Church v. Indus, 25 U.S.C. § 564 (1976); and (3) the individual has 50. AIRFA, supra note 47. 51. H.R. Rep. No. 1308, 95th Cong., 2d. Sess, 3 ('omm'n of Ohio, 911 F.2d 1203, 1213 (6th (1r. severed his or her tribal tics, see Standing Bear v. 1990); ('ornerstone Bible Church 1. City of 09781; S. Rep. No. 709, 95th Cong., 2d, Sess. 3 Crook, 25 F. Cas. 695 (C.C.D. Neb. 1879) (No. Hastings, Mich., 740 I:. Supp 654, 669-70 (I). (1978). 14,891). Id. Mich. 1990); Montgomery v. County of ( linton. 52. See generally, S. Moore. Sacred Sites and 39. Johnson and Crystal, supra note 36, at 607. Public Lands, in Handbook Of American Indian 743 F. Stipp. 1253, 1259 (WA). Mich.. 1990); Yang The authors state that this standard of review is v. Sturner, 750 F. Supp. 558, 559 (I). R.I. 1990). "somewhat" greater than the mere rationality lesel 70. Solara, supra note 4. of review, although it seems to be closer to that test than to strict scrutiny. Id.

e.t,t

NARFLEGALREVIEW SACRED GROUND HE REPRESSION OF eagles disappear into the sun 0A'INDIAN RELIGIOUS surrounded by light from the flice of Creation FREEDOM then scream their way home by Pa(ricia Nelson Limerick, Ph.i) with burning messages of mystery and power 1In the I 890's, Copt a in A. E. sonw are given to snake doctors and ants and turtles and salmon Woodson brought remarkable energy to heal the world to his job as an Indian agent, When with order atul patience he arrived at the Cheyenne and some are given to cardinals and butterflies and yellow nwdicine flowers Arapaho reservation in Oklahoma to heal the world hc found thc Indians "indulging in with joy the grass dance and enjoying the mane are given to bears and buffalo and human peoples medicine feasts without moles- to heal the world tation." Accordingly, his "first act with courage and prayer was to forbid dances and feasts ..." Once begun, Woodson launched messages litr holy places himself wholeheartedly into the in the heart of Mother Earth business of forbidding. He undertook deep inside the Old Stone Mutual to prohibit the practices of medicine whose wrinkles are canyons men or shamans, the custom of in the roaring waters and clear Nue streams sharing goods with relatives, tradi- and bottomless lakes tional forms of marriage, and visits who take ;that they need to other reservations. When the in the lbrests of grandfather cedars Cheyenne and Arapaho peoph; and mountains of grandmother sentinel rocky resisted his interference in their lives. who counsel id dawn their defiance only convinced Wood- messages jar hob places son that he was in the right. "An whereAlloWthunder warns agent must sacrifice any desire to be and sumnic. winds whisper popular," Woodson wrote, "if he be this is Sacred Ground inspired to do his whole dutv."1 Sacred Ground at Snirit Falls Captain Woodson's enthusiasm for 'Mere the sman roundstones ham secrets thc exercise of power, his reports to that clear-cutters can never discover the Commissioner of Indian Affairs show, was unending and unquench- Sacred Ground at Mount Grahwn able. When the Cheyenne and where Apaches pray 'Or a peacelill world Arapaho people resisted his orders invisible through the Vatican telescope and hired another white man to Sacred Gmund at Bear Butw pursue his removal, Woodson wrote where Cheyennes and Lakotus hide from tourists to the Department of the Interior, to dress the trees in ermine tails and red-tail hawk .kathers explaining his struggle with his and ribbons of prarers to the life-givers charges. The Indians, he said, Sacred Ground at the San Francisco Peaks showed "a rebellious spirit in where Navajos and Hopis dodge ski-hums and bottles opposition to the methods which Ito settle tlw spirits have been inaugurated with the where they walk 4 sanction and approval of your office . . ."This resistance had gone as far Sacred Ground at Badger livo Medicine and Red Butte and Crazy Mountain as "an open expression of disapproval where miners have drills frr arms of my regime, which is distasteful to and gold in their ees the old men who are wedded to

Sacred Ground at Chola barbarous customs . ." Woodscn where even Tellico's dam engineers hear Tvalagee voices had simply "endeavored to institute through the burial waters newer, and in my opinion, better Sacred Ground at the Medicine Wheel methods tending to the improvement and the doors to the passages of time of the condition of these people..." to Sacred Ground of other worlds The Department's response was, for where suns light the way rt4: t Woodson, very gratifying. The for eagles to carry messages 0,Z Indians had to be restrained "from lbr fires on the indulgence in any practices which 41; tend to continue them in barbarism. Sacred Ground ;IA . Woodson's "efforts have met by: suzan shown haroj 1,1with the full sympathy and approval this office." Indeed, Woodson was

NARFLEGAL REVIEW 1 1 empowered to "inform these Indians were nearly always combined." One that your efforts to control them in a English writer pit, the case in a more civilized method of life meets nutshell; "We give the savages what

the approval of this office. .."2 they most need. Civilitie for their "Let [the Indians] know that the bodies, Christianitie for their soules," power of Government is behind The founding of the United States you," the officials in Washington left this premise virtually unchanged. told their agent in Oklahoma,3 As Father Prucha sums it up, "It was Those words make it impossible to the goal of the United States to dismiss Captain Woodson as a civilize, Christianize, and educate the peculiar, eccentric, or anomalous Indians so that they could ultimately individual. He was, instead, a be absorbed into the mainstream of delegated agent of his nation, .American society." Accordingly, the attacking religious freedom on United States "set about to change government orders. the fundamental cultural patterns of The contradictions between the Indians in a self-righteous American ideals and American paternal manner."4 practices form a familiar theme in As waves of Christian religious our national history. Everyone enthusiasm swept the United States turn to religious groups and knows that many of the founders of in the nineteenth century, a mission- religious-minded men for the for- the American nation, who demanded ary movement gained both influence mulation and administration of their natural right of freedom and and eager workers. As Protestant Indian policy." And, "building on who complained about their "en- church groups worried about the the long history of close relations slavement" to the British king, were souls of heathens in Africa, Asia. between the federal government and themselves slaveowners. Everyone Hawaii, and North America, the the missionary groups in Indian knows that much of national history, federal government fully welcomed matters," Father Prucha writes, "the from the Thirteenth Amendment the missionaries as partners in nation now went far beyond simple ending slavery down to the Civil Indian policy. In Prucha's words, cooperation of church and state in Rights Acts of our time, has been "The United States government educational matters. It welcomed driven by a campaign to bring ideals accepted as allies in its work of official church societies and church- and practices into a closer harmony. civilization thc Christian churches of related individuals into fuller part- But the national contradiction the land," with "the two processes, nership; and to a large extent these represented by Captain A. E. civilizing and Christianizing, . groups came to dominate official Woodson has received much less in inextricably mixed." Federal hinds government policy and administra-

the way of public attention or efforts for Indian education provided partial tion of Indian affairs.. . ."6 to provide a remedy. A nation. support for missionary schools; the As these "government functions dedicated to freedom and committed government, for instance, sometimes were handed over to the churches." to the separation of church and constructed the schoolhouses that did anyone raise the questions of state, imposed on Indian people a Christian missionaries would tcach religious freedom and of the sep- formal policy of the prohibition of in. For government officials as much aration of church and state that Native religions and forced as for missionaries, Christianity was seem so obvious to us today? Indeed. Christianization. Adopted in 1791, so manifestly the right religion as Father Prucha notes, "[m]uch was the First Amendment declares that indeed, the only religion with a claim made of the question of religious "Congress shall make no law on truth that the question of liberty," but not at all in the terms respecting an establishment of religious liberty for Indians never we might expect. 1 he question was religion, or prohibiting the free entered their minds. To nineteenth entirely one of religious liberty exercise thereof." For most of the century white Americans, the First between andamong Christian two centuries of this country's Amendment protected the exercise churches."By religious freedom." the history, the First Amendment has ofreligion,while what the Indians Christians "meant liberty of action been held suspended, waiting for a practiced was superstition, primitive on thc reservations for th;:ir own rites, and peculiar customsprac- full and active application to the mission4-y activities. .." and they religious rights of Indian people. tices that, to the nineteenth century "made no move to grant as much as From the origins of the British Anglo American mind, did not a hearing to thc Indian religions. Empire in North America, colonists deserve the First Amendment's In the early 1880s, Secretary of assumed that civilization and guarantees of liberty.5 Interior Henry ThIler further Christianity were inseparable parts Over the course of the nineteenth tightened the already very narrow of the same package. As the century, the partnership between meaning of religious freedom. In distinguished historian of Indian church and state became more December of 1882, Teller wrote the policy, Francis Paul Prucha, has pronounced and more official. The Commissioner of Indian Affairs, to noted, English civilization and terms of President Ulysses S. Grant's your attention to what I regard the Christian religion "could be Peace Policy hinged on "the con- as a great hinderance to the civili- separated in theory, in practice they scious intent of the government to zation of the Indians, viz., the

10 NARFLEGAL '; REVIEW Created by an executive action from they followed their orders, and the Department of the Interior, these Indian peopl,' developed effective courts were of doubtful legality. strategies of offering an appearance They did not derive their authority of submission, while maintaining from a constitutional provision, nor their customs in secret. Even if it was from an act of Congress. Instead, the unevenly enforced, the suppression authority behind them rested on a of Indian religious liberty stood as widespread Anglo American belief formal, official United States policy. that Christianity was the only true In the nation's long-running cam- religion, and Indian religions were paign to bring its practices into simply variations on superstition harmony with its ideals, this story and barbarism.9 demands the attention of the Ameri- When codified, the "requirements" can public and its elected leaders. that the Courts of Indian offenses "I am satisfied," wrote D. C. were charged with enforcing made Govan from the Tula lip Agency in religious practices a central target. Washington. "that the greatest "The 'sun-dance' and all other obstacle to progress and to the similar dances and so-called religious advancement of the young Indians is continuance of the old heathenish ceremonies," read one requirement. the old Indian. He still clings to his dances ..." lf, Teller said, the "shall be considered 'Indian offen- old superstitions and cherishes Indians "are not willing to discon- ses.' ""[Ajny Indian found guilty of secretly the old traditions and tinue them, the agents should be being a participant" would, on a first teachings of his savage ancestors." instructed to compel such dis- offense, be "punished" by the "with- It was "cruelty," thought W. N. continuance." Teller found, as well, holding of his rations for not more Hai lmann, Superintendent of Indian in the "influence of the medicine than ten days." For a repeated Schools, to hand the Indian young men," a second "great hindrance to offense, the penalty would be the over to "the savagery of the old the civilization of the Indians." The withholding of "rations for fifteen to Indians." The federal government medicine men used "their conjurers' thirty days, or incarceration in an had to act "to protect the young arts to prevent the people from agency prison for a period not Indian against the old." abandoning their heathenish rites exceeding thirty days." The range of The campaign against Indian and customs." "Steps should be punishable offenses included "any religions was, at its core, a campaign taken," the Secretary of the Interior plural marriage hereafter contrac- against the Indian family. Ties said, "to compel these impostors to ted"; the destruction of property in holding parents to children, grand- abandon this deception and discon- mourning for a lost relative; "the parents to grandchildren, uncles and tinue their practices," practices that practice of bands of Indians making aunts to nephews and nieces, elders were "without benefit" and "posi- or returning visits to other Indians"; to juniors, knit tribal societies tively injurious." Similarly, Teller and "the usual practie of so-called together. In those terms, it is hard to lamented the irregularity of tradi- 'medicine men.' " If a medicine man imagine a better way of shaking, tional marriage customs, and the "resort[ed] td any artifice or device eroding, and fragmenting identity Indian's "very general custom of to keep the Indians under his influ- and morale than the agents' cam- destroying or distributing his ence," "adopt[ed] any means to paign to discredit Indian elders. property on the death of a member prevent the attendance of children at How, one wonders, did the officials of his family." Here, too, the the agency schools," or use[d] any of think that they could put a society government should "formulate .the arts of a conjurer to prevent the back together again, after the federal certain rules that shall restrict and Indians from abandoning their government had--purposefully, ultimately abolish these practices."8 heathenish rites and customs," he conscioufly, intentionallytorn the "If it is the purpose of the was to be "confined in the agency generations apart? Federal officials Government to civilize the Indians," guardhouse until such time as he held to a remarkable faith that one Teller argued, "they must be shall produce evidence satisfactory could remodel a society with the compelled to desist from the savage to the court, and approved by the precision of a surgical operation, and barbarous practices that are agent, that he will forever abandon cutting off the influence of the older calculated to continue them in all practices styled Indian offenses generation and leaving the younger savagery." To put an end to the under this rule."0 generation not only intact, but "pernicious influence of these To get out of prison, by require- capable of achieving a coherent, heathenish practices," Teller created ment of the United States govern- balanced life with a suddenly a system of Courts of Indian ment, an Indian religions leader had rthanged economy, religion, and Offenses. Agents would assemble to renounce his faith and declare his family structure. "tribunals" of three Indian judges, intention to stop practicing its The campaign against family ties who would, in much of their rituals. Every religious leader did went beyond the effort to pit older activities, investigate, convict, and not, of course, suffer this fate. people and younger people against punish offenders who persisted in Federal agents on reservations varied each other. Many tribal people felt following their Native religions. considerably in the vigor with which obligated, often by tenets of their

NARFLEGALREVIEW .4 I religions, to share their material a new deity were inextricably had triggered the events that led to possessions with relatives. This intertwined. the killing at Wounded Knee in generosity drove the federal officials "Christianity," declared I. J. December of 1890.16 to distraction. "Another vice," said Wootten in 1895, "is the calcium In this context, the suppression of Captain John G. Bourke, "is their light of civilization, quickens the love religious freedom carried down-to- care for their relations. They are of justice and morality, and is, above earth meanings of power and entirely too fond of their relations. all, the most powerful agent that can dominance. To the agents of the They will do anything for them if be used to obliterate the practice of 1890s, religion could rebuild a they are poor." "We must smother the degrading and superstitious rites conquered people's morale; religion (the Indian's) inherited propensity of the medicine man held in rever- could make them defiant; religion for hospitality," proclaimed Agent A. ence by all Indians." Wootten was could make them hard to rule. In E. Woodson.'2 not, of course, a missionary himself; those terms, suppressing religion was "The most common and per- he was a prime example of a federal as vital a part of conquest as sending nicious custom" among the Indians. employee acting as an official troops out to engage in direct mili- Woodson said, "is the habit of visit- advocate of one religion's right to tary combat. ing their relatives and friends and subordinate another. In his hostility But Indians possessed a great eating their substance. All food toward the practices of medicine constant. Persistent enthusiasm for supplies are common property." men or shamans, Wootten was their own religions marked all of Why not tolerate, even celebrate, typical of the agents of his time. The their dealings with the official this generosity? Agent Woodson practice of traditional healing representatives of the American supplied the answer, with his ceremonies was, in other words, nation. And yet it was the Anglo- characteristic directness: "Their transformed into a crime; as George American custom to reserve the lavish hospitality militates against B. McLaughlin, agent at the word "religion" for "Christianity," the accumulation of wealth Biackfeet Reservation in Browning, and to assign the words like "super- by individuals."' 3 Montana, reported, "I have already stition" or "barbaric customs" to Woodson's remark calls our begun punishing 'doctors' for these Indian faiths. "Gross superstitions of offenses, and hope in time to break attention to the economic compo- the worst kind are rampant," Rev. A. nent of the federal officials' objec- up their barbarous custom."5 B. Shelly told the Board of Indian tions to Indian religions: Native The attack on the medicine men Commissioners in 1895, describing customs of sharing, of hospitality, of undertook to loosen the tight con- the religion of the Hopi Indians. The feasting, or of sacrifice of property nections between religious practice Omaha, their agent Wm. H. Beck in mourning ceremonies, interfered and physical health, between spiritual reported, "claim that they have a with the accumulation of property life and material life. It was, as well, right to their religious observances, and the pursuit of profit. While the part of the attack on the authority of which are in fact the barbaric customs agents' assumption that Christianity elders in tribal societies. The defeat of their progenitors." These habits of was the only legitimate faith was of old religious practices, the agents language, of course. connect to im- clearly a religious prejudice, it was a recognized without regret, would portant and down-to-earth conse- prejudice solidly reinforced by prac- require breaking the power of the quences; the First Amendment, after tical, economic considerations. One leaders of Indian societies. all, guarantees protection of religion sees this factor clearly at work in the These struggles of power rested, not for "barbaric customs," "super- disapproval of dancing. Because of finally, on physical force. By the stitions" or "heathenish practices."17 dancing, Joseph Clements wrote, the 1890s, the wars of conquest were Santee Indians "neglect their work. officially over; but the power politics ..." Because of the dances at the of conquest remained unsettled. The Crow Creek Reservation, Agent actual battles were, in many ways, Fred Treon said, the Indians had only a prelude to this campaign on "but little time to attend their stock the part of the agents to convince the and farms."" Indians that, in Lt. V.E. Stottler's For these nineteenth century words, agent for the Mescalero Anglo-Americans, forcing the Apache, "the Government is Indians to adopt the habits of supreme, and will do what it pleases materialistic, profit-minded white with them or theirs." Perhaps the American society was as essential a Pine Ridge Agency in South Dakota task as forcing them to adopt the showed this condition of conquest- habits of Christianity; indeed, the in-progress most clearly. The Pine two sets of habits appeared to the Ridge Reservation had been a center federal officials as mutually inter- of the Ghost Dance, the religious dependent and equally necessary. movement that promised a return of The enterprise of demanding devo- good times and a retreat of white tion to a new work ethic and the conquest. Panic and alarm on the enterprise of demanding devotion to part of agents facing this movement

12 NARFLEGAL REVIEW In the century since the 1890s, "colorful" and seemingly less their right to religious freedom. that policy has softened, and in some dramatic than the fighting at the (Patricia Nelson Limerick is a Profes- ways, reversed itself. The American Washita or Little Big Horn, the sor of History at the University of Indian Religious Freedom Act of agents' fight for control on reserva- Colorado, Boulder, Colorado, and is a 1978 declared a national regret over tions- -control of Indian people's long-thne supporter of NA RE) a history of direct, blatant repression economic, political, social, family, of Indian freedom. And yet, by the and religious liveswas just as I. Captain A. F.. Woodson, Report of the Commissioner of Indian Affairs 1895, p. 229, and terms of the 1988 Supreme Court's crucial a part of the story as were the Commissioner 1898, p. 234. decision in the Lyng case. the 1978 battles waged by the Army. The 2. Report of the Commissioner of Indian Affairs act has been reduced to a minor 1896, pp. 250-251. refusal to recognize the right to the 3. Ibid., p. 251. requirement that federal land free exercise of religious belief and 4. Francis Paul Prucha, The Great ['Other: The management agencies, planning a practice was an essential component United States Government and the American Indians (Lincoln: University of Nebraska Press, disruption of a site sacred to Indian in the conquest of native people. 1984), pp. 9, 30-31, 33. religions, must consult with Indian A denial of Indian religious liberty 5. 1 quole Prucha's insightful passage at greater people. After having consulted, the length: "When missionaries went among the is an undeniable part of our inheri- Indians, they went to educate and to convert, and it agencies are free to discount the tance from the nineteenth century. would be difficult to tell where one activity ended priority of the Indian claim. But this inheritance is not a matter and the other began. Nor did it matter to the government, which came to depend upon the Despite repeated, public declara- of fate, fora d upon us against our church societies for civilizing work among the tions of regret over the patterns of will. Some of the injuries of the past Indians without intending to promote any particular religion.. .. It was quietly understood, the past, one might argue that the are irreversible, beyond repair or by government officials as well as by church change consists of an increased redemption. But on this question, leaders, that the American civilization offered to subtlety in the pressures put on there are meaningful choices still to the Indians was Christian civilization, and that Christianity was a component of civilization and be made. We can continue the Indian religious practice. In the could not and should not be separated from it... 1890s, Captain A. E. Woodson was, patterns of injustice that have their The missionary's goal .. . differed little from the at the least, direct and unambiguous roots in the conditions of conquest. goal of Washingtonlefferson, and other public statesmen." Ibid., pp. 145-146. in his determination to crush Indian Or we can, in thc most concrete way, 6. Ibid., p. 482. religions. In the 1990s, people like profit from the lessons of history 7. Ibid., pp. 482, 524-525. 8. Henry Teller, Report of November I, 1883, in Captain Woodson are comparatively and break from the track of past House Executive Document No. I, part 5, vol. I, 48 rare creatures. But another. more injustice. "Let [the Indians] know Congress, 1 session, serial 2190, pp. xx-xeli. subtle form of opposition to native that the power of Government is 9. Ibid. pp. es-xxii. 10. Regulations of the Indian Office, 1904. religions has entered the picture, as behind you," the officials ir. 11. Beck, Commissioner 1894, pp. 189-190: federal agents who are simply intent Washington told Captain Woodson Campbell, Commissioner 1895, p. 201; Govan, on other goals entirely resource when he launched his campaign to Commissioner 1895, p. 319; Hailmann, Commissioner 1895, p. 343 and Board 1895, p. 31. development on public lands, for prohibit their religion. A century 12. Bourke, Board 1894, p. 128; Woodson, instancerank Indian religious later, one can imagine a different Commissionee 1897. p.225. practices second to mainstream message from Washington, a 13. Woodson, Commissioner 1895, p. 143. 14, Clements, Commissioner 1894, p. 192; Treon, American social or economic goals. message more in harmony with Commissioner 1894, p. 276; Woodson, Instead of Captain Woodson's American ideals. Let the Indians Commissioner 1895, p. 243; Beck, Commissioner 1896, p. 198. characteristic bluntness, the 1990s know, the new message would read, 15. Woollen, Nevada Agency, Commissioner version of opposition to Indian that the power of Government now 1895, p: 211; Bourke, Board 1894, p. 129; Williams, religious freedom can speak a much stands behind them, and behind Navajo Agency, Commissioner 1895, p. 119; Brentano, Commissioner 1895, p. 267-268; more subtle language. Instead of the McLaughlin, C:ommissioner 1897, p. 163. The direct orders of Captain Woodson, "ringleaders" among the Hopi that Williams the challenge to Indian religions described were arrested and sent into "confinement" at Alcatraz Island. today can come in the form of a 16. Penney, Commissioner 1894, p. 289. long, detailed report from a federal 17. Commissioner 1896, p. 241; Shelly, board land management agency, advo- 1895, p. 90; Beck, Commissioner 1896, p. 198. cating development of a particular site, and treating an Indian religious ceremony, centered on that site, as a quaint, colorful but dismissable relic of a lost time. Undramatic and indirect as this bureaucratic behavior may seem, its effect on religious practices can be nearly as destructive as the direct attacks of the late nineteenth century. While public attention has focused on the Indian wars, actual military engagements were only a small part of the process of conquest. Less

NARFLEGAL 13 REVIEW American practitioner, Native Ameri- HOW DOES THE BILL PROTECT NATIVE AMERICAN can traditional leader, Indian tribe, or RELIGIOUS RIGHTS OF NATIVE FREE EXERCISE OF Native Hawaiian organization as AMERICAN PRISONERS? Native RELIGION ACT OF 1993 defined by the Act. Criminal sanctions prisoners shall have, on a regular are provided for damage to sacred basis comparable to that afforded to S. 1021: BACKGROUND sites and for violating the bill's prisoners who practice Judeo- AND CALL TO ACTION confidentiality provisions. Christian religions, access to: 1) Native American traditional religious HOW DOES THE BILL PROTECT leaders, 2) sacred objects; 3) religious WHAT IS THE STATUS OF SACRED SITES? Procedural and S. 1021? On May 25, 1993, Senator facilities. (Access to peyote is excluded substantive protection are given for from this section.) Further, traditional Daniel Inouye, Chairman of the any "federal undertaking" that may Senate Committee on Indian Affairs, hairstyles are allowed underpre-Smith affect a Native American sacred site. legal standards of cases such as introduced the Native American Free The procedural requirements are Exercise of Religion Act of 1993 Teterud v. Burns.A commission is similar to existing federal cultural established to investigate the status of (S. 1021). Original co-sponsors are: resource and environmental protec- Senators Max Baucus (D-MT), Ben religious rights of Native prisoners in tion laws. Procedurally,noticemust American prisons. Nighthorse Campbell (D-CO), Russell be given by the agency involved to Feingold (D-WI Tom Harkin (D-IA), relevant Indian tribes. Native HOW DOES THE BILL PROTECT Mark Hatfield (R-OR). Claiborne Hawaiian organizations and Native RELIGIOUS USE OF EAGLE Pell (D-RI), and Paul Wellstone American traditional leaders that the FEATHERS AND OTHER (D-MN). undertaking may impact the site; and ANIMAL PARTS? Existing federal A hearing on S. 1021 by Senator consultationis required and a written law (16 USC 668a) allows Indian Inouye's Committee is expected to impact statement prepared analyzing religious use of eagle feathers under a occur on June 24, 1993, which will impacts on the site. Substantively, U.S. Fish and Wildlife Service permit initiate a long legislative process legal standards (enforceable as a system. The bill requires USFV3S. throughout the 103rd Congress. private cause of action) would protect within one year, to streamline the sacred sites under a two-tiered permit system in consultation with WHAT WILL S. 1021 DO? S. 1021 balancing test derived from the Indian tribes and Native American doesfivethings to put clear, legally "compelling state interest" test. traditional leaders. Where dead eagles enforceable "teeth" into Congress' Special provisions are included to are found on tribal lands, the tribe Native American religious freedom meet unique Native Hawaiian needs may regulate the disposition of parts policy: 1) protects Native American and the needs of Indian Tribes with for religious purposes under 10 tribal sacred sites; 2) protects religious use religions that prohibit disclosure of permit system. Finally, withi4 one of peyote by Indians in Native sacred information. S. 1021 is not year a plan will be developed to American Church services; 3) protects directed at Indian tribes, which can dispose of other surplus animal or religious rights of Native prisoners to regulate protection of sites under their plant parts by federal agencies. the same extent as prisoners of other jurisdiction. Thus, activities of Indian religious faiths; 4) streamlines the tribes are not defined as "federal WHAT DOES THE PRIVATE existing federal permit system for undertakings," and tribal authority to CAUSE OF ACTION DO? It allows Indian religious use of eagle feathers protect sacred sites located on Indian aggrieved parties to: 1) enforce and assesses recommended allocation lands is confirmed. provisions of the bill; and 2) all other of other surplus plant and animal parts in possession of the federal HOW DOES THE BILL PROTECT government for Native American RELIGIOUS USE OF PEYOTE BY religious use; and 5) restores the INDIANS? An existing DEA regu- "compelling state interest test" (dis- lation (21 CFR 1307.31) exempts carded by the Supreme Court in religious use of peyote by Native Smith) as the legal standard for Americans from the Controlled protecting Native religious freedom Substances Act. The bill would in all other instances not other- essentially codify this regulation and wise specified. make it uniform in all 50 states by declaring the use, possession and WHO DOES S. 1021 PROTECT? S. transportation of peyote by Indians 1021 protects religious rights of: 1) for ceremonial purposes lawful, and members of Indian tribes; 2) Alaska that such use not be prohibited by Natives; and 3) Native Hawaiians. federal or state governments. Fur- WHO CAN ENFORCE THE BILL? ther, no Indian shall be discriminated A private civil cause of action for in- against on the basis of such use. The junctive relief to enforce the provisions existing DEA regulatory system and of the bill is given to an "aggrieved authority will continue undisturbed. party," which is defined as any Native

14 NARFLEGAL REVIEW traditional religious beliefs and WHAT CAN I DO TO HELP? TO LEARN MORE ABOUT THE practicesnotspecifically mentioned 1) If they are not already co-sponsors LEGISLATIVE EFFORT: Contact: elsewhere in the bill are protected (listed above), write a letter to your NARF Staff Attorneys: Robert under First Amendment legal Senators asking them to co-sponsor Peregoy (202/785-4166) or Walter standards in effect prior to the 1990 S. 1021. 2) Write a letter to each Echo-Hawk (303/447-8760); 2) Execu- Smithcase, when an aggrieved party member of the Senate Indian Affairs tive Director, National Congress of satisfies the balancing test and the Committee asking them to support American Indians (202/546-9404); government fails to sustain its burden and advance S. 1021: Dennis 3) Jack Trope, counsel for Association of proof. DeConcini (D-AZ), Thomas Daschle on American Indian Affairs (908; 253- WHO SUPPORTS FEDERAL (D-SD), Kent Conrad (D- ND), Harry 9191); or 4) Patricia Locke, Coalition LEGISLATION TO PROTECT Reid (D-NV), Paul Simon (D-ILL), Coordinator (202/ 546-9404). NATIVE AMERICAN RELIGIOUS Dan Akaka (D-HAW), Paul Wellstone FREEDOM? Members of the large, (D- MN), Ben Nighthorse Campbell Kifaru Productions has produced 3 historic Coalition to develop and (D-CO), Byron Dorgan (D-ND), John new video programs concerning the support appropriate Native American McCain (R-AZ), Frank Murkowski amendments to the American Indian religious freedom legislation are listed (R-AK), Thad Cochran (R-MS), Religious Freedom Act: The Peyote elsewhere in this publication. The Slade Gorton (R-WA), Pete Domenici Road; Understanding A.1.R.F.A.; and, Coalition played a key role in devel- (R-NM), Nancy Kassebaum (R-KS), Traditional Use of Peyote. For more oping S. 1021 and is working closely Don Nickles (R-OK). Letters should information call Kifaru Productions at with congressional members and staff be addressed to: The Honorable (415) 381-6560. as Congress considers the bill. ,United States Senate. Washington, D.C. 20510.

by: Archie Blackowl University of Oklahoma Collections

NARFLEGAL 15 REVIEW AMERICAN INDIAN RELIGIOUS FREEDOM COALITION FOR THE AMENDMENTS TO THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT*

MEMBERS

American Anthropological Association Heart of the Earth Survival School Native American Church of Wyoming American Baptist Churches, U.S.A. Prison Program Native American Language Institute American Civil Liberties Union High Plains Society for Applied Native American Prisoners' American Ethical Union, Anthropology Rehabilitation Research Project Washington Ethical Action Office Hollywood Policy Center Foundation Native American Religious Freedom American Friends Service Committee Hollywood Women's Political Project of the Native American American Indian Anti-Defamation Committee Church Council Honor Our Neighbors Origins & Rights Native American Rights Fund American Indian Law Center (HONOR) Native Lands Institute American Indian Science & Engineering Jesuit Social Ministries, National Office Native Spiritual Cultural Councils, Inc. Society Keepers of the Treasures Natural Resources Defense Council American Indian Ritual Object KIFARU Productions - San Francisco Navajo Corrections Project Repatriation Foundation Learning Circle, The Navajo Nation (Support in principle) American Jewish Committee Lutheran Office for Governmental Nimii'pu (Nez Perce) Tribe Americans for Indian Opportunity Affairs, Evangelical Lutheran Church Omaha Tribe of Nebraska and Iowa Apache Survival Coalition in Amcrica Pauma Indian Reservation Association on American Indian Affairs Maryknoll Fathers and Brothers. Pirtle, Morriset, Schlossur & Ayer Coalition for Indian Education Justice and Peace Office Presbyterian Church U.S.A. Colorado Council of Churches Medicine Wheel Coalition Robinson Rancheria Citizens Business Confederated Salish and Kootenai Mennonite Central Committee, U.S. Council Tribes, Flathead Reservation, Michael Chapman & Associates San Juan Southern Paiute Tribe Montana Morning Star Institute Sealaska Corporation Congressional Human Rignts National Audubon Society Seventh Generation Fund Foundation National Conference of Christians Sierra Club Conservation International and Jews, Inc. - Minnesota-Dakotas Sierra Club, Native American Sites Coquille Indian Tribe Region Committee Council tor American Indian Ministry, National Congress of American Indians Spiritual Alliance for Native Prisoners United Church of Christ National Indian Education Association Student Environmental Action Coalition Council of Native American Ministry, National Parks and Conservation Timbisha Shoshone Tribe National Council of Churches Association Unitarian Universalist Association of Crow Indian Peyote Ceremonies (CIPC) Native American Church, Half-Moon Congregations, Washington Office Crow Tribal Council Fireplace, State of Wisconsin, Inc. United Church of Christ, Office for Cultural Conservancy Native American Church of Navajo land Church in Society Cultural Survival Native American Church of United Methodist Church, General Eco-Action North America Board of Church and Society ECO, Earth Communications Office Native American Church of Oklahoma Walapai Tribe Episcopal Council of Indian Ministries Native American Church of Walk of the Warriors (Native American Flathead Reservation Human Rights Omaha Tribe Veterans) Coalition Native American Church of the Wilderness Society Friends Committee on National State of South Dakota Winds of Life Legislation Native American Church, Wisconsin Tribal Judges Association Friends of the Earth Uintah & Ouray Reservation, Women's International League for Peace Greenpeace Northern Ute Tribe and Freedom Writers Guild of America, West

* Coalition name has not yet been changed to reflect the Native American Free Exercise of Religion Act of 1993 (S. 1021) ,which replaces the amendments to A1RFA.

16 NARFLEGALREVIEW CASE UPDATES ruled in the Tribe's favor on three of materials of important cases relating the four disputed oil and gas leases. to the development of Indian law. Alabarna-Coushatta v. United States The Panel's disposition of the fourth Those materials in the public domain NARF represents the Alabama- lease was unclear. The full Tenth that are non-copyrighted are avail- Coushatta Tribe of Texas in its Circuit Court declined to p-hear the able from NILL on a per-page-cost lawsuit against the United States Panel's decision on any of the leases. plus postage. Through NILL's for breach of trust. InAlabama- Both NARF, in the Tribe's behalf, dissemination of information to its Coushatta v. U.S.,the Tribe is suing and the oil company filed separate patrons, NARF continues to meet its the United States for its failure to petitions for Writ of Certiorari in the commitment to the development of otect the Tribe's possession of its United States Supreme Court Indian law. 9 million acres of aboriginal terri- seeking review of the Tenth Circuit's tory. Oral argument was held on rulings. On March 29, 1993, the Available from NILL March 3, 1993. On April 8, 1993, the Supreme Court denied certiorari on The NIEL Catalogue United States Claims Court issued both petitions. One of NILL's major contribu- its opinion ruling in favor of the Masayesva v. Zah v. James and tions to the field of Indian law is the Tribe on most issues, finding that the Navaio Tribe v. United States creation of the National Indian Law Tribe did establish aboriginal title by v. San Juan Southern Paiute Tribe Library Catalogue: An Index to 1830. However, on the critical issue The United States District Court Indian Legal Materials and Resources. of the extent of the Tribe's aboriginal The NILL Catalog lists all of NILL's territory, the court found that the in Phoenix entered a final judgment on all issues pertaining to the San holdings and includes a subject index, Tribe only held aboriginal title to a an author-title table, a plaintiff- very limited area due to the presence Juan Southern Paiute and Hopi land claims in December of 1992. The defendant table and a numerical of the other tribes. The Tribe will file listing. This reference tool is prob- a notice of appeal and wait for the case is now on appeal to the Ninth Circuit Court of Appeals. ably the best current reference tool establishment of a briefing schedule. in this subject area. It is supplemented Catawba v. United States periodically and is designed for those The Catawba Tribe filed suit who want to know what is available against the United States to recover in any particular area of Indian law. the value of those lands which the (1,000+ pgs. Price: $75) (1985 Sup- Tribe is barred from claiming as the plement $10; 1989 Supplement $30). result of the 1986 Supreme Court . Bibliography on Indian Economic decision in the Catawba land claim. Development In late 1992, the Court of Appeals Designed to provide aid in the for the Fourth Circuit affirmed the development of essential legal tools district court's dismissal of most of for the protection and regulation of the parcels of land on which commercial activities on Indian Summary Judgment had been reservations, this bibliography pro- sought. NARF filed a Petition for a vides a listing of articles, books, Writ of Certiorari in the United memoranda, tribal codes, and other States Supreme Court; that petition NARF RESOURCES materials on Indian economic was denied. In January 1993, the AND PUBLICATIONS development. 2nd edition (60 pgs. Court of Appeals for the Federal Price: $30). (NILL No. 005166) Circuit affirmed the Claims Court's dismissal of the Tribe's breach of The National Indian Law Indian Claims trust and contract claims against the Library Commission Decisions United States. NARF once again The National Indian Law Library This 47-volume set reports all of filed a Petition for a Writ of (NILL) has developed a rich and the Indian Claims Commission Certiorari in the United States unique collection of legal materials decisions. An index through volume Supreme Court on April 6, 1993. relating to federal Indian law and 38 is also available. The index con- the Native American. Since its tains subject, tribal and. docket Cheyenne-Arapaho Tribes founding in 1972, NILL continues to number listing. (47,lumes. Price of Oklahoma v. United States meet the needs of NARF attorneys $1,175). (Index priced separately & Woods Petroleum Corp. and other practitioners of Indian at $25). NARF represents the Cheyenne- law. The NILL collection consists of PRICES SUBJECT TO CHANGE Arapaho Tribe in its suit to overturn standard law library materials, such the Bureau of Indian Affairs decision as law review materials, court opin- to extend the term of tribal oil and ions, and legal treaties, that are gas leases without tribal consent, available in well-stocked law libraries. and at below market value rates. In The uniqueness and irreplaceable June 1992, a Tenth Circuit Panel core of the NILL collection is com- prised of trial holdings and appellate

NATaill LEGAL 17 REVIEW 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.PartIdiscusses the application of federal and common law to protect Indian natural resources. Part II consists of practice pointers: questions to ask when analyzing resource protection issues; strategy considerations; and the effective use of law advocates in resource protection. (151 pgs. Price $25).

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

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

Handbook of Federal Indian Education Laws. This handbook discusses provisions of major federal Indian education programs in terms of the legislative history, historic problems in implementation, and current issues in this radically 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 Affecting Indian Juveniles. This fifth Indian Law Support Center Manual is now available. This manual focuses on a section-by-section legal analysis of the Act, its applicability, policies, findings, interpretations, and definitions. With additional 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).

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

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

Tax Status. The Native American Rights Fund is a nonprofit, charitable organization 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 tax deductible. The Internal Revenue Service has ruled that NARF is not a "private foundation" as defined in Section 509(a) of the Internal Revenue Code.

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NARF ATTORNEY Lawrence A. Aschenbrenner has been on the NARF staff for over 14 years and has served as the Directing Attorney of the Alaska office for the past 8 years. Larry has over 35 years of litigation experience and previously served as the Directing Attorney for NARF's Washington, D.C. office. He is a graduate of the University of Oregon Law School and did his undergraduate work there as well. Prior to joining NARF's staff, Larry served in a number of legal capacities, including Acting Associ- ate Solicitor for Indian Affairs and Assistant Solicitor for Indian Affairs in the Department of Interior from 1974 through February 1977. In addition, he has been the Deputy Attorney General for the Navajo Nation 1982-84; Chief Counsel for the Lawyer's Committee for Civil Lawrence A. Aschenbrenner Rights Under Law in Jackson, NARF Attorney Mississippi, 1967-69; a partner in a public interest law firm in Oregon; the first Public Defender for the State of Oregon; and District Attorney for Josephine County, Oregon. Larry's legal responsibilities in Indian law have related primarily to issues and cases involving tribal jurisdiction, lands, minerals, hunting and fishing rights, water rights, and the environment.

NARFLEGAL 19 REVIEW Native American Rights Fund The Native American Rights Fund is a nonprofit organization specializing in the protection of Indian rights. The priorities of NARF are: (1) the 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 individuals. 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: 1506 Broadway, Boulder, Colorado 80302. Telephone (303) 447-8760. BOARD OF DIRECTORS Richard (Skip) Hayward, Chairman Mashantucket Pequot Anthony L. Strong, Vice-chair Tlingit-Klukwan Whatever causes you're giving to now, set a goal to Lionel Bordeaux Rosebud Sioux increase your giving to a level that will make a Mildred Cleghorn Fort Sill Apache permanent and positive difference. Give Five - 5 hours a Rick Hill Oneida week and 5% of your income. The rewards will make you Native Hawaiian feel like a winner every day of your life. For more Mahealani Kamauu infonnation, call 1-800-55-GlVE-5. Willie Kasayulie Yupik John R. Lewis Mohave/ Pima IP\ Twila Martin-Kekahbah Turtle Mountain Chippewa Calvin Peters Squaxin Island Evelyn Stevenson Salish- Kootenai Five hours a week and five percent qiyour ineume. Eddie Tullis Poarch Band of Creeks Verna Williamson Isleta Pueblo Executive Director: John E. Echohawk Pawnee

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