|
|
|
|
|
|
|
|
Home  Free Exercise of Religion Native American issues play key role in free exercise law
|
Native American issues play key role in free exercise law |
|
|
|
|
Written by James Gibson, BJC Staff Counsel
|
|
Monday, 30 March 2009 |
 Recently, the 9th U.S. Circuit Court of Appeals announced its decision in Navajo Nation v. U.S. Forest Service. The court ruled that the Religious Freedom Restoration Act of 1993 does not prohibit the U.S. Forest Service from expanding a commercial ski area and using artificial snow manufactured from sewage water on the San Francisco Peaks, lands sacred to a number of Native American tribes.
This is far from the first case implicating pivotal Native American religious liberty issues. In fact, Native American religious freedom issues have played a key role in modern free exercise jurisprudence. It was a dispute over Native American free exercise rights that led to the U.S. Supreme Court's 1990 decision in Employment Division v. Smith, which scaled back the reach of the Free Exercise Clause.
Congress, at the urging of the Baptist Joint Committee and others,
enacted the Religious Freedom Restoration Act in 1993 - the very
legislation at issue in the Navajo Nation case - to restore free
exercise jurisprudence to pre-Smith status. Bowen v. Roy, a
1986 Supreme Court decision, is another notable Native American free
exercise case dealing with qualifications for welfare benefits. A
plurality in Bowen foreshadowed the Court's decision in Smith.
As the U.S. Supreme Court considers several tribes' request to review
the 9th Circuit's decision in the Navajo Nation case, it is appropriate
to reflect on the myriad religious liberty challenges faced by Native
Americans, the longest-tenured of our fellow citizens.
These issues were the impetus for a Freedom Forum conference on Native
American Religious Freedom that I attended last year at the University
of South Dakota in Vermillion, S.D. The three-day event was attended by
academics, attorneys and several Native American leaders who have
committed their adult lives to securing for their people the religious
liberty that is the birthright of every American. The conference delved
into some of the key issues in Native American religious freedom with
which those of us who support religious freedom for all should be
familiar: protection of, and respect for, Native American sacred
places; repatriation of Native American human remains removed from
burial grounds for study and display; and free exercise rights for
Native American inmates of the federal prison system, allowing them the
right - subject, of course, to the realities of incarceration - to
practice their faith while imprisoned.
Sacred Places
Native
American sacred places are areas where Native Americans go to practice
their religion. These places are considered sacred because they are
burial grounds, areas conducive to communicating with spiritual beings,
the site of notable past events, or contain certain natural resources.
Native
American religions were outlawed under the "Civilization Regulations"
of the late nineteenth and early twentieth centuries. One consequence
of these laws was the destruction or desecration of many sacred places.
The American Indian Religious Freedom Act of 1978, as well as other
legislation and Carter Administration executive orders, was enacted in
part to protect sacred places but many Native Americans argue that
enforcement has been inconsistent and is complicated by the fact that
none of these laws contain a discrete legal cause of action that would
allow Native Americans to go to court to protect their sacred places.
The
sacred places issue has been heavily litigated. In addition to the
Navajo Nation case, a dispute over sacred places reached the U.S.
Supreme Court in 1988 with Lyng v. Northwest Indian Cemetery Prot.
Ass'n. In Lyng, the Court held that the U.S. Forest Service did not
violate the Free Exercise Clause by constructing a paved road through
lands considered to be sacred places by certain Native Americans.
Repatriation
Like
many cultures in America and elsewhere, Native American religious and
cultural traditions include specific beliefs regarding burial of the
deceased. Yet throughout the centuries numerous of Native American
graves have been exhumed, with the remains in the possession of
scientists for study or to museums for public display. This violates
the religious beliefs of many Native Americans tribes, a number of whom
advocate for repatriation, the return of exhumed remains to the
deceased's tribal descendants.
Native Americans' struggle for
repatriation often pits them against the scientific community, which
maintains that the burial remains and funerary objects are of intrinsic
scientific value. As such, scientists argue, they should be studied and
displayed in museums, and not returned to tribal descendants.
How
did this mass exhumation of Native American gravesites happen in the
first place? Although historically non-Native American gravesites were
protected by law, this was not the case with Native American burials
and bodies, which resulted in a large number of remains and funerary
objects being exhumed. The situation worsened in 1906, when Congress
passed the American Antiquities Act of 1906, which classified Native
American burials on federal and reservation lands as "cultural
resources" and federal government property.
In 1989-90, Congress
passed several laws, including the Native American Graves Protection
and Repatriation Act (NAGPRA), that criminalized trafficking in Native
American remains and allowed repatriation of remains and funerary
objects upon application of descendants who could demonstrate a tribal
affiliation to the requested remains. Although it is a step in the
right direction, many Native Americans maintain that NAGPRA has not
fully alleviated the problem, because it does not apply to Native
American tribes not recognized by the federal government, and because
it allows the institution in possession of the remains to determine
whether cultural affiliation exists - a regulation that some Native
Americans contend invites abuse.
Inmates in the Federal Prison System
Religious
minorities often struggle for the right to religious accommodation in
both state and federal prisons, and Native American inmates - a
distinct minority within the federal prison system - are no exception.
From grooming policies that proscribe growth of the long hair required
by their religious beliefs and access to Native American religious
leaders, to observance of holy days and access to sacred objects (such
as medicine bags) and ceremonies (such as sweat lodges), Federal Bureau
of Prison policies sharply curtail Native American inmates' free
exercise of religion. Although notable progress was made in these areas
with regulatory changes in the late 1990s and the Baptist Joint
Committee-supported Religious Land Use and Institutionalized Purposes
Act of 2000, the situation has regressed due to post-9/11 security
regulations. While there are - and should be - instances when an
inmate's free exercise rights must bow to the realities of prison
security and administration, the successes of the 1990s-era regulations
demonstrates that these two competing concerns can be balanced to allow
Native Americans the free exercise of their religion without impeding
the government's legitimate correctional concerns.
Americans
have just experienced a harried and historic election season, a time
during which we heard a lot about religion, most often in the context
of America's Christian religious majority. But our commitment to
religious freedom is best served when we contemplate and respect the
religious traditions of all faiths, including those of Native Americans
- our country's original occupants.
James Gibson is staff counsel at the Baptist Joint Committee.
|
|
|
|
|
In orders today, the U.S. Supreme Court agreed to hear Town of Greece, NY v. Galloway. The decision means the high court will have its say on the hot-button church-state issue of legislative prayer for the first time in 30 years. The 2nd Circuit ruled in Town of Greece that the prayer practic... |
|
Arizona's Religious Freedom Restoration Act (RFRA) has been law for several years. The state's RFRA echoes the federal bill of the same name, requiring the government to demonstrate a compelling state interest to justify substantial burdens on religious exercise. Some lawmakers in Arizona ... |
|
