⚖️Native American Law Unit 13 – Religious Freedom and Cultural Preservation

Historical Context

• Native American religious practices deeply connected to land, nature, and ancestral traditions long before European colonization
• European settlers often viewed Native American spiritual beliefs as primitive, pagan, or uncivilized leading to suppression and forced assimilation
• Government policies (Dawes Act of 1887, Code of Indian Offenses) aimed to eradicate Native American culture, language, and religion
  • Boarding schools established to "civilize" Native American children by separating them from their families and communities
  • Traditional religious practices (Sun Dance, potlatches) banned or criminalized
• American Indian Religious Freedom Act (AIRFA) of 1978 marked a shift towards protecting Native American religious rights
  • Acknowledged the importance of traditional practices and sacred sites
  • Required federal agencies to consult with tribes on policies affecting religious practices
• Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 addressed the repatriation of sacred objects and ancestral remains
• Despite legal protections, Native American religious freedoms continue to face challenges due to competing interests (land development, resource extraction)

Legal Framework

• First Amendment of the U.S. Constitution protects the free exercise of religion and prohibits the establishment of a state religion
  • Applies to Native American religious practices, but with limitations
• American Indian Religious Freedom Act (AIRFA) of 1978 affirms the right of Native Americans to practice their traditional religions
  • Requires federal agencies to consult with tribes on policies that may affect religious practices
  • Criticisms: lacks enforcement mechanisms and does not provide a cause of action for violations
• Religious Freedom Restoration Act (RFRA) of 1993 sets a high standard for government infringement on religious practices
  • Government must demonstrate a compelling interest and use the least restrictive means
  • Has been invoked in cases involving Native American religious practices (peyote use, sacred sites)
• Executive Order 13007 (1996) requires federal agencies to accommodate access to and use of sacred sites by Native American religious practitioners
• Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 provides for the repatriation of sacred objects and ancestral remains
• Tribal sovereignty and the government-to-government relationship between tribes and the federal government play a role in protecting religious practices

Key Supreme Court Cases

• Lyng v. Northwest Indian Cemetery Protective Association (1988)
  • Held that the Free Exercise Clause does not prohibit the government from permitting timber harvesting and road construction in areas of national forest considered sacred by Native Americans
  • Emphasized the government's right to manage its own land, even if it burdens religious practices
• Employment Division v. Smith (1990)
  • Ruled that the Free Exercise Clause does not exempt individuals from generally applicable laws (Oregon's prohibition on peyote use)
  • Led to the passage of the Religious Freedom Restoration Act (RFRA) to restore the compelling interest test
• Bear Lodge Multiple Use Association v. Babbitt (1998)
  • Upheld the National Park Service's voluntary climbing ban at Devils Tower National Monument to respect Native American sacred ceremonies
  • Demonstrated the government's ability to accommodate religious practices on public lands
• Navajo Nation v. U.S. Forest Service (2008)
  • Held that the use of recycled wastewater to make artificial snow on a sacred mountain did not violate the Religious Freedom Restoration Act (RFRA)
  • Highlighted the challenges in balancing competing interests on public lands

Tribal Sovereignty and Religious Practices

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
  • Includes the right to practice and protect traditional religious beliefs and customs
• Tribes have the authority to regulate religious practices within their reservations
  • Can establish laws and policies to preserve sacred sites, protect ceremonial objects, and ensure the continuity of religious traditions
• Government-to-government relationship between tribes and the federal government
  • Federal agencies are required to consult with tribes on policies that may affect religious practices
  • Executive Order 13175 (2000) mandates regular and meaningful consultation with tribal officials
• Tribal courts have jurisdiction over matters related to religious practices and cultural preservation within reservations
• Collaborative management agreements between tribes and federal agencies can help protect sacred sites and ensure access for religious purposes
• Tribal sovereignty is essential for the preservation and revitalization of Native American religious practices

Land Rights and Sacred Sites

• Native American religious practices are deeply connected to specific landscapes and sacred sites
  • Creation stories, ancestral burials, and ceremonial grounds are tied to particular locations
• Federal policies (allotment, termination) resulted in the loss of tribal lands and restricted access to sacred sites
• American Indian Religious Freedom Act (AIRFA) of 1978 requires federal agencies to consult with tribes on policies affecting sacred sites
• Executive Order 13007 (1996) directs federal agencies to accommodate access to and use of sacred sites by Native American religious practitioners
  • Agencies must avoid adversely affecting the physical integrity of sacred sites
• Conflicts arise when sacred sites are located on public lands managed by federal agencies (national forests, parks, monuments)
  • Competing interests (resource extraction, recreation, land development) can threaten the integrity of sacred sites
• Collaborative management agreements and co-stewardship arrangements between tribes and federal agencies can help protect sacred sites
• Tribes have used various legal strategies to protect sacred sites (RFRA, NHPA, treaty rights)
• Continued advocacy and education are necessary to raise awareness about the importance of sacred sites for Native American religious practices

Cultural Preservation Efforts

• Native American tribes have taken proactive steps to preserve their religious practices and cultural heritage
  • Language revitalization programs to ensure the survival of traditional languages used in ceremonies
  • Cultural education initiatives to pass on knowledge and practices to younger generations
  • Repatriation of sacred objects and ancestral remains under NAGPRA
• Tribal historic preservation offices (THPOs) work to protect cultural resources and sacred sites
  • Coordinate with federal agencies, conduct cultural resource surveys, and provide expertise on preservation issues
• Intertribal organizations and coalitions advocate for the protection of religious freedoms and sacred sites
  • National Congress of American Indians (NCAI), Association on American Indian Affairs (AAIA)
• Collaborative partnerships between tribes, federal agencies, and non-profit organizations support cultural preservation efforts
  • Grants and funding opportunities for cultural revitalization projects
  • Technical assistance and capacity building for tribal communities
• Digital archiving and documentation projects help safeguard traditional knowledge and practices
  • Oral history collections, ethnographic research, and multimedia resources
• Cultural tourism initiatives can raise awareness and generate revenue for preservation efforts
  • Visitor centers, guided tours, and educational programs that showcase Native American culture and history

Current Challenges and Debates

• Ongoing threats to sacred sites due to land development, resource extraction, and infrastructure projects
  • Dakota Access Pipeline, Bears Ears National Monument, Oak Flat
• Limitations of existing legal protections for Native American religious practices
  • Lyng v. Northwest Indian Cemetery Protective Association (1988) and the lack of a cause of action under AIRFA
  • Narrow interpretation of the Religious Freedom Restoration Act (RFRA) in cases involving Native American sacred sites
• Conflicts between Native American religious practices and wildlife conservation efforts
  • Eagle feather permits, hunting regulations, and endangered species protections
• Cultural appropriation and misrepresentation of Native American religious practices in popular culture
  • Stereotypical depictions, unauthorized use of sacred symbols, and commercialization of spiritual traditions
• Ongoing struggles for federal recognition and the impact on religious freedoms
  • Non-federally recognized tribes face challenges in protecting sacred sites and asserting religious rights
• Balancing individual religious freedoms with public health and safety concerns
  • Peyote use in Native American Church ceremonies and drug enforcement policies
• Need for greater public education and understanding of Native American religious practices and their significance

Future Outlook and Policy Implications

• Strengthening legal protections for Native American religious practices and sacred sites
  • Amending AIRFA to provide a cause of action and enforcement mechanisms
  • Expanding the application of RFRA to better protect Native American sacred sites
  • Enacting legislation to ensure meaningful consultation with tribes on land management decisions
• Increasing tribal sovereignty and self-determination in matters related to religious practices and cultural preservation
  • Enhancing the government-to-government relationship between tribes and federal agencies
  • Supporting tribal capacity building and cultural revitalization efforts
• Promoting collaborative management and co-stewardship arrangements for sacred sites on public lands
  • Developing best practices for balancing competing interests and accommodating Native American religious practices
• Investing in public education and awareness campaigns to foster understanding and respect for Native American cultures
  • Incorporating Native American perspectives in school curricula and cultural institutions
  • Encouraging responsible cultural tourism that benefits tribal communities
• Addressing the ongoing impacts of historical trauma and cultural suppression on Native American communities
  • Supporting mental health and healing initiatives that incorporate traditional practices and spirituality
• Advocating for international recognition and protection of indigenous religious rights
  • Engaging with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
  • Collaborating with indigenous communities worldwide to share best practices and strategies
• Continuing to monitor and assess the effectiveness of existing policies and legal frameworks in protecting Native American religious freedoms
  • Conducting research and gathering data on the impacts of land management decisions on sacred sites
  • Engaging in ongoing dialogue with tribal leaders, religious practitioners, and other stakeholders to inform policy development