13.4 Balancing Religious Freedom with Other Interests

Religious freedom for Native Americans is a complex balancing act. The government must protect their right to practice traditional religions while also considering other interests. This tension plays out in laws, court cases, and ongoing debates about sacred sites and practices.

Key issues include protecting sacred land, allowing ceremonial use of peyote and eagle feathers, and preserving cultural objects. Courts apply balancing tests to weigh religious freedom against government interests. Tribes continue advocating for stronger protections and accommodations.

Constitutional and Statutory Protections

First Amendment Protections

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• First Amendment of the U.S. Constitution protects the free exercise of religion
• Free Exercise Clause prohibits the government from interfering with or burdening religious practices, unless there is a compelling government interest
• Establishment Clause prohibits the government from favoring or endorsing any particular religion or religious practices

Statutory Protections for Native American Religious Practices

• American Indian Religious Freedom Act (AIRFA) of 1978 affirms the right of Native Americans to practice their traditional religions
• AIRFA requires federal agencies to evaluate their policies and procedures to determine if changes should be made to protect and preserve Native American religious cultural rights and practices
• Religious Freedom Restoration Act (RFRA) of 1993 prohibits the federal government from substantially burdening a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest
• RFRA provides a higher level of protection for religious liberty than the First Amendment, as interpreted by the Supreme Court in Employment Division v. Smith (1990)

Sacred Objects and Practices

Sacred Sites and Land Use

• Native American sacred sites are often located on public lands, such as national forests, parks, and monuments
• These sites may include mountains, rivers, burial grounds, and other places of spiritual significance
• Federal agencies are required to consult with tribes when making land use decisions that may affect sacred sites (National Historic Preservation Act, Executive Order 13007)
• Conflicts can arise between the protection of sacred sites and other land use interests, such as resource extraction, recreation, and development

Sacramental Use of Peyote and Eagle Feathers

• Peyote, a cactus containing psychoactive compounds, is used in religious ceremonies by some Native American tribes, particularly the Native American Church
• Federal law exempts the religious use of peyote by members of federally recognized tribes from controlled substance prohibitions (American Indian Religious Freedom Act Amendments of 1994)
• Eagle feathers are used in many Native American religious and cultural practices, but the possession and use of eagle feathers are regulated under the Bald and Golden Eagle Protection Act
• The U.S. Fish and Wildlife Service operates the National Eagle Repository, which collects and distributes eagle feathers to enrolled members of federally recognized tribes for religious purposes

Traditional Religious Practices and Cultural Preservation

• Native American traditional religious practices often involve the use of sacred objects, such as pipes, drums, and regalia
• These practices may also include ceremonies, dances, and songs that are passed down through generations
• Federal laws, such as the Native American Graves Protection and Repatriation Act (NAGPRA) and the Indian Arts and Crafts Act, help protect Native American cultural property and prevent the misappropriation of traditional knowledge and practices
• Tribes and Native American organizations work to preserve and revitalize traditional religious practices through cultural education, language preservation, and the transmission of knowledge to younger generations

Legal Challenges and Balancing Tests

Landmark Supreme Court Cases

• Lyng v. Northwest Indian Cemetery Protective Association (1988): The Supreme Court held that the Free Exercise Clause does not prohibit the government from permitting timber harvesting and road construction in areas of national forest that are considered sacred by Native American tribes, even if these activities would severely impact their religious practices
• Employment Division v. Smith (1990): The Supreme Court held that the Free Exercise Clause does not exempt individuals from complying with neutral, generally applicable laws that incidentally burden their religious practices, such as Oregon's prohibition on the use of peyote, even for religious purposes

Balancing Religious Freedom with Government Interests

• Courts often apply a balancing test to determine whether a government action that burdens religious practice is justified by a compelling government interest
• The government must demonstrate that the challenged action is the least restrictive means of achieving the compelling interest
• In some cases, courts may require the government to accommodate religious practices by granting exemptions or making reasonable modifications to policies or regulations
• Factors considered in the balancing test include the centrality of the religious practice, the severity of the burden, the nature of the government interest, and the availability of alternative means of achieving the government's goals

Ongoing Challenges and Accommodation Efforts

• Native American tribes continue to face challenges in protecting sacred sites, preserving traditional practices, and asserting their religious freedoms
• Land use conflicts, such as those involving resource extraction, infrastructure projects, and recreation, can threaten the integrity of sacred sites and impede access for religious purposes
• Tribes and Native American organizations engage in consultation, negotiation, and litigation to secure accommodations and protect their religious and cultural rights
• Some federal agencies have developed policies and procedures to ensure meaningful consultation with tribes and to minimize the impact of land use decisions on Native American religious practices (e.g., the U.S. Forest Service's "Sacred Sites" policy)
• Efforts to accommodate Native American religious practices also involve the repatriation of sacred objects, the protection of traditional knowledge, and the promotion of cultural revitalization programs