Kristen A. Carpenter
Abstracted from: Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 Connecticut Law Review 387 (December, 2012) (636 Footnotes)
The [Supreme] Court in Lyng denied the Free Exercise claim in part because it could not see a stopping place. We uphold the RFRA claim in this case in part because otherwise we cannot see a starting place. If Appellants do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred.
Employment Division v. Smith was a transformative moment in First Amendment law, with the Supreme Court holding that states may impose burdens on the exercise of religion through neutral states of general applicability. Departing from previous case law holding that states had to demonstrate a compelling interest to sustain such infringements on religion, Smith inspired a groundswell of interfaith coalition building, passage of the Religious Freedom Restoration Act (“RFRA”), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and an entire body of legal scholarship. Lost in this conversation, however, have been the American Indians who actually lost the right to practice their religion in Smith. Some commentators have gone so far as to affirmatively deny an American Indian context for Smith. Yet, for American Indians, the decision criminalizing the possession of sacramental peyote was devastating both on its own and as the culminating case in a series of Supreme Court decisions denying American Indian Free Exercise Clause claims. Moreover, in addition to RFRA's general restoration of the substantial burden-compelling interest, there has been a virtual explosion of federal legislative and regulatory law directed specifically at accommodating American Indian religious freedoms. These legal developments have been largely unexplored by the law and religion scholars who aim to assess religious freedoms in the post-Smith era.
The Indian religion cases may be explained by a number of factors, including the Court's narrowing of Free Exercise Clause protections generally after the high water marks of Sherbert and Yoder and the Court's expansion of government property rights in the same era. These points have been addressed in other scholarship, including my own work in the past. But there is another point, so far under-theorized in the literature, that sheds light on the pre-Smith cases and post-Smith reforms: the unrequited search for a “limiting principle” in American Indian religious freedoms jurisprudence. In every Indian religion case, the Supreme Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and, instead, denied them through a succession of bright line formulations. For example, in Lyng v. Northwest Indian Cemetery Association, the Court rejected Free Exercise Clause objections to government plans to build a road through an Indian sacred site, in part because the suit implicated “rather spacious tracts of public property.” While the Indians attempted to “stress the limits” of their claim, the Court could see “[n]othing in the principle for which they contend” that would prevent them from seeking “to exclude all human activity but their own from sacred areas of the public lands.” Instead, the Court held, the Indians would only have an actionable case if they could show that the government had “coerced” them into violating their religion, through the denial of a benefit or imposition of a sanction.
Similar concerns plagued Bowen v. Roy, in which the Court said the plaintiff could not prevail on his objection to the use of a Social Security number on the grounds that it would “harm [the] spirit” of his daughter. The Court held that this claim, attributed to Abenaki Indian beliefs, was no more actionable than a “sincere religious objection to the size or color of the Government's filing cabinets.” And in Smith, Native American Church (“NAC”) members failed on a challenge to a state statute prohibiting the possession of peyote, their religious sacrament, in part because of fears that widespread claims for religious drug use would follow. Here, the Court held that states need not grant religious exemptions to neutral statutes of general applicability like this one.
It appears, then, that the Court's inability to discern a limit on the Indian religious practices in Bowen, Lyng, or Smith was a common factor leading to its outright denial of the claims in each. Of course, American Indians are not the only ones who face the slippery slope problem in free exercise cases. As Ira Lupu evocatively put it, “Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe.” The confounding question is whether and how to draw the line between the legitimate claim and the deviant one. In many religion cases, judges are able to rely on their personal experience and common sense. Courts typically know that a Christian individual's claim not to work on the Sabbath is a legitimate religious observance, will take just one day per week, and will not cause the working economy to grind to a halt. But when it comes to the particulars of minority religions, it may be more difficult for the courts to evaluate the legitimacy and scope of particular practices, leading them to question both their own judicial competence and equality among plaintiffs, and to prefer bright line rules over nuanced analysis.
American Indian religions perfectly illustrate this challenge. From the perspective of many American Indians, the judicial concerns about the scope of their religions appear specious because the religions themselves specifically dictate and limit the practices. These traditions are ancient in origin, tracing back to creation stories that place human beings on the earth and set forth values that will enable the people to thrive in their surroundings. Whether the religion calls for peyote, eagle feathers, burial rites, or access to sacred sites, the religions set forth the season, location, sacraments, prayers, and other aspects of ritual practice. Tribal religious leaders, academic experts, and even, in some cases, published legislative constitutions and codes, can attest to these practices. Contrary to the Court's fears in Lyng, for example, the Yurok, Karuk, and Tolowa Indians were not trying to reclaim the entire public lands or to exclude anyone from entry, but rather to protect the sacred “High Country” and “Medicine Rocks.” And contrary to the fears in Smith, the NAC carefully dictates the ritual ingestion of peyote and forbids extra-religious use as a sacrilege. If taken seriously and understood, the tribal religions could provide at least some of the answers that the courts seem to seek.
Yet, the Court sees two problems with this approach to the question of where to draw the line: the problem of institutional competence and of equality. Institutionally, an assessment of limits based on religious tenets would engage the courts in theological inquiry beyond their competence. Prior to Lyng, state and federal courts alike often used a “centrality” test to limit Free Exercise Clause relief to burdens on religious practices that were central to the religion. Justice O'Connor rejected this test on grounds that it would require courts to “weigh the value of every religious belief and practice” allegedly threatened by a government program and to hold that “some sincerely held religious beliefs and practices are not ‘central’ to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit.” Such an approach would “cast the Judiciary in a role that we were never intended to play.” Justice O'Connor's reasoning resounds with a rich body of theoretical work in law and religion, noting that courts are generally encouraged to take a “hands-off” approach to substantive questions of religion, both because judges may not be experts in religious matters and to preserve the separation between church and state. It is for these reasons that courts generally assume the sincerity of religious practice and do not delve into theological merits, this includes everything from church property to clergy hiring cases.
On the other hand, some scholars have argued that concerns about judicial competence in the religion arena may be overstated, much to the detriment of religious practitioners. In this view, judges must often make decisions about complex areas outside of their legal training-from scientific to financial matters-and the religious nature of First Amendment cases should not obscure the judicial capacity to make reasoned decisions based on the trial evidence or appellate record. In the American Indian context, state and federal judges often made perfectly thoughtful decisions in the cases leading up to Lyng and Smith, making it difficult to see the Supreme Court's unilateral denials of religious freedom as preferable to the earlier nuanced analyses. Moreover, as described in greater detail below, the federal government has for over two hundred years inserted itself into American Indian religion-originally through policies designed to eradicate tribal culture and more recently to reverse those policies. Given federal regulation of religious peyote, eagle feathers, and sacred sites, it is rather late in the day to disclaim a judicial role in American Indian religious freedoms cases.
On the equality point, scholars have argued both that courts should not privilege religion itself over other fundamental liberty claims and that they should not indicate any preference among religious sects or individuals. One can see strands of both equality arguments in the Indian religion cases. As Justice O'Connor said in Lyng and as Justice Scalia said in Smith, the American Indian plaintiffs in those cases were entitled to the same access to public lands and controlled substances as every other citizen. The Free Exercise Clause does not provide a basis for extending special rights, which could violate the Establishment and Equal Protection Clauses. Instead of privileging religion, the Constitution only prevents the government from coercion or discrimination based on religious belief. Under this view, Smith may have been decided correctly. Other scholars argue, however, that even if Smith correctly treated religion as non-exceptional, it was still wrongly decided because it discriminated against American Indians vis-a-vis other groups that enjoy access to their sacraments.
While laudable, even these nuanced views of equality often fail to capture the interests at stake in the American Indian context, in part because they remain grounded in the First Amendment's individual rights paradigm. To be sure, religious legal theory has begun to conceptualize group rights through a number of models, including, among others, the aggregated interests of members, minority rights, and church autonomy, all of which suggest important points of intersection for the American Indian context. But these accounts of institutional and group rights do not recognize the unique status of history of Indian tribes. While Indian tribes share some similarities with racial minorities and religious institutions, they are more properly described as pre-constitutional sovereigns with reserved rights over their citizens and territories. Tribes are not bound by the Bill of Rights and may-as some tribes do-maintain theocratic forms of government. Indian tribes generally retain rights of self-government and an ongoing, unique political relationship with the United States. Congress, in turn, has plenary authority in Indian affairs and an obligation to protect tribal resources under the federal Indian trust responsibility.
This special relationship between Indian tribes and the United States has historically been a double-edged sword in the religion arena. In many American Indian communities, the traditional Indian religion is at the root of the tribal culture, social structure, subsistence practices, and even, in theocratic tribes, government. Understanding that tribal survival was linked to these religious practices, the federal government actively suppressed American Indian religions as a means of eradicating tribes and assimilating their members into the Christian citizenry in the eighteenth and nineteenth centuries. Today, as tribes recover from this legacy, Indian leaders have described the ability to practice their religion as critical to tribal “self-determination,” and on the flip side, have decried threats to their religious practices as “genocide.” As the Indian legal and religious scholar Vine Deloria Jr. wrote, “There is no salvation in tribal religions apart from the continuance of the tribe itself.” In this regard, Indian religious claims against the federal government are not only about defending individual beliefs against government intrusion, but also about preserving tribal societies from extermination.
If the meaning of equality must be re-assessed in the Indian religion context, so too must the question of institutional role. Smith is famous for shifting religious accommodation from the judiciary to the legislature. As Justice Scalia wrote: “[A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.” Smith and its defenders argued that the legislature is better suited than the courts to balance sensitive questions of religion and politics. Yet critics argued that Lyng, Smith, and other decisions abdicated the judiciary's traditional role as a protector of minority rights, leaving religious minorities vulnerable to a political process in which they are, at worst, poorly represented, and at best, forced to use valuable community resources to vindicate rights that others take for granted. This critique is surely apt in the American Indian context, where tribes have had to go it alone, lobbying for peyote, eagle feathers, and sacred sites protection. Indeed, when the large inter-faith coalition famously pushed for the passage of RFRA to restore the traditional Free Exercise Clause test following Smith, it expressly declined to push the agenda of the NAC on grounds that peyote use was too controversial for a broad-based legislative effort.
Yet the shift from judicial to legislative-regulatory accommodation also has particular ramifications in the American Indian context that scholars have not fully considered. Since the 1970s, Congress has repudiated its historical suppression of Indian religions and mobilized its plenary power and trust duties in support of tribal self-determination and religious freedoms. Enactments and amendments to the American Indian Religious Freedom Act, National Historic Preservation Act, Bald Eagle and Golden Eagle Protection Act, and Native American Graves Protection and Repatriation Act now make it federal policy to preserve and accommodate the traditional religions of American Indians. These statutes delegate to agencies, including the Bureau of Indian Affairs, Forest Service, Park Service, Army Corps of Engineers, and Fish and Wildlife Service, the obligation to manage resources-such as sacred sites, eagle feathers, human remains, and peyote plants-which are critical to American Indian religion.
This legislative-regulatory framework in Indian religious matters has, in many respects, achieved what First Amendment litigation could not. Today, Congress and the agencies treat tribes as governments for whom religious cultural traditions are constitutive elements and work with them to negotiate accommodations. The Clinton, Bush, and Obama administrations have ordered agencies to develop procedures and policies for accommodating tribal needs, and have issued special directives on Indian sacred sites and eagle feathers. The administrative process offers several mechanisms-consultation, notice and comment, hearings, accommodation plans, and co-management-by which tribes and the agencies engage in that process. Indeed, over the years, agencies and tribes have developed mutual relationships of trust and shared information with respect to lands and natural resources, and have used those common interests to negotiate several notable religious accommodations over sacred sites, peyote, eagle feathers, and burial grounds. Because of the political and secular nature of the relationship with tribes, Indian religious legislation is subject to rational basis review and thus often withstands challenges brought under the Equal Protection or Establishment Clauses. For all of these reasons, I identify the current legislative-regulatory framework as an “empowering practices” approach to American Indian religious freedoms.
Still challenges remain. In the final analysis, Indian religious freedom is subject to Congressional authority and agency discretion, and sometimes the agencies decide to subordinate Indian religious needs to other stakeholder interests. Moreover, the courts have struggled to determine how to interpret RFRA's substantial burden-compelling interest test in these cases. Thus, while acknowledging the transformation of American Indian religious freedoms law, this Article highlights both successes and failures under the post-Smith legislative-regulatory framework. In particular, this Article acknowledges and identifies a number of opportunities for additional improvements to federal policy and judicial review in American Indian religious freedoms cases. These are important issues at a time when the United States has just recently adopted the United Nations Declaration on the Rights of Indigenous Peoples, with its many provisions for indigenous religious, spiritual, and cultural freedoms, and President Obama has called for legal reform to bring the United States into compliance. In this regard, American Indians press the United States not only to deal with tribal issues, but also to assess what it means to guarantee religious freedom in our intercultural society of overlapping identities and diverse world views.
The Article aims to elaborate a new perspective on the cases, statutes, and regulations as a bridge to deeper understanding at the intersection of American Indian law and religious freedoms law. In this regard, the objectives of this Article are largely descriptive and contextual, rather than normative or strategic. More specifically, I argue that with a better appreciation of the equality and institutional arguments, the truly transformative potential of the recent Indian religion statutes and regulations becomes clear. In the Bowen-Lyng-Smith era, American Indian religious freedoms were litigated primarily within an individual rights framework wherein the problem of “limiting principles” was an insurmountable hurdle. In the post-Smith statutes, an entirely new model has emerged. After centuries of religious oppression, the United States has finally promised religious liberty to Indian tribes and their citizens. With tribal governments and federal agencies at the table, the questions of scope and legitimacy that previously torpedoed Indian religious freedoms claims outright are now vetted and discussed by authorized parties as they work toward meaningful religious accommodations. The post-Smith era thus reveals an “empowering practices” approach to American Indian religious freedoms.
This Article proceeds as follows: Part II provides background on American Indian religious practices and the law. Part III identifies the problem of “limiting principles” in Indian religious free exercise jurisprudence, arguing that the courts' inability to find a satisfactory limiting principle led them to establish bright lines denying American Indian religious freedoms in sacred sites, peyote, and other cases. Part IV suggests that recent developments in the legislative and administrative process empower agencies and tribes to advance religious freedom; although more is needed, these “empowering practices” offer a partial solution to the problem. This Article concludes in Part V with reflections on the broader lessons that the American Indian experience offers for questions of religious freedom and pluralism in the United States.