Protecting Religious Freedom and Sacred Sites

Mar 17, 2008

Native American religions practiced today, as they have been for thousands of years, are land based. Sacred places, which can be a specific mountain, a waterfall, or a place where ancestors left petroglyphs are at the core of many native religions. These sacred sites are often the centerpiece of a tribe’s creation stories and oral histories, which are passed down through generations. The histories and the sacred places tie new generations to their ancestors and the land to form the central bonds of tribal culture and identity. Religious ceremonies and rituals conducted at spiritual sites, using natural tokens such as tobacco, peyote, sage, and eagle feathers celebrate the creator of the earth and are the essence of native spiritual expression.

Background of the Problem. Sadly, the history of U.S. policy towards the religious practices of Native Americans contrasts sharply with the image of the U.S. as a refuge from religious persecution and domination. Beginning in the early 19th century, the federal government supported the "civilization" and "Christian education" of Native Americans. Congress financially supported mission activities, including 200 mission schools which prohibited students from practicing their traditional religions. The Dawes Act of 1887 prohibited native religious ceremonies and the practices of traditional religious leaders. The official policy of religious repression stood for nearly 50 years. Thus the U.S. government forcibly dislocated Native Americans from their religious, tribal, and cultural identities. Following this oppressive period native religions were not illegal but American Indians continued to suffer serious violations against their freedom to religious practice and expression.

Overview of the American Indian Religious Freedom Act. In 1978, a congressional report found that state and federal laws continued to hamper and interfere with Native American religious practices. Later that year the U.S. Congress passed the American Indian Religious Freedom Act (AIRFA) ending the dark era of American history that provided no protection for native religions and failed to recognize the suffering of native religious practitioners. The law underscored and extended the basic constitutional principle of freedom of religion to Native Americans. AIRFA "protects and preserves the inherent right of freedom of belief, expression, and exercise of traditional religions...including but not limited to access to sites, use and possession or sacred objects, and the freedom to worship through ceremonials and traditional rites." AIRFA is a foundational piece of legislation, but doesn’t include a penalty section giving Native Americans a mechanism to redress infringements on their freedom of religion. Fortunately, stronger legislation like the Native American Graves Protection and Repatriation Act (NAGPRA adds needed protections for native religions.

Provision of Legal Protections. Following the passage of AIRFA, police and courts continued to enforce laws appropriate for the general public but in contradiction with Native American’s right to freely practice their religions. In 1990, the Supreme Court upheld a state decision to deny unemployment benefits to two Native Americans fired for taking peyote in a Native American Church religious ceremony during their off-hours. In other cases, police arrested Native Americans for possession of peyote, an illegal drug under U.S. law, even though its use in native religious ceremonies goes back some 10,000 years. In 1994, Congress finally amended AIRFA to protect the use of peyote for religious purposes amongst traditional native practitioners. Today, federal law protects possession of peyote "for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion."

Similarly, the traditional use of eagle feathers and animal remains in religious ceremonies came under legal scrutiny due to the status of the animals and their remains under the Bald and Golden Eagle Protection Act. In 1994, sixteen years after the passage of AIRFA, the executive branch stepped in and issued a Presidential Memorandum that ordered all federal agencies to accommodate the religious use of eagle feathers and animal remains by creating a nationwide repository that distributes the sacred remains to native practitioners. Congress also authorized the Department of Interior to allow the possession of eagle remains for use in American Indian religious ceremonies. The actions of Congress to amend and enforce the spirit of AIRFA to protect the "use and possession or sacred objects" in the cases of peyote and eagle feathers represent monumental victories for religious freedom in America.

Continuing Controversy over Religious Rights. AIRFA stipulates "the freedom to worship through ceremonials and traditional rites" for all Native Americans. However, federal and state prisons continue to place constraints on native religious practice. Prison authorities often prohibit incarcerated Native Americans from conducting ceremonies and traditions central to their spiritual beliefs. Religious practices, such as possessing tobacco and prayer pipes, burning cedar and sage, participating in sweat lodges, and growing long hair are banned in many prisons. Some authorities do not allow the construction of sweat lodges or grant adequate facilities to conduct ceremonies. These rules infringe on the rights of Native Americans to practice their traditional faiths. However, a significant legal victory was delivered to minority religious practitioners on May 31, 2005, that should compel all prison facilities to re-evaluate their rules on religious practice. The Supreme Court ruled in the case of Cutter v Wilkinson that local, state, and federal prisons must meet inmates’ needs to carry out their spiritual lives and practice their religions. The decision upheld the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). RLUIPA protects the free exercise of religion "where State and local governments seek to impose a substantial burden on the religious exercise of persons residing or confined to certain institutions." The court found that a prison providing proper facilities, sacred objects, holy books, and access to religious leaders, thus enabling full religious practice amongst its inmate population, does not privilege religious practitioners over other prisoners. The court also found that prisons' accommodation of religious practice does not constitute a federal establishment of religion.

The Vulnerability of Native Sacred Sites. Unfortunately, the courts and Congress have completely failed to enforce AIRFA's promise to protect and guarantee access to sacred sites. The lack of legal protection for native sacred sites is a continuing and painful void in the policy to preserve Native American’s religious freedom and practices. In 1989, the Supreme Court ruled that neither AIRFA nor the first amendment of the Bill of Rights legally protect Native American's holiest places. In its landmark decision in Lyng v Northwest Indian Cemetery Protective Association, the court found that private, corporate, and governmental land holders’ rights to build and develop on their properties superceded the rights of American Indians’ freedom religion, even though the actions of land owners "could have devastating effects on traditional Indian religious practices." In 1996, President Clinton issued a Presidential Memorandum that requires federal agencies to "avoid adversely affecting the physical integrity" and "accommodate access to and ceremonial use of" sacred sites. However, the Lyng decision is legal precedent; only Congress can rectify the existing gap in protection for sacred sites. To protect these sites tribes need legal standard to defend their holy places. Without a "cause of action" tribes will continually lose sacred sites to development and religious practices will be infringed upon.

The protection of traditional sacred sites is vitally important to every tribe. Tribal, national Indian organizations, FCNL and over 170 other organizations oppose the nomination of William G. Myers for the 9th Circuit Federal Court of Appeals because of Myers' disregard for the significance of sacred sites to tribal cultures. The 9th Circuit's jurisdiction covers seven western states, Alaska and Hawaii. The 9th Circuit’s rulings affect over 300 tribes and hundreds of thousands of native people. As the Solicitor General of the Department of Interior, Myers' failed to consult, even once, with tribal leaders of the Quechan tribe before opening the tribe’s sacred land to cyanide extraction gold mining. Myers' failure to initiate government to government consultation with the tribe expressly contradicted the 1994 presidential memorandum which called on officials of all federal agencies to conduct meetings with tribal leaders "to ensure that the rights of sovereign Tribal governments are fully respected." Previous to his position at Interior Myers worked for mining interests in the private sector. Conversely to his snubbing of the tribe, Myers met with mining companies 27 times before making his decision.

Today, many more sacred sites are threatened with complete destruction by individual, state, federal or corporate land ownership. Equally disruptive are issues over access, which permits rocking climbing, hiking and recreation in sacred areas. Other sacred grounds are magnets for new age religions which vaguely resemble and mimic native religious practices.

In northern California the small Winnemem Wintu tribe is arguing against the raising of water levels around the Shasta Dam, a move that would flood tribal sacred grounds and the location of the tribe’s ancient village. Previously, the tribe convinced the National Forest Service to drop a plan to construct a ski resort on a mountain side, which contains the Wintu’s ceremonial religious grounds. The tribe vows to keep the pressure on public officials to preserve their sacred lands.

In St. Paul, Minnesota the area around a sacred cave where ancestors of the Dakota Sioux left rock carvings was "a rail yard and an unofficial dumping ground." The area is now a city park but the rock carvings have completely disappeared from neglect and lack of protection. "It's never been a forgotten site for us," said Jim Rock, a Dakota tribe member. "It’s been a site of struggle. When it had toxic waste dripping from the trains, it was hard to watch."

In New Mexico, the Ute Mountain Ute tribe is apprehensive over an arrangement between a conservation group and the federal Bureau of Land Management (BLM) which granted control of Ute Mountain to the federal agency. The Utes conduct seasonal religious ceremonies on the mountain and the area contains several tribal burial grounds. The tribe is concerned that the BLM won’t do enough to limit public access during religious pilgrimages and worry that grave robbers will infiltrate the park, causing irrevocable harm to the tribes’ burial grounds. "I don’t think the BLM will protect those (burial) sites. We don’t trust the government very much. When the government intervenes, everybody gets a little nervous," said Terry Knight, spiritual leader of the tribe.

Across the U.S. sacred sites are threatened. It’s time for Congress to restore the trust of native religious practitioners and act to uphold the freedom of religion for all. In 2003 (108th Congress), Representative Rahall (WV) introduced the "Native American Sacred Lands Act." The act would allow federal agencies to protect sacred sites, marking them as areas "unsuitable for development." The act would also give tribes a "cause of action" to protect their threatened holy places in the courts. The act did not pass in the 108th but Rep. Rahall intends to reintroduce similar legislation to protect sacred sites in the 109th Congress.

California Sacred Sites Protection:
Sacred Land Film Project: FCNL highly recommends a film entitled “In Light of Reverence” available at this site.
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