Native American religious practices and the sanctity of sacred sites should be protected as de facto First Amendment rights.

History of U.S. Policy: A Disregard of Native Religious Freedom

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 outright prohibited native religious ceremonies and the practices of traditional religious figures. This was the law of the land for almost fifty years.

Even today, the freedom of Native Americans to practice their traditional religions continues to be questioned in the courts and discounted in federal legislation. In the past few decades, issues such as access to religious sites, the use of peyote in religious ceremonies, the process of obtaining eagle feathers for religious uses, and Native American prisoners’ access to religious articles and practitioners have all raised questions about the U.S. government’s true commitment to protecting religious freedom for all people in the U.S., including Native Americans.

Protection for Sacred Sites

Imagine holding worship service in a church that is designated by law to be open at all times to the public- hikers, picnickers, and tourists. Imagine rock climbers scaling the walls of the National Cathedral during religious services. Imagine a place of worship in your hometown being replaced by an open pit mine. Imagine leveling the Wailing Wall to build a highway through Jerusalem. Most people in the U.S. take for granted the sanctity of worship sites. For many Native Americans, however, protection for their sacred sites is uncertain at best.

Policy Recommendation

Enact legislation to protect Native Americans’ access to religious sites. So far, the federal courts have found that neither the First Amendment nor the American Indian Religious Freedom Act of 1978 guarantee tribes protection of or access to sacred sites. For example, in Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court narrowly defined the federal government’s responsibility to protect religious freedom. The court allowed for the U.S. Forest Service to construct a road on USFS land, despite recognizing that construction through the cemetery would “destroy the…Indians’ ability to practice their religion.” Although a 1996 Executive Order instructed federal agencies to accommodate Native Americans’ use of ceremonial sites and to avoid “adversely affecting the physical integrity” of sites, Native Americans have nonetheless had to struggle to protect sites on a case by case basis.

Religious Freedom for Prisoners

Many Native American prisoners and their advocates have expressed several concerns about the exercise of religious freedom inside prisons. Some religious practices, such as possessing tobacco or prayer pipes, or growing long hair, are illegal in certain prisons. These rules infringe on the rights of Native Americans to practice their traditional faiths if they so choose. Other rights such as access to traditional religious leaders or ceremonies have been blocked by prison administrators wary of that which they do not understand.

Policy Recommendation

Protect the religious rights of Native American prisoners who practice their traditional faiths. Prisoners should be allowed to access religious leaders, practice traditional ceremonies as other people of faith are allowed to do, possess and carry medicine pouches and prayer pipes, grow long hair for religious reasons, and possess tobacco, cedar and sage for religious purposes.

The Native American Graves Protection and Repatriation Act

In 1990, Congress passed the Native American Protection and Repatriation Act (NAGPRA). The Act was intended to ensure that ancestral remains and sacred objects would be returned to tribes by the government agencies, universities and museums which held them. Collections of ancestral skeletal remains speak loudly to Indians of a vivid history which many Americans seem to have forgotten. Many bodies were collected in ways repugnant by any standards of decency. Today, the existence of these collections in museums and other institutions denies the recognition of Indian tribes as continuing, living cultures. Possessing Indian remains without consent violates the beliefs of many Native Americans who believe that disturbing the dead hinders their ancestors’ spiritual journeys. Many ancestral remains, along with religious artifacts, have been returned to tribes. However, other collections remain in museums and institutions.