Melissa Tatum is a law professor at the University of Arizona, where she also teaches in the American Indian Studies Graduate Interdisciplinary Program. She is the co-author of Law, Culture & Environment (2014).
In 2016, the eyes of the world focused on the struggles of the Standing Rock Sioux Tribe to stop the construction of the Dakota Access Pipeline. As the administrative and environmental challenges to the pipeline failed, many began seeking other possible grounds to halt the pipeline. Inevitably, questions arose regarding whether the tribe could rely on laws protecting the free exercise of religion to help achieve its goals. A quick review of past religious freedom claims provides the answer.
In the late 1800s, the federal government adopted the Code of Indian Offenses to regulate conduct of Indians on reservations. That Code prohibited the practice of traditional Indian religions and punished those practices by withholding rations, imprisonment, and whipping.
During the same era, Congress funded the creation of the Indian boarding school system, which forced children to attend Christian church services and severely punished the practice of traditional religions.
Prohibiting the practice of traditional Native religions and inflicting physical punishment upon its practitioners would seem to constitute a clear violation of the First Amendment’s guarantee that Congress make no law prohibiting the free exercise of religion.
In the 1970s the U.S Forest Service decided to allow commercial timber harvesting in a portion of the Six Rivers National Forest. As part of the proposal, the Forest Service declared its intent to complete a paved road through the forest. The area chosen for timber harvesting included sites sacred to several tribes, and members of those tribes protested the decision. The Forest Service commissioned a study, which concluded that permitting commercial timber harvesting would destroy the tribal members’ ability to practice their religion. The report recommended against the proposal.
The Forest Service made a few minor changes to its proposal, but it continued forward with the plan to allow timber harvesting and to complete the road. Members of the tribes filed suit, arguing, among other things, that the proposed actions infringed on their ability to practice their religion. According to the test in force at the time, if the government substantially burdened the practice of religion, the government must prove that the burden was necessary to achieve a compelling government interest. Since the government’s own report concluded that the government’s plan would destroy their ability to practice their religion, it seemed like a clear-cut case.
The U.S. Supreme Court, however, changed the test, holding that “substantial burden” was a legal term of art and meant only being fined, jailed, or deprived of a government entitlement. The Supreme Court held that the tribal members could not satisfy that standard, and therefore the government had not substantially burdened their practice of religion.
The next major Indian religious freedom case to reach the U.S. Supreme Court involved two Natives were fired from their jobs for testing positive for peyote, which they had ingested as part of sacrament in the Native American Church. They applied for and were denied unemployment benefits, as they had been fired for work-related misconduct. The facts were very similar to a leading religious freedom case at the time, in which a member of the Seventh-day Adventist Church was fired for refusing to work on the Sabbath. The U.S. Supreme Court held that the government decision to deny unemployment compensation benefits was a violation of the First Amendment’s guarantee of religious freedom.
Again, however, the Supreme Court used the case to change the legal test, holding that a neutral law of general applicability could not, by definition, violate the First Amendment.
Indians who practice traditional religions have never won a case in the U.S. Supreme Court, despite Congress’ declaration in the 1978 American Indian Religious Freedom Restoration Act, that “it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”
The only conclusion is that Indians have no religious freedom unless they give up their traditional religions and adopt a Judeo-Christian one.