Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.
Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the 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.
Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.
Here is Linford D. Fisher’s (Brown) new book on a previously neglected subject of early American history, The Indian Great Awakening: Religion and the Shaping of Native Cultures in Early America (OUP 2012). The book describes the ways in which Native Americans initially attempted to conform themselves to the First Great Awakening and then made demands for separation — a very interesting study in how a religious minority struggles to survive and eventually assert its autonomy within a larger culture. The publisher’s description follows.
The First Great Awakening was a time of heightened religious activity in the colonial New England. Among those whom the English settlers tried to convert to Christianity were the region’s native peoples. In this book, Linford Fisher tells the gripping story of American Indians’ attempts to wrestle with the ongoing realities of colonialism between the 1670s and 1820. In particular, he looks at how some members of previously unevangelized Indian communities in Connecticut, Rhode Island, western Massachusetts, and Long Island adopted Christian practices, often joining local Congregational churches and receiving baptism. Far from passively sliding into the cultural and physical landscape after King Philip’s War, he argues, Native individuals and communities actively tapped into transatlantic structures of power to protect their land rights, welcomed educational opportunities for their children, and joined local white churches. Religion repeatedly stood at the center of these points of cultural engagement, often in hotly contested ways. Although these Native groups had successfully resisted evangelization in the seventeenth century, by the eighteenth century they showed an increasing interest in education and religion. Their sporadic participation in the First Great Awakening marked a continuation of prior forms of cultural engagement. More surprisingly, however, in the decades after the Awakening, Native individuals and sub-groups asserted their religious and cultural autonomy to even greater degrees by leaving English churches and forming their own Indian Separate churches. In the realm of education, too, Natives increasingly took control, preferring local reservation schools and demanding Indian teachers whenever possible. In the 1780s, two small groups of Christian Indians moved to New York and founded new Christian Indian settlements. But the majority of New England Natives-even those who affiliated with Christianity-chose to remain in New England, continuing to assert their own autonomous existence through leasing land, farming, and working on and off the reservations.
While Indian involvement in the Great Awakening has often been seen as total and complete conversion, Fisher’s analysis of church records, court documents, and correspondence reveals a more complex reality. Placing the Awakening in context of land loss and the ongoing struggle for cultural autonomy in the eighteenth century casts it as another step in the ongoing, tentative engagement of native peoples with Christian ideas and institutions in the colonial world. Charting this untold story of the Great Awakening and the resultant rise of an Indian Separatism and its effects on Indian cultures as a whole, this gracefully written book challenges long-held notions about religion and Native-Anglo-American interaction.
Amy Bowers and Kristen Carpenter have posted a very nice historical and sociological piece, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Ass’n. Lyng is a very famous religious liberty case, in which the Supreme Court denied a free exercise claim by a Native American group which objected to the federal government’s plan to build a road through its sacred lands. The abstract follows.
In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.
Kristen A. Carpenter (U. of Colorado Law School) has posted Individual Religious Freedoms in American Indian Tribal Constitutional Law. The abstract follows.
Written on the 40th Anniversary of the Indian Civil Rights Act, this article engages with a prominent critique of individual rights in tribal communities, namely that they effectuate the ‘assimilation’ of tribal people, values, and institutions. On the one hand, because American Indian religions emphasize collective values and experiences, this critique is particularly apt in the religion context, and the imposition of individual rights norms recalls the federal government’s historic efforts to destroy tribes by eradicating tribal religious practices. Moreover, in many tribal communities, religion is conceptualized and practiced not in terms of ‘rights’ but rather ‘duties’ to other people, plants, animals, natural features, and the ceremonies themselves. On the other hand, some Indian tribes have historically recognized personal liberties in spiritual practices, and now consider it an obligation of self-government to protect individual interests in religion. This article explores these themes, particularly as they manifest in tribal constitutional law, which reveals a broad spectrum of rights and duties, individual and collective protections. The article also elaborates on several ways that tribes recognize individual rights in the context of tribal culture, namely using tribal custom as a basis for interpreting positive law on individual religious rights, maintaining separate institutions for the resolution of legal disputes about religion, and engaging in constitutional reform to change religious rights provisions that are inconsistent with tribal values. In the final analysis, the article observes that that while many challenges remain, tribal governments often try to facilitate individual and collective interests in religious freedom today.