Allison Dussias has published “Friend, Foe, Frenemy: The United States and American Indian Religious Freedom” in the Denver University Law Review. Here is the abstract:
In 1990, the Supreme Court decided Employment Division v. Smith, in which the Court concluded that a claim that a neutral and generally applicable criminal law burdens religious conduct need not be evaluated under the “compelling interest” test set out by the Court in Sherbert v. Verner (1963). The Court relied on two recently decided cases, Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Associa-tion (1988). All three of these cases rejected Free Exercise Clause claims brought by American Indians. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA) to restore the compelling interest test to all claims that the government has substantial-ly burdened religious exercise.
This Article analyzes and critiques the post-Smith responses to Indi-an religious freedom claims made by two groups: federal government officials making public lands management-related decisions and federal courts addressing claims related to Indian religious freedom. The primary focus is on claims involving sacred sites located on federal lands. These claims are in many ways unique to Indian religions, which, in contrast with mainstream religions, commonly share the belief that particular sites are imbued with sacredness and are consequently the only location at which certain ceremonies can be conducted. The presence of sacred sites on lands that were taken from tribes in the past to satisfy non-Indian re-source demands and are today held as public lands can lead to conflicts between Indian religious exercise rights and non-Indian desires to use the lands for commercial or recreational purposes.
First, the Article focuses on cases in which federal officials have taken account of Indian religious exercise needs in developing land man-agement plans and have subsequently faced Establishment Clause chal-lenges to their actions. Second, it examines cases in which officials have made decisions that burden Indian religious exercise on public lands, prompting challenges under RFRA. When confronting Establishment Clause challenges to management plans, the Government has emphasized the political and trust relationships between the United States and tribes, and has argued that accommodations appropriately alleviate government-imposed burdens on religious exercise. In responding to Indian claims that government decisions substantially, and unjustifiably, burden the plaintiffs’ religious exercise, however, the Government tells a different story. Courts have tended to side with the Government in both kinds of cases. Third, the Article discusses the lessons learned from this analysis about the need for heightened protection of religious exercise at sacred sites and offers suggestions on seeking a path toward ensuring that Indian religious practitioners are able to enjoy the level of religious freedom long provided to other Americans.