Kristen A. Carpenter has posted her much-anticipated paper, “Limiting Principles and Empowering Practices in American Indian Religious Freedoms,” on SSRN. This work is highly recommended, and we will be engaging Professor Carpenter in this topic for some time. This is, of course, a follow-up to Carpenter, Katyal, and Riley’s “In Defense of Property.” For more on IDP, see this exchange between the authors and Michael Brown.

Here is the abstract:

American Indians have lost all of their religious freedoms cases before the Supreme Court, with the Court famously holding in Lyng v. Northwest Indian Cemetery Protective Association (1988) that the government may destroy Indian sacred sites and in Employment Division v. Smith (1990) that the government may prohibit Indian sacraments, all without violating the First Amendment. Scholars have generally attributed these holdings to the Court’s simultaneous narrowing of individual Free Exercise Clause rights and broadening of government property rights. Yet there is another similarity linking Lyng and Smith, and many of the Indian Free Exercise Clause cases decided in the federal courts. The courts have often perceived the Indian claims as too broad or idiosyncratic to recognize as a matter of right. A claim to protect a sacred site from desecration might actually represent an attempt to recover all of the public lands and a religious entitlement to peyote could lead to widespread religious exemptions for drug users. Holding that the government could not function if required to accommodate claims of this breadth, the courts have rejected them. Such reasoning appears specious to tribal religious practitioners, followers of ancient traditions that prescribe specific limits, of geography, time, and space on religious practice, and preclude the kind of “slippery slope” claims that the courts seem to fear. And yet attempts to make such arguments in the courts have been completely unsuccessful. As in cases outside of the Indian context, the courts considered and rejected tests that would limit Free Exercise Clause relief to practices deemed “central” or “indispensable” to religions. According to the Supreme Court, such tests put judges in the position of interrogating subjective theological questions, a role that they were never intended to play.

This Article identifies and traces the courts’ unsuccessful search for a “limiting principle” in American Indian Free Exercise jurisprudence. While generally critiquing the outcome in these cases as infringing on fundamental liberties, I concede it would be difficult to devise a single principle to apply meaningfully across the several hundred American Indian religions. Even if such a standard could be located, it would still not address the courts’ institutional concerns. Yet developments since Lyng and Smith, and other cases, suggest another way forward. In 1993 Congress enacted the Religious Freedom Restoration Act, and several statutes requiring the federal agencies to “accommodate” American Indian religious practices. These statutes, in my view, respond to the concerns about “limits” in two ways. They place the obligation to accommodate Indian religions in federal agencies, which are both politically accountable and expert in Indian affairs, and they recognize the rights of Indian tribes, as such, in sacred sites, eagle feathers, burial grounds, and peyote practices. With tribal governments at the table, Indian religious claimants are empowered to articulate the source and scope of their religious claims, in their own terms, and negotiate meaningful accommodations with federal agencies. While challenges remain, the Article argues that the courts’ failed attempts to discern “limiting principles” in Indian religious freedoms cases has given way to an “empowering practices” approach with some success in fashioning agency accommodations of Indian religious needs. More broadly, the Article’s review of religious accommodation in the American Indian context offers insights into the strengths and weaknesses of entrusting religious freedoms to Congress and the agencies in the post-Smith era.