New Scholarship on Hopi Religious Freedom and Cultural Property

Here, from the Maryland Journal of International Law:



Rick Collins on Strict Scrutiny in Religious Freedom Cases & American Indian Sacred Sites Claims

Richard B. Collins has posted “Too Strict?” on SSRN. It is forthcoming in the First Amendment Law Review.

The abstract:

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm that granting a claim may inflict on other persons; the test asks only about government interests. When judges suspect a claim may be trivial or false or unfair to others, they look for ways around the test. This accounts for the failure rate of strict scrutiny when it was the constitutional test and for the Court’s 1990 abandonment of that test. Another result is failure of nearly all sacred sites claims made by American Indian faiths.

Congress restored strict scrutiny for some claims by statute, reviving the problem. Ohio claimed that one of these statutes violated the Establishment Clause. The Court rejected the facial attack but in dictum suggested a solution. It said the Establishment Clause as applied should require consideration of interests of persons who would be harmed by sustaining a religious claim, and the context of religious freedom should make strict scrutiny less strict. That would bring American law into accord with doctrines applied abroad, notably by the European Court of Human Rights. But the Court’s 2014 Hobby Lobby decision instead allowed wealthy corporate owners to prevail over their employees in opinions that seemed to let religious claims override interests of others.

Allison Dussias on American Indian Religious Freedom

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.

Kristen Carpenter on Limiting Principles and American Indian Religious Freedoms

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.

Kristen Carpenter on Individual Religious Freedoms in American Indian Tribal Constitutional Law

Kristen Carpenter has published her essay, “Individual Religious Freedoms in American Indian Tribal Constitutional Law” in our new book, The Indian Civil Rights Act at Forty (UCLA American Indian Studies Center Publications 2012). It is available on SSRN.

Here is the abstract:

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.

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

Supreme Court Holds States are Immune from Money Damages under RLUIPA

This is a big deal for American Indians asserting religious freedom claims against state governments.

Here is today’s opinion in Sossamon v. Texas, authored by Justice Thomas.

From the Court’s syllabus:

After this Court held that the Religious Freedom Restoration Act of 1993 was unconstitutional as applied to state and local governments because it exceeded Congress’ power under §5 of the Fourteenth Amendment, see City of Boerne v. Flores, 521 U. S. 507, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) pursuant to its Spending Clause and Commerce Clause authority. RLUIPA targets two areas of state and local action: land–use regulation, RLUIPA §2, 42 U. S. C. §2000cc, and restrictions on the religious exercise of institutionalized persons, RLUIPA §3, §2000cc–1. It also provides an express private cause of action for “appropriate relief against a government,” §2000cc–2(a), including, inter alia, States, their instrumentalities and officers, and persons acting under color of state law, §2000cc–5(4)(A).

Petitioner Sossamon, a Texas prison inmate, sued respondents, the State and prison officials, seeking injunctive and monetary relief under RLUIPA for prison policies that prevented inmates from attending religious services while on cell restriction for disciplinary infractions and that barred use of the prison chapel for religious worship. Granting respondents summary judgment, the District Court held that sovereign immunity barred Sossamon’s claims for monetary relief. The Fifth Circuit affirmed, holding that the statutory phrase “appropriate relief against a government” did not unambiguously notify Texas that its acceptance of federal funds was conditioned on a waiver of sovereign immunity to claims for monetary relief.

Held: States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA.