American Indian religious freedom – Page 2

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

May 5, 2011May 5, 2011Matthew L.M. Fletcher

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

April 20, 2011Matthew L.M. Fletcher

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.

American Indian Prison Inmates Denied Class Certification in Religious Freedom Case

March 29, 2011Matthew L.M. Fletcher

Here is the decision in Martinez v. Brown (S.D. Cal.): Martinez v Brown

MSU NALSA Event Today at Noon

March 28, 2011Matthew L.M. Fletcher

The Native American Law Students Association invites you to lunch and a panel discussion on Native American freedom of religion and the law.

Castle Board Room12:00p.m.Monday, March 28th, 2011

The discussion will focus on the James Arthur Ray Sweat Lodge Trial; and the Declaration of War Against Exploiters of Lakota Spirituality.

The panelists include Clarence Syrette, and Professors Frank Ravitch and Matthew Fletcher.

Clarence Syrette will be speaking about the traditional significance of Native American spiritual ceremonies from his perspective as a medicine man.

Professor Frank Ravitch and Professor Matthew Fletcher will be sharing their insights on the American Indian Religious Freedom Act and other laws as they apply to the case.

More on the Frybread Debacle at Washington DOC

September 24, 2010Matthew L.M. Fletcher

Here is the state’s response to this complaint: Secetary Vail Letter to Chairman Cladoosby September 20.

Materials on Prison Inmate Religious Freedom Issues

September 13, 2010Matthew L.M. Fletcher1 Comment

Here is the ICT feature.

Additional materials:

August 19 DOC Memo Re Changes to Indian Religious Program Pol

Six Tribes Joint Letter to Governor Gregoire and DOC Secretar

Yakama Nation Letter to Gregoire and DOC Secretary

CIC-AIS Graduate Conference Prize Winners

June 4, 2010Matthew L.M. Fletcher2 Comments

Dear Colleagues:

Please spread the news that all three of the submitted prize winners at the recent graduate conference were women!!! FIRST PRIZE went to Nicole Marie Keway for her remarkable paper on Emerson: “The Piquancy of Particularity: Emersonian Savages and Speaking Beyond the Woods.” The SECOND PRIZE winner was Sandra Garner for “Rhetorics of Traditions: Troubling Tradition in the Lakota Declaration of War Against Exploiters of Lakota Spirituality” – Sandra is completing her degree at Ohio State University and will be at Miami University as a post-doc this fall. Finally, a law student, Adrea Korthase, received THIRD PRIZE for her work on the “Kennecott Eagle Mineral Project and the Need for a Michigan Religious Protection Act.”

To see these outstanding women, please go to our website — http://www.msu.edu/~cicaisc/ – you can see their pictures as well as many of the other participants. Conference planning, spearheaded by Susan Krouse, the director of the MSU AISP and her able assistant, Sakina Hughes, made this another memorable event. The University of Wisconsin, University of Chicago, Ohio State, and the University of Michigan added a tremendous variety of new scholarly approaches to the program – be sure to look at the program, which is on-line at our website.

Susan Sleeper-Smith

Director, CIC-AIS Consortium

New Paper by Alex Skibine on Indian Cultural and Religious Rights

February 4, 2010Matthew L.M. Fletcher

Alex Tallchief Skibine has posted his paper, “Culture Talk or Culture War in Federal Indian Law?“, forthcoming in the Tulsa Law Review (2010).

Here is the abstract:

In this article, I ask whether in the area of Native American cultural and religious rights federal law is more inclined towards “culture talk” meaning accommodations and compromises, or whether the attitude is more one of “culture war,” meaning geared towards confrontation and intolerance. I answer the question by focusing on how the law has treated Native American rights in four areas: use of peyote and controlled substances, possession of eagle feathers, implementation of the Native American Graves Protection Act, and protection of sacred sites. Not surprisingly, I conclude that there are both culture talks and culture wars going on. On the other hand, perhaps surprisingly, I find that among the three branches of the federal government, the courts have been the least willing to accommodate Native cultural and religious interests

Scholarship Roundup: New Articles on American Indian Religious Freedom and Reservation Diminishment Case

December 18, 2009Matthew L.M. Fletcher

David Bogen and Leslie F. Goldstein have published “Culture, Religion, and Indigenous People” in the Maryland Law Review. The abstract:

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur–challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.

And the Washington Law Review published a comment by Charlene Koski called “The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law.” Here is that abstract:

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