This ethnocentric statement points out that Rehnquist had no inclination whatsoever to grapple with the valid constitutional and treaty issues raised through the Black Hills claim. More evidence for Rehnquist’s ethnocentricity is found in his closing paragraph:
That there was tragedy, deception, barbarity, and virtually every other vice known to man in the 300-year history of the expansion of the original 13 Colonies into a Nation which now embraces more than three million square miles and 50 States cannot be denied. But in a court opinion, as a historical and not a legal matter, both settler and Indian are entitled to the benefit of the Biblical adjuration: “Judge not, that ye be not judged.”186
CONCLUSION
Despite an apparently impressive monetary award in the amount of 105 million dollars, plus the earlier approved 17.5 million, today’s 60,000 constituted Lakota people, congregated into eight relatively autonomous tribes, have thus far refused to accept any payment. They generally believe that the claim entails issues that go far beyond a mere land transaction. This has been best summarized by a statement made by Court of Claims Judge Fred Nichols in the 1975 opinion involving the Sioux claim. In that case, the court ruled that the Indians Claims Commission was barred by the doctrine of res judicata from reaching the merits of the Sioux’s Fifth Amendment claim, although Nichols did affirm that the Sioux were entitled to payment with a value of the Black Hills at the time of their taking in 1877 because the United States had used unfair and dishonorable dealings with the Sioux. Nichols candidly said:
A Treaty was tendered the Sioux for adhesion in 1876. However, breach of the obligation to protect the Indians’ lands from unwanted intruders, as promised in the 1868 treaty, reneged on another special relationship. The duplicity of President Grant’s course and the duress practiced on the starving Sioux, speak for themselves. A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe.187 (emphasis mine)
Meanwhile, the award for the taking of the Black Hills rests in the Federal Treasury where interest continues to accrue. It is now estimated at 350 million dollars.188 The fact that each of the participating Sioux bands enacted tribal resolutions opposing any distribution of the award is a powerful testament to the tribe’s principled position—land is more precious, and certainly more enduring than money. In the ensuing years, because of the Lakota resistance to a dollar settlement, and because of a small but vocal congressional support, several legislative proposals have been broached that would have entailed the return of some “federal” land in the Black Hills, financial recompense, and other items to the Lakota. To date, none of these has succeeded because of state and business opposition, congressional roadblocks, and some Indian resistance. The process remains complex and cumbersome.189 No resolution is in sight, but at least, for now, it is out of the hands of the United States Supreme Court.
CHAPTER 6
The Era of the Imperial Judiciary
Since the late 1980s, the federal government’s executive, legislative, and judicial branches—along with that unwieldy and unyielding mass known simply as the “bureaucracy”—have produced a dizzying crop of laws, policies, proclamations, regulations, and court decisions which have served, ironically, to (1) reaffirm tribal sovereignty; (2) permit and encourage greater state interference within Indian country; (3) enhance federal legislative authority over tribes; and (4) deny constitutional “free exercise” religious protections both to individual Indians and tribal nations.
In 1988, Congress established the experimental Tribal Self-Governance Demonstration Project (TSGDP),1 which was made permanent on October 25, 1994.2 Potentially, this was an important step towards the restoration of the tribal right to self-determination. The TSGDP and accompanying policy discussions had been preceded by two 1987 congressional resolutions—one joint, the other a Senate concurrent resolution—which reaffirmed the political nature of the tribal-federal relationship.
Public Law 100–67,3 enacted July 10, 1987, was a joint resolution commemorating the bicentennial of the Northwest Ordinance of 1787 and reaffirming the ordinance as one of the fundamental legal documents of the United States. The ordinance, the articles of which were to “forever remain unalterable, unless by common consent,”4 provided a civil government for the Northwest Territory and included a declaration by the federal government that it would adhere to “democratic principles, religious freedom, and individual rights.”5 Moreover, the ordinance enunciated the fundamental political premise—consent—on which subsequent federal Indian policy was to be based:
The utmost good faith shall always be observed toward the Indians, their lands and their property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them and for preserving peace and friendship with them. . . .6
About two months later, Senator Daniel Inouye (D., Hawaii), along with eighteen of his colleagues, introduced Senate Concurrent Resolution 75, which acknowledged (1) the democratic traditions of the Iroquois Confederacy and other tribal nations and the role that these nations played in the formation of the United States Constitution; (2) the “government-to-government” relationship between tribes and the federal government; (3) the federal government’s continuing legal obligations to tribal nations in the areas of health, education, economic assistance, and cultural identity; and (4) a statement reaffirming the government’s goal to exercise “utmost good faith” in upholding its treaties with tribal nations, as stated in the provisions of the Northwest Ordinance.
The year 1987 was also noteworthy in that it signaled the start of yet another congressional investigation7 of the alleged corruption, fraud, incompetence, and mismanagement lacing the Bureau of Indian Affairs (BIA) and other federal agencies that deal with tribes and individual Indians in several areas. Included in the survey and analysis were issues relating to tribal economic development, Indian preference contracting, Indian child sexual abuse, natural resource issues, health issues, housing concerns, and tribal elite corruption.
Not surprisingly, the Special Committee on Investigations, cochaired by Arizona Senators DeConcini and McCain of the Senate Select Committee on Indian Affairs, which conducted the study, was not directed as part of its congressional mandate to investigate the impact of Supreme Court decisions on Indian tribes. The government’s three branches have historically, if not always consistently, operated from a common set of intellectual, political, and cultural premises when it came to developing, implementing, and evaluating programs and policies for America’s tribal nations. This is not at all surprising, considering that national politics, according to Robert Dahl, is dominated by fairly enduring, cohesive alliances among the branches. And the Supreme Court, like other political institutions, Dahl notes, “is a member of such ruling coalitions,” and its decisions are therefore “typically supportive of the policies emerging from other political institutions.”8
In 1988, however, the political and judicial branches began moving in radically divergent directions on several important issue areas, most dramatically in the sensitive areas of religious freedom for tribal peoples and local taxation on Indian-owned land. In Lyng v. Northwest Indian Cemetery Protective Association (the first of three decisions to be reviewed in this chapter), the Supreme Court held in a majority opinion that the Constitution’s Free Exercise clause did not prevent governmental destruction of the most sacred sites of three small tribes in northern California. The majority made this ruling in full realization that an activity of the United States Forest Service—the construction of a six-mile road—would virtually destroy the Indians’ ability to practice their religion.
That April, just eight days after Lyng, the Supreme Court in Employment Division, Department of H
uman Resources v. Smith (also known as Smith I) granted certiorari and remanded the case back to the Oregon Supreme Court for determination of whether an Oregon statute criminalizing peyote provided an exception for Indian religious use. The High Court suggested that “if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the federal Constitution, there is no federal right to engage in that conduct in Oregon.”9 The Supreme Court later reheard the case and rendered final judgment on April 17, 1990. In Smith II, which will be examined in this chapter, the Court flatly denied that the First Amendment protected the religious rights of Native American Church (NAC) members and unceremoniously discarded the “compelling interest” test.
On the day after Smith II was decided, however, Congress struck a blow for Indian rights by enacting a Comprehensive Elementary and Secondary Education law10 which contained a provision of largely symbolic but still considerable significance: “The Congress,” it was declared, “hereby repudiates and rejects House Concurrent Resolution 108 of the 83rd Congress and any policy of unilateral termination of federal relations with any Indian nation.” The essence of unilateral termination, an aberrant and short-lived federal policy arising in the wake of World War II, was that the federal government was intent on abolishing federal supervision and protection of tribes and their resources and making the “terminated” Indians subject to state law. This policy aroused strong tribal resentment, and in 1958 Secretary of the Interior Fred A. Seaton stated that termination acts would not be passed without the full consent of the Indians concerned.11 In addition, unilateral termination was later verbally discredited by Presidents Nixon (1970) and Reagan (1983) in their Indian policy statements. It was not, however, officially rejected by the body which had created it until 1988.
Besides this belated expulsion of the termination resolution, 1988 witnessed amendments to several existing laws,12 the enactment of several laws to settle claims and expand, protect, or create Indian reservations,13 and, finally, the enactment of new legislation on important issues such as political recognition,14 economic development,15 gambling,16 and water rights.17 Laws passed in subsequent years have also played an important role in underscoring the growing viability of American Indian tribes as peoples and as governments. A partial list includes the 1989 National Museum of the American Indian Act,18 the Indian Law Enforcement Reform Act of 1990,19 the Indian Environmental Regulatory Enhancement Act of 1990,20 the Seneca Nation Settlement Act of 1990,21 the Native American Graves Protection and Repatriation Act of 1990,22 and a 1991 act to restore to tribal governments criminal jurisdiction over nonmember Indians,23 a right which had been nullified by a Supreme Court decision (Duro v. Reina) the year before.
The congressional enactments cited above are of variable importance and substance. Several were, in fact, mere minor modifications of existing laws which have had negligible influence in improving either tribal socioeconomic conditions or in repairing the structural inequities evident in the relationship between tribes and the United States. Others, however, came to be considered by many tribal citizens and their governments as nothing less than fresh breaches of sovereign tribal rights (e.g., the Indian Gaming Act). Nevertheless, when compared with the Supreme Court’s two decisions on matters of Indian religion—Lyng and Smith II—and the third case we will examine, County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation (1992), it is evident that the Congress was at least attempting to address and resolve certain issues of importance to the tribes and to improve intergovernmental relations, while the Supreme Court seemed to focus on battering the ever-fragile existence not only of tribal sovereign rights but also of the constitutional rights of American citizenship to which American Indian individuals are entitled.
THE BELATED FEDERAL PROTECTION OF INDIAN RELIGIOUS FREEDOM
General legislative support for a degree of genuine tribal autonomy has been evident since a spate of federal activity and legislation in the 1970s focused on the disavowal, but not the official renunciation, of the unilateral termination policy. Termination was replaced by a more enlightened, though still flawed, policy of tribal self-determination. A crucial dimension in the congressional quest to improve relations with tribes centered on the problems that tribal people faced in attempting to access sacred sites, utilize sacred objects, and practice their traditional religions. Each of these problems came as a direct result of the inconsistent and sometimes insensitive federal administrative policies and practices which hampered Indian religious rights.
The history of the federal government’s ultimate goal of the destruction of American Indian cultural identity, especially aboriginal religions, from the early treaty period through the 1920s is well documented.24 Once tribal identity and all vestiges of aboriginal culture had been eradicated, Judeo-Christian values, beliefs, and institutions were to be the vehicle through which the assimilation and Americanization of Indians was to take place. That this plan of indoctrination was officially sanctioned by the federal government and supported by federal tax dollars, not to mention Indian treaty funds, was, of course, a clear violation of the separation of church and state doctrine.
For much of this period, beginning most systematically with Grant’s Peace Policy in the late 1860s,25 various Christian denominations strove mightily to impart their religion to tribal people. Although they talked about freedom of religion, their concept completely disregarded the religious rights of Indians and belittled indigenous spiritual beliefs. “By religious freedom,” notes Prucha, “they [Christians] meant liberty of actions on the reservations for their own missionary activities. ‘The Indians have a right, under the Constitution, as much as any other person in the Republic . . . to the full enjoyment of liberty of conscience; accordingly they have a right to choose whatever Christian belief they wish [emphasis mine], without interference from the government.’”26
Despite a gradual extension of the federal franchise to a majority of Indians who had received allotments under the 1887 General Allotment Act,27 with the remainder receiving citizenship in 1924,28 the fundamental questions of constitutional protection for aboriginal tribal religions and a constitutional prohibition against establishment of religion among the tribes were nonissues until the late 1970s.29
Congress finally responded to the lobbying efforts of tribal people and non-Indian advocates of Indian rights by enacting the American Indian Religious Freedom Act30 (AIRFA) in 1978. This joint resolution declared that from that time on, it would be the policy of the United States “to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to, access to sales, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rights.”
The resolution’s enactment was a clear admission on the part of Congress that traditional tribal religious rights had not been protected, in part because of the anomalous status of Indians as both citizens and subjects. Hence, Congress, exercising its plenary legislative authority, recognized the need to legislatively extend federal protection for religious rights to tribes and their members because the First Amendment of the Constitution had failed to protect those rights.31
Tribal governments and their citizens assumed that this belated congressional acknowledgment regarding the distinctive status of traditional Indian religious rights was a clarification of the federal government’s attitude toward traditional religions. However, it was, in reality, a largely symbolic measure. Notwithstanding laudatory comments from conservative North American historians like Wilcomb Washburn, who stated in a 1984 article that “there is no question that the religious rights of American Indians, after hundreds of years of assault, are more fully protected than ever before,”32 virtually all of the data emanating from the federal courts from the passage of AIRFA to 1984 show that such was not the case. The religious rights of tribal citizens recognize
d by Congress in the enactment of AIRFA were subsequently devastated by federal court activity; indeed, a majority of such cases have been decided since the religious freedom policy directive. Even AIRFA’s author, Morris Udall (D., Arizona), said that the bill conferred no “special religious rights on Indians; changes no existing state or federal law, and has no teeth in it.”33 The “lack of teeth” statement, importantly, meant that “nowhere in the law is there so much as a hint of any intent to create a course of action or any judicially enforceable individual rights.”34
The accompanying table details the most important federal court cases involving questions of Indian individual and tribal religious freedom. Of these, only Native American Church v. Navajo Tribal Council (1959) was a substantial victory for tribal nations. This case, however, did not involve a federal, state, or private activity in direct conflict with the rights of American Indians to protect their religion or access to sacred sites. Instead, it affirmed the inapplicability of the Constitution’s First Amendment to tribal governments.
Lyng v. Northwest Indian Cemetery Protective Association
HOW LONG IS THE ROAD TO THE DESTRUCTION OF A RELIGION? SIX MILES BY THE COURT’S ODOMETER
The Secretary [of War John C. Calhoun] directs that the condition of building the mill for the Caddoes and the Quapaws . . . to cost not more than $400.00, will be, that they bury the hatchet, and make peace in regard to the late murder of one of their people. Tell them their great father hears with surprise that they believe in wizards and witches; that there are no such things; and that he is angry with them for killing the man under such a foolish belief. (emphasis mine)
Thomas L. McKenney, Bureau of Indian Affairs35
The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment[s] embrace two concepts—freedom to believe, and freedom to act. (emphasis mine)
American Indian Sovereignty and the U.S. Supreme Court Page 33