American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  Amazingly, after a brief synopsis of cases—United States v. Lee,133 Gillette v. United States,134 Bowen v. Roy,135 Goldman v. Weinberger,136 and Lyng—Scalia spoke as if the compelling interest test had been regarded as largely irrelevant in all cases except unemployment cases. “Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law.”137 Scalia attempted to downplay the relevance of the Sherbert compelling interest test in this decision by stating that it had been developed “in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.”138

  O’Connor noted in her dissent that the Court had never distinguished between cases where a state conditions receipt of benefits [whether individual or group] on conduct that is prohibited by religious beliefs and cases where a state affirmatively denies such conduct.139 As O’Connor stated: “A neutral criminal law prohibiting conduct that a state may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit”140 (emphasis original).

  Scalia, despite a preponderance of scientific, religious, and cultural data to the contrary, was unwilling to conceive of peyote as anything but a “drug,” and he cast aside the compelling interest test. “The Government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effect of a governmental action on a religious objector’s spiritual development.’”141 Citing Reynolds, Scalia said that if the government had to countenance every person’s religious beliefs by having to show a “compelling” reason for its interference with such, this would contradict both “constitutional tradition and common sense.”142

  A strong argument can be made that it was Scalia’s logic that ran counter to constitutional tradition and even common sense. As Blackmun asserted in dissent, “This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion . . . [and] until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence.”143

  In a footnote to his “common sense” quote, Scalia justifiably attacked O’Connor’s tepid efforts to distinguish Lyng and Bowen on the basis that they involved the government’s conduct of “its own internal affairs.” The rule, Scalia noted, should apply to both the state and federal government if the Constitution’s principles are enforced throughout the United States. In pursuit of his rationale for discarding the compelling interest test, Scalia asserted that while the test still had ongoing relevance in areas involving racial discrimination and free speech, this was in no way comparable to freedom of religion:

  What it produces in those other fields—equality of treatment and an unrestricted flow of contending speech—are constitutional norms; what it would produce here—a private right to ignore generally applicable laws—is a constitutional anomaly.144 (emphasis mine)

  How and when freedom of religion became an “anomaly” for five Supreme Court justices, rather than a constitutional “given,” Scalia refused to say. His statement clashed directly with constitutional theory and a significant body of judicial precedent, as was reflected in the dissents. O’Connor observed (with the concurrence of three other justices):

  The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to general applicable laws, would result in a “constitutional anomaly,” . . . the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a “constitutional nor[m],” not an “anomaly.”145 (brackets in original)

  Scalia scoffed at O’Connor’s comment and asserted that O’Connor’s comparison of the freedom of religion with the freedoms of speech and freedom from discrimination actually supported the majority’s conclusion because the Court subjects classifications based on religion to the same exacting scrutiny it uses to examine classifications based on race or content of speech. Blackmun, by contrast, showed that although twenty-eight states and the federal government exempt the religious use of peyote, they “have not found themselves overwhelmed by claims to other religious exemptions. Allowing an exemption for religious peyote use would not necessary oblige the State to grant a similar exemption to other religious groups.”146 Nor would an exemption for peyote use violate the Constitution’s Establishment Clause, because while the state “must treat all the religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the ‘compelling interest’ test to all free exercise claims, not by reaching uniform results as to all claims”147 (emphases original).

  Additionally, a factor ignored by Scalia and the two dissents is that Indian religious rights could be shielded by an acknowledgment that since Indians belong to separately recognized sovereign governments which are not generally subject to or beneficiaries of the federal Constitution, their rights are more easily understood as being recognized under treaties or under the domestic and international trust doctrine. And although Indians are also bearers of state and federal citizenship, those who choose to practice a religion that is tribally recognized should have that right so long as their religious activity poses no direct threat to other individuals or government activities.

  Next, Scalia blasted the “centrality” statements made by Smith and Black, whose substantiated argument was that peyote use was absolutely central to the perpetuation of NAC religion. The majority brushed this aside by equating the sacramental use of peyote with “the practice of throwing rice at church weddings,” and said that justices were not in the position to determine what was essential to various religious beliefs.148 Blackmun, however, while agreeing that the Court was not in a position to determine which practices were central and which were peripheral to religion, remarked that the Court, nevertheless, should not “turn a blind eye to the severe impact of a State’s restrictions on the adherents of a minority religion.”149

  Scalia then delivered his final blow to the compelling interest test:

  If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” . . . and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.150 (emphasis original)

  The important terms in this quotation are “anarchy” and “luxury.” Historically, the construction of “what if” scenarios has not been widely regarded as a proper role for the judiciary; and the majority’s specter of hordes of religious fanatics overwhelming the judicial system with religious claims has, of course, never materialized in areas where religious use of peyote has been sanctioned. As O’Connor pointed out: “The Court’s parade of horribles . . . not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite cap
able of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.”151

  Scalia’s assertion that the Supreme Court could ill afford the “luxury” of granting such religious exemptions is even more troubling, from a perspective of pragmatic and democratic theory. As Blackmun stressed in dissent, “I do not believe the Founders thought their dearly bought freedom from religious persecution a ‘luxury,’ but an essential element of liberty. . . .”152

  Finally, the Supreme Court, in contradicting earlier precedent, informed Smith and Black—and by extension all minority religious proponents—that their religious values, although enshrined in the Constitution’s Bill of Rights, were still subject to the political process. In an attempt to justify this staggering statement—particularly crushing for Indians, who have not generally received constitutional protections and who lack necessary clout to be active in the political world—Scalia said “[i]t may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”153

  This excerpt means that the Supreme Court has abdicated its role of protecting religious minorities and has thrown these groups on the mercy of the legislature and the principle of majority rule. O’Connor, in her dissent, seemed genuinely stunned by this development. She maintained, on the contrary, that the First Amendment had been enacted “precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”154 She pointed out instances of majority rule’s wreaking havoc on the Amish and Jehovah’s Witnesses. And she quoted from Barnette, wherein Justice Robert Jackson declared that the very purpose of the Bill of Rights was to place certain subjects—life, liberty, property, free speech, freedom of worship—outside the reach of legislative majorities. These rights, Jackson maintained, were not to be submitted to vote. For although voting may be a good way to select leaders, it is a wholly inadequate way to define rights, especially fundamental political and civil rights.155

  Justice O’Connor: Concurrence in the Result, Dissent in the Method

  O’Connor agreed, finally, with the result of the majority but decried the methods and arguments used to reach the decision. She asserted that the decision “not only misreads settled First Amendment precedent; it appears to be unnecessary to this case.” O’Connor, despite her vigorous denunciation of Scalia’s rationale, nevertheless agreed that the First Amendment did not compel an exemption from Oregon law for the Indians’ religious use of peyote. In her estimation, the state did indeed have a “compelling interest” in prohibiting the possession and use of peyote.156 Thus, although the question was “close,” she claimed that an exemption for peyote use from the state’s general criminal prohibition would interfere with the government’s uniform application of its drug laws. This is an interesting interpretation, particularly in light of the fact that O’Connor had earlier chided Scalia for not using a case-by-case approach.

  JUSTICE BLACKMUN’S DISSENT

  Blackmun, joined as in Lyng by the remaining liberal justices, Brennan and Marshall, concurred with the first two parts of O’Connor’s opinion, but strongly disagreed with her answer to the question. Blackmun appeared baffled at the way the majority had “perfunctorily dismissed” the compelling interest test. He argued that Scalia’s refusal to apply the strict scrutiny test in this case, which was replaced by the “incidental effects” rule, “effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country’s drug crisis has generated.”157

  The pivotal points in Blackmun’s dissent were these. First, for Blackmun, the question to be answered was not the state’s broad interest in fighting drugs versus the Indian’s right to practice religion, but the state’s narrow interest in refusing to make a religious exemption to its drug laws. Second, the state, as the lower courts had shown, lacked any semblance of a “compelling interest” because the state had never sought to criminally prosecute the Indians and had made virtually no effort against other peyote users. Third, even accepting the “illegality” of peyote, many states and the federal government exempt its ceremonial use, and there is “practically no illegal traffic in peyote.” Finally, the state’s symbolic preservation of an unenforced prohibition was an insufficient reason to violate the constitutionally articulated religious rights of these individuals, especially when the government relied on “mere speculation and potential harm” of a proscribed activity without providing “evidentiary support” that peyote was harmful.

  On the contrary, Blackmun showed that there was virtually no scientific evidence that peyote caused any physical harm. He cited several lower court cases, especially People v. Woody, and mentioned that a majority of states and the federal government exempted its religious use. He also pointed out that the state had “never asserted this health and safety interest before the Oregon courts.”158 The federal government’s policy of protecting traditional Indian religions, as enunciated in the AIRFA, Blackmun stated, while not creating enforceable rights, was a clear signal to the courts that they should carefully assess the religious claims of Indians. These sound historical, legal, constitutional, and policy arguments were dismissed by the majority.

  THE AFTERMATH: WHAT TO DO ABOUT SMITH

  Scalia’s excising of the Free Exercise Clause meant that the exercise of religion, notwithstanding what the Constitution said, deserved no special protection, and American Indians and tribes had another defeat to add to their scrap heap of trampled rights. Scalia’s reasoning in this decision harks back to Felix S. Cohen’s oft-quoted statement of 1949 that “for us [Euro-Americans], the Indian tribe is the miners’ canary and when it flutters and droops we know that the poison gases of intolerance threaten all of the minorities in our land. And who of us is not a member of some minority?”159

  In the wake of Smith, a diverse coalition of religious groups and constitutional scholars, after carefully assessing the revolutionary impact of this case, confronted the Supreme Court and asked it to reconsider its decision. The petition said that “every religious group in the country will be profoundly disadvantaged” by this “far-reaching holding.”160 Among the fifteen or so organizations jointly involved in the petition for the rehearing, only a few represented religious minorities, and no Indian groups were included. The American Jewish Congress, the National Association of Evangelicals, the American Friends Service Committee, and the General Conference of Seventh Day Adventists teamed up with the National Council of Churches and nonreligious public interest groups including the American Civil Liberties Union and People for the American Way on the liberal side, and the Rutherford Institute on the conservative side. Moreover, fifty-five constitutional scholars signed the petition. This rehearing request, like all others since the early 1960s, was rejected. The anti-Smith coalition persisted, however, turning their focus to Congress where they found leaders willing to introduce legislation that would reestablish the compelling governmental interest standard.

  Tribal individuals and their governments also reacted swiftly to Smith. In the early eighties, they had formed an organization called the American Indian Religious Freedom Coalition (AIRFC), which had sought amendments to the weak American Indian Religious Freedom Act. Supported by concerned congressional representatives, various Christian denominations, and a number of Indian and non-Indian lobbying interest groups and organizations,161 they vigorously sought legislative action to counter the destructive effects of both Lyng and Smith. Tribes and their supporters were buoyed by their success in securing enactment of a 1991 law162 which overturned a major
criminal law case, Duro v. Reina (1990). Duro had deprived tribal governments of the right to exercise misdemeanor criminal jurisdiction over nonmember Indians.

  Broad legislation to reconstruct the compelling interest test, called the “Religious Freedom Reformation Act of 1993,” was enacted on November 16, 1993.163 It explicitly restored the compelling interest test as originally set forth in Sherbert v. Verner and Wisconsin v. Yoder. It also guaranteed application of the test in all cases where free exercise of religion is substantially burdened, and it provided a claim or defense to persons whose religious exercise is substantially burdened by government. Section 3 of the law says, “[G]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in Subsection B.” The exception is when the government is acting “in furtherance of a compelling governmental interest” and where the government’s action “is the least restrictive means of furthering that compelling governmental interest.”

  The focus of the AIRFC became dramatically intensified and sharpened after Lyng and Smith. An omnibus Indian religious freedom bill was introduced July 1, 1994, by Senator Daniel Inouye (D., Hawaii). Entitled the “Native American Cultural Protection and Free Exercise of Religions Act” (S. 2269), it would not only address the Court’s anti-peyote Smith precedent, it would also, and more importantly, charter new federal policy designed to provide religious protection for tribal people in three other areas: sacred sites, Indian prisoners’ rights, and religious use of eagles and animal parts. Moreover, the bill contained enforcement mechanisms which the original 1978 resolution had lacked. Such legislation would have provided American Indians with substantial religious rights.164 Although this omnibus legislation failed, a separate bill, H.R. 4230, which focused solely on peyote, was enacted into law on October 6, 1994. Entitled the “American Indian Religious Freedom Act Amendments of 1994,”165 this measure rebuffed Smith and legalized the use of peyote so long as it was connected with the practice of traditional Indian religions.