American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  Cantwell v. Connecticut (1939)36

  These quotes from Commissoner McKenney and the Cantwell decision of 1939 enunciate, respectively, the ethnocentric arrogance that historically has been displayed by Euro-Americans in their attitudes toward tribal beliefs and practices, and the beauty, tolerance, and equality inherent in the Constitution’s doctrine on religious freedom. A close examination of Lyng and Smith II will reveal that the attitudes expressed in 1826 by Commissioner McKenney are still present in a modern-day Supreme Court. The constitutional force of the Cantwell excerpt, on the other hand, has rarely been sufficient to protect Indian religious practices.

  The free-exercise component of the First Amendment is not an absolute guarantee that Congress cannot act to hinder a person’s exercise of such rights. While religious beliefs are theoretically immune from governmental sanctions, religious practices may be regulated by the government. Historically, before allowing any burden on an individual’s free exercise of religion, the courts required that the government show its actions to constitute the least restrictive means of accomplishing a compelling government objective.37 The operative word here is compelling. For example, the government could prevent a group from conducting human sacrifices even if it was claimed that this was a necessary part of a religious ceremony. From the federal government’s perspective, the “protection of human life is not only a valid secular purpose but also a subject in which the State has a compelling interest.”38

  TABLE 1 Federal Court Activity Pertaining to Religious Freedom of American Indians

  HISTORICAL BACKGROUND

  For untold generations the Yurok, Karok, and Tolowa tribes have lived in Northwestern California. Since 1876 they have lived on the Hoopa Valley Indian Reservation, which is adjacent to the Six Rivers National Forest. Created in 1947, the Six Rivers National Forest encompasses about 956,000 acres of rugged mountain terrain. Over time, certain members of these tribes have traveled to a remote, undeveloped area in the northeastern corner of the forest, known to the United States Forest Service as the Blue Creek Unit, to perform what they consider essential “rituals, and to prepare for specific religious and medicinal ceremonies.”39 Among Indian practitioners, this area is known simply as “High Country.” This unadorned phrase understates the importance of this particular area for the tribes. It is considered “sacred and constitutes the center of the spiritual worlds for these tribes.” In fact, “no other geographic areas or sites hold equivalent religious significance.”40 The High Country is the core of the tribe’s religious complex known as “World Renewal.” The following excerpt succinctly conveys the sacredness of this area to the Indians:

  World Renewal ceremonies, such as the major ceremonies known as the White Deerskin Dance and the Jump Dance, involve a number of specific functionaries and possess particular characteristics of form and setting; they are performed at the sites where the pre-human spirits are said to have first brought certain gifts to man.41

  Furthermore, the spiritual leaders who conduct these ceremonies are initially trained in this area and must return periodically for renewal of their spiritual power in order to continue to preside. The area is also necessary for the carrying out of certain healing ceremonies. Medicine women are trained in the High Country for their healing tasks; they, too, are required to return periodically for prayers, to refurbish or acquire new power, and to gather essential medicines.

  Finally, this sacred area served as “the training ground for the young people of the tribes to learn their tribe’s traditional and religious beliefs and ceremonies. This training is necessary to preserve and convey such practices to future generations.”42 Until 1972, the Forest Service managed the area basically as a wilderness area. It was, in other words, left in its natural state for the protection of wildlife, fish habitat, scenic appeal, and opportunities for individuals interested in “primitive” recreational experiences.

  In 1972, however, the Forest Service began preparations for a “multiple use management plan” for the Blue Creek unit, which encompassed the High Country. The principal impetus for the plan was the presence of more than 700 million board feet of Douglas fir. According to Charles Fried, an attorney for the secretary of agriculture, the timber industry, which is a key component in the economies of Del Norte and Humboldt counties, had been adversely impacted by congressional action directed at expanding the Redwood National Park. Such an expansion would reduce the amount of harvestable timber available to the timber companies; thus, the Forest Service was prompted by timber officials to seek an improved road network in the Six River National Forest to offset this alleged loss.43 The Forest Service plan called for logging to be carried out over an eighty-year period and for the completion—by paving an existing dirt road—of a six-mile section of road to connect two northwestern California towns, Gasquet and Orleans (G-O Road). The road’s major purpose was to make it easier to haul away timber, but it was also touted as necessary to increase public access to the National Forest and to facilitate fire control.44

  In 1977, the Forest Service dispersed the draft of an Environmental Impact Statement which had evaluated ten different road proposals, several of which bypassed the High Country area deemed sacred by the Indians. Ultimately, the agency had selected a route which ran along the Chimney Rock and directly cut through the High Country. It was estimated that this Chimney Rock corridor road would bring “an average of 168 vehicles a day, including 76 logging vehicles, 84 administrative vehicles and 8 recreational vehicles,” into the High Country.45

  While the Forest Service pondered their choice, Congress, on August 11, 1978, enacted the AIRFA, which President Carter signed into law the next day. In section 2, the President directed the “various Federal departments, agencies, and other instrumentalities whose duties impact on Native American religious practices to evaluate their policies and procedures in consultation with Native religious leaders in order to determine and implement changes which may be necessary to protect and preserve Native American religious cultural rights and practices.”46 Every federal entity was to report back to the President in a year on how their program could be better administered so as to accommodate and be more sensitive to traditional Indian needs. Secretary of Agriculture Bob Bergland assured Senator James Abourezk, chairman of the Senate Select Committee on Indian Affairs, that he was well aware of how vital the protection and preservation of religious freedom for American Indians was for the continuation of their “cultural traditions” and to the “democratic traditions of this country.” He said that he had, therefore, established a Native American task force “to improve the effectiveness of the United States Department of Agriculture’s programs as they apply to Native Americans.”47

  Meanwhile, the Forest Service, after having received comments on its road proposals from the California tribes, the Advisory Council on Historic Preservation, and others, commissioned a comprehensive ecological, historical, and archaeological study of the Chimney Rock area to gauge the effect the proposed road would have. The research team, which consisted of twenty people, was headed by Dr. Dorothea Theodoratus. The investigation lasted a year and was completed in 1979. Theodoratus and her investigators combed the literature, carried out field investigations, and conducted 166 interviews with Yurok, Karok, and Tolowa Indians. The report confirmed that the entire area was “significant as an integral and indispensable part of Indian religious conceptualization and practice.”48 The study concluded by emphatically stating that the construction of a road along any of the proposed routes “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest Californian Indian peoples.”49 Theodoratus and her colleagues recommended that the G-O road not be completed.

  The Theodoratus report’s findings were made public as the Forest Service and the Department of Agriculture were responding to the AIRFA policy request. The Forest Service, in particular, maintained in its August 1979 report to the President that “[r]e
view by field offices has not identified any policies or procedures which have a negative effect on or will result in [abridgment] of the religious freedom of Native Americans.” The agency declared that it would “continue to review these potential conflict areas in close cooperation with traditional religious leaders or their representatives to assure the protection and preservation of Native American religious rights and practices.”50

  Little did the tribes or President Carter realize how short-lived this commitment would be. Despite acting in 1981 to place over 13,000 acres of the High Country on the National Register of Historic Places, the Forest Service proceeded on March 2, 1982, the following year, to disregard not only the findings of the Theodoratus report, but even its own statement that it would respect the traditional religious rights of the three tribes. Instead, the Forest Service, under the direction of R. Max Peterson, proceeded to select the road proposal deemed potentially the most disruptive to the High Country. The other routes under consideration were apparently rejected because (1) they were longer and would exact higher construction and timber-hauling costs; (2) they would require the purchase of private land; and (3) they would still have an adverse effect on lands considered sacred to the indigenous people.51

  This reversal left the Indians in a state of shock. The Forest Service proceeded to prepare a final Environmental Impact Statement for the construction of the G-O road. The head of the Regional Forest Office had devised a modified route that avoided archaeological sites and was situated “as far as possible from the sites used by contemporary Indians for specific spiritual activities.”52 Simultaneously, the Forest Service developed a management plan which called for the harvesting of “significant amounts of timber.” As a demonstration to the Indians that the government had an awareness of the area’s importance, the plan called for “half-mile protective zones” around “all religious sites identified in the report.”53 They could not, or would not, comprehend that tribal members considered the entire region sacred, and that the planned road would, by bisecting the area, sever the interconnectedness of the entire zone and cause massive disruption to tribal religious activity because of the cutting, trucking, and associated side-effects of timbering activity.

  Having exhausted all administrative remedies, six Indians, joined by an Indian cultural and religious organization, several conservation organizations, and the State of California, filed two separate suits challenging the Forest Service’s decision to implement the Blue Creek land use plan and construct the road.54 Their arguments, simply stated, were that the planned activity (1) would constitute a gross interference with tribal religious practices in violation of the Free Exercise Clause of the First Amendment; (2) would violate the Federal Water Pollution Control Act and the National Environmental Policy Act, as well as other statutes; and (3) would contravene the federal government’s trust responsibilities to the Indians of the Hoopa Valley Indian Reservation.55

  After a ten-day trial in 1983, the district court agreed with the Indians and the other respondents and granted a permanent injunction prohibiting the Forest Service from implementing the plan.56 The court, in a powerfully worded opinion, agreed with virtually every point argued by the Indians. Most importantly, it held that the construction of the road would “seriously impair the Indian plaintiffs [sic] use of the High Country for religious practices. This would be a violation of their First Amendment rights and also entailed a breach of the government’s trust responsibilities to the Indians.” The Indians’ position was strengthened by the frailty of the Forest Service’s arguments. At trial, the agency conceded that the road construction would not vastly improve access to the timber; that the road would not increase jobs in the timber industry; and that the accompanying recreational use of the region would create major environmental problems. The factors that the Forest Service had developed as compelling justifications for the road “devolved to the simple proposition that the agency wanted to build a road period. Period.”57

  The Forest Service and the Department of Agriculture, despite a paucity of critically important reasons to build the road, nevertheless appealed this rare court victory for Indian religion to the 9th Circuit Court of Appeals. While the case was pending, Congress enacted the California Wilderness Act of 1984,58 which designated as part of the new Siskiyou Wilderness much of the Blue Creek and Eight Mile Creek Units, including most of the High Country. A “wilderness” designation prohibits commercial timber harvesting and other commercial enterprises such as permanent roads, etc. This congressional action alone was a clear signal that the lands in question were of a special character and Congress had indicated as much when it said the area was of “critical importance to Native Americans for cultural and religious purposes.”59

  Despite this favorable statement, the acknowledged trust responsibility, and the lower court decision supporting the Indians, Congress compromised the religious rights of the Indians by exempting a 1,200-foot-wide corridor through the newly designated wilderness area, which coincided with the Forest Service’s proposed road route. This equivocal congressional position—that a recognized wilderness area should be bisected by a paved road with projected heavy traffic flow—was most strange. “The most obvious interpretation of the situation,” observed one scholar, “was that Congress did not want to deal with the politics of the road and hoped that things would be resolved locally without any further direction or involvement at the Washington level.”60

  The 9th Circuit Court in 198661 affirmed the District Court’s findings that the construction would indeed virtually destroy the Indians’ ability to practice their religion. The majority also held that the Forest Service had failed to show any compelling reasons why the road needed to be built. The government’s interests in road construction, the court concluded, were not sufficient to justify the damage to the Indians’ exercise of their religious beliefs.

  The Court of Appeals, however, refused to consider the Indians’ and the conservation groups’ argument that the California Wilderness Act should be considered an intervening statement in which Congress, by designating the area as a “wilderness,” was expressing its intention to set the land apart. Second, and more damaging from the Indians’ view, the court unanimously rejected the district court’s conclusion that the government’s proposed actions would constitute a breach of its trust responsibilities to the Indians.

  The Forest Service and Secretary of Agriculture Richard E. Lyng appealed to the Supreme Court for relief. The High Court granted certiorari on the curious ground that “the courts below did not articulate the bases of their decision with perfect clarity.”62 Whether “perfect clarity” is ever possible when human actors, institutions, and language are involved is debatable, but a thorough reading of both lower court cases reveals a fairly explicit understanding of the consequences of the road’s construction to Indian religious practices. The fact that the Forest Service had not shown any compelling reasons to justify its desire to develop the road was also very important to the trial and appellate courts.

  The Supreme Court noted that it had agreed to review the case because the lower courts had apparently violated the principle of judicial restraint which holds that courts should not decide constitutional questions “until it is necessary to decide them.”63 In the Court’s ambiguous language: “This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would have been unnecessary and therefore inappropriate.”64 Justice Sandra Day O’Connor claimed that neither of the courts below had “explained or expressly articulated the necessity for their constitutional holdings.”65 This rationale for granting certiorari, in effect, placed minor statutory relief on a higher plain than the protections—such as freedom of religion—guaranteed by the Bill of Rights. Having chided the lower courts for deciding the cons
titutional questions, the Court conceded that the First Amendment issue “was necessary” to the lower court’s decision. The Forest Service, in fact, which had petitioned for certiorari “on the constitutional issue alone,” had informed the justices that it could “cure the statutory defects below [i.e., the violations of the environmental statutes], intends to do so, and will not challenge the adverse statutory rulings.”66 This almost apologetic “willingness” on the part of the Forest Service to fix the environmental degradation its plans would entail, although it said nothing about the adverse affects on the Indian religious rights, seemed to disarm the Court and set the tone for the decision.

  MASKING WITHIN THE DECISION: THE MAJORITY OPINION AND THE DISSENT

  Sandra Day O’Connor, the first female member of the Supreme Court, wrote the majority opinion with concurring justices William Rehnquist, Byron White, John Paul Stevens, and Antonin Scalia. Justice William Brennan, joined by his brothers Thurgood Marshall and Harry Blackmun, filed an energetic dissent. In answer to her overarching question, whether the Court is precluded by the Free Exercise Clause of the First Amendment from constructing the road and harvesting timber through a national forest that has historically been used for the religious purposes of three Indian tribes, O’Connor concluded that although the government “does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices, . . . the Constitution simply does not provide a principle that could justify upholding respondents’ [Indians et al.] legal claims.”67 This was because, and she quoted Sherbert v. Verner,68 the First Amendment’s Free Exercise Clause had been written “in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”69