American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  The majority and dissenting opinions are so diametrically opposed that it behooves us to consider their rationales and arguments in parallel fashion. Only then is it possible to begin to gauge the depth and texture of the conflict and confusion within the Court insofar as Indian religious issues and the tribal-federal relationship are involved. In the section that follows, the conflicting opinions will be presented in “tennis-match” format under headings which define the themes of the exchanges: reading of precedent, defining tribal religions, the threat posed to the U.S. as landowner, Indians’ central focus on religion, the American Indian Religious Freedom Act, and government coercion of tribal religious practices.

  On Precedent

  In Bowen v. Roy70 the Supreme Court had considered an Indian family’s challenge to a federal law that required the states to use social security numbers in administering particular welfare programs. The Indian family argued that their religious beliefs would be violated if they allowed the government to assign a social security number for their two-year-old daughter because the use of such a number would “rob the spirit of their child and prevent her from achieving greater spiritual power.”71 The Supreme Court rejected that argument. O’Connor in Lyng read Roy as follows:

  The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.72

  Brennan:

  Today the Court professes an inability to differentiate Roy from the present case, suggesting that “[t]he building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number. . . .” I find this inability altogether remarkable. In Roy, we repeatedly stressed the “internal” nature of the Government practice at issue: noting that Roy objected to “the widespread use of the Social Security number by the federal or state governments in their computer systems. . . .” (emphasis original)73

  Federal land-use decisions, by contrast, are likely to have substantial external effects that government decisions concerning office furniture and information storage obviously will not, and they are correspondingly subject to public scrutiny and public challenge in a host of ways that office equipment purposes are not. . . .74

  The Court today, however, ignores Roy’s emphasis on the internal nature of the Government practice at issue there, and instead construes that case as further support for the proposition that governmental action that does not coerce conduct inconsistent with religious faith simply does not implicate the concern of the Free Exercise Clause. That such a reading is wholly untenable, however, is demonstrated by the cruelly surreal result it produces here: governmental action that will virtually destroy a religion is nevertheless deemed not to “burden” that religion.75

  On Governmental Coercion of Religions and the “Incidental Effects” of Government Programs

  O’Connor:

  It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship . . . This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”76

  Brennan:

  The Court does not for a moment suggest that the interests served by the G-O road are in any way compelling, or that they outweigh the destructive effect construction of the road will have on respondents’ religious practices. Instead, the Court embraces the Government’s contention that its prerogative as landowner should always take precedence over a claim that a particular use of federal property infringes religious practices. Attempting to justify this rule, the Court argues that the First Amendment bars only outright prohibitions, indirect coercion, and penalties on the free exercise of religion. . . .77

  Since our recognition nearly half a century ago that restraints on religious conduct implicate the concern of the Free Exercise Clause . . . , we have never suggested that the protections of the guarantee are limited to so narrow a range of governmental burdens. The land-use decision challenged here will restrain respondents from practicing their religion as surely and as completely as any of the governmental actions we have struck down in the past, and the Court’s efforts simply to define away respondents’ injury as nonconstitutional are both unjustified and ultimately unpersuasive.78

  Ultimately, the Court’s coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious belief, and those governmental actions that prevent conduct consistent with religious belief. In my view, such distinction is without constitutional significance. The crucial word in the constitutional text, as the Court itself acknowledges, is “prohibit” . . . a comprehensive term that in no way suggests that the intended protection is aimed only at governmental actions that coerce affirmative conduct.79

  . . . Here, respondents have demonstrated that the Government’s proposed activities will completely prevent them from practicing their religion, and such a showing, no less than those made out in Hobbie, Thomas, Sherbert, and Yoder, entitles them to the protections of the Free Exercise Clause.80

  On the “Centrality” of Tribal Religions

  O’Connor:

  To be sure, the Indians themselves were far from unanimous in opposing the G-O road . . . and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave.81

  Brennan:

  The Court today suggests that such an approach would place courts in the untenable position of deciding which practices and beliefs are “central” to a given faith and which are not, and invites the prospect of judges advising some religious adherents that they “misunderstand their own religious beliefs.” . . . In fact, however, courts need not undertake any such inquiries: like all other religious adherents, Native Americans would be the arbiters of which practices are essential to their faith, subject only to the normal requirement that their claims be genuine and sincere. The question for the courts, then, is not whether the Native American claimants understand their own religion, but rather whether they have discharged their burden of demonstrating, as the Amish did with respect to the compulsory school law in Yoder, that the land-use decision poses a substantial and realistic threat of undermining or frustrating their religious practices. Ironically, the Court’s apparent solicitude for the integrity of religious belief and its desire to forestall the possibility that courts might second-guess the claims of religious adherents leads to far greater inequities than those the Court postulates: today’s ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual well-being of its approximately 5,000 adherents, so that the Forest Service can build a 6-mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that
might conceivably use it.82

  On the “Threat” to the United States as Landowner

  O’Connor:

  . . . Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but their own from sacred areas of public lands. The Indian respondents insist that “[p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey.” . . . No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property . . . The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the government of its right to use what is, after all law its land.83 (emphasis original)

  Brennan:

  . . . [T]he Court’s concern that the claims of Native Americans will place “religious servitudes” upon vast tracts of federal property cannot justify its refusal to recognize the constitutional injury respondents will suffer here. It is true, as the Court notes, that respondents’ religious use of the high country requires privacy and solitude. The fact remains, however, that respondents have never asked the Forest Service to exclude others from the area. Should respondents or any other group seek to force the Government to protect their religious practices from the interference of private parties, such a demand would implicate not only the concern of the Free Exercise Clause, but also those of the Establishment Clause as well. That case, however, is most assuredly not before us today, and in any event cannot justify the Court’s refusal to acknowledge that the injuries respondents will suffer as a result of the Government’s proposed activities are sufficient to state a constitutional cause of action.84

  On the American Indian Religious Freedom Act

  O’Connor:

  Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the government could have been more solicitous.85 . . . Respondents, however, suggest that AIRFA goes further and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road . . . Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.86

  Brennan:

  Indeed, in the American Indian Religious Freedom Act (AIRFA) . . . Congress expressly recognized the adverse impact land-use decisions and other governmental actions frequently have on the site-specific religious practices of Native Americans, and the Act accordingly directs agencies to consult with Native American religious leaders before taking actions that might impair those practices. Although I agree that the Act does not create any judicially enforceable rights . . . the absence of any private right of action in no way undermines the statute’s significance as an expressed congressional determination that federal land management decisions are not “internal” Government “procedures,” but are instead governmental actions that can and indeed are likely to burden Native American religious practices. That such decisions should be subject to constitutional challenge, and potential constitutional limitations, should hardly come as a surprise.87

  On Defining Tribal Religions As against Judeo-Christian Religions

  O’Connor (tribes as private citizens with nondistinctive rights):

  However much we might wish it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. Abroad range of governmental activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions.88

  Brennan (tribes as separate and distinct peoples with unique rights):

  A pervasive feature of this lifestyle is the individual’s relationship with the natural world; this relationship, which can accurately though somewhat incompletely be characterized as one of stewardship, forms a core of what might be called, for want of a better nomenclature, the Indian religious experience. While traditional Western religions view creation as the work of a deity, “who institutes natural laws which then govern the operation of a physical nature,” tribal religions regard creation as an on-going process in which they are morally and religiously obligated to participate . . . Native Americans fulfill this duty through ceremonies and rituals designed to preserve and stabilize the earth and to protect humankind from disease and other catastrophes. Failure to conduct these ceremonies in the manner and place specified, adherents believe, will result in great harm to the earth and to the people whose welfare depends upon it.89 . . . Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.90

  THE MASKS OF TRUSTEESHIP, “PUBLIC” OWNERSHIP OF PUBLIC LANDS, AND INCIDENTAL EFFECTS

  The preceding presentation of the virtually polarized opinions of Justices O’Connor and Brennan on a wide range of issues and topics is convincing evidence that the religious concerns of tribes, as perceived by the Supreme Court, are not about to be resolved in the near future. Of obvious importance to tribes, however, are O’Connor’s majority views which essentially disavowed the long-standing trust responsibility to tribes insofar as this responsibility involved access to and use of sacred lands.91 As one leading law expert put it: “Stripped of peripheral issues, the matter before the High Court was to weigh the government’s trust responsibility toward Indians against its own right to manage its affairs. Undeniably, part of those affairs, a very important part, was execution of the trust responsibility itself. Hence, the question should have been academic.”92 This casting aside of the trust responsibility was accomplished when the Court chose to ignore the distinctive sovereign rights of the tribes as polities. The Court focused, instead, on treating Indians simply as individual American citizens.

  A second, and equally pivotal, theme emerging from this decision is that of the power of even mid-level federal bureaucrats to interpret “public lands” of the United States in a way that elevates a federal agency to a superior position over the rights not only of tribal nations but of American citizens as well. National Forests are public lands and belong to the American people, of which tribal nations and their citizens constitute a small but historically and legally unique component. This decision, however, enables government bureaucrats to make critically important decisions over the spiritual/property rights of tribal nations and American citizens also.

  For example, in oral arguments before the Supreme Court, United States Attorney General Andrew J. Pincus was asked by a justice: “Is it your position, Mr. Pincus, that the Government need not make any concessions whatever to the interest of the Indians in this case?” Pincus’s response: “Yes, your Honor, it is our position that un
der the Constitution, because the Constitution does not require the government to do anything, we think that it’s certainly appropriate to do exactly what the Forest Service did in this case. . . .”93 A little later Pincus was asked who in the Forest Service ultimately made the final decision to construct the road over the vigorous protests. Pincus named the chief of the Forest Service. Surprised, the chief justice reacted: “It hasn’t even gone to the Secretary [of Agriculture]?”94 “The Secretary,” said Pincus, “intends to review that decision.”95

  Finally, a malevolent test emerged in this case—the “incidental effects” test, which, in effect, holds that nonmajoritarian religions no longer “have the freedom to engage in religious practices that conflict with generally applicable laws, no matter how insignificant the law or how important the particular religious practice.”96 Armed with this, future administrations, backed by the Court, may be able to deliberately harm minority religions. Furthermore, using this test allows the court to avoid having to show a compelling interest if its action are otherwise lawful. The incidental effects test figures prominently in the blockbuster Smith II case, which, as will presently be seen, refined and expanded the principle.

  CONCLUSION

  The G-O road was never constructed. The project was abandoned, due, in large part, to the “wilderness” designation, which effectively closed the area to logging and to the general traffic. One can speculate on why, then, the Supreme Court agreed to hear this case, since the “wilderness” designation had occurred several years before the case reached the High Court. Perhaps the majority desired to make a statement about tribal religious beliefs and practices. The essence of that statement may be that the Supreme Court “cannot or will not conceive of traditional tribal religions as different in form, substance and orientation from the mainstream Christian and Jewish denominations. Consequently when it applies Constitutional doctrines and tests to cases involving American Indian religious freedom the results are disastrous—they do not protect traditional Indian practitioners and they disrupt long-standing doctrines in the First Amendment field in the fundamental way.”97