Posted by: Aandeiyeen | June 17, 2011

Religious freedom for land-based religions and cultures?

In  the United States, individuals are afforded the constitutional right to freedom of religion.  But this freedom is limited to practices contained within individual households. In Indigenous cultures, spirituality is tied to specific geographic locations.  These sacred sites are often the location of creation beliefs and oral histories that have been passed on for generations. It is not easy to articulate the meaning sacred sites in terms that non-Indigenous people or government agencies can appreciate. Nor is it easy to define borders around them, given that everything is connected. This was probably best articulated in a Statement of Custodians of Sacred Natural Sites and Territories.  “Sacred Natural Sites and Territories can be considered on the Earth, as a network of acupuncture points would be on the human body.  They have a healing effect. We also consider that the relationship between them is critical and they cannot be seen in isolation from each other…”

Indigenous spiritual belief systems differ from the Judeo-Christian paradigm and emphasize on location rather than a chronology of events. Tribal religions are not based on a set of established truths (theological doctrines) like western religions but rather to histories and traditions connected to certain areas. If Indigenous Peoples do not have access to their sacred sites, they do not have access to their place of worship.

With the expansion of Western imperialism, the United States became the land managers of many Indigenous lands. Through a variety of means, Tribes ceded much of their land to the United States. Other federal policies have resulted in the loss of more Indigenous lands, such as removal, allotment, and termination; illegal acquisition and ‘encroachment’ by states and individual citizens. These lands are considered publicly owned and are managed under a “multiple use policy” which opens the land to uses such as logging and mining. This has led to conflicts regarding how to utilize the land and how to define its values. Federal land management agencies have a well-established history of disregarding Indigenous Peoples’ concerns.

American Indian Religious Freedom Act (AIRFA)

For over a century, the United States repressed and even outlawed Indigenous ceremonies. At the same time, Christian missionaries were being given government support to promote western religions among Indian reservations. Native children were required to attend Christian boarding schools and were punished for cultural practices, such as speaking Native languages, wearing Native clothing, or practicing Native religion. The rights of Indigenous Peoples to practice their religion had to be affirmed by an act of Congress – the American Indian Religious Freedom Act (AIRFA) which was passed in 1978. AIRFA declared that it was the policy of Congress to protect and preserve American Indians’ right to believe, express, and practice their traditional religions. Congress intended to make government agencies recognize, consider, and respect traditional Indigenous religions and to “learn about, and avoid unnecessary interference with, traditional Indian religious practices.”  However, even Congressman Udall (D-AZ), who cosponsored the bill, stated that the Act “had no teeth” because it did not create any legal rights and “depends on Federal administrative good will for its implementation.”

First Amendment

The First Amendment in the U.S. Constitution includes the Free Exercise of Religion and Establishment clauses. When religious freedom is discussed in the context of traditional Indigenous religions, the right of the practitioners to maintain relationships with the natural environment is what is at stake. Federal agencies have routinely acted or permitted activities that compromise sacred sites. And the federal courts have consistently supported these actions based on a narrow interpretation of the First Amendment. The main case that highlights this is Lyng v. Northwest Indian Cemetery Protective Association.

Lyng v. Northwest Indian Cemetery Protective Association

Since the passage of AIRFA, several Indigenous groups had filed lawsuits against public land management agencies. Given AIRFA’s lack of legal rights, Indigenous plaintiffs relied on the Free Exercise Clause of the First Amendment to support their claims. In the 1988 Lyng v. Northwest Indian Cemetery Protective Association case, the U.S. Supreme Court held that unless the government affirmatively coerces or penalizes an individual or group for its religious beliefs, the government may infringe on religious conduct. The case involved the U.S. Forest Service and three tribes- the Yurok, Karok, and Tolowa- of Northern California. The Forest Service had proposed construction of a 6-mile paved road in the Chimney Rock area of the Six Rivers National Forest, which is sacred to the three tribes. The road would have opened the area to logging and would have destroyed the isolation of ceremonial sites for the tribes. The tribes challenged the project through the administrative process but were not successful. They brought the case to the federal court, bringing their claims under the First Amendment. The federal court and the Ninth Circuit of Appeals denied the construction on the grounds that it would have made religious ceremonial use in the area impossible and therefore violated the tribes’ rights as guaranteed by the Free Exercise Clause. The lower courts, however, did not find that the actions would coerce the Tribes into not practicing their religion and ceremonies.

Before the U.S. Supreme Court heard the appeal, the California Wilderness Act was passed by Congress and the area was designated wilderness, thereby eliminated the immediate development threat. But the question of freedom of religion was still at hand- did the First Amendment’s Free Exercise Clause prohibit the government from developing the Chimney Rock area? The Supreme Court reversed the ruling of the lower courts and held that the Forest Service was able to construct the road and harvest the lands. It ruled in favor of the Forest Service based upon a conclusion that the “freedom of religion” clause in the First Amendment does not restrict the government’s management of its lands so long as: 1) government’s purpose is secular and not aimed at infringing upon a religion and 2) government’s actions do not coerce individuals to act contrary to their religious beliefs.

The result of the Lyng decision is that Indigenous religious practitioners do have not First Amendment rights to challenge land management decisions which could effect or destroy sacred sites and thereby possibly destroy an entire culture and religion.

Concluding thoughts

The United States was built to escape from the tyranny and religious persecution the pilgrims had endured. Despite hailing under the banner of ‘liberty and justice for all,’ the United States has failed to apply these principles to this country’s First Nations. The lack of recognition for religious freedom for Indigenous peoples is hypocritical at best. The land management decisions for public land use often goes against the needs of Indigenous communities, whom were the original land owners and are still very much dependent upon it for spiritual and cultural sustenance. Until a time has reached when Indigenous Peoples are respected as spiritual and cultural entities, the United States has yet to truly live up to the principles of religious freedom under its very own Constitution.

What can we do?

Unless there are more amendments to AIRFA to give it “teeth” or other laws are passed that protect sacred land and cultural resources, there are other means we need to seek out in order to protect our sacred lands:

  • Get educated on the laws and regulations that could be used for cultural resource protection, if only indirectly.  Allocate responsibilities amongst a dedicated group or committee; don’t take on too much by yourself. You can get burnt out or if you move on, momentum on the efforts you made could come to a halt if your skills aren’t able to be replaced or if the relationships you have established have to be rebuilt.


  • Collaborate and network; there are going to be others fighting similar battles or foster similar values and concerns.  They will have advice, ideas and experience to provide- plus combining forces and gaining broader support for your cause.


  • Create clear objectives so everyone is on the same page and not pulling the group in different directions.


  • Know your audience so you know how to frame your message; make it relevant to whom you are speaking to so they know why they should care and what they can do to help but don’t get lost in translation or end up too far removed from why it is significant to you and your people.  Always remember to speak from the heart or else risk compromising the integrity of the movement.


  • Educate the public on Indigenous history and issues- starting from restructuring the Euro-centric education  (“First Thanksgiving” or a glorified version of Christopher Columbus, etc) kids receive from a young age.  Education will become a preventative tool since currently, sacred sites are largely unknown by the public until a development project is in the works and then Indigenous peoples are made out to be the “bad guys” for trying to “kill the economy” by stopping “progress”, etc.

These are a few suggestions based on my limited experience thus far- comment and add your own.  Keep fighting the good fight, all my plucky Indigenous vanguards!


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