CHAPTER VI
THE CONSTITUTIONAL AMENDMENTS
The application of the constitutional amendments to American Indians requires an in-depth discussion. The Bill of Rights was added to the Constitution shortly after its ratification, at a time when the Indian nations were seen as separate political entities who might suddenly align themselves with the European nations still seeking colonies in North America. Not all amendments dealt with subjects that would one day affect Indians. The Thirteenth Amendment was passed just before the great treaty-making period of the 1860s, the Fourteenth when the government was undecided about how to deal with Indians and Congress was about to terminate treaty making, and the Fifteenth came when Indians were still protected by treaty provisions and were not regarded as American citizens.
The Sixteenth, Eighteenth, and Twenty-first Amendments were ratified long after the end of the treaty-making period and, in fact, after the Lone Wolf decision in 1903, when the Bureau of Indian Affairs concluded that Indian affairs were now a matter of proper administration. After 1924, when American Indians were made citizens of the United States, insofar as they enjoyed the status of citizens, provisions of later amendments applied if and when they were raised in litigation. However, the preemptory role that the federal government enjoyed with regard to Indians was never seriously challenged by state or local governments, so that virtually nothing in the way of case law developed regarding the later amendments and Indians. They were simply presumed to be a part of the body politic. This chapter addresses the amendments of the Bill of Rights that have some application to Indians; Chapter 7 addresses the later amendments.
The Bill of Rights
The Bill of Rights, born largely through the work of George Mason, Thomas Jefferson, and James Madison, was a necessary addition to the Constitution that made ratification a reality. These ten amendments are a combination of prohibitions against the exercise by the federal government of certain powers and functions that when previously exercised in Europe by despotic monarchs had caused the colonists to flee to America. The thrust of these protections is a guarantee to the citizens that their national government will not act in an arbitrary manner against their personal freedoms. The Constitution, being a federal document, did not describe the possible arbitrary actions of state governments against their own citizens. This kind of protection did not concern the authors of the Bill of Rights because most of the states’ constitutions had the same or similar provisions regarding state governmental actions.
Because Indians were not officially recognized as a racial, ethnic, or political group whose individual members were citizens until the Indian Citizenship Act of 1924,1 we have not been as a rule interested in the application of these rights to American Indians until after that date. Since these federal constitutional rights exist only when Indians are living off the reservation as American citizens, their application is not unlike that given to any other citizen. This unique and ongoing extraconstitutional status of Indians was clearly described by Senator Frank Church (Democrat, Idaho), chairman of the Senate Subcommittee on Indian Affairs, during initial congressional hearings on the constitutional rights of American Indians in 1961. In his testimony, Senator Church noted that:
We gave the Indian citizenship, true, but for lack of anything else to call it, we gave him full citizenship, with a major geographic exception. By this I mean on the one hand we said “you are now a full American citizen.” And on the other hand we took no action to change the existing situation, which was, and is now, that the Indian tribes are not subject to Federal constitutional limitations in the Bill of Rights. What did this mean to the Indian citizen? It meant he had all the constitutional rights of other citizens, except at one place. The one place where he lived. In effect, we said, “move away from home and you can have the protections of the Constitution too.”
The stark reality of Church’s testimony appeared to surprise several of the committee members who presumed that U.S. citizenship implied the derogation of Indian citizenship. Then there was this interesting exchange between Senator Kenneth B. Keating (New York) and Senator Church:
SENATOR KEATING: “May I interrupt you, Senator Church?”
SENATOR CHURCH: “Yes, indeed.”
SENATOR KEATING: “So I am sure I understand your line of reasoning? What you say is that an Indian, if he is on the reservation, is not protected by the U.S. Constitution unless there is also in his tribal constitution or laws a complementary protection form?”
SENATOR CHURCH: “Yes. And in this case his protection would derive from the provision in the tribal constitution, and in the absence of such provision there would be no restriction upon the tribal action that could be taken against him. So the normal, universal, application of constitutional restrictions that apply elsewhere do not necessarily apply in Indian reservations.”2
Unfortunately, senators and congressmen always describe this situation in negative terms, and because the membership of Congress changes every two years, there are always many scenarios wherein a senator or congressman who has not had any previous experience with Indians properly expresses his or her horror at this condition. The implication is always that lack of application of the Bill of Rights produces a lawless territory where almost anything can occur. In fact, the preservation of tribal jurisdiction was a major point of contention in many treaties because the tribes did not wish to forsake their traditional ways. Many tribal justice systems are far more mature than the rigid application of Anglo-Saxon, Old Testament, eye-for-an-eye justice, and many Indians did not want their codes of law and order to be based upon the principle of revenge. Over the decades, particularly since 1934, tribal nations have been encouraged to adopt western-style constitutions and governments. The gap between justice and the actions of tribal governments has widened greatly now that tribal constitutions resemble those of non-Indian states and municipalities.
Our major interest, then, is to examine the prohibitions against federal action and to determine whether or not these prohibitions extended to the treatment of Indians by the federal government. The amendments within the Bill of Rights that have relevance to our study are the First Amendment, which prohibits Congress from making any law “respecting the establishment of religion, or prohibiting the free exercise thereof” and guaranteeing the freedoms of speech, assembly, and the press, and the right to petition the government for redress; the Fourth Amendment, which protects individuals from unreasonable searches and seizures; that part of the Fifth Amendment that prohibits double jeopardy3 and provides just compensation for property taken for a public use; the Sixth Amendment section that guarantees persons accused of criminal offenses legal counsel; and, arguably, the Tenth Amendment, which reserves to the states and the people respectively powers not delegated to the United States by the Constitution. Of these amendments in the Bill of Rights, the religious restrictions contained in the First Amendment are most significant and require careful discussion.
The First Amendment: The Establishment of Religion
The first section of the First Amendment prohibits Congress from making any law “respecting an establishment of religion,” and this clause, with respect to American Indians, has been honored far more in its breach than in its enforcement. And while constitutional law experts agree that the establishment clause of the First Amendment forbids the creation of a single “official” religion in the United States, there is no doubt that for much of this nation’s history most federal policy makers and non-Indian reform organizations made a concerted effort to establish Christianity as the official religion among tribal nations.
Historical practices originally determined the interplay of religious groups and federal Indian policy. On the frontier it was more often than not the missionary who represented civilization, and quite frequently missionaries were among the first people to have contact with an Indian tribe on a continuing basis. By the time of the American Revolution, it was already an established practice that missions and missionaries would be provided for tribes if they desired them. French, Spanish, and English missionaries had already visited tribes on the frontier and converted large numbers of people. Among the Iroquois and the tribes of the Michigan-Ohio-Indiana-Illinois country, the predominant denomination was Roman Catholic. In New England, as might be expected, various Protestant denominations were well represented among the tribes. In general, we can describe the situation as one in which the United States inherited a colonial practice that, if it had rigorously enforced a separation of church and state, would have been considered unconstitutional by its courts and regarded as a hostile act by the Indians involved.
The missionaries at this time functioned as interpreters of European civilization, advocates for Indian rights, and avenues for helping Indians gain the necessary skills to deal with the white men rushing into the territories of the tribes. Missionaries commanded some respect from the whites on the frontier. And in spite of their zealous and rigid behavior in attacking the traditional tribal customs and ceremonies, they were often seen as allies of the tribes when crises threatened. Most active missionaries had sought permission of the chiefs of the tribes when they entered Indian country, and some tribes even decreed when and where missionary activities could take place. This condition existed until quite late in the nineteenth century.4
With the expansion of programs for civilizing the Indians in the early 1800s (e.g., the 1819 Civilization Fund Act), the federal government naturally turned to the missionaries for assistance. Promises to provide education for the children of the tribe, or on occasion health services, generally involved the federal intent to use existing facilities and personnel, which meant that missionaries were provided with funds from the treaties to carry out these activities. This use of federal funds probably cannot be described as the establishment of a religion because the missions were usually in place prior to the signing of treaties. Additionally, the funds promised were derived from the sale of tribal lands and therefore could possibly be characterized as tribal funds, the services being simply purchased from the churches under government supervision.
Evidence supporting this interpretation can be seen in various treaty provisions, such as Article 3 of the December 2, 1794, treaty with the Oneida,5 in which $1,000 was provided to build a church; and Article 16 of the September 29, 1817, treaty with the Wyandots, Ottawas, and Chippewas,6 which granted the rector of St. Anne’s Catholic Church in Detroit a considerable tract of land in exchange for the promise to provide a Catholic education for the children of the tribes. Even if the missionaries used undue influence in securing these benefits, the fact remains that the treaty specifically established a contract between the tribes and the churches, with the federal government acting as the administrator of funds in the transaction.
Missionaries occupied a critically important role in relations with the Cherokee tribe during its problems with Georgia in the early 1800s. Samuel Worcester and several other missionaries entered the Cherokee lands under the provisions of the Cherokee treaties and the federal laws passed to carry the treaties into effect. In Worcesterv. Georgia,7 the Supreme Court upheld the federal laws and Indian treaties, although to no avail because of Andrew Jackson’s refusal to take action. Worcester and the other missionaries do not appear here as intruders into Cherokee life but as willing defendants in a test case supporting Cherokee rights, and there is no question about the establishment of religion in their actions.
The peace policy of President Ulysses S. Grant, initiated in 1869 with a meeting with the Society of Friends and a subsequent congressional act establishing the Board of Indian Commissioners,8 is probably the first example of the federal government’s overstepping the bounds of constitutional prohibitions and overtly acting to establish a religion among Indian tribes. Although the first Board of Indian Commissioners did not directly represent church bodies, it was composed of aggressive laymen of the Protestant denominations. And early in 1869, the president asked the churches to nominate agents for the various agencies. In exchange for providing good Christian men to lead the Indians to civilization, the churches received an almost exclusive right to proselytize the tribes at the agencies to which they had been assigned.
As of 1872, the following churches had exclusive or near-exclusive control of the following Indian agencies:
Francis Paul Prucha noted that “What the government wanted from the churches was a total transformation of the agencies from political sinecures to missionary outposts.”10 And he noted that “maintaining a position against a conflicting group was . . . often a more powerful motivation than concern for the welfare of the Indians.”11 There is no question, then, that the peace policy was a violation of the First Amendment, at least in respect to the establishment clause.
Not only was concern about the establishment clause suppressed to allow the churches to gain a foothold over the Indian tribes, the actions of the missionaries when they had control of the agencies were hardly in accord with the free-exercise prohibition of the First Amendment. “What was more serious,” according to Prucha, “was the complete disregard for the religious views and the religious rights of the Indians themselves. Quakers, Methodists, Episcopalians, and all the other Protestants, fighting for the religious liberty of their own groups on the reservations, made no move to grant so much as a hearing to the Indian religions.”12 The record of the Catholics is no better. They criticized Protestant bigotry and called for freedom of conscience, but they did not believe that this freedom extended to native religions, which were universally condemned. The missionaries were not interested in the Indians’ right to maintain and defend their own religions: “By religious freedom they meant liberty of action on the reservations for their own missionary activities”13 [emphasis added]. And because the missionaries were acting as direct federal agents in this instance, the effect was the establishment of denominational religious freedom and denial of traditional Indian religion—a clear violation of both prohibitions on establishment and free-exercise guarantees. For example, Congress passed an act on March 1, 1889, to establish a federal court in Indian territory.14 Section 22 of that law made it a criminal offense punishable by fine and imprisonment for any person to “maliciously or contemptuously disturb or disquiet any congregation or private family assembled in any church or other place for religious worship . . . by profoundly swearing or using indecent gestures, threatening language, or committing any violence of any kind. . . .”15 There was no corresponding protection of traditional Indian religious practices.
For all practical purposes, the allocation of agencies to the churches on a relatively exclusive basis ended during the tenure of Columbus Delano as secretary of the interior in the early 1870s. He argued that the secretary always had preserved the right to appoint agents and saw the church recommendations as simply recommendations, not as requirements. But the conflict among the Christian churches continued and reached a fever pitch in the quarrel over the continuance of sectarian school funds. The churches provided educational facilities and programs for many of the tribes because the Bureau of Indian Affairs was unable to operate an extensive school system. In addition to their own funds, many of the church schools received federal funds for this purpose. When the Catholic schools continued to expand, the Protestants felt they had an unfair advantage, and so, beginning in 1895, the Protestants started to work for the abolition of funds for sectarian schools, hoping to hamper Catholic progress on the reservations. In 1897 Congress passed a prohibition against the use of funds for sectarian education in the contract schools,16 and the prohibition was included in appropriation acts several more times in the succeeding years.
The Catholics, however, had supported the Democrats and had sufficient political influence to devise a way to continue to receive funds for their schools. They simply had the Bureau of Indian Affairs give them tribal monies for this purpose. The practice was justified on the basis that Indian funds were treaty and trust funds (from land sales) and therefore not publicly appropriated moneys, which Congress had prohibited. The Indians whose children attended Catholic schools were designated as petitioners who had asked for their share of tribal funds for use in the education of their children. So the bureau divided the tribal funds into a per-capita share and took the shares of the petitioning Indians each year and used them for the Catholic schools.
In 1908 this practice was challenged in the Supreme Court in the case Quick Bear v. Leupp.17 Quick Bear, a Protestant Sioux Indian who lived on the Rosebud Reservation in South Dakota, objected to the use of tribal funds for Catholic schools. The Court, in one of the most ironic decisions ever written, declared that:
it would be unjust to withhold from an Indian or community of Indians the right, within reasonable limits, in good faith, and under the safeguards provided by the President’s instructions, to choose their own school and to choose it frankly because the education therein is under the influence of the religious faith in which they believe and to which they are attached, and to have the use of their proportion of tribal funds applied under the control of the Secretary’s discretion to maintain such schools. Any other view of the case perverts the supposed general spirit of the constitutional provision into a means of prohibiting the free exercise of religion.18 [Emphasis added]
In effect, the Court reached through the tribal entity in order to grant free exercise of religion to Indians by taking their funds to support a particular church that had once received an exclusive franchise to proselytize them. So one clause of the First Amendment was used to justify the violation of another one. Actually, the so-called petitioning Indians received considerably more than their pro-rata share of tribal assets because the funds in the treasury each year represented both the remaining shares of the nonpetitioning Indians and the yearly income of the tribe. So that after the first year of sectarian school support, the shares reflected an additional draw by the petitioners against tribal funds to which they had no claims. In other instances, when an Indian individual took his or her share of tribal assets in cash, that Indian was no longer regarded as a tribal member and was not entitled to any further distribution of tribal assets. In fact, an act the previous year, on March 2, 1907,19 allowed the secretary of the interior to designate Indians deemed capable of managing their own affairs and to issue them pro-rata shares of tribal funds, allowing them to withdraw from the tribe.
There is no question that the prohibition against the establishment of a religion contained in the First Amendment did not apply to laws and practices of the United States, by both the Congress and the executive branch, and that the violation of this prohibition was excused on the justification that the United States was allowing the free exercise of religion—at least of the Christian religion—which was presumed to be the free choice of the Indians.
Another question needs to be addressed when discussing the establishment clause. In its dealings with Indians, does the United States, either deliberately or unwittingly, establish the Christian religion? In the 1890s Congress granted a right-of-way through Osage Indian lands to the Missouri, Kansas and Texas Railway Company. The Indians loudly protested, and the controversy landed in the Supreme Court in Missouri, Kansas and Texas Railway Co. v. Roberts.20 In upholding the expansive powers of Congress to deal with Indian property, the Court declared that “though the law as stated with reference to the power of the government to determine the right of occupancy of the Indians to their lands has always been recognized, it is to be presumed, as stated by this court in the Buttz case, that in its exercise the United States will be governed by such considerations of justice as will control a Christian people in their treatment of an ignorant and dependent race . . .”21 [emphasis added].
If Christian doctrine, morality, or concepts of justice are the criteria for judging the propriety of federal actions toward Indians, has the United States established the Christian religion and abandoned a position of neutrality with regard to religion? Certainly the justification for granting the Indian lands is that this exercise of congressional power is the Christian, and therefore proper, thing to do. An apocryphal tale about President Dwight D. Eisenhower further illustrates this point: he was said to remark while signing Public Law 280, which extended civil and criminal jurisdiction over Indians without their consent, “this is a most un-Christian thing to do.” He nevertheless signed the bill and wistfully commented that he hoped that the Congress would amend the law later to provide for the consent of the Indians.22
One of the problems in establishing Christianity as a moral or perhaps even legal criterion for dealing with Indians is determining exactly what tenets of Christianity serve as the standard of behavior. Citation of the golden rule would seem to call for the utmost concern for Indians—if we do not want someone taking away our property and homes, we should not take the Indians’. On the other hand, if domination of the earth is a divine command, then actions even worse than originally contemplated might be in order. Further, we must ask, which interpretation of these alternatives would be permissible? The golden rule as defined by Roman Catholic, Baptist, or Presbyterian leaders might vary radically, and the idea that the natural world must be subdued could range from the preservation-conservation ethic of St. Francis of Assisi to the commitment to asphalt all the holdings of a Methodist land baron.
Former Indian Commissioner Francis Leupp gave an eloquent and humorous example of the difficulties arising when Christians interfered with Indian culture and religion. Remembering the sly question of an old Indian man, Leupp recounted:
One missionary, he told us,—referring to a visit from a Mormon apostle several years before—had four wives, and said it was good in the sight of the white man’s god; the missionary who preached at the agency school had only one wife, and said that that was all right, but it would be wicked for him to marry any more; but the priest who came once in a while to bless the children had no wife at all, and said that the white man’s god would be displeased with him if he took even one.23
The mixture of Christianity, then, in the affairs of the state can lead to utter confusion and chaos. Similar contradictions could be found everywhere this intrusion exists.
Perhaps the best argument to be made is that dealing with tribes is an external affair of the United States and that the establishment clause extends only to the affairs of the citizens in a domestic setting. Therefore, the citation of Christian doctrine and behavior as a justification for congressional action and as the standard by which federal action is judged is proper because it testifies to the essential civilized state of the nation. If this argument is an acceptable definition of the status of the United States vis-à-vis Indian tribes, this must then mean that Indian tribes—notwithstanding the citizenship status of individual Indians—remain outside the scope of the Constitution and that the original protections they enjoyed, based on treaty making through informed consent, must be honored when the United States deals with these nations.
The First Amendment: The Free Exercise Clause
There can be no question that Indians, until very recently, have not enjoyed the protection of the First Amendment insofar as the free-exercise-of-religion clause is concerned. With the final settling of Indians on the reservations in the West, with enforced hair cutting, education, and general supervisory functions of the Bureau of Indian Affairs over the lives of Indians, there was a determined effort to eradicate Indian religion and culture. The primary event in this dreary history is the Wounded Knee massacre of 1890, when Indians doing the Ghost Dance were brutally massacred by the Seventh Cavalry. Prohibitions on the practice of some Indian customs, because these customs were integral to the practice of the tribal religion, also fall into this broad category of denial of rights.
As late as the 1920s there was severe repression of Indian religion on the reservations. The Office of Indian Affairs Circular No. 1665, dated April 26, 1921, reads as follows:
The sun-dance, and all other similar dances and so-called religious ceremonies are considered “Indian Offences” under existing regulations, and corrective penalties are provided. I regard such restrictions as applicable to any dance which . . . involves the reckless giving away of property . . . frequent or prolonged periods of celebration . . . in fact any disorderly or plainly excessive performance that promotes superstitious cruelty, licentiousness, idleness, danger to health, and shiftless indifference to family welfare.24
Two years later, on February 14, 1923, Commissioner of Indian Affairs Charles H. Burke supplemented this circular, directing that:
. . . the Indian dances be limited to one in each month in the daylight hours of one day in the midweek, and at one center in each district: the months of March and April, June, July, and August being excepted. That none take part in the dances or be present who are under 50 years of age. That a careful propaganda be undertaken to educate public opinion against the dance.25
It is not difficult to see the violation of the free-exercise clause in these administrative directives. One need only substitute “the Mass” for “the dance” to understand the degree of oppression involved. Prohibitions on dances and ceremonies were halted in 1933, when newly appointed Commissioner of Indian Affairs John Collier issued Circular No. 2970, “Indian Religious Freedom and Indian Culture,” which stated that Indian religious practices would no longer be prohibited.26 This memo and other important changes in federal Indian policy were legislatively articulated the following year with congressional enactment of the Indian Reorganization Act.27 But this statute, insofar as religion was concerned, only laid the groundwork for the exercise of religious freedom on reservations.
Not only were tribal dances forbidden for a long period of time, but with the spread of the peyote religion, attacks were made on sacramental substances, in this instance the use of the peyote cactus button. By 1914 the use of peyote had come to the attention of the federal government and church groups. Plans were made for its suppression. In 1916 the first antipeyote bill was introduced in Congress, and finally in 1918 Congressman Carl Hayden of Arizona introduced a bill that would have classified peyote among the intoxicants and outlawed its use by any Indian over whom the Bureau of Indian Affairs had jurisdiction. After extensive and heated congressional hearings, in which a great deal of prejudice and misinformation about the peyote religion was placed on the record, the bill passed the House of Representatives but was defeated in the Senate.28
Following the hearings members of the peyote religion gathered together to organize their constituency in a manner similar to the church organizations of the Christian denominations so that, if attacked again, they would be able to present to Congress and to state and federal courts an organizational structure that reasonably paralleled accepted religious institutions. From that time forward, with varying degrees of efficiency and suffering sporadic attacks by state and federal governments, the Native American Church has continued to exist as a religious body. It is important to note here that to the degree that Indians have been willing to change their customs and conform their practices to the kinds of behaviors similar to those of the Christian churches, they generally have been protected in the practice of religion. We say generally, however, because the 1990 Smith case,29 to be discussed below, was a powerful affront to this trend. But as we will show, there was a political response to this decision that once again placed the peyote religion and its adherents in a protected status. To the degree that the behavior of the peyote people has followed traditional Indian spontaneity, however, the religion has remained suspect.
Everything we have discussed has been generally applicable to Indians living on the reservations under the strict control of the Bureau of Indian Affairs. It might be argued that if the tribes are completely separate from the United States in a political and constitutional sense, the First Amendment protections should not and cannot apply to them. But the repression of religion is constitutionally prohibited regardless of who the practitioners are unless the government can show a compelling reason and provide a rational basis for why it wants to restrict a given religious practice—because the government is without authority to punish any persons for their religious beliefs. And it has been the executive branch, encouraged and supported by the Congress, that has been the oppressor in this practice. Once Indians are off the reservation and outside both tribal and federal jurisdiction, they theoretically assume the constitutional rights of all other American citizens, or have done so since the Indian Citizenship Act of 1924. So the discussion must turn to the conditions Indians have faced when living off the reservation and how their religious beliefs and practices have been treated. We shall see below that in some cases even off-reservation Indians have discovered that U.S. citizenship is insufficient to protect their religious liberties.
Two areas of conflict come immediately to the fore. During the period of establishing reservations, most tribes were placed on greatly reduced land holdings. Since many tribes were not only migratory but migrated according to religious directions, holding their important ceremonies at specific locations within their original occupancy area, tribes were denied entrance to and use of important religious shrines in lands under the control of the federal government, state governments, or private owners. Thus, access to and use of holy places has been a major point of conflict in the practice of traditional religions.30
Ceremonies frequently require the use of bird and animal parts and special individual pledges of piety, the most important of which is the care of hair. We can use the secular word “outfits” to convey the extensive instances this area represents, and wearing long hair and the use of bird and animal parts in the outfits has become a subject of bitter controversy. Indians have had great difficulties with school and prison authorities over the length of hair, while state and federal game and wildlife agencies have devoted considerable time and energy to harassing Indians about the number and kinds of feathers in their headpieces and medicine bundles. Many Indians have been arrested by federal agents for allegedly possessing eagle feathers without a permit, which they are required by the U.S. Fish & Wildlife Service to have. Yet it is a fact that a number of American politicians want to be adopted into Indian tribes and expect to receive a war bonnet in token of their admission, and then use their eagle feathers in a wholly secular manner as office decorations. To date, not a single American politician has inquired how the Indians were able to get the eagle feathers for their decorative war bonnets, and no American politicians have been prosecuted for having eagle feathers without a permit; whereas in parts of the United States eagle feathers are presently being confiscated from Indians unless the Indian possessing them can prove his title to them by showing a valid permit.
This state of affairs was the subject of congressional action when in 1978 the American Indian Religious Freedom Act (AIRFA) was passed.31 The act, though technically a joint resolution, was designed to answer many of the problems that had arisen with respect to traditional Indian religious practices. According to the House report that accompanied the measure, the intent of Congress was “to insure that the policies and procedures of various federal agencies, as they may impact upon the exercise of traditional Indian religious practices, are brought into compliance with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion.”32 There was great hope among Indians that this act would finally provide some basic protections for them against unwarranted and intrusive federal actions.
The result of AIRFA, however, was to focus the attention of federal agencies on Indians, and it produced a torrent of conflict. Non-Indians conceived religion as a matter of creedal and intellectual preference, not as a way of life that required continuing devotional acts. Considerable litigation followed, including Sequoyah v. Tennessee Valley Authority,33 Badoni v. Higginson,34 Fools Crow v. Gullet,35 Wilson V. Block,36 Inupiat Community of the Arctic Slope v. United States,37 Bowen v. Roy,38 Lyng v. Northwest Indian Cemetery Protective Association,39 United States v. Means,40 and Employment Division Department of Human Resources v. Smith.41 In all these cases, except Bowen42 and Smith,43 the issue concerned the right of Indians to practice their religions on land under federal control. In each of the land-related cases, except for the federal district court’s ruling in Northwest Cemetery,44 the Indians lost because the federal courts insisted on devising a balancing test whereby they weighed the relative worth of the practice of Indian religion against the construction of dams, roads, and recreation developments. It is clear that AIRFA only confused the matter of Indian religious freedom. The Supreme Court’s recent cases, Lyng and Smith, wherein the Court finally considered the issue of Indian religious freedom and powerfully denied that freedom to individual Indians and to tribal nations, indicate that from the Supreme Court’s perspective religious freedom remains an elusive goal for American Indians and is still a controversial subject.
Though all the above decisions are important, for purposes of this analysis some greater attention must be paid to Lyng and Smith. These two Supreme Court cases, coming in the wake of all the prior litigation, when read together wrought a great revolution in both federal Indian law (Lyng) and constitutional law (Smith). Because of these two opinions, American Indians were basically stripped of whatever protection they might have expected from the federal courts and the American Constitution regarding the practice of traditional tribal religions.45 We will discuss these in chronological order.
The Lyng Decision
Lyng is typical of much contemporary litigation over the subject of how federal lands may be used. The U.S. Forest Service, which manages most of the nation’s forests, proposed to construct a six-mile paved road in the Six Rivers National Forest that would link two existing roads leading to the towns of Gasquet and Orleans in northern California.46 The proposed road was to run through the Chimney Rock section of the forest. It and the accompanying forest management plan providing for the harvesting of timber would disrupt the sanctity and solitude of a remote area in the forest considered sacred to the Yurok, Karok, and Tolowa Indians, who had used the area for untold generations as a ceremonial place to engage in vision quests, sacred dances, the training of medicine people, and the gathering of medicinal plants and roots.47
The tribes were not alone in their quest to stop construction of the road. A host of non-Indian conservation, environmental, and governmental organizations, along with several interested individuals, were eager to protect the area from logging and wanted it designated as wilderness. This grouping included the Sierra Club, the Wilderness Society, California Trout, Siskiyou Mountain’s Resource Council, Redwood Region Audubon Society, North Coast Environmental Center, and the state of California—acting through the Native American Heritage Commission. This impressive assemblage, along with an Indian coalition representing the tribes’ interest called the Northwest Indian Cemetery Protective Association, and several individual plaintiffs were now allied against the U.S. Forest Service and that agency’s home unit, the Department of Agriculture.48
The Indians and their allies first tried administrative appeals to stop the proposed road construction, which proved unsuccessful. They then filed two suits in the U.S. District Court for the Northern District of California, which were consolidated for the trial. The plaintiffs claimed that the Forest Service’s decisions violated the First Amendment, the AIRFA of 1978, the National Environmental Policy Act and the Wilderness Act, the Federal Water Pollution Control Act, the water and fishing rights reserved to the Hoopa Valley Indian Reservation members, the federal trust responsibility for Indians, and several other federal statutes.
Under then-prevailing case law,49 the Forest Service was required to show a compelling reason for the construction of the road that would justify the substantial religious burden that was to be placed on the plaintiffs. The Forest Service’s asserted interests were the following: that the G-O road would increase the quantity of timber accessible for harvest in the Blue Creek Unit, stimulate employment in the region’s timber industry, provide recreational access to the area, improve efficient administration of the National Forest lands, and increase the price of bids on future timber sales by decreasing the cost of hauling the timber.50 Additionally, the Forest Service contended that implementation of the management plan would increase timber production in the disputed area, which, in turn, would stimulate the area’s timber industry, thus increasing Forest Service revenue.51
During the trial, however, Judge Stanley A. Weigel meticulously dismantled the government’s arguments by showing that some of the alleged reasons for the road lacked merit. In fact, the Forest Service itself conceded that construction of the G-O road “would not improve access to timber resources in the Blue Creek Unit”;52 that, in fact, “timber could be harvested without building the Chimney Rock Section.”53 Moreover, it was determined that road completion would not result in increased jobs and that increased recreational access to the area was an insufficient rationale to justify infringing the Indians’ First Amendment rights. Judge Weigel also cited as without merit the government’s argument that prevention of road construction because of the Indians’ free-exercise claim would constitute establishment of a government-managed “religious shrine in violation of the Establishment Clause of the First Amendment.” As the judge noted, “actions compelled by the Free Exercise Clause do not violate the Establishment Clause.”54
The district court upheld the First Amendment rights of the Indians and the federal government’s trust responsibility to protect the Indians’ fishing and water rights, and it found that the Forest Service’s decision violated several environmental laws. Judge Weigel, accordingly, granted the permanent injunction the Indians and other plaintiffs had sought in order to prevent the G-O road’s construction. The issue, however, was far from resolved. The court still provided the Forest Service with an opportunity to construct the road in the Blue Creek roadless area if and when it prepared and circulated a supplemental environmental impact statement that identified specific measures to mitigate the negative impact of the proposed logging activity on water quality and fish habitat. Thus the larger issues of the life of an ancient forest, the national heritage, the spiritual traditions of three tribes, and the environmental concerns of a number of groups were now captives of a process of simple technical readjustments to an environmental impact statement that was to be written by the very agency intent on constructing the road in the first place.
The Forest Service appealed the district court’s ruling to the ninth circuit court of appeals in July 1984. Judge William C. Canby Jr.55 issued the court’s opinion on June 24, 1985. The circuit court affirmed all of the district court’s decree except for the portion of the ruling that had precluded timber harvesting or road construction until the Forest Service had prepared an environmental impact statement regarding the wilderness potential of the Blue Creek unit. This portion was vacated because on September 28, 1984, Congress had enacted the California Wilderness Act,56 which placed in wilderness status a large chunk of the Blue Creek area. Because no logging is allowed on federal lands designated as wilderness, such status had rendered moot the need for an environmental statement.57 However, this act included a provision of frightening dimensions to Indians and environmentalists because it preserved the corridor in which the proposed logging road was to be located until other decisions were made regarding construction. In other words, Congress was saying that there would be a wilderness designation but that there still could be a logging road.
The Forest Service appealed the ninth circuit’s ruling, and the case went to the Supreme Court, where it was decided on April 19, 1988.58 Sandra Day O’Connor, writing for a five-to-three majority (Justice Anthony Kennedy did not participate), dramatically reversed the lower court’s rulings and rejected the application of a balancing test to local management decisions by the federal government. The High Court held that unless there was specific governmental intent to infringe upon a religion or the government’s actions coerced individuals to act contrary to their spiritual beliefs, then the First Amendment provided no protection for Indian peoples to practice traditional religions even against federal action that potentially could destroy Indian sacred sites. The thrust of O’Connor’s opinion was aimed directly at the previous holding in Sherbert v. Verner,59 in which the Court declared that the government could burden a fundamental right like the free exercise of religion only if it was protecting a compelling interest by the least intrusive means possible. As O’Connor noted:
Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. 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 . . . even if we assume that . . . the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims.60 [Emphasis added]
The measuring test, however, was precisely the line that should have been drawn. So that when O’Connor then admitted that the Forest Service’s proposed projects would devastate the Indians’ ability to practice their religion, the issue should have been resolved. Instead, the Court, mimicking the deregulation mood of an increasingly conservative government, asserted that the federal government as landowner had certain rights that could not be infringed upon by either its wards or its citizens.61
Lyng, besides holding that there was no constitutional First Amendment protection for Indian religions, also declared definitively that the statutory mechanism outlined in the AIRFA of 1978 was unavailable to Indians as a substitute measure that could protect their religious liberties. O’Connor found the Indians’ reliance on AIRFA to be without merit, and she stated in emphatic terms that “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.”62
Distilled to its essence, the core of the matter before the court was to weigh the government’s trust responsibility toward the Indians against its right to manage its own affairs. Clearly, an integral part of those affairs was proper execution of the trust responsibility itself. Thus, the question should have been academic. However, the context in which trust responsibility was conceived to be important was at the local level as spelled out in the Theodoratus Report. The report, prepared by a research team headed by Dr. Dorothea Theodoratus, had been commissioned by the U.S. Forest Service. This comprehensive ecological, historical, and archaeological study of the Chimney rock area was intended to gauge the effect the road would have on the lands in question. The study concluded that the construction of the road would cause irreparable damage to the area. The team recommended that the G-O road not be completed.63 When the Forest Service made the decision to proceed with its plans notwithstanding the Indians’ religious concerns and its own acknowledged role in fulfilling its trust obligations to the tribes, then the integrity and independence of federal-agency decision-making powers became the issue, and the Supreme Court felt impelled to protect one of its federal partners.
Once the federal trust responsibility was negated—and this neutralization could only occur by conceiving of Indians as private parties petitioning the government rather than as several tribal nations to whom a trust responsibility was owed—it became necessary to attack the practice of religion itself. Thus, the Court had to destroy the religious issue in order to deny the Indians.
The minority opinion, written by Justice William Brennan with Thurgood Marshall and Harry Blackmun, assailed the majority holding. Brennan began his vigorous dissent by stating that:
‘The Free Exercise Clause,’ the Court explains today, 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. . . . Pledging fidelity to this unremarkable constitutional principle, the Court nevertheless concludes that even where the Government uses federal land in a manner that threatens the very existence of a Native American religion, the Government is simply not ‘doing’ anything to the practitioners of that faith. Instead, the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property. These two astounding conclusions follow naturally from the Court’s determination that federal land-use decisions that render the practice of a given religion impossible do not burden that religion in a manner cognizable under the Free Exercise Clause. . . .64
Recall that O’Connor had developed a coercion test, which meant that unless the government’s actions had actively coerced individuals to act contrary to their religious beliefs then the First Amendment offered no protection against governmental action that adversely affected or even might destroy the sacred sites of Indians. But Brennan countered by arguing that “the Court’s coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious beliefs, and those governmental actions that prevent conduct consistent with religious beliefs.”65
Although Brennan found such a distinction to lack any “constitutional significance,” the distinction was important as precedent. Armed with this new test, governments—federal, state, or municipal—could deliberately oppress minority religions as long as it was not apparent in the legislative record that there was an overt attempt to do so. Lyng thus leads directly to Smith, which placed all religious groups under the auspices of the state.
The Smith Decision
Unlike Lyng, which dealt specifically with the AIRFA and the unenforceability of the federal Indian trust doctrine, the Smith case, though involving two individual Indians (Alfred Smith and Galen Black) and an Indian religion (the Native American Church), deals more broadly with the larger constitutional question of the relationship of religion and the state and powerfully evidences the reality that the First Amendment is practically without value as a constitutional amendment that can protect the religious beliefs of American Indians.
The case arose in the early 1980s in Douglas County in the state of Oregon. It had a most interesting procedural history66 before it culminated in the final 1990 decree written by Associate Justice Antonin Scalia for a majority Court.67 In Employment Division v. Smith,68 Justice Scalia abandoned the compelling-interest doctrine created in Sherbert v. Verner69 and expanded in Wisconsin v. Yoder70 and simultaneously resuscitated the so-called belief-action doctrine laid out in the nineteenth-century case Reynolds v. United States.71 Under the Reynolds doctrine, government lacks constitutional authority to punish people for their religious beliefs, but has authority to regulate religious actions so long as it can show a rational basis for doing so.72
Expressing the view that the denial of unemployment compensation in Sherbert was not based on the plaintiff’s perpetuation of an illegal act, Scalia maintained that the state’s interest in maintaining the integrity of the unemployment insurance fund was of sufficient importance to justify its refusal to pay benefits to Smith and Black, who were deemed guilty of unlawful conduct because of their use of peyote. With apparent ease, Scalia circumvented, or reformulated, the previous precedent generated by the Court, which specifically involved the free-exercise clause. Without expressly overruling the previous case law, which had provided vast protection for First Amendment free exercise rights, Scalia dramatically confined cases like Sherbert and their progeny to their facts or recast the holdings of decisions like Yoder from free-exercise opinions that protected religious freedom into due-process opinions that shielded family rights.73
Notwithstanding the Oregon court’s several opinions, the state’s unenforceability of the law that criminalized peyote, the federal government’s exemption of peyote from drug control laws when used for religious purposes, and Congress’s AIRFA, Scalia gave great weight to the fact that peyote was “prohibited by law.”74 Having abandoned the findings of both Congress and the state courts and focusing solely on the state law that criminalized peyote in the abstract, the argument was then easily made by Scalia that “we have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”75
In other words, the majority held that the only independent protection offered by the free-exercise clause was in its prohibition of laws animated by a desire to disadvantage religion, on the theory that such laws impose an intentional burden, instead of a merely incidental or unanticipated burden, on religious exercise. In Scalia’s words: “There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.”76 Scalia closed his opinion by stating that the disfavoring of minority religions was nothing more than a logical consequence of democratic government, and he encouraged disadvantaged religious individuals and groups to use the political process—that is, to approach Congress and seek legislative religious exemptions. But by having declared that there are no longer any constitutionally compelled religious exemptions under the free-exercise clause, Scalia sent a stunning message to all religious groups—one that was especially unnerving to Indians and practitioners of other minority religions because these individuals and groups typically lack the political clout necessary to effectively lobby Congress or state legislatures for exemptions that would allow their particular religious practices. And for members of the Native American Church who had already secured just such an exemption in many states and from the federal government, the blow was even harder to fathom. This decision vividly showed that as the last decade of the twentieth century began, American Indians—even those living off the reservation and practicing a federally incorporated religion—were still without fundamental religious liberties.
Even more strange, however, was Scalia’s identification of the kinds of religion that the Constitution would protect. In a casual and potentially controversial sentence, Scalia announced that the Court would be bound to respect “making graven images” or “worshipping a golden calf.” The thrust of his decision, then, was to protect ancient religions long ago abandoned and unknown to the vast majority of Americans. Living religions, in his view, could not be practiced absent permission from the state.
Because the AIRFA was intended to clarify the status of Indian religious rights, it must be supposed that Congress did not believe that the wording of the First Amendment was sufficient to protect Indian religions. The two cases just discussed bear this out in dramatic fashion. The ensuing controversies and the refusal of both federal agencies and courts to give real protection to Indian religions demonstrate adequately the constitutional no-man’s-land in which Indians live.77 In spite of congressional directions such as AIRFA, there is presently only partial protection for the practice of traditional Indian religions.78 They are seen as simply another kind of activity, lacking the sacred attributes the Christian and Jewish religions possess.
Even the most sacred Indian religious shrines must be used in conjunction with skiers, hikers, campers, and hunters and, on occasion, can be nearly destroyed by the exploitation of natural resources by federal agencies. For example, on June 8, 1996, less than a month after President Clinton issued an executive order to allow Indians greater access to sacred sites, a federal district judge in Bear Lodge Multiple Use Association v. Babbitt79 ruled that the National Park Service had violated the First Amendment rights of a nonprofit corporation in its development of a comprehensive management plan that was sensitive to the spiritual needs of Indians who consider the ironically named Devil’s Tower in Wyoming a sacred site. The Park Service’s plan had simply asked that recreational rock climbers voluntarily refrain from climbing Devil’s Tower during the culturally significant month of June, when various Indians use the area for religious ceremonies.
According to Judge William Downes, the voluntary closure of Devil’s Tower to commercial and recreational climbing violated the First Amendment’s establishment clause because this action advocated Indian religious practices. This decision draws attention to the significant difficulties Indians have in attempting to exercise their religious rights. Why, for instance, is recreational rock climbing considered a constitutionally protected First Amendment right, while having access to sacred land in the peace and quiet required to practice living spiritual traditions, such as vision quests, sweat lodges, and individual meditation, is not?
The Bear Lodge case went to a full hearing in April 1997, and, fortunately, the Indians’ attorneys had done their homework. When they cited a wide variety of practices by federal agencies wherein the government had given exclusive use to a number of denominations of the Christian religion when they wished to hold religious services at different sites on federal lands, the evidence so overwhelmingly showed a decided preference for Christian activities that the federal judge finally had to uphold the Park Service’s voluntary ban at Devil’s Tower. Easter services, prayer vigils, baptisms, marriages, and just about every activity imaginable were occurring with the full support and blessing of federal officials. As it was, the judge took almost a year to finally, reluctantly, write his opinion, knowing that it would be controversial for the simple reason that he was upholding the Indians’ right to practice their traditional religion at a sacred location.
Thus American Indians, because they are Indians and even though they are American citizens, are largely deprived of the freedom of religion guaranteed by the First Amendment insofar as the practice of their traditional religions is concerned, with the exception of the statutory protection recently afforded members of the Native American Church. There is no good, present way to bring Indians within the confines of First Amendment protections. Efforts to clarify the situation only seem to produce additional conflicts between Indians and federal agencies. Conflicts with state agencies and private organizations are only now being explored,80 and there will certainly be additional conflicts with these entities as well.
The conflicts basically center on the nature of religion. Traditionally in the United States religion is seen as the creedal affirmation of a set of religious beliefs about the world. Religion is, therefore, for the purposes of American domestic law, a thing of the mind and not of the complete person; it is an abstract belief, not a way of life that requires moral actions. This proposition in all its ramifications was set down in a series of cases involving the Mormons and polygamy, an integral part of the original Mormon belief and practices. In the 1878 case Reynolds v. United States,81 the Supreme Court asked: “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”82 The Reynolds precedent was restated and reinvigorated in the 1990 Smith decision. And in Davis v. Beason,83 the Court further elaborated on this idea:
The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the view of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.84 [Emphasis added]
Clearly the situation described by the Court, in which Mormon polygamy was defined as “conduct” outside the purview of First Amendment protection rather than as a constitutionally protected religious belief, is comparable to the conditions under which American Indians have suffered when they have been informed that their beliefs in the sanctity of the land are defensible but that religious practices required to exercise those beliefs will not be protected. And when Indians have sought redress under the AIRFA, as they did in Lyng and Bear Lodge, the opposing argument has been that to uphold the Indian claims would be to establish a religion, since recognition is thought to be equivalent to preference. This situation can only be resolved if and when American society gains a more sophisticated understanding of both religion and American Indians.
The First Amendment: Freedoms of Speech and Assembly
The First Amendment also guarantees the freedom of speech and peaceful assembly. We have already discussed how the government prohibited the performance of Indian religious ceremonials. So there is no question that Indians have not received the protection of the First Amendment insofar as the right of peaceful assembly is concerned. During the early reservation days and until the shift in federal policy in the New Deal, almost any meeting of Indians that did not have the sanction of an agent or a missionary station was suspect, and through the courts of Indian offences,85 established during the 1880s on most of the western reservations, an agent was able to suppress assemblies of Indians according to his own dictates. Today tribal governments have replaced agents as the authority on reservations, and freedom of assembly is a subject for tribal government concerns under the Indian Civil Rights Act.86 Important for our discussion here is the fact that Indians were not believed to possess the freedom of assembly until the middle of this century.
Freedom of speech on the reservations has a similar history to that of the freedom of assembly, with some notable statutory exceptions. During the first several decades of the republic, when it was surrounded on three sides by the colonies of European powers, Congress passed a number of statutes that dealt with free speech. In order to forestall European agents from stirring up enmity among the tribes toward the United States, Congress prohibited the sending or carrying of seditious messages to Indians and correspondence with foreign nations intended to incite Indians to war.87 At the time, this provision was not unreasonable; British and Spanish agents were frequent visitors among the frontier tribes.
The Trade and Intercourse Act of 183488 greatly expanded the powers of the United States to take actions in Indian country regarding disruptive persons and activities there. Section 6 required foreigners to obtain passports in order to enter Indian country. Section 10 empowered the superintendent of Indian affairs to remove persons illegally in Indian country. Sections 21 and 23 gave the president great leeway in employing military force in arresting Indians. In 1858 Congress expanded these powers by authorizing the commissioner of Indian affairs to remove any person from a reservation whose presence in his judgment seemed detrimental to the peace and welfare of the Indians.89
A critical review of the conditions existing in Indian country in 1834 shows no impending conflict with European powers that would require such measures to be authorized. Additionally, the sweeping authority of the 1858 act seems to have been designed to meet no other problem than the simple control of the Indians on the reservations. All these statutes were carried forward in the revised statutes of 1872, were made part of the United States code, and were not repealed until the Act of May 21, 1934,90 as part of the New Deal reforms. In the interim period agents could arrest any Indian for almost any cause imaginable without fear of having the arrest reversed by a state or federal court. Many agents used these laws to suppress dissent on the reservations; Felix Cohen’s Handbook of Federal Indian Law freely admitted that these laws were used to suppress free speech on the reservations.91
Cohen cited a description of the status of Indians as detailed in a claims case involving the Cheyenne of Montana. This statement is worth repeating because it helps explain why the protections of the Constitution, particularly the Bill of Rights, had no relevance in the Indian situation until very recently.
These Indians, indeed, in 1878 occupied an anomalous position, unknown to the common or civil law or to any system of municipal law. They were neither citizens nor aliens; they were neither free persons nor slaves; they were wards of the nation, and yet, on a reservation under a military guard, were little else than prisoners of war while war did not exist. Dull Knife and his daughters could be invited guests at the table of officers and gentlemen, behaving with dignity and propriety, and yet could be confined for life on a reservation, which was to them little better than a dungeon, on the mere order of an executive officer.92
As recently as 1950, when the Oglala Sioux Nation criticized the Bureau of Indian Affairs’ extension-service program in South Dakota by asking Congress to stop what it considered wasteful expenditures to the bureau, the tribal government was told that $140,000 of credit funds that had previously been allocated would be withheld until the tribe withdrew its criticisms.93
And in 1965, after the tribal chairman of the Pyramid Lake Paiute criticized the bureau, the superintendent of the Nevada Indian Agency told the chairman to recant or resign. The chair resigned. The tribe lobbied Washington and eventually succeeded in having the superintendent removed from his position. But rather than fading quietly away, the superintendent was officially cited “for outstanding performance with the 26 tribal groups throughout Nevada” and was promoted to a new post that gave him administrative control over most of the tribes in the neighboring states of Washington, Oregon, and Idaho.94
It is not difficult to understand that when Congress refused to recognize the national status of the tribes, they had no status at all within the constitutional framework. Since there was no appeal to an international forum, Indians were simply people without status, a country, or rights of any kind. In this situation it was not difficult to suppress any kind of activity that the government disliked. It is noteworthy that these practices could continue for exactly a century without anyone inquiring into the situation or asking whether or not some constitutional protection was being violated.
The Fourth Amendment: Search and Seizure
It goes without saying, in light of the discussion above, that the protections offered against unreasonable searches and seizures by the Fourth Amendment had no application to Indians on a reservation until federal policy was changed in 1934.95 Since a good many of the seizures of Indian property involved religious objects such as medicine bundles, the activities that violated the Fourth Amendment were generally those that also violated the protections of the First Amendment. In addition, when the Indians went to the reservations they were deprived of their pony herds, weapons, household goods, and other possessions. A few tribes eventually received some compensation for some of these losses through court-of-claims decisions, but on the whole a substantial amount of property was simply seized and confiscated.
A strange practice that may be regarded as a corollary of the seizure question concerns the disposal of personal clothing worn by Indian children on the trip east to attend government boarding schools such as Hampton and Carlisle. When these students arrived they were deprived of their traditional clothing and made to wear army uniforms and specially designed dresses that emphasized the new life they were being trained to live. In many instances the clothing that was the best and most resplendent their parents could afford was simply regarded as the property of the school. Some of this clothing is now displayed in museum exhibits in the eastern United States, even though the original owners and their heirs can easily be traced. Confiscation is surely an integral part of seizure, but again, this confiscation does not seem to be prohibited by any constitutional provision.
Once again, the 1950s, known as the termination era, provide a vivid example of the fragility of Indian personal liberties. Commissioner of Indian Affairs Dillon Meyer spearheaded a federal campaign to restrict Indian civil liberties while strangely preparing them for termination and ultimate absorption into the American mainstream. On January 15, 1952, as part of that campaign, Representative Emanuel Celler introduced a bill, H.R. 6035, that would have authorized law enforcement officers of the Bureau of Indian Affairs to carry arms, make arrests, and engage in searches and seizures of Indians for alleged violations of bureau regulations regardless of whether the alleged offenses had occurred on or off an Indian reservation.96
Specifically, the bill, which had the full support of the BIA, would have authorized those bureau employees to make arrests of Indians “without warrant for any violation of such laws or regulations that have been committed in their presence or for any felony cognizable under such law if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony. . . .”97 That the administration could sponsor such legislation is prima facie evidence that insofar as Fourth Amendment search-and-seizure rights are concerned, Indians had a tenuous claim to constitutional protections. Fortunately, after several hearings the judiciary committee terminated this measure.
In the 1960s, the Navajo Nation had a similar experience with federal officials. Norman M. Littell, then general counsel for the Navajo Tribe, and J. Maurice McCabe, executive secretary of the tribe’s Department of Administration, recalled in testimony to Congress in 1965 that Secretary of the Interior Stewart Udall, in an effort to terminate Littell’s contract with the tribe as general counsel, “launched a search and seizure of tribal files in three different offices . . . hoping to find evidence to sustain charges already made.”98 Littell recalled how Secretary Udall had created a special task force, headed by Stanley Zimmerman, that was charged with conducting the operation. In Littell’s sworn testimony, he vividly described how “with the truck at the door of the tribal administration building, the task force, including the [BIA] area director and superintendent, entered the office of the executive secretary of the Navajo Tribe . . . and bodily carried out of his office a locked desk, locked file cabinet, and locked safe. Incidentally, my personal income-tax returns, titles also to my vehicles, my home, my mortgage papers, my bank statements, my financial affairs, were all included in the locked file cabinet.”99 Littell, it should be noted, was not an Indian but merely the attorney for the Navajo Nation, but the perceived lack of constitutional rights was applied to him because of his contract with the tribe.
The Fifth Amendment: Double Jeopardy
Until very recently it was presumed that all serious criminal activity on the reservations was the exclusive responsibility of the federal government. With the recognition of tribal governments as viable functioning governments, a new situation came into being. The federal government, state governments, and tribal governments could all promulgate a criminal code and describe the crimes that fell within its province. Each code, in theory, has integrity unto itself and is to be enforced in the appropriate courts. However, a situation can occur when one act falls within the purview of the respective jurisdictions, which have all defined the act in different ways, thus creating three separate crimes. While this situation is not precisely the same as double jeopardy, which involves prosecution by the same political entity for the same crime more than once when a decision has been made respecting the crime, it has sufficient potential for misuse that it should be discussed in this context.
Such a case arose on the Navajo reservation in 1974 when a Navajo, Anthony Robert Wheeler, was arrested at a reservation high school at Many Farms, Arizona, and charged with disorderly conduct. He pled guilty to two charges, disorderly conduct and contributing to the delinquency of a minor, and was sentenced to 15 days in jail and a fine of $30, or 60 days in jail or a fine of $120. A year later an indictment charging statutory rape was returned against him by a grand jury in the Federal District Court of Arizona. The district court dismissed the proceedings, and the court of appeals for the ninth circuit affirmed the judgment of dismissal on the grounds that since “Indian tribal courts and United States district courts are not arms of separate sovereigns,”100 the double-jeopardy clause barred the federal trial.
In deciding the case the Supreme Court raised an important question regarding the source of the power of the tribe to punish offenders of its criminal laws: “Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the federal government which has been delegated to the tribes by Congress?”101 The Court concluded that the Navajo Tribe possessed inherent powers of sovereignty: “That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere.”102 In the absence of any delegation of power, then, there was no double jeopardy because Wheeler was prosecuted by two different sovereigns.
In point of fact, tribal courts and tribal governments are so heavily supervised and subsidized by the federal government that they can be described as the same sovereign in a practical though not a political sense. In fact, this conclusion was drawn by another federal district court in 1965 in Colliflower v. Garland,103 a case involving the status of a tribal court. Madeline Colliflower, a tribal member, refused to obey a tribal court order to remove her cattle from land she formerly leased but that was then being leased by the tribe to another tribal member. She was given a choice between a fine and five days in jail and chose the jail sentence because she had no money. She then sued out on a writ of habeas corpus to the federal district court in Montana.
The court of appeals for the ninth circuit, in reviewing the case, had to resolve the same question as the Supreme Court in Wheeler: the status of the tribal court system and whether or not it was a functional part of a separate sovereign. Here the court recognized the practical facts of reservation life that the Wheeler decision conveniently neglected to mention:
While there is apparently still no Act of Congress providing for the establishment of tribal courts, the Congress, as well as the executive, has assumed considerable responsibility for these courts. Thus, the Bureau of Indian Affairs is now authorized to direct, supervise, and expend such moneys as Congress may from time to time appropriate for the benefit, care and assistance of the Indians for various purposes, including the employment of Indian police and judges (25 U.S.C. § 13). 25 U.S.C. § 200 requires that whenever an Indian is incarcerated, a report or record of the offense is to be immediately submitted to the superintendent of the reservation and made a part of the records of the agency office.104
Consequently, the appeals court concluded,
in spite of the theory that for some purposes an Indian tribe is an independent sovereignty, we think that, in the light of their history, it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by the federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them.105 [Emphasis added]
The importance of this kind of manipulation of the character of tribal courts for the protections of the Fifth Amendment are obvious. If the federal government has the kind of control that is described in the Colliflower case, and if the separate-sovereign idea of Wheeler is really fictional, then criminal codes can be manipulated at will to avoid the double-jeopardy prohibition when it comes to American Indians. The promise of the prohibition against double jeopardy for the criminal defendant is that it provides a sense of security and predictability that the judicial system will not be used for vendettas and persecution by zealous governments. By manipulating the status of tribal courts to fit its own purposes, the federal government is able to create a climate of uncertainty since no defendant in either tribal or federal court can ascertain when and under what circumstances a tribal court will be characterized as a separate entity and when it will appear as an arm of the federal government. If this situation does not violate the letter of the double-jeopardy prohibition, it certainly violates the spirit of it.
The Fifth Amendment: Due Process
The due-process clause of the Fifth Amendment reads in pertinent part that “no person shall . . . be deprived of life, liberty, or property without due process of law. . . .” This amendment on its face imposes restraints only on the federal government. And as several federal court rulings have held,106 it is well established that Indian tribes are not subject to the Fifth Amendment when they are engaged in exercising local powers of self-government. But what of the federal government’s actions toward tribes?
The best argument for securing for the Indian tribes a measure of protection under the due-process clause has never been made clearly: What steps must Congress take in its consideration of Indian legislation to demonstrate beyond a shadow of a doubt that it has given the most serious consideration to the rights of the Indians? Since Lone Wolf v. Hitchcock,107 which we discussed earlier, the Kiowa, Comanche, and Apache tribes have claimed that their property rights vested with the ratification of the 1867 treaty, which required approval of three-quarters of the adult males in order to cede tribal lands. The Supreme Court sidestepped this issue by hypothesizing a possible future situation in which it might be imperative that Congress override the treaty for the best interests of the country and, more importantly, for the best interest of the Indians.
The three-quarters provision was not an issue about which the Indians felt strongly, and they did not insist upon its inclusion in the treaty. The initiative came wholly from the United States as a means of convincing the tribes that the country would ensure that the informed consent of the Indians first be obtained before it sought more land cessions. Thus the provision did not so much bind future congresses as it described the conditions under which future provisions for land cessions would be recognized as valid and binding upon the Indians. That the government went to extensive lengths during negotiations with the Jerome Commission to satisfy the treaty requirements seems sufficient evidence of the self-executing nature of the provision; it should have been considered valid federal law. Due process, therefore, would be the requirement that future representatives of the executive branch and future congresses abide by this process in regard to securing Indian consent.
In rejecting the Indian argument and weakly characterizing the actions of Congress as a mere change in the form of Indian property investment, the Supreme Court in Lone Wolf stripped away any pretense of Fifth Amendment protection for the tribes. The treaty, duly ratified by the Senate as part of its responsibility under the Constitution, thereupon became empty promises; not only empty, but deliberately deceptive and fictional. The same characterization can also be made about all Indian legislation, for no congress can bind a future congress and, retroactively, no existing congress need pay attention to the deliberations of any previous congress.
Fifth Amendment due process would require the Congress to announce, after the proper hearings, deliberations, and debates, the basis on which it had reached its conclusions. We have already seen, in the passage in 1871 of the prohibition against further treaty making, that the decision to prohibit treaties with Indian tribes was not the product of intelligent, mature, and considered debate, which might have been expected of a nation that had stepped into the shoes of Great Britain and accepted a role of protector for the original inhabitants of the continent. Rather, the treaty-making prohibition was the result of a committee-conference compromise and was accepted by representatives of each house as a means of securing a bill both found palatable.
At the present time there is a tendency within the federal courts to pretend that Congress has given serious consideration to the rights of Indians when considering legislation, with the corresponding result that conflicting provisions of legislation are said to be intentional acts of Congress to override existing treaty provisions and rights.108 The most disastrous interpretation of this kind is the so-called McCarran Amendment in the field of Indian water rights. In 1952, as part of the Department of Justice’s Appropriation Act, and as a means of simplifying water-rights adjudication, Congress waived on a limited basis the sovereign immunity of the United States for state court litigation involving water.109
This statute did not affect Indian water rights until 1971, when in two cases, United States v. District Court for the County of Eagle110 and United States v. District Court for Water Division No. 5,111 the Supreme Court announced that the McCarran Amendment applied to all water rights the United States then had or might in the future acquire. Because the United States holds Indian water rights in its own name under the Winters Doctrine112 and Indian rights are an equitable-use, not a legal, title, then it followed, according to most commentators, that Indian rights were subject to state-court adjudication. Certainly Congress had no intention of placing a trust corpus in such a hazardous situation, for it would then become liable for damages if the trust were violated. But there is no mention of Indian rights in the McCarran Amendment. One can thus argue from the absence of Indians either that if Congress had intended Indians to be included, it would have so noted, or if Congress had wanted Indians excluded, it would have so noted.
Interestingly, McCarran’s own actions in the Senate seem to suggest that his amendment was not intended to cover Indian rights. As termination began in 1953, McCarran made an abortive effort simply to strike out that part of the commerce clause that mentions Indians, as if by doing so all the problems with tribes could be resolved. He proposed a joint resolution, S.J. Res. 4, which proposed a constitutional amendment designed to bestow upon the Indian tribes “the same rights . . . which are enjoyed by all citizens of the United States.” The proposed article read thus: “The Congress shall have the power to regulate commerce with foreign nations and among the several states.”113 It was the singular good fortune of Indians that Congress at the time knew so little about either Indians or constitutional law that the resolution died in the judiciary committee.
In view of how the McCarran Amendment interpretation developed, finally involving Indian water rights almost two full decades after its passage, what is due process under the Fifth Amendment in this instance? It cannot be that the fact of litigation of federal water rights in the Colorado court and the appeal to the U.S. Supreme Court has given the Indians due-process protection because Indians are not even mentioned in the decisions. Indian rights are a unique branch of rights, in certain ways inherent and in other ways intimately connected to federal rights via treaties, the trust doctrine, and specific or general legislation, and are supposed to be regarded as “sacred as fee simple,” to quote a much used and abused phrase.114 There is no requirement here that evidence of congressional deliberation specifically with respect to Indians be considered. Indians are simply victims, outside the Constitution and its amendments, with no possible way of finding shelter under its provisions.
All federal Indian legislation should be subjected to a minimal test that would guarantee some kind of due process before it could become applicable to Indian tribes. In order for either the federal courts or the executive branch to determine if a statute applies to Indians, there should be a requirement to show evidence that the Congress has deliberately and purposefully considered its treaty and trust responsibilities to Indians and clearly established the conditions under which the law would apply to them. Absent some kind of specific procedure easily and clearly identified, Indians will remain outside the protection of the Constitution.
The Fifth Amendment: Just Compensation
There is no question that no Indian tribe ever received anything approaching just compensation for its lands from the United States. Even the most carefully negotiated treaty only returned to the tribes pennies on the dollar, and some treaties had terms so outrageous as to shock the conscience of even the hardest cynic. Consequently, when the Indian Claims Commission was established in 1946,115 it was a foregone conclusion that Indian tribes would not receive payment for the real value of their lands. However, the fact that claims would be heard and efforts would be made to settle long-standing grievances that could not be dealt with in any other forum made the commission a positive step forward in federal-Indian relations.116
In the course of settling Indian claims, a strange doctrine of law involving the Fifth Amendment and the concept of just compensation evolved. It is in every respect a jerry-rigged apparatus that has no logical consistency and no application outside the field of Indian claims. But since it appears to be an effort to apply the Fifth Amendment protections to Indians, it must be included in our discussion.
Under the doctrine of discovery, there was no opportunity for a European sovereign to acquire the complete title to lands of the aboriginal inhabitants without securing their consent or waging just and lawful wars against them. The Spanish solved this dilemma by converting the Indians and gathering them into small villages, thereupon declaring the lands they once occupied as vacant and abandoned and therefore belonging to the king. The English and Americans did not, as a rule, use this subterfuge to gain title to Indian lands, and as a consequence nearly all the lands in the United States have been purchased, for however slight a sum, from the Indian tribes by the government. But with the authorization of the Indian Claims Commission came a number of exceptions to this general rule, and these exceptions were created by a manipulation of the just-compensation clause of the Fifth Amendment.
The Fifth Amendment requires that any exercise of sovereign powers—primarily eminent domain, in which property is taken for public use—must be compensated for by payment of the fair market value of the property as determined by a court. First there is the question, rarely raised in the discussion of Indian lands, of the nature of the purpose for which the lands are taken. The Fifth Amendment speaks of taking land for a public purpose, and in this context it clearly refers to those occasions when the sovereign takes private land for a road, bridge, wharf, or some other specific purpose in order to fulfill the sovereign’s duty to the people. Thus the purpose is not a general purpose, nor is it to accomplish a general policy—nor, incidentally, is it directed at a specific group of people.
When the United States and its courts have characterized the taking of Indian lands as having a public purpose, they have engaged in some shadowy rhetoric. The precise justification for taking Indian lands is public policy, not public purpose. Therefore, to require Fifth Amendment due process before tribes’ claims could be justly determined and compensation paid and to pretend the confiscation of Indian lands was an exercise in eminent domain are illogical, ahistorical, and unconstitutional actions. When Indian lands were taken by the government, they were taken with the avowed purpose of transferring them to railroads, states, settlers, corporations, and so forth. While this action may conform to a general policy of settling the country, it cannot conceivably compare to the taking of a tract of land for a road, bridge, or government installation that must necessarily serve the entire public without discrimination or favoritism among groups within the citizenry. So the basic idea of applying the Fifth Amendment to the process of taking Indian lands is in itself perplexing.
Nevertheless, while attempting to settle Indian claims, the federal courts devised a means of applying the Fifth Amendment. In 1955 in Tee-Hit-Ton Indians v. United States,117 the Supreme Court held that the taking of the Tee-Hit-Ton lands was not compensable under the Fifth Amendment because it was not “property” in the sense that recognized, titled land was property. In other words, in order to be compensated under the Fifth Amendment, a tribe had to have some prior acknowledgement by the United States in a treaty, a statute, or an executive order that the tribe owned its lands. This doctrine was certainly helpful in turning aside the claims of the Tee-Hit-Ton, but it left much to be desired when placed in the Lone Wolf context because the Kiowa, Comanche, and Apache certainly had a treaty-recognized title and therefore had a compensable Fifth Amendment claim against the United States. And this reasoning in turn posed the question of whether the Fifth Amendment did in fact limit the plenary power of Congress. It would have been a simple matter to have returned to the Fifth Amendment argument of the three tribes and reverse Lone Wolf as to congressional powers over Indians. So the Supreme Court was nearly hoisted on its own rhetorical petard.
In 1968 the court of claims came to the rescue of the Supreme Court in Fort Berthold Reservation v. United States,118 when it tried to reconcile Lone Wolf and Tee-Hit-Ton. The court devised a method of determining the actual role of the government in dealing with Indians and in suggesting a test to determine in what capacity the government was acting in any particular situation. “It is obvious,” the court declared, “that Congress cannot simultaneously act as a trustee for the benefit of the Indians, exercising its plenary powers over the Indian and their property, as it thinks is in their best interests, and exercise its sovereign power of eminent domain, taking the Indians’ property within the meaning of the Fifth Amendment to the Constitution. In any given situation in which Congress has acted with regard to Indian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time.”119 The ultimate test, according to the Court, is that the Congress must act in good faith when taking Indian property. So there must be a reasonable effort to transmute Indian property from land to money.120 If there is no reasonable effort, then the courts can decide that Congress simply took the land for its own purposes and the Fifth Amendment applies to the confiscation.
Though it appeared that the Fort Berthold case established some reasonable tests that courts could use to determine the application of the Fifth Amendment, in fact the Court only placed the federal judiciary into deeper water; in order to determine good faith, the courts would have to examine congressional motives. Citing the political-question doctrine, which holds that it is not the province of the courts to address questions deemed essentially political in nature or to make inquiries into the motives of political actors since those are best left to the executive and legislative branches, the federal judiciary has nearly always defined this task as one beyond its constitutional powers. As luck would have it, the good-faith test was invoked in United States v. Sioux Nation,121 and, of course, not a shred of evidence exists that the United States ever had anything approaching good faith in its dealings with this tribe. The import of the Sioux Nation case was the requirement that an Indian tribe must overcome the presumption of good faith in order to receive Fifth Amendment compensation. The situation is still unsettled with respect to the proper interpretation of this test, and because Indian claims cases are almost a matter of historical record now, it may be that no resolution of the Fifth Amendment application will ever occur.
The Sixth Amendment: Legal Counsel
Until the passage of the Seven Major Crimes Act in 1885,122 jurisdiction over crimes was clearly divided between two separate sovereigns. By treaty, some Indian nations had preserved to themselves criminal prosecutions for crimes committed between tribal members on the reservations or within their occupancy areas. It was this right that was upheld in the Crow Dog decision. All crimes committed outside the boundaries of Indian country were presumed to be within the purview of the federal government. Any Indian charged in federal court was likely to be subject to the standard criminal procedures used against wrongdoers—with the added handicap of racial prejudice, exclusion from juries, and a basic ignorance of the degrees of crime for which they could be punished.
In 1862 the Santee Sioux attacked settlers in Minnesota and, after a brief struggle, were defeated when the frontier army was brought full-force against them. Numerous Indians surrendered or were captured, and a military court-martial was established to try them for acts committed during the war. Except for the brief Modoc War in northern California, in no other Indian-white conflict did the government regard the acts committed during hostilities as crimes for which the losers could be punished.
The court-martial could hardly be said to represent either the Sixth Amendment provisions or even regular military judicial process. General Sibley, who was determined to drive the Sioux out of Minnesota or exterminate them altogether, chose five officers to form a military court—men who weeks before had fought against the Indians. No defense counsel was allowed for the unfortunate men. The military officers used the testimony of a mulatto who had at first been implicated in the attack against the settlers, but who then turned military witness against the Santee. The Santee were simply paraded in front of the court, which allowed hearsay, rumor, innuendo, and falsehoods to be recorded as evidence of Santee wrongdoing. Some 319 men were convicted of a wide variety of crimes, 16 receiving long prison terms and the remainder being condemned to death. General Pope, who had recently been discredited in Virginia as leader of the Union forces and now was placed in command of troops on the western frontier, forwarded the trial papers to President Abraham Lincoln expecting that he would quickly approve the executions. He also passed along the warning that if things were not concluded with some haste, the territorial officials and militia leaders would probably proceed with the executions anyway.
President Lincoln assigned two lawyers to examine the files of the convicted Indians, charging his examiners with approving only those cases wherein there was abundant evidence of guilt—as opposed to the general rumors that constituted the majority of the documents. Lincoln pardoned all but thirty-nine of the Santees, causing a considerable stir in Minnesota, where people wanted them all killed. As the warriors were being led to the gallows, one Indian was spared at the last moment, leaving thirty-eight men to die. Later it was discovered that two of the men executed were not on Lincoln’s final list, one of them having saved the life of a white woman during the conflict.
At no time during this unhappy process was there even the slightest indication that the Sixth Amendment guarantees had any application to the Santees, and no form of legal defense, let alone legal counsel, was offered to them. Indians were regarded as citizens of their own nations, and therefore it was natural that they would be excluded from constitutional protections. But because they were regarded as foreign citizens, the court-martial itself was illegal and unconstitutional since no forum could legally exist that would permit trial and execution of the fighting men of an enemy for acts committed during hostilities.
After the passage of the Seven Major Crimes Act, the prosecution of Indians followed the general trend of justice in the territories, with test cases generally ensuring that the Indian had significant legal representation so that the verdict would be respected. The Appropriations Act of 1893123 created a confusing situation that has never been satisfactorily resolved. It authorized the secretary of the interior to pay the legal expenses incurred by Indians in contests initiated by or against them. The concluding sentence of the paragraph stated: “In all states and Territories where there are reservations or allotted Indians the United States District Attorney shall represent them in all suits at law and in equity.”124
It seems that this broad provision would require federal attorneys to represent Indians in all matters legal, which would impose a crushing burden on the federal government. However, no legal opinions or court decisions have attempted to define (or even narrow) the words to suggest a reasonable interpretation of the sentence, which must have meant something in the minds of Congress. Federal attorneys have represented Indian tribes in many areas of litigation as part of their treaty or trust obligations, but there has been virtually no effort to link the Justice Department’s activities with Sixth Amendment guarantees.
In summary, the Bill of Rights has not been applied to tribal nations in their relationship to the federal government and has only partial application to Indians as individual citizens. Not only have the federal courts studiously avoided pursuing the matter, but Congress and the executive branch have consistently acted as if there were no limitation at all to their power to deal with Indians and Indian matters. It remains, then, to examine the later amendments to determine their applicability to American Indians.