FRIEND, FOE, FRENEMY:
THE UNITED STATES AND AMERICAN INDIAN RELIGIOUS FREEDOM
Allison M. Dussias,
New England Law|Boston
In 1990, the Supreme Court decided Employment Division v. Smith, in which the Court concluded that a claim that a neutral and generally applicable criminal law burdens religious conduct need not be evaluated under the compelling governmental interest test set out by the Court in Sherbert v. Verner (1963). The Court relied on two recently decided cases, Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Association (1988). All three of these cases rejected Free Exercise claims brought by American Indians. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act to restore the compelling governmental interest test to all claims that the government has substantially burdened religious exercise. This Article analyzes and critiques the post-Smith responses to Indian religious freedom claims made by two groups: federal government officials making public lands management-related decisions and federal courts addressing claims related to Indian religious freedom. The primary focus is on claims involving sacred sites located on federal lands. These claims are in many ways unique to Indian religions, which, in contrast with mainstream religions, commonly share the belief that particular sites are imbued with sacredness and are consequently the only location at which certain ceremonies can be conducted. The presence of sacred sites on lands that were taken from tribes in the past to satisfy non-Indian resource demands and are today held as public lands can lead to conflicts between Indian religious exercise rights and non-Indian desires to use the lands for commercial or recreational purposes.
Available at: http://works.bepress.com/allison_dussias/3/