> Since the language in AIRFA has proven to be inadequate in providing
> the necessary framework for the courts to use in interpreting the
> validity of Native American First Amendment rights violation claims, in
> relation to sacred sites located on federal land, do we believe NAFERA to
> be any better? Title 5 appears to allow the same "loopholes" in judging
> the amount of burden to the religion versus supposed overriding compelling
> state interest. How will the courts' interpretation change if the REAL
> problems of religio-centricity and lack of true equal constitutional
> protection for Indian people are not addressed? If NAFERA does not help,
> what then? Do I hear gunfire in the forests?
>
> Hi ye,
>
> Wakinyan
While no one can tell for sure whether NAFERA will work in the fashion in which
it is intended anymore than they can predict the future about any other issues,
there are several differences between AIRFA and NAFERA that suggest that NAFERA
will be far more effective:
1. AIRFA did not expressly permit Indian tribes or members whose religious
freedom had been burdened by governmental action to sue directly, while NAFERA
does contain a private cause of action.
2. AIRFA did not impose any legally enforceable special obligations on federal
or state officials to protect Indian religious freedom, while NAFERA does!
3. AIRFA was construed to create no special statutory rights that were
otherwise not protected by the first amendment freedom of religion clauses
(which have been construed very narrowly in areas of Indian religious freedom
such as the Smith peyote decision), while the whole point of NAFERA is to
create and protect religious freedom by special statutory burdens.
4. The special proof requirements of which you speak are precisely the kind
of special proof burdens the constitution generally requires in other areas of
decision making such as racial classifications and certain other burdens on
religious freedom. They are therefore not restrictive, but rather expansive
in bringing Indian religious freedom issues to the level of other carefully
protected interests.
5. In certain areas, such as situations where religious elders are forbidden
by tribal tradition from testifying about the nature of the religious belief as
part of the proof in court, NAFERA affords a protection afforded to no other
group -- the obligation of the court to take the religious leaders' conclusion
on faith (so to speak) without any requirement of explanation.
6. The one point everyone should note is that neither AIRFA nor NAFERA (nor the
constitution) apply to interferences with Indian religious freedom by private
individuals unsupported by any governmental action, although NAFERA does apply
to private interferences where supported by governmental actions, such as
program assistance or permit,
In early September, I testified with others, including Chief Oren Lyons, Vine
Deloria, and Susan Williams, before the Senate Committee on Indian Affairs in
support of the constitutionality of NAFERA against claims that any special
protection constituted an establishment of religion. NAFERA was drafted by a
broad coalition led by Indian leaders including the above and Navajo President
Peterson Zah and is widely supported by tribes and their members.
Oddly, the most significant and unfortunate criticism I have heard of the bill
lately has come from some tribal leaders who do not want to extend its
protections to all Indians, and want to limit to members of federally recognized
tribes. That effort strikes me as misguided as it would eliminate Indians who
are members of terminated and nonrestored tribes, Indians who are members of
state recognized tribes like the Pamunkey in Virginia or the Montauk on Long
Island, Indians who were reservation raised but ineligible for membership
because of the restrictive membership rules of their tribe, and Native
Hawaiians. I think some of the proponents of this restrictive view are afraid
of religious protection for ersatz New Age "Indians." The way NAFERA is
presently drafted, however, it would not apply to anyone who is not of Indian
ancestry associated somehow with a tribe. Thus, I think that the articulated
fear is misguided, perhaps based on a misreading of the draft bill.
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Robert N. Clinton INTERNET: rclinton@lawnet-po.law.uiowa.edu
Wiley B. Rutledge Professor of Law
University of Iowa College of Law
Boyd Law Building
Iowa City, IA 52242
SYSOP of the IOWA INDIAN DEFENSE NETWORK
(319) 335-9032 (voice) A Computer Bulletin Board for Indian Rights
(319) 335-9019 (FAX) (319) 335-9838 (data -- 2400,N,8,1)
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