>Original Sender: rclinton@lawnet-po.law.uiowa.edu (Robert N. Clinton)
>Mailing List: NATIVE-L (native-l@gnosys.svle.ma.us)
>> 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,
>
>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:
---Thank you for responding Mr. Clinton. I would say that all we have to
do is look at the trend in the decisions of the 1980s decisions that cite
AIRFA to get a pretty good idea of what's really going on. The courts are
obviously biased. The court's interpretation of the First Amendment has
not served well "religions"/beliefs that are not Judeo-Christian based and
the courts are influenced so strongly by political and economic interests,
that sacred sites located on federal lands have not fared well. I do not
believe that the language of NAFERA will help in the long run. After all
is said and done, NAFERA STILL leaves it all up to the federal
government/courts to decide whether state interest is compelling enough to
rule against the tribes. If a tribes does not suggest a less intrusive
means of state action, it appears that the state can then appeal to the
court that it has overriding compelling interest. And Title 5 really does
not clamp down on this "loophole" as I had hoped. I have spoken with
other legal professionals who agree that NAFERA just isn't "toothy"
enough, but that it is a STEP in the right direction.---
>1. AIRFA did not expressly permit Indian tribes or members whose religious
>freedom had been burdened by governmental action to sue directly, while
>NAERA does contain a private cause of action.
---True, but again, with the way it appears that the courts are
interpreting the First Amendment in relation to Indian claims, I will be
watching to see the results in any of these types of cases. I think a
real important oversight in ALL of the talk about Indian religious freedom
is the fact that the constitution was originally written WITHOUT Indian
people in mind. If Indian people ACCEPT citizenship in the U.S. under the
Constitution, and therefore ignore their right to sovereignty, the
constitution really does not offer them protection in these cases. This
is a very serious pitfall in any legislation regarding Indian religious
rights, don't you agree?---
>2. AIRFA did not impose any legally enforceable special obligations on federal
>or state officials to protect Indian religious freedom, while NAFERA does!
---But the "special obligations" are only to "consult" and "evaluate."
NAFERA doesn't say flat out DO NOT DISTURB *ANY* SITE if Indian people prove
imposition on their practices. The government can USE NAFERA to get just
what they want. All they have to do is follow the necessary obligations in
NAFERA, which are not stringent and precisely laid out enough, and they can
say they've met NAFERA's provisions. Again, NAFERA is still not "toothy"
enough.---
>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.
---Would you please explain WHERE these "special statutory burdens" are in
NAFERA?---
>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.
---But it seems that even under strict scrutiny the courts now will have
NAFERA guidlines saying that they only have to meet the "consultation" and
"evaluation" demands even if the tribe strongly objects to state action
and does not provide a less intrusive means. I don't see how the REAL
problems with manipulation of compelling state interest will be remedies
in NAFERA.---
>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.
---Yes, I was quite impressed with these stipulations. Here is one area
that I hope NAFERA will be adhered to!---
>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,
---Did you leave something out here?---
>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.
---I agree that NAFERA is completely constitutional; I am only concerned
that it still does not go quite far enough to protect against standard of
review that is designed for entirely different sets of values. The U.S.
government has only recently recognized Indian people as citizens, which I
actually feel to be counterproductive for us. We have been
forced/assimilated into thinking that the U.S. Constitution will provide
equal protection for us- it does not. My opinion is that we should ALL,
ALL TRIBES (recognized or not), should be focusing on the issue of
sovereignty to provide us with the necessary protection we deserve.
Perhaps International law will afford us more fair treatment? I'm going
to look into that...
>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.
---Mr. Clinton, I see your point here, but what does you conclusion have
to do with me ORIGINAL questions of court's interpretation of NAFERA? I
disagree that my "fear is misguided" since I have heard grave doubts in
the minds of some of your peers.---
Hi ye, respectfully,
Kim Wakinyan Chikala (Lakota Nation/ Oglala)
>******************************************************************************
>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
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